Jose Alberto Rivera v. LORETTA E. LYNCH, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3225
J OSE A LBERTO R IVERA ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A092‐513‐383
____________________
SUBMITTED D ECEMBER 21, 2016 — D ECIDED J ANUARY 12, 2017
____________________
Before WOOD, Chief Judge, and P OSNER and F LAUM, Circuit
Judges.
P OSNER , Circuit Judge. Jose Alberto Rivera, a 58‐year‐old
citizen of El Salvador who has resided unlawfully in the
United States for the last 35 years because he immigrated il‐
legally and has never adjusted his status to that of a citizen
or lawful permanent resident, petitions us for review of an
order of the Board of Immigration Appeals upholding an

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2 No. 16‐3225
immigration judge’s denial to Rivera of asylum, withholding
of removal, or relief under the Convention Against Torture,
and affirming the immigration judge’s issuance of an order
removing (deporting) Rivera from the United States to El
Salvador.
In 2014, after having fought off a previous attempt by the
government to deport him, Rivera had been convicted of
possessing a “forged instrument” and the government had
reopened removal proceedings. He responded, as noted in
the preceding paragraph, basing his response on his fear that
gangs in El Salvador would seek to kidnap or extort him be‐
cause they would perceive him as wealthy, owing to his long
residence in the United States.
He told the immigration judge that the gangs “do not
care about anything” and “always” harm innocent civilians,
whether they have money or not. Yet he conceded that no‐
body in El Salvador had ever threatened him or his family,
while recounting the experience of an unidentified Salva‐
doran national with whom he had been detained who told
Rivera of having been removed to El Salvador, where mem‐
bers of the MS‐13 gang had “threatened” him after he re‐
buffed their attempts to recruit him to traffic drugs. Yet no
harm had befallen him. Rivera also testified that about five
years ago his sister, who has lived in the United States since
the 1970s, visited El Salvador for a few days—without inci‐
dent. And although he expressed uncertainty about whether
the Salvadoran government would be able to protect him
from the gangs, he denied any fear that he would be harmed
by the government itself.
The immigration judge noted that the State Department’s
“country condition” reports on El Salvador “do not show

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No. 16‐3225 3
that street gangs have specifically targeted El Salvadoran cit‐
izens returning from the United States because of their per‐
ceived wealth,” and noted (essentially repeating Rivera’s
statement) that nobody in El Salvador had ever threatened
him or his family and that there was no reason to think that
the Salvadoran government would torture him or acquiesce
in his being tortured by nongovernment actors. And re‐
member that his sister and the unidentified Salvadorian de‐
tainee, each of whom had visited El Salvador after living in
the United States, had incurred no harm there.
The Board of Immigration Appeals agreed with the Im‐
migration Judge’s assessment of Rivera’s claims, which were
weak. Really all he argued was that as a long‐time resident
of the United States he would be perceived in El Salvador as
wealthy. That may be correct, and we are dubious (see the
concurring opinion in Gutierrez v. Lynch, 834 F.3d 800, 807
(7th Cir. 2016)) of the proposition announced in some cases
that
the status of being a member of a group made up of indi‐
viduals deported from the United States who, having lived
in this country for many years, either have money or are
believed to have money and have long‐established ties to
this country, and who for any of these reasons might be
able to pay ransom, nevertheless can’t be deemed mem‐
bers of a “social group” authorized to obtain relief from
deportation because of threats to the life or safety of the
group’s members.
But when this is the claim the petitioner must submit evi‐
dence supporting it, as the probability that any given mem‐
ber of such a group would be held for ransom might be ex‐
ceedingly low.

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4 No. 16‐3225
Although the majority opinion in Gutierrez rejected the
petitioner’s argument that he was in danger of persecution
because he belonged to a social group consisting of “Mexi‐
can nationals who have lived in the U.S. for many years and
are perceived as wealthy upon returning to Mexico,” 834
F.3d at 805, Gutierrez like Rivera had not presented convinc‐
ing evidence that he was in any such danger—and further‐
more the Immigration Court had found that if he was in
danger of persecution if he returned to the part of Mexico in
which he had lived before immigrating to the United States
“he could avoid [the] harm by relocating to another part of
Mexico.” Id.
Dominguez‐Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016),
was a similar case. The petitioner feared persecution if re‐
turned to his country of origin because he could afford to
pay a ransom, or at least his captors would believe that he (or
his relatives in the United States) could afford to pay a ran‐
som. But our opinion does not indicate that he had any rea‐
son to believe that anyone would force him to pay a ransom.
So he lost, as did Gutierrez and as must Rivera as well.
The point, which is equally applicable to the present case,
is that members of well‐to‐do coteries or established expatri‐
ate families are not, so far as the record of this case reveals,
frequent targets of violence in El Salvador. And unlike ap‐
plicants for relief in cases such as Arrazabal v. Lynch, 822 F.3d
961 (7th Cir. 2016), Rivera failed to present any evidence that
he is a likely target of violence, despite the likelihood of his
being thought wealthy (though by whom is not indicated)
by virtue of his long residence in the United States.
A disturbing feature of the case, however, is the very
high crime rate in El Salvador. See, e.g., Roque Planas, “How

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No. 16‐3225 5
El Salvador Became the World’s Most Violent Peacetime Coun‐
try,” WorldPost, March 4, 2016, www.huffingtonpost.com/
entry/el‐salvador‐most‐violent‐country_us_56d9e239e4b0000
de4047fbe. (Actually Honduras is believed to have the highest
homicide rate in the world—90.4 homicides per 100,000
people; the international average is 6.2 homicides per
100,000 people. U.N. Office on Drugs and Crime, Global
Study on Homicide 2013, pp. 12, 24 fig. 1.5, www.unodc.org/
documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_
web.pdf.) But Rivera has not presented convincing evidence of
how safe or unsafe he will be in El Salvador.
We note finally, for its possible relevance in future cases,
that what doesn’t matter in the case of an illegal immigrant
resisting removal because of fear of persecution is whether
gangs in El Salvador, or whatever the immigrant’s country
of origin is, are wrong in thinking that anybody who’s lived
in the United States is likely to be wealthy or have wealthy
American connections. If thatʹs what the gangs think, and if
(a big if, which requires evidence) as a result they hold de‐
portees from the U.S. for ransom and kill them if it isnʹt paid,
those deportees are being subjected to persecution. We don’t
think either a court or the immigration agencies could ra‐
tionally deny that. But it isn’t this case.
A FFIRMED

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