     09-1158-ag(L), 10-0510-ag(CON)
     Ruiz Ruiz v. Holder

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOHN M. WALKER, JR.,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Juan Jairo Ruiz Ruiz,
14                Petitioner,
15
16                    -v.-                                             09-1158-ag(L)
17                                                                     10-0510-ag(CON)
18
19       Eric H. Holder, United States Attorney
20       General,
21                Respondent.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR PETITIONER:                 GLENN L. FORMICA, Formica, P.C., New
25                                       Haven, CT.
26
27       FOR RESPONDENT:                 TERRI LEÓN-BENNER, Trial Attorney,
28                                       (Barry J. Pettinato, Assistant

                                                  1
1                           Director), Office of Immigration
2                           Litigation, (Tony West, Assistant
3                           Attorney General), Civil Division,
4                           U.S. Department of Justice,
5                           Washington, DC.
6
7         UPON DUE CONSIDERATION of these consolidated petitions

8    for review of two Board of Immigration Appeals (“BIA”)

9    decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that

10   the petition for review in docket number 09-1158-ag(L) is

11   DENIED, and Respondent’s motion for summary disposition in

12   docket number 10-0510-ag(CON) is GRANTED.

13        Juan Jairo Ruiz Ruiz, a native and citizen of Colombia,

14   seeks review of: (1) a February 24, 2009 order of the BIA

15   denying his application for asylum, withholding of removal,

16   and relief under the Convention Against Torture (“CAT”)

17   (docket number 09-1158-ag(L)); and (2) a January 15, 2010

18   order of the BIA denying his motion to reopen his removal

19   proceedings (docket number 10-0510-ag(CON)).   We assume the

20   parties’ familiarity with the underlying facts and the

21   case’s procedural history.

22   I.   Docket Number 09-1158-ag(L)

23        In the circumstances of this case, we review the IJ’s

24   decision as modified by the BIA decision.   See Yang v. U.S.

25   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).    The

26   applicable standards of review are well-established.     8



                                  2
1    U.S.C. § 1252(b)(4)(B); Bah v. Mukasey, 529 F.3d 99, 110 (2d

2    Cir. 2008).

3        Petitioner argues that the Revolutionary Armed Forces

4    of Colombia (“FARC”) targeted him in part based on his

5    imputed political opinion and his membership in the social

6    group of “wealthy business owners in Colombia opposed to

7    FARC activity.”     His family owns (or owned) a construction

8    business.     The agency denied the application for relief

9    based on its finding that he did not establish a nexus

10   between the alleged harm he suffered and an imputed

11   political opinion.     See 8 U.S.C. § 1101(a)(42);

12   8 C.F.R. § 1208.16(b)(1).

13       The agency reasonably found that Petitioner failed to

14   demonstrate that the FARC was motivated, even in part, by

15   his actual or imputed political opinion.     Cf. Uwais v. U.S.

16   Attorney Gen., 478 F.3d 513, 517-18 (2d Cir. 2007); Zhang v.

17   Gonzales, 426 F.3d 540, 545 (2d Cir. 2005).     Petitioner

18   testified that the FARC wanted him to join their ranks, but

19   he explained that the FARC was interested in him due to the

20   equipment owned by the family business.     The desire of the

21   FARC to “fill their ranks in order to carry on their war

22   against the government and pursue their political goals

23   . . . does not render the forced recruitment ‘persecution on



                                     3
1    account of . . . political opinion.’”    INS v. Elias-

2    Zacarias, 502 U.S. 478, 482 (1992).

3        Petitioner also challenges the agency’s finding that he

4    failed to establish his membership in a cognizable social

5    group of “wealthy business owners in Colombia opposed to

6    FARC activity.”   This challenge fails as well.   In Ucelo-

7    Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (per curiam),

8    we found reasonable the BIA’s precedential decision in A-M-E

9    & J-G-U-, 24 I. & N. Dec. 69 (2007): “[W]ealthy Guatemalans”

10   do not constitute a particular social group because “[t]he

11   characteristic of wealth or affluence is simply too

12   subjective, inchoate, and variable to provide the sole basis

13   for membership in a particular social group,” id. at 76.

14   Ucelo-Gomez, 509 F.3d at 72-74.    Here, the added element of

15   business ownership is insufficient to differentiate

16   Petitioner’s putative social group from the “wealthy

17   Guatemalan” social group in Ucelo-Gomez.    Moreover, business

18   ownership is an attribute with “no disadvantage other than

19   purported visibility to criminals,” so that “the scales are

20   tipped away from considering those people a ‘particular

21   social group.’”   Id. at 73.

22       Because the agency did not err in finding that

23   Petitioner failed to demonstrate a nexus between any harm he

24   suffered or any future harm he feared and a protected

                                    4
1    ground, we do not consider whether he established past

2    persecution or a well-founded fear of future persecution.

3          As to CAT relief, Petitioner argues that he established

4    eligibility by showing the Colombian government’s

5    acquiescence to the FARC’s actions.       However, State

6    Department Country Reports included in the record indicate

7    that the Colombian government is engaged in an ongoing

8    conflict with the FARC; the government’s inability to defeat

9    the FARC outright is not evidence of willful blindness or

10   acquiescence to FARC activity.       See Khouzam v. Ashcroft, 361

11   F.3d 161, 171 (2d Cir. 2004).       Accordingly, the agency

12   reasonably denied Petitioner’s application for CAT relief.

13   II.   Docket Number 10-0510-ag(CON)

14         Summary disposition of Petitioner’s petition for review

15   of the BIA’s denial of his motion to reopen is appropriate

16   because he presents no arguably meritorious issue for

17   consideration.   See Pillay v. INS, 45 F.3d 14, 17 (2d Cir.

18   1995).   Petitioner’s motion to reopen before the BIA is

19   indisputably time-barred, having been filed almost eleven

20   months after the BIA’s order dismissing his appeal.        See

21   8 C.F.R. § 1003.2(c)(2) (requiring an alien to file a motion

22   to reopen “no later than 90 days after the date on which the

23   final administrative decision was rendered in the proceeding

24   sought to be reopened”).   Petitioner sought reopening in

                                     5
1    order to apply for adjustment of status based on his

2    marriage to a U.S. citizen.     However, as Respondent argues,

3    this circumstance does not excuse the untimeliness of his

4    motion.     See Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA

5    2009) (emphasizing that untimely motions to reopen to pursue

6    an application for adjustment of status do not fall within

7    any of the exceptions to the time limits); cf. 8 U.S.C.

8    § 1229a(c)(7)(C)(ii).     Therefore, Petitioner was necessarily

9    asking the BIA to exercise its authority sua sponte.     See

10   Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009)

11   (“Because Mahmood’s untimely motion to reopen was not

12   excused by any regulatory exception, his motion to reopen

13   could only be considered upon exercise of the Agency’s sua

14   sponte authority.”).     Petitioner’s argument to the contrary

15   notwithstanding, we lack jurisdiction to consider any

16   challenge to the BIA’s “entirely discretionary” decision not

17   to reopen his proceedings sua sponte. See Ali v. Gonzales,

18   448 F.3d 515, 518 (2d Cir. 2006) (per curiam).     The Supreme

19   Court’s recent decision in Kucana v. Holder is not to the

20   contrary.     See Kucana v. Holder, 130 S. Ct. 827, 839 n.18

21   (2010) (“We express no opinion on whether federal courts may

22   review the Board’s decision not to reopen removal

23   proceedings sua sponte.”).     Kucana did not address the basis

24   for our holding in Ali.

                                     6
1        For the foregoing reasons, the petition for review in

2    docket number 09-1158-ag(L) is DENIED.   Respondent’s motion

3    for summary disposition in docket number 10-0510-ag(CON) is

4    GRANTED.   As we have completed our review, any stay of

5    removal that the Court previously granted is VACATED, and

6    any pending motion for a stay of removal is DISMISSED as

7    moot.   Any pending request for oral argument is DENIED in

8    accordance with Federal Rule of Appellate Procedure

9    34(a)(2), and Second Circuit Local Rule 34.1(b).

10
11
12                               FOR THE COURT:
13                               CATHERINE O’HAGAN WOLFE, CLERK
14




                                   7
