                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 11-1224

                       JOSE OVIDIO DIAZ RUANO,

                               Petitioner,

                                     v.

              ERIC H. HOLDER, JR., Attorney General,

                               Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                                  Before

                       Lynch, Chief Judge,
                Boudin and Lipez, Circuit Judges.



     Robert M. Warren on brief for petitioner.
     Anthony P. Nicastro, Senior Litigation Counsel, Civil
Division, Department of Justice, Tony West, Assistant Attorney
General, Civil Division, and Ernesto H. Molina, Jr., Assistant
Director, on brief for respondent.



                           February 3, 2012
            LYNCH, Chief Judge. Jose Ovidio Diaz Ruano petitions for

review of a January 31, 2011, decision by the Board of Immigration

Appeals (BIA), which affirmed the decision of an Immigration Judge

(IJ)    denying   his   application   for    withholding   of   removal   and

protection from removal under the Convention Against Torture (CAT).

            Diaz Ruano is a native and citizen of Guatemala who

unlawfully entered the United States in April 1999.              On June 9,

2006,    the    Department   of   Homeland    Security     started   removal

proceedings by filing a Notice to Appear with the immigration

court, charging Diaz Ruano with removability as an alien present in

the United States without being admitted or paroled.            See 8 U.S.C.

§ 1182(a)(6)(A)(i). Diaz Ruano admitted the factual allegations in

the Notice to Appear, conceded removability, and requested relief

from removal in the form of withholding of removal and protection

under the CAT.     In the alternative, Diaz Ruano requested voluntary

departure.

            Diaz Ruano's merits hearing was held before the IJ on

October 30, 2008.       Diaz Ruano testified that in 1998 when he was

still in Guatemala, members of a gang threatened him and attempted

to beat him up.     He did not know or recognize the gang members and

did not know why they threatened to beat him.        He did not go to the

police because he did not believe the police would do anything to

help him.      This was Diaz Ruano's only encounter with the gangs.

Neither Diaz Ruano's family nor his friends had been harassed by


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the gangs, but he testified that "[f]riends of [his] friends" had

been harassed.     He also testified that his family, which is still

in Guatemala, told him that gang members had accosted the driver of

a van and asked him for money, then killed him when he refused.

            Diaz   Ruano   testified      that   he   feared   returning    to

Guatemala because the gangs would think that he would have money on

him and would ask him for it and threaten to kidnap a family member

if he did not give them the money, or they would ask him to join

them.   When questioned by the IJ as to whether he feared torture if

he went back to Guatemala, Diaz Ruano stated that he did not know.

            The IJ found that Diaz Ruano's testimony was credible.

The IJ also found that Diaz Ruano had not met his burden of showing

that it was more likely than not that he would be subjected to

persecution on account of his membership in any of the three

purported   social   groups   he   asserted:     young   men   targeted    for

recruitment by the criminal gangs in Guatemala; individuals opposed

to the criminal gangs in Guatemala; and persons of perceived wealth

returning from the United States.

            The IJ concluded that none of the social groups asserted

by Diaz Ruano have the particular characteristics of a social group

as defined by the statutes, regulations, and case law and denied

his application for withholding of removal. The IJ also found that

Diaz Ruano had not met his burden of showing that there is a clear

probability that he would be subjected to torture by any group if


                                    -3-
he was returned to Guatemala, and so rejected his claim for

protection under the CAT.       The IJ granted Diaz Ruano voluntary

departure.

           Diaz Ruano appealed the IJ's decision, and the BIA,

finding no error, dismissed the appeal.       The BIA agreed with the IJ

that the social groups Diaz Ruano identified lack the visibility

and particularity required for a recognized social group.       The BIA

also explained that Diaz Ruano had not established past persecution

or a clear probability of persecution if he was returned to

Guatemala.      Finally, the BIA concluded that Diaz Ruano had not

demonstrated that it was likely that he would be tortured by, or

with the acquiescence of, the Guatemalan authorities; so he was not

eligible for relief under the CAT.

           On March 2, 2011, Diaz Ruano petitioned this court for

review of the BIA's decision and unsuccessfully moved to stay

removal.

           We review both the BIA's and the IJ's opinions when, as

here, the BIA adopts and affirms part of the IJ's ruling and

further justifies the IJ's conclusions.        Nako v. Holder, 611 F.3d

45, 48 (1st Cir. 2010).

           We     decide   petitions    for    review   based   on   the

administrative record that is the basis of the agency's findings,

8 U.S.C. § 1252(b)(4)(A), and the "the administrative findings of

fact are conclusive unless any reasonable adjudicator would be


                                  -4-
compelled to conclude to the contrary," id. § 1252(b)(4)(B).                We

accept the    agency's   findings   of    fact   "that    are   supported   by

substantial evidence on the record as a whole."           Morgan v. Holder,

634 F.3d 53, 57 (1st Cir. 2011).         The agency's conclusions of law

we review de novo, "but with some deference to the agency's founded

interpretation of statutes and regulations that it administers."

McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011).

          Withholding of removal protects an otherwise removable

alien from removal to a country where the alien's "life or freedom

would be threatened in that country because of the alien's race,

religion, nationality, membership in a particular social group, or

political opinion."      8 U.S.C. § 1231(b)(3)(A).              The BIA has

described the term "particular social group" as a group of persons

sharing a common, immutable characteristic that makes the group

socially visible and sufficiently particular, In re C-A-, 23 I. &

N. Dec. 951, 959-60 (B.I.A. 2006); see also Faye v. Holder, 580

F.3d 37, 41 (1st Cir. 2009), a delineation that we have upheld as

reasonable, see Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.

2011).

          Diaz Ruano bears the burden of showing that it is more

likely than not that he will suffer persecution on account of one

of the five protected grounds if removed to Guatemala.             Makalo v.

Holder, 612 F.3d 93, 96 (1st Cir. 2010).                 A showing of past

persecution    creates   a   rebuttable       presumption       that   future


                                    -5-
persecution is likely.        Viela v. Holder, 620 F.3d 25, 28 (1st Cir.

2010).   In addition, under the REAL ID Act of 2005, the applicant

bears the burden of showing that one of the five protected grounds

was or   will   be at       least   one    central   reason for   his   or   her

persecution.1         8    U.S.C.    §    1158(b)(1)(B)(i);     see   also   id.

§ 1231(b)(3)(C).

          Substantial evidence supports the agency's determination

that Diaz Ruano failed to show that it is more likely than not

that, if removed to Guatemala, he would suffer persecution on

account of his membership in a particular social group.                      Our

precedents foreclose Diaz Ruano's claims that he will be subjected

to persecution on account of his membership in the groups of young

males targeted by the criminal gangs in Guatemala for recruitment

or because of opposition to gangs and in the group of persons of

perceived wealth returning from the United States.

          In Larios v. Holder, 608 F.3d 105 (1st Cir. 2010), we

held that the putative social group of youth resistant to gang

recruitment     "is       neither    socially   visible   nor     sufficiently

particular."    Id. at 109.         Diaz Ruano's purported social group of

"young males targeted by the criminal gangs in Guatemala" is




     1
        The REAL ID Act of 2005 is applicable to Diaz Ruano because
he submitted his application for withholding of removal after the
May 11, 2005, effective date of the Act. See 8 U.S.C. § 1158 note
(Effective Date of 2005 Amendment); Díaz-García v. Holder, 609 F.3d
21, 27 (1st Cir. 2010).

                                          -6-
similarly insufficiently particular, and it was reasonable for the

IJ and the BIA to reject it.

          We have also repeatedly rejected the purported social

group of "persons of perceived wealth returning to Guatemala from

the United States."   See Garcia-Callejas v. Holder, No. 11-1084,

2012 WL 178381, slip op. at 4 (1st Cir. Jan. 24, 2012) (per curiam)

("We have . . . rejected social groups based solely on perceived

wealth, even if signaling an increased vulnerability to crime.").

In López-Castro v. Holder, 577 F.3d 49 (1st Cir. 2009), we held

that the petitioner's claim "that he would be exposed to an

increased risk of future attacks by gang members in Guatemala

because he will be perceived as wealthy . . . fails to establish an

objectively reasonable basis for a fear of future persecution

premised on a statutorily protected ground."   Id. at 54; see also

Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011).   Diaz Ruano

has failed to meet his burden of demonstrating eligibility for

withholding of removal.

          Substantial evidence also supports the agency's finding

that Diaz Ruano failed to establish that it is more likely than not

that he would be subject to torture upon his return to Guatemala

and so failed to meet his burden for relief under the CAT.   See 8

C.F.R. § 1208.16(c)(2) ("The burden of proof is on the applicant

for withholding of removal [under the CAT] to establish that it is

more likely than not that he or she would be tortured if removed to


                               -7-
the proposed country of removal.").   During Diaz Ruano's merits

hearing, the IJ asked Diaz Ruano if he feared torture if he was

returned to Guatemala, and Diaz Ruano responded that he did not

know.   As both the IJ and BIA found, Diaz Ruano did not meet his

burden for withholding of removal under the CAT.

          Accordingly, we deny Diaz Ruano's petition for review.




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