Batres Agustin v. Whitaker, 914 F.3d 43

Background

Petitioner Jose Gilberto Batres Agustin, a Guatemalan national, entered the U.S. unlawfully in 1989 and has lived in the U.S. for nearly 30 years.
He was arrested for DUI in 2015, placed in DHS custody, and removal proceedings were initiated; he filed Form I-589 seeking asylum and withholding of removal under INA § 241(b)(3).
Batres claimed fear of gang extortion/violence in Guatemala, citing past attacks on family members and that returnees from the U.S. are targeted; he did not assert CAT relief on his I-589.
The IJ found his asylum application untimely, denied withholding of removal for failure to show persecution on account of a protected ground, and rejected CAT relief for lack of a torture claim.
The BIA affirmed: asylum untimely; no showing of past persecution or nexus to a protected ground (the claimed social group—wealthy returnees—was not protected and there was no pattern-or-practice showing); CAT relief failed for lack of evidence that torture would be by or with acquiescence of government actors.
The First Circuit denied review, applying substantial-evidence review to the BIA’s factual findings and rejecting Batres’s arguments distinguishing precedent or relying on general governmental ineffectiveness.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petitioner belongs to a "particular social group" entitling him to withholding of removal	Batres argued he and similarly situated returnees (e.g., wealthy returnees, elderly with no support) face targeted gang extortion and persecution	Government (BIA) argued the claimed group (wealthy Guatemalans returning from the U.S.) is not a protected social group and no nexus to protected ground was shown	Held: Group not protected; petitioner failed to show past persecution or persecution on account of a protected ground (denied)
Whether petitioner demonstrated a pattern-or-practice of persecution against similarly situated people	Batres argued gang violence and extortion against returnees demonstrates broader pattern/practice putting him at risk	BIA found no evidence of persecution pattern directed at a protected group	Held: Substantial evidence supports BIA that no pattern-or-practice showing met (denied)
Whether petitioner is eligible for CAT protection because of general government inability to control gangs	Batres argued government ineffectiveness means risk of torture by or with acquiescence of officials	Government argued generalized evidence of ineffectiveness is insufficient; need specific evidence of torture risk tied to government acquiescence	Held: Substantial evidence supports BIA that petitioner failed to show torture by or with government acquiescence (CAT claim denied)
Whether asylum filing deadline or Pereira/Pereira-related notice-to-appear issues excuse untimeliness	Batres attempted to invoke Rojas and allude to Pereira to excuse untimeliness	Government relied on BIA finding of untimeliness; BIA and court noted arguments not raised below	Held: Asylum untimely; Pereira/Rojas arguments waived or inadequately developed (denied)

Key Cases Cited

Touch v. Holder, 568 F.3d 32 (1st Cir. 2009) (reviews and standard for BIA opinion without IJ adoption)
Ang v. Gonzales, 430 F.3d 50 (1st Cir. 2005) (standard for withholding: clear probability of persecution)
Sicaju-Diaz v. Holder, 663 F.3d 1 (1st Cir. 2011) (wealthy Guatemalans returning from U.S. not a protected social group)
Garcia-Callejas v. Holder, 666 F.3d 828 (1st Cir. 2012) (similar rejection for wealthy El Salvadorans)
López-Castro v. Holder, 577 F.3d 49 (1st Cir. 2009) (countrywide economic targeting not equivalent to protected ground)
Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (CAT requires torture inflicted by or with acquiescence of government)
Alvizures–Gomes v. Lynch, 830 F.3d 49 (1st Cir. 2016) (generalized allegations of government corruption insufficient to show torture risk tied to government acquiescence)
Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008) (issues not raised before BIA are waived on appeal)
United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (arguments inadequately developed are waived)