               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0224n.06

                                          No. 14-4265

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Apr 25, 2016
ROBERTO ALFREDO GOMEZ-CASTILLO,                       )                    DEBORAH S. HUNT, Clerk
                                                      )
       Petitioner,                                    )
                                                      )   ON PETITION FOR REVIEW
v.                                                    )   FROM THE UNITED STATES
                                                      )   BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney                       )   APPEALS
General,                                              )
                                                      )
       Respondent.                                    )


       BEFORE: GUY, BOGGS, and COOK, Circuit Judges.

       PER CURIAM.        Roberto Alfredo Gomez-Castillo, a citizen of Guatemala, petitions

through counsel for review of an order of the Board of Immigration Appeals (BIA) dismissing

his appeal from an order of an immigration judge (IJ) that denied his application for withholding

of removal and protection under the Convention Against Torture (CAT).

       Gomez-Castillo was born in Guatemala in 1988. He entered the United States from

Mexico without inspection in September 2008. When placed in removal proceedings, he applied

for withholding of removal and protection under the CAT, claiming that he feared persecution or

torture if he returned to Guatemala on the basis of his political opinion and membership in a

social group, both of which he defined as those “who oppose government corruption and

violence.”

       Gomez-Castillo testified that the mayor of his town had nearly run him down when he

was walking on the sidewalk and the mayor was driving drunk. He acknowledged that he did not
No. 14-4265, Gomez-Castillo v. Lynch

know why the mayor had tried to hit him with his car, noting that he had never expressed any

political opinion prior to that time. When the IJ pointed out that Gomez-Castillo had not

mentioned this incident in his application for relief, Gomez-Castillo explained that he had a lot

on his mind at the time he filled out the application. He also testified that about a month after

that incident, at a dance, the mayor had again been drinking and apparently objected to Gomez-

Castillo dancing with a woman. The mayor hit Gomez-Castillo in the head with his gun,

drawing blood, and ordered him to leave. Afterwards, someone acting on the mayor’s behalf

offered Gomez-Castillo a bribe to keep quiet about the incident. Gomez-Castillo’s testimony

varied between stating that he accepted the bribe and that he refused it. He apparently filed

several complaints about the incident, but no investigation followed because of the mayor’s

connections. Thereafter, others threatened Gomez-Castillo to induce him to leave town, and he

filed complaints about these threats as well. He could not recount the number of such threats he

received, at one point testifying there were as few as three, and varying up to one hundred. He

admitted that, although he omitted this information from his application, he had moved to

another town about a month after the dance incident and thereafter received no more threats.

       The IJ found that Gomez-Castillo’s testimony lacked credibility and further held that,

even if his testimony were believed, he did not qualify for the relief requested. Gomez-Castillo’s

appeal to the BIA was dismissed by a single member of the Board on the same ground.

       In his brief before this court, Gomez-Castillo raises a number of procedural questions and

reasserts the merits of his claims. In a previous order, we granted Gomez-Castillo’s motion to

proceed in forma pauperis and denied his motion for a stay of removal.

       Where there is a separate BIA decision, we review both it and any reasoning of the IJ that

is adopted by the BIA. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).



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       Gomez-Castillo first argues that we are required to assume that his testimony was

credible because the BIA stated that his claims failed even if his testimony was assumed to be

credible. However, the fact that the case can be resolved without addressing the issue of

credibility does not require us to accept Gomez-Castillo’s testimony as credible.

       Next, Gomez-Castillo argues that we have jurisdiction to review the decision below to

decide his appeal by a single member of the BIA, rather than by a three-judge panel. This circuit

has not decided this issue. Other circuits have concluded that there is no jurisdiction to review

the decision to use a single judge rather than a panel of three judges. Cantu-Delgadillo v.

Holder, 584 F.3d 682, 690–91 (5th Cir. 2009) (per curiam); Kambolli v. Gonzales, 449 F.3d 454,

461–65 (2d Cir. 2006) (per curiam). The Third Circuit, however, has concluded that there is

jurisdiction to review the similar issue of whether the BIA must issue a written decision or may

affirm the IJ without opinion. Smriko v. Ashcroft, 387 F.3d 279, 290–95 (3d Cir. 2004). In

Vasha v. Gonzales, 410 F.3d 863, 875–76 (6th Cir. 2005), we assumed that we had jurisdiction to

review the decision on panel size but did not decide the issue because we found no prejudice to

the petitioner. Again, there is no reason to decide the issue in this case, because Gomez-

Castillo’s underlying argument that he was denied due process by the use of a single judge rather

than a panel to decide his appeal is without merit.

       Gomez-Castillo argues that he was denied due process because a single judge could not

overturn an IJ’s clearly erroneous findings of fact. But as we recently explained, if the single

judge “had uncovered troublesome factual errors,” he or she “would not have been required

nonetheless to affirm.” Amezola-Garcia v. Lynch, No. 15-3328, 2016 WL 1399347, at *4 (6th

Cir. Apr. 11, 2016). On the contrary, 8 C.F.R. § 1003.1(e)(3) allowed the single judge to send

Gomez-Castillo’s case to a three-member panel for further review. The judge’s decision not to

do so in this case “merely reflects the fact that the BIA concluded that his claimed factual errors

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did not warrant reversal.” Amezola-Garcia, 2016 WL 1399347, at *4. Since Gomez-Castillo has

provided no basis for concluding that the outcome of his appeal would have been different if it

had been decided by a three-judge panel, there is no due-process issue. Graham v. Mukasey,

519 F.3d 546, 549–50 (6th Cir. 2008).

       In his final procedural challenge, Gomez-Castillo contends that a remand to the IJ is

required in order for the IJ to decide whether Gomez-Castillo is a member of a social group

under new precedent from the BIA that defines a social group as one recognized by society

rather than by the alleged persecutor. A remand is unnecessary because Gomez-Castillo cannot

show that his proposed social group, those “who oppose government corruption and violence,” is

sufficiently particular to be perceived as a group in society. See Umaña-Ramos v. Holder,

724 F.3d 667, 673–74 (6th Cir. 2013).

       On the merits of the claims, Gomez-Castillo was required to demonstrate a clear

probability of future persecution in order to qualify for withholding of removal. Liti v. Gonzales,

411 F.3d 631, 640–41 (6th Cir. 2005). The denial of an application for withholding will be

upheld unless it is manifestly contrary to law. Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th

Cir. 2006). Gomez-Castillo did not establish past persecution in this case, because random

criminal acts, such as the mayor’s efforts to run him over and hit him in the head with a gun, not

based on any protected ground, are not persecution. See Lumaj v. Gonzales, 462 F.3d 574, 577–

78 (6th Cir. 2006). Personal disputes are not a basis for withholding. Zoarab v. Mukasey,

524 F.3d 777, 781 (6th Cir. 2008). And Gomez-Castillo did not show that future persecution

was probable because he admitted that the threats against him ceased when he moved to a nearby

town. Therefore, there was no need for him to leave Guatemala to protect himself from being

threatened.



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       In order to be eligible for protection under the CAT, Gomez-Castillo had to show that it

is more likely than not that he will be tortured with the acquiescence of the Guatemalan

government. See Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001). This requires showing more

than the government’s inability to control private parties. Id. at 597–98. Gomez-Castillo points

to no evidence in the record that compels such a finding.

       Accordingly, the petition for review is DENIED.




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