Juan Ramirez-Munoz v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN CARLOS RAMIREZ-MUNOZ and No. 12-70870

MARIA BEATRIZ ADRIANA FRANCIA-

ALVAREZ, Agency Nos.

Petitioners, A075-759-498

A075-759-499

v.

LORETTA E. LYNCH, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted January 22, 2016*

San Francisco, California

Filed March 21, 2016

Before: J. Clifford Wallace, Barry G. Silverman,

and Morgan B. Christen, Circuit Judges.

Opinion by Judge Wallace

*

At the request of the parties, we removed this case from our argument

calendar on September 28, 2015. We were advised by the parties that the

case could be calendared on November 6, 2015. The panel unanimously

concludes this case is suitable for decision without oral argument. See

Fed. R. App. P. 34(a)(2).

2 RAMIREZ-MUNOZ V. LYNCH

SUMMARY**

Immigration

The panel denied a petition for review of the Board of

Immigration Appeals’ order denying an untimely and

numerically barred motion to reopen removal proceedings in

a case in which Mexican citizens asserted a fear of

persecution based on their membership in a social group

comprised of “imputed wealthy Americans.”

The panel held that the Board did not abuse its discretion

in denying the motion because petitioners failed to establish

prima facie eligibility for asylum or withholding of removal

relief or changed country conditions to warrant an exception

to the time and number limitations on their motion.

The panel held that petitioners’ proposed social group is

not cognizable because it lacks particularity or a discrete class

of persons recognized by Mexican society as a particular

social group.

The panel concluded that petitioners failed to establish

changed country conditions in Mexico because the evidence

does not point to either actual or imputed wealthy Americans

as the targeted class of victims of increased violence.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

RAMIREZ-MUNOZ V. LYNCH 3

COUNSEL

Kari E. Hong, Law Offices of Kari E. Hong, Oakland,

California, for Petitioners.

Stuart F. Delery, Acting Assistant Attorney General, Richard

M. Evans, Assistant Director, Andrew Oliveira, Trial

Attorney, United States Department of Justice, Office of

Immigration Litigation, Washington, D.C., for Respondents.

OPINION

WALLACE, Circuit Judge:

Petitioners Juan Carlos Ramirez-Munoz and Maria

Beatriz Adriana Francia-Alvarez petition for review of the

Board of Immigration Appeals’ (Board) decision to deny the

motion to reopen their applications for asylum, withholding

of removal, and deferral of removal under the Convention

Against Torture (CAT).

I.

Petitioners are a married couple and are both natives and

citizens of Mexico. Ramirez-Munoz last entered the United

States without a visa in 1999, and Francia-Alvarez last

entered without inspection in 1990. Petitioners have two

biological United States citizen children and one “informally

adopted” United States citizen child. The Board correctly

held that an informally adopted child is not considered a

“child” under the Immigration and Nationality Act, and thus

is not proper for consideration in removal proceedings.

8 U.S.C. § 1101(b)(1).

4 RAMIREZ-MUNOZ V. LYNCH

Petitioners seek asylum, withholding of removal, and

relief under the CAT based on a claim that they are members

of a particular social group, “imputed wealthy Americans,”

and will be persecuted and tortured if removed to Mexico due

to membership in the social group. The IJ denied their

application in 2003. The Board found petitioners removable

and denied their fourth motion to reopen on March 2, 2012,

on the grounds that Petitioners’ motion was time and number-

barred because they failed to demonstrate prima facie

eligibility for asylum based on changed country conditions.

Petitioners argue that the Board did not consider their

proposed particular social group, “imputed wealthy

Americans,” as a group distinct from the proposed group

rejected in Delgado-Ortiz v. Holder, 600 F.3d 1148, 1153

(9th Cir. 2010). They contend that because they are light-

skinned, fit, and have American mannerisms or accents, their

family will be perceived as wealthy Americans in Mexico,

and thus will become targets for kidnaping or torture.

Petitioners assert that they are not actually wealthy, but the

appearance of wealth will endanger them. Petitioners also

introduced evidence of changed country conditions in

Mexico, indicating a recent increase in violence in Mexico,

in an attempt to overcome the time and number bar to their

motion to reopen.

II.

We review the Board’s denial of a motion to reopen for

abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th

Cir. 2008). A motion to reopen will not be granted unless the

respondent establishes a prima facie case of eligibility for the

underlying relief sought. See Ordonez v. INS, 345 F.3d 777,

785 (9th Cir. 2003).

RAMIREZ-MUNOZ V. LYNCH 5

Prima facie eligibility for asylum relief is met when an

alien demonstrates he is unwilling or unable to return to his

country of origin “because of persecution or a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42).

We have defined a particular social group as “one united

by a voluntary association, including a former association, or

by an innate characteristic that is so fundamental to the

identities or consciences of its members that members either

cannot or should not be required to change it.” Hernandez-

Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000),

overruled on other grounds by Thomas v. Gonzales, 409 F.3d

1177, 1187 (9th Cir. 2005) (en banc). Examining the criteria

for “particularity,” we more recently held that the critical

question is whether the group “would be recognized, in the

society in question, as a discrete class of persons.”

Henriquez-Rivas v. Holder, 707 F.3d 1089, 1091 (9th Cir.

2013) (en banc), quoting Matter of S-E-G-, 24 I. & N. Dec.

579, 584 (BIA 2008).

The Board relied on our decision in Delgado-Ortiz, which

discredited the proposed social group “Mexicans returning

home from United States” as overly broad and therefore

insufficient to merit asylum protection. 600 F.3d at 1150.

Petitioners argue that the Board ignored the distinction

between Delgado-Ortiz and its own “discrete” proposed

group where the Board found that they are not “members of

a particular social group that will be targeted for violent

crime due to their long-term residence in the United States

and the acquisition of American mannerisms and accents.”

6 RAMIREZ-MUNOZ V. LYNCH

Delgado-Ortiz did not expound on the reasons for which

Mexicans returning home from the United States might be

targets of violent crime, although the anecdotal evidence

described in that case points to the persecutors’ likely

motivation as monetary gain, where victims were robbed and

burglarized upon return to Mexico. Id. at 1151. The

distinction appears to be a matter of semantics in this case.

Perceived wealth due to American appearance was not

explicitly at issue in Delgado-Ortiz, and Petitioners now seek

to distinguish a particular social group that is a discrete subset

of Mexicans returning home from the United States: those

who have the physical appearance and mannerisms of

Americans. Yet, petitioners provide insufficient evidence to

support their claim that their alleged American appearance

will make them targets for violent crimes upon return to

Mexico any more than the populace at large. The evidence

submitted in support of changed circumstances includes both

American and Mexican victims of financial means, and the

other evidence in the form of news reports does not mention

wealth as the perpetrators’ primary motive. Rather, the

evidence shows a generalized increase in violence in Mexico,

as held by the Board.

We agree with the Board’s determination in this case that

Petitioners have not established that they are part of a

narrowly defined or cognizable particular social group, and

we hold that the proposed group of “imputed wealthy

Americans” is not a discrete class of persons recognized by

society as a particular social group. Henriquez-Rivas,

707 F.3d at 1091. Nor is the proposed group sufficiently

particular that it can be described with passable distinction

that the group would be recognized as a discrete class of

persons. Id. at 1090. Starting from Delgado-Ortiz’s holding

that “Mexicans returning home from the United States” was

RAMIREZ-MUNOZ V. LYNCH 7

overly broad, we conclude that petitioners have not supported

their proposed social group of those returning home who

appear to be American with evidence that supports a

favorable determination under the various factors we consider

in determining whether a proposed group is narrowly tailored.

As we outlined recently en banc, such factors include, among

others, social visibility – a group’s “perception by a society”

– and particularity – the ability to describe a group “in a

manner sufficiently distinct that the group would be

recognized, in the society in question, as a discrete class of

persons.” Id. at 1089–91. As to particularity, which is a key

factor in Petitioners’ argument to distinguish their proposed

group, although it is possible that the perception of the

persecutors “may matter most” in determining particularity of

a group, “[i]f a persecutor does not actually rely on specific

boundaries or definitions to identify the group, it may be

more difficult to believe that a collection of individuals is in

fact perceived as a group.” Id. at 1091.

III.

Petitioners’ evidence of changed country conditions does

not point to either actual or imputed wealthy Americans as

the targeted class of victims of increased violence. To

establish changed country conditions, petitioners must

demonstrate that “circumstances have changed sufficiently

that a petitioner who previously did not have a legitimate

claim for asylum now has a well-founded fear of future

persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.

2004). The evidence submitted by petitioners points to

troubling accounts of violence and kidnaping in Mexico, but

in the aggregate it does not specifically show that violent

individuals are targeting Americans or even wealthy

individuals. A Washington Post article Petitioners rely on

8 RAMIREZ-MUNOZ V. LYNCH

specifically discusses kidnappings where “well-to-do

Mexican families” are also targeted. The same article states

that Mexican gangs “prey mostly on Mexicans or other Latin

Americans” because the Federal Bureau of Investigation may

get involved if a United States citizen is kidnapped. In short,

petitioners did not meet their burden of showing that persons

appearing to be American have been, or will be, presumed

wealthy and targeted as a result. We agree with the Board

that although violent crimes appear to have increased since

the prior motion to reopen, the evidence does not constitute

changed circumstances such that any potential harm would be

attributed to a statutorily-protected ground.

IV.

A petitioner who fails to satisfy the lower standard of

proof for asylum necessarily fails to satisfy the more

stringent standard for withholding of removal. Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). With regard to

the CAT claim, Petitioners must establish it is more likely

than not they would be tortured if removed to Mexico. Where

Petitioners have not shown they are any more likely to be

victims of violence and crimes than the populace as a whole

in Mexico, they have failed to carry their burden. Delgado-

Ortiz, 600 F.3d at 1152.

Because the petitioners have not shown that the Board

abused its discretion, the petition for review is DENIED.