          United States Court of Appeals
                      For the First Circuit


No. 18-2114

                   PEDRO ANTONIO RAMÍREZ-PÉREZ,

                           Petitioner,

                                v.

                         WILLIAM P. BARR,
              ATTORNEY GENERAL OF THE UNITED STATES,

                           Respondent.


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


                              Before

                      Howard, Chief Judge,
              Torruella and Selya, Circuit Judges.


     Rachel L. Rado and The Law Office of Rachel L. Rado, LLC on
brief for petitioner.
     Juria L. Jones, Trial Attorney, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, Joseph H. Hunt,
Assistant Attorney General, Civil Division, and Jessica E. Burns,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.


                         August 13, 2019
           TORRUELLA, Circuit Judge.          Pedro Antonio Ramírez-Pérez

("Ramírez") seeks review of a Board of Immigration Appeals ("BIA")

order affirming the Immigration Judge's ("IJ") denial of his

applications for asylum, withholding of removal, and protection

under the Convention Against Torture ("CAT").             We deny Ramírez's

petition for review.

                                   I.

           The   following    facts     are     derived    from    Ramírez's

immigration court testimony, which the IJ found credible.

           Ramírez was born in Guatemala on June 29, 1994.           There,

he worked at a rice factory and through this job earned a higher

wage than many in his community.      In 2014, Ramírez began an eight-

month relationship with a woman named Delmy Rodríguez.              Ramírez

ended   this   relationship   after   learning     that    Delmy   was   also

romantically involved with a member of the Barrio 18 gang.          Ramírez

left Guatemala and entered the United States in May 2015, fearing

for his life after three encounters with presumed Barrio 18 gang

members in the preceding months.        According to Ramírez, the gang

members decided to assail him after "[t]hey realized [he] was

making a lot of money where [he] was working."

           Ramírez's first encounter with gang members occurred

early in February 2015, when four armed and masked gang members

approached him and demanded his money.          The second incident came


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just a week later as Ramírez was returning home from work.      This

time, two men confronted Ramírez and again demanded his money.     A

physical altercation took place during this second encounter, but

according to Ramírez his assailants did not "hurt [him] roughly."

The third and final incident occurred around April or May 2015.

Gang members again approached Ramírez and told him that they would

make him disappear if he did not disappear on his own.           The

assailants also told Ramírez not to get involved with their women

-- a remark Ramírez interpreted as a reference to his relationship

with Delmy.    Ramírez did not report any of these incidents to the

police.

            Ramírez entered the United States without inspection on

May 17, 2015 and applied for asylum the following month.          He

appeared before an IJ on October 11, 2017.    Ramírez testified that

he feared returning to Guatemala because gang members would pursue

him to do harm since he "had previously dated a girl, Delmy . . .,

who at the same time started dating a member of the [Barrio 18]

gang."    Despite finding his testimony to be credible, the IJ denied

Ramírez's application for asylum, withholding of removal, and

protection under the CAT.       The IJ found that Ramírez's three

encounters with gang members did not amount to persecution and

that he did not belong to a cognizable "particular social group"




                                 -3-
for purposes of refugee status.          Ramírez then appealed to the BIA,

which dismissed his appeal on October 9, 2018.

                                     II.

             "When, as here, the BIA adopts and affirms . . . the

IJ's ruling and further justifies the IJ's conclusions, we review

both the BIA's and IJ'S opinions."            Nako v. Holder, 611 F.3d 45,

48 (1st Cir. 2010).        We review any legal conclusions de novo,

"with appropriate deference to the agency's interpretation of the

underlying     statute    in     accordance     with   administrative     law

principles."      Rivas-Durán v. Barr, 927 F.3d 26, 30 (1st Cir. 2019)

(quoting Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)).

"By contrast, we review factual findings under the deferential

'substantial evidence standard,' meaning that we will not disturb

such findings if they are 'supported by reasonable, substantial,

and probative evidence on the record considered as a whole.'"             Id.

(quoting Aguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st

Cir. 2017)).

                                      A.

             To obtain asylum, an applicant must establish that he

qualifies    as    a   refugee   under     section   101(a)(42)(A)   of   the

Immigration and Nationality Act ("INA").             8 U.S.C. § 1101, 1158.

A refugee is someone who is "unable or unwilling" to return to his

country of origin "because of persecution or a well-founded fear


                                     -4-
of    persecution      on   account   of      race,    religion,        nationality,

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

8 U.S.C. § 1101(a)(42)(A) (emphasis added).                     The question of

whether   a    proposed     classification      qualifies     as    a    "particular

social group" for asylum purposes is a question of law.                     8 C.F.R.

§ 1003.1(d)(3)(ii); see also Cantarero v. Holder, 734 F.3d 82, 84

(1st Cir. 2013).        Because Ramírez's "membership in a particular

social group is an indispensable element of [his] claim[], our

analysis begins and ends with it."             Rivas-Durán, 927 F.3d at 30.

                                        B.

              The centerpiece of Ramírez's argument is that he is

entitled to asylum because of his belonging to a "particular social

group" made up by "males who have had romantic involvement with

the partners of drug dealers."                This proposed social group is

somewhat different from the one that Ramírez presented to the

agency, which was "people who have been romantically involved with

the   partners    of    cartel   leaders      and     have   been   targeted      for

assassination     on    that   basis,    and    who    cannot      depend    on   the

Guatemalan police for help."            And it differs from the asserted

social group that was the focus of much of the briefing, as well

as of the agency's rulings: "individuals who were romantically

involved with a gang member's partner."




                                        -5-
           To be cognizable for purposes of asylum, a social group

must be: "(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question."           Rivas-Durán, 927 F.3d

at 30-31 (quoting Vega-Ayala v. Lynch, 833 F.3d 34, 39 (1st Cir.

2016)).   "An immutable characteristic is one that 'members of the

group either cannot change, or should not be required to change

because   it   is   fundamental   to    their   individual   identities    or

consciences.'"      Vega-Ayala, 833 F.3d at 39 (quoting Mayorga-Vidal

v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)).             The particularity

requirement, in turn, is met if the group is "'discrete and ha[s]

definable boundaries -- it must not be amorphous, overbroad,

diffuse or subjective.'"     Paiz-Morales v. Lynch, 795 F.3d 238, 244

(1st Cir. 2015) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227,

239 (BIA 2014)).     "Finally, social distinction refers to 'whether

those with a common immutable characteristic are set apart, or

distinct, from other persons within the society in some significant

way.'"    Rivas-Durán, 927 F.3d at 31 (quoting Matter of M-E-V-G-,

26 I. & N. at 238).     To meet this requirement, Ramírez's proposed

group must be perceived as such within Guatemalan society.                See

Pérez-Rabanales v. Sessions, 881 F.3d 61, 66 (1st Cir. 2018).

           Ramírez asserts that his proposed protected group of men

who have been romantically involved with the partners of drug


                                       -6-
dealers "has all the elements of a cognizable social group"

entitled to asylum protection, namely, "immutability of a past

experience,     social    visibility,         and   sufficient     particularity."

Ramírez explains that his belonging in the group is immutable

because "he cannot undo the fact that he was ever" in a romantic

relationship with Delmy, who was also involved with drug dealers.

But Ramírez fails to discuss how his proposed group fulfills the

"social     visibility"       and    "particularity"        requirements      to   be

cognizable for asylum.

              Despite Ramírez's unhelpful briefing on this issue,

"[w]e can pass over the [immutability] and [social distinction]

requirements, because even if the petitioner could show that he

shared an immutable characteristic with a socially distinct group,

he   failed    to    define   the     purported     group   with    the   requisite

particularity."        Paiz-Morales, 795 F.3d at 244.                 Almost each

component       of     Ramírez's        suggested        classification        lacks

particularity.       The group's definition sets no guidelines on what

extent of physical and/or emotional contact rises to the level of

"romantic involvement."         It also tells us nothing about what sort

of relationship makes someone the "partner" of a "cartel leader"

or of a "gang member."              Its reference to "cartel leaders" is

similarly     indefinite. 1         Thus,    Ramírez's   proposed     group    lacks


1    Our analysis here focuses on "cartel leaders" because, in his

                                            -7-
definable boundaries and "is by definition too amorphous and

overbroad to be particular."           Id.

             The BIA accordingly did not err in concluding -- like

the IJ had done before -- that Ramírez is ineligible for asylum

because he lacks membership in a cognizable "particular social

group."      Our resolution of this issue also disposes of Ramírez's

withholding of removal claim.           See id. at 245 ("A petitioner who

cannot clear the lower hurdle for asylum will necessarily fail to

meet the higher bar for withholding of removal.").

                                        C.

             Our   final   task   is    to    consider   whether        substantial

evidence in the record supports the BIA's finding that Ramírez is

not entitled to protection under the CAT.              We find that it does.

             To be granted deferral of removal under the CAT, the

burden is on the petitioner "to establish that it is more likely

than not that . . . he would be tortured if removed to the proposed

country of removal."       8 C.F.R. § 208.16(c)(2) (8 C.F.R. § 1208.16

(c)(2)).      Torture is "any act by which severe pain or suffering

. . .   is    intentionally   inflicted       on   a   person   .   .    .   at   the




proceedings before the agency, Ramírez only included "cartel
leaders" -- and not "drug dealers" -- within his proposed
particular social group. See Granada-Rubio v. Lynch, 814 F.3d 35,
39 (1st Cir. 2016) ("To the extent the social group proposed [on
judicial review] was not proposed to the BIA, it is unexhausted.").


                                        -8-
instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity."       8 C.F.R.

§§ 208.18 (a)(1) & (3) (8 C.F.R. §§ 1208.18 (a)(1) & (3)).           For

there to be government acquiescence, the "public official, prior

to the activity constituting torture, [must] have awareness of

such activity and thereafter breach his or her legal responsibility

to intervene to prevent such activity."         8 C.F.R. § 208.18 (a)(7)

(8 C.F.R. § 1208.18 (a)(7)).

          In assessing whether it is more likely than not that a

petitioner would be tortured in the proposed country of removal,

"all evidence relevant to the possibility of future torture shall

be considered, including . . .: (1) [e]vidence of past torture

inflicted upon the applicant; (2) [e]vidence that the applicant

could relocate to a part of the country of removal where he is not

likely to be tortured; (3) [e]vidence of gross, flagrant or mass

violations of human rights within the country of removal, where

applicable;   and   (4)   [o]ther    relevant    information   regarding

conditions in the country of removal."      8 C.F.R. § 208.16 (c)(3)

(8 C.F.R. § 1208.16(c)(3)).

          Ramírez argues that "it is more likely than not that he

would be tortured if he were removed to Guatemala."        Without much

explanation, he avers that the "record demonstrates . . . Barrio

18 [gang members] would target [him] for torture, and that . . .


                                    -9-
the Guatemalan government acquiesces to torture."      This is so, he

alleges,   because   "both   gang   members   and   [the]   Guatemalan

government are involved in torture," and "criminal gangs have

infiltrated law enforcement, government, and the judiciary."

           It was Ramírez's burden to establish that there is a

clear probability he will be tortured upon his repatriation to

Guatemala by the active participation or willful blindness of

Guatemalan government authorities.      See Gurung v. Lynch, 618 F.

App'x 690, 696 (1st Cir. 2015).      Ramírez failed to satisfy this

burden.    His three encounters with the gang members -- during

which, as he testified before the IJ, he experienced no significant

physical harm -- did not amount to torture.    See 8 C.F.R. §§ 208.18

(a)(1) & (3) (8 C.F.R. §§ 1208.18 (a)(1) & (3)) (defining torture

as an act of "severe pain or suffering").      Moreover, Ramírez did

not report any of these three encounters to the police, and the

record is otherwise devoid of evidence explaining with reasonable

certainty how he would experience future torture at the hands or

with the acquiescence of government officials.      Ramírez's reliance

on State Department and other country reports discussing the

brutality and pervasiveness of gang violence in Guatemala does not

allow him to surmount this hurdle.     See Amouri v. Holder, 572 F.3d

29, 35 (1st Cir. 2009) (noting that, although such reports are

helpful to assess CAT claims, they "do not necessarily override


                                -10-
petitioner-specific facts").    As a result, the evidence before us

about the likelihood that Ramírez will be tortured upon his return

to Guatemala is insufficient.

                                III.

          Given the foregoing, we deny Ramírez's petition for

judicial review.

          Denied.




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