United States Court of Appeals For the First Circuit No. 18-1469 JOSE GILBERTO BATRES AGUSTIN, Petitioner, v. MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Torruella, Kayatta, and Barron, Circuit Judges. Lidia M. Sanchez, on brief for petitioner. Walter Bocchini, Trial Attorney, Joseph H. Hunt, Assistant Attorney General, and Linda S. Wernery, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent. January 25, 2019 Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Matthew G. Whitaker has been substituted for former Attorney General Jefferson B. Sessions III as the respondent. BARRON, Circuit Judge. Jose Gilberto Batres Agustin ("Batres Agustin") is a Guatemalan national. He petitions for review of the Board of Immigration Appeals' ("BIA") order, which upheld the Immigration Judge's ("IJ") denial of his application for both withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT") under 8 C.F.R. § 208.16(c)(4). We deny the petition. I. Batres Agustin entered the United States illegally in December of 1989. During his nearly thirty years in the United States, Batres Agustin was convicted three times of driving under the influence. After his most recent arrest in 2015 for driving under the influence, he was taken into custody by the Department of Homeland Security ("DHS"), and, on December 2, 2015, DHS initiated removal proceedings against him before an IJ in Boston, Massachusetts. Prior to those proceedings, Batres Agustin filed an I- 589 Application for Asylum and Withholding of Removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"). He indicated in this application that he anticipated "mistreatment at the hands of the [gangs] and criminal elements in Guatemala" were he to return to his home country and that his brother and daughter had experienced gang violence in Guatemala in the past when they refused to comply with the gangs' extortionist demands. He further - 2 - indicated that he sought withholding of removal based on "membership in a particular social group" and that he was not afraid of being subjected to torture if he returned to Guatemala. Batres Agustin's removal hearing was held on July 26, 2017. In seeking asylum and withholding of removal, he testified that he feared extortion and violence from local gangs were he to return to his home country. He also testified that his family had experienced gang violence there in the past and noted that he was particularly apprehensive, as someone returning from the United States, because "the [gangs] ask for money as soon as they know that you're coming back from [the United States]." When pressed by his attorney as to his precise fears regarding his return, Batres Agustin stated that he was "accustomed" to life in the United States and, for that reason, was afraid of "start[ing] over" in Guatemala. At the hearing's conclusion, the IJ ruled that the asylum application was untimely and that Batres Agustin had failed to ...
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