Augustine Chan-Poroj v. Garland
| Docket Number | 22-3885 |
| Decision Date | 07 June 2023 |
| Parties | AUGUSTINE CHAN-POROJ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS
Before: BOGGS, GIBBONS, and McKEAGUE, Circuit Judges.
Petitioner Augustine Chan-Poroj, a native and citizen of Guatemala seeks review of a Board of Immigration Appeals (BIA) decision affirming the denial of his applications for withholding of removal and protection under the Convention Against Torture (CAT).[1] For the reasons stated below, we deny the petition for review.
Chan-Poroj entered the United States without admission or parole on May 18, 2004. In 2011, the Department of Homeland Security initiated removal proceedings, charging Chan-Poroj with removability under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA). With the assistance of counsel Chan-Poroj admitted to the allegations in the Notice to Appear and conceded his removability. Thereafter, Chan-Poroj applied for withholding of removal and CAT relief. See 11 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1208.16. He sought protection based on his membership in a social group defined as "people that are returning to Guatemala after living many years in the United States." AR 178. According to Chan-Poroj, members of this group are targeted in Guatemala for kidnapping and extortion due to their perceived wealth.
On December 19, 2018, Chan-Poroj appeared before an immigration judge (IJ). He testified that he feared returning to Guatemala because he believed that gangs would kidnap and torture him. Specifically, Chan-Poroj claimed that he had been chased by gang members twice, roughly fifteen years earlier. He also testified that he had been threatened by gang members on three separate occasions, each involving demands for money. Chan-Poroj testified that during the third and final incident, gang members beat him and threatened to kidnap his family. According to Chan-Poroj, he reported these incidents to the Guatemalan police, but the police indicated that they lacked sufficient evidence to further investigate the matter.
Chan-Poroj testified that he is married with four children, all of whom still live in Guatemala. Although Chan-Poroj's family has not been directly harmed by the gangs, Chan-Poroj testified that his wife was called and threatened by members of a gang in 2011. According to Chan-Poroj, the gang members told his wife that, if she did not give them money, they would kidnap her children. When the gang members later arrived at Chan-Poroj's house, Chan-Poroj's wife hid their children to prevent any harm. Chan-Poroj claims that these incidents were also reported to the police, but that the officers indicated they were unable to do anything without more evidence of the phone call.
Given this background, Chan-Poroj claimed that he is afraid to return to Guatemala, where he fears being kidnapped and tortured by gang members who will assume he has returned from the United States with money. He also testified that the Guatemalan police are corrupt and will not protect him. Finally, he claimed that he would not be able to relocate to a different area in Guatemala because gangs are "everywhere." AR 149.
At the conclusion of the hearing, the IJ denied Chan-Poroj's applications for withholding of removal and CAT protection and ordered Chan-Poroj removed to Guatemala. Although the IJ found Chan-Poroj's testimony credible, the IJ concluded that Chan-Poroj failed to provide documentation to corroborate his claimed social group or to support his accusations against the local police force in his hometown. The IJ further found that Chan-Poroj failed to establish past persecution. Although Chan-Poroj had been threatened by gangs and beaten on one occasion, he was never seriously injured, and the threats made against him were made only in an attempt to obtain money. Additionally, the IJ concluded that Chan-Poroj's claim failed to establish a nexus to a protected ground. Relying on Sanchez-Robles v. Lynch, 808 F.3d 688 (6th Cir. 2015), the IJ found that Chan-Poroj's proposed social group-"people that are returning to Guatemala after living many years in the United States"-was not cognizable because it was neither particular nor socially distinct.
The IJ further found that Chan-Poroj could reasonably relocate within Guatemala. Although Chan-Poroj alleged that gangs were everywhere, he failed to identify any specific threat from those that would endanger him in other areas of the country. Next, the IJ concluded that Chan-Poroj failed to establish that the Guatemalan government is unable or unwilling to assist him. As Chan-Poroj's own testimony confirmed, law enforcement had not refused to assist him, but had instead merely lacked sufficient evidence to further investigate or prosecute the alleged perpetrators. The IJ also noted that the Guatemalan government had undertaken efforts to combat gang activity. On these bases, the IJ denied Chan-Poroj's application for withholding of removal.
The IJ also denied Chan-Poroj's claim for protection under the CAT, finding that Chan-Poroj failed to establish that he would more likely than not be tortured by or with the acquiescence of public officials in Guatemala. Accordingly, the IJ ordered Chan-Poroj removed to Guatemala.
Chan-Poroj appealed to the BIA, which affirmed the IJ's order of removal. Specifically, the BIA affirmed the IJ's findings that Chan-Poroj's proposed social grouped lacked the required social distinction, that Chan-Poroj failed to establish that the Guatemalan government is unable or unwilling to assist him, and that Chan-Poroj failed to demonstrate that it is more likely than not that he will be tortured by or with the acquiescence of public officials.
The BIA also rejected Chan-Poroj's claim that the IJ's decision violated his due-process rights. The BIA found that Chan-Poroj failed to identify any specific factors that the IJ neglected to consider or any alleged defects that resulted in prejudice. Accordingly, the BIA dismissed Chan-Poroj's appeal. Chan-Poroj then brought this timely petition for review.
"Where the BIA reviews the immigration judge's decision and issues a separate opinion, rather than summarily affirming the immigration judge's decision, we review the BIA's decision as the final agency determination." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). However, we also review the IJ's decision to the extent the BIA adopts its reasoning. Guzman-Vazquez v Barr, 959 F.3d 253, 259 (6th Cir. 2020) (citation omitted).
We evaluate factual findings using the substantial-evidence standard. Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). Under this highly deferential review, we accept an agency's findings of fact if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Guzman-Vazquez, 959 F.3d at 259 (citations omitted). Such findings are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Khalili, 557 F.3d at 435 (citation omitted). We review questions of law de novo, but we give "substantial deference to the BIA's interpretation of the INA and accompanying regulations." Morgan, 507 F.3d at 1057.
To establish entitlement to withholding of removal, an applicant must show that there is a "clear probability" that he will be persecuted if forced to return to his country, and that the persecution would be "on account of race, religion, nationality, membership in a particular social group, or political opinion." Umana-Ramos v. Holder, 724 F.3d 667, 674 (6th Cir. 2013); 8 U.S.C. § 1231(b)(3)(A). Importantly, "[t]he 'clear probability' standard asks more of the applicant than the 'reasonable possibility' standard for obtaining asylum." Pablo-Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010). Thus, in order to qualify for relief, Chan-Poroj must demonstrate that he will "more likely than not" be persecuted in Guatemala "on account of" his "membership in a particular social group." 8 C.F.R. § 1208.16(b). Whether a particular social group is cognizable under the INA is a question of law which we review de novo. Sanchez-Robles, 808 F.3d at 691.
In Bonilla-Morales v. Holder, we held that "[a]n alleged social group must be both particular and socially visible." 607 F.3d 1132, 1137 (6th Cir. 2010). And in Umana-Ramos, we defined "social visibility" as "the social salience of the group in a society, or in other words, whether the set of individuals with the shared characteristic would be perceived as a group by society." 724 F.3d at 672. Here, both the BIA and the IJ (collectively the "agency") found that Chan-Poroj's claimed particular social group-"people that are returning to Guatemala after living many years in the United States"-lacked the requisite social distinction. Specifically, the agency concluded that Guatemalan citizens would not perceive those returning to Guatemala after living many years in the United States as a group set apart from the rest of society. In response, Chan-Poroj argues that members of his proposed social group are socially distinct and "noticeable" due to "their inability to successfully integrate back into Guatemalan society." Pet'r's Br. at 21. But there is simply no evidence in the record to support this explanation.
Additionally we find that the agency properly relied on Sanchez-Robles to reject Chan-Poroj's claimed social group. In that case, we held that the petitioner's proposed social group- "persons who are perceived to have...
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