Hector Alvarez Montano v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR ALVAREZ MONTANO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 15-73382
Agency No. A095-773-592
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2022**
Pasadena, California
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
Hector Alvarez Montano, a native and citizen of Colombia, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from
an Immigration Judge’s (IJ) decision denying his application for withholding of
removal and relief under the Convention Against Torture (CAT). We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. Alvarez Montano argues that the agency erred in concluding that the
threats he received from the Colombian guerilla group Fuerzas Armadas
Revolucionarias de Colombia (FARC) lacked a nexus to his actual or imputed
political opinion. We review the agency’s nexus determination for substantial
evidence. Sagaydak v. Gonzales, 405 F.3d 1035, 1041–42 (9th Cir. 2005).
To establish persecution on account of an actual or imputed political
opinion, Alvarez Montano was required to show (1) that he held a political opinion
or that his alleged persecutors believed he did, and (2) he was or would be
persecuted on account of that political opinion. See Navas v. INS, 217 F.3d 646,
656 (9th Cir. 2000).
Alvarez Montano does not argue that he held a political opinion, and the
evidence does not compel the conclusion that FARC persecuted Alvarez Montano
based on an imputed political opinion. The record reflects that members of FARC
threatened Alvarez Montano in an effort to induce him to betray his wealthy
employer and to join their organization. Substantial evidence therefore supports
the agency’s conclusion that the threats arose out FARC’s desire to punish Alvarez
Montano for his refusal to cooperate, rather than for an imputed political opinion.
See, e.g., Barrios v. Holder, 581 F.3d 849, 855–56 (9th Cir. 2009), abrogated in
part on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.

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2013) (en banc); see also INS v. Elias-Zacarias, 502 U.S. 478, 482–83 (1992).
Moreover, Alvarez Montano’s assertion that his employer sold horses to the
Colombian military, and thus had ties to the government, does not compel the
conclusion that FARC imputed any political motive to Alvarez Montano.
2. Alvarez Montano argues that he belongs to the social groups of
(1) people who have rejected advances by FARC and (2) bodyguards for wealthy
businessmen with ties to the government, and that the agency erred in determining
that these groups were not cognizable. We accord Skidmore deference to the
agency’s determinations regarding cognizability because the BIA decision is
unpublished and issued by only a single member of the Board. See Cordoba v.
Holder, 726 F.3d 1106, 1114 (9th Cir. 2013).
The BIA did not err in determining that Alvarez Montano’s proposed social
groups were not cognizable. Social groups defined merely by the refusal of
advances for recruitment are generally not cognizable, and Alvarez Montano’s first
proposal is precisely such a group. See Ramos-Lopez v. Holder, 563 F.3d 855,
861–62 (9th Cir. 2009), abrogated in part on other grounds by Henriquez-Rivas,
707 F.3d 1081; Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46 (9th Cir. 2008),
abrogated in part on other grounds by Henriquez-Rivas, 707 F.3d 1081.
Alvarez Montano’s second proposed group is not cognizable because he has
not provided any evidence that Colombian society views that group as distinct.

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See Akosung v. Barr, 970 F.3d 1095, 1103 (9th Cir. 2020); Conde-Quevedo v.
Barr, 947 F.3d 1238, 1243 (9th Cir. 2020).
3. Alvarez Montano argues that the agency erred in denying relief under
CAT for lack of the requisite governmental action. This determination is reviewed
for substantial evidence. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078–80
(9th Cir. 2015).
Alvarez Montano has not pointed to specific evidence supporting his claim
that the government would commit, or acquiesce in, his alleged torture. The
available evidence shows that the government was generally opposed to FARC and
waging a largely successful fight against it. The record does not compel the
finding that the government would acquiesce in the alleged torture. Cf. Garcia-
Milian v. Holder, 755 F.3d 1026, 1033–35 (9th Cir. 2014).
PETITION DENIED.

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