               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0396n.06

                                          No. 16-4723

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                               FILED
                                                                               Jul 03, 2017
                                                                          DEBORAH S. HUNT, Clerk
JUAN GREGORIO MUNOZ-CANO,                            )
                                                     )
       Petitioner,                                   )
                                                     )   ON PETITION FOR REVIEW
v.                                                   )   FROM THE UNITED STATES
                                                     )   BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney                 )   APPEALS
General,                                             )
                                                     )
       Respondent.                                   )
                                                     )


       BEFORE: GIBBONS, KETHLEDGE, and DONALD, Circuit Judges.

       PER CURIAM. Juan Gregorio Munoz-Cano petitions for review of an order of the

Board of Immigration Appeals (BIA) dismissing his appeal from the denial of his application for

withholding of removal and protection under the Convention Against Torture (CAT). As set

forth below, we deny the petition for review.

       Munoz-Cano, a native and citizen of Guatemala, entered the United States without

inspection, allegedly in 2004. In 2011, after his arrest for driving under the influence, the

Department of Homeland Security served Munoz-Cano with a notice to appear in removal

proceedings, charging him with removability as an alien present in the United States without

being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). In a motion to change venue,

Munoz-Cano admitted the factual allegations in the notice to appear and conceded removability

as charged. Munoz-Cano subsequently submitted an application for withholding of removal and

CAT protection based on his membership in a particular social group.
No. 16-4723, Munoz-Cano v. Sessions

       During the hearing before an immigration judge (IJ), Munoz-Cano testified that, when he

was about seventeen years old, he began spending time with the Mara-18 gang on weekends,

attending parties and soccer games. After three months, the local leader of the Mara-18 gang

directed Munoz-Cano to kill someone to earn his gang tattoo. Munoz-Cano did not want to kill

anyone and asked for some time. The leader told Munoz-Cano that he should come back in three

days and that he would be killed if he did not do what he was supposed to do. Munoz-Cano

never went back, hiding at his house. Gang members came looking for Munoz-Cano, but his

parents told them that he was not home. After hiding at home for about fifteen days, Munoz-

Cano decided to come to the United States.           Munoz-Cano testified that, if he returns to

Guatemala, the Mara-18 gang will search for him and kill him for abandoning the gang.

       At the conclusion of the hearing, the IJ denied Munoz-Cano’s application for withholding

of removal and CAT protection and ordered his removal to Guatemala. The IJ found that

Munoz-Cano, although credible, failed to adequately corroborate his claim and therefore failed to

meet his burden of proof for withholding of removal. In the alternative, the IJ determined that

Munoz-Cano’s proposed group—men who were involved with a gang who left the gang without

permission—did not constitute a particular social group under the Immigration and Nationality

Act and that he failed to establish past persecution or a clear probability of persecution on

account of his membership in the proposed group. As for his claim for CAT protection, the IJ

found that Munoz-Cano failed to establish that it is more likely than not that he would be

tortured by or with the acquiescence of the government in Guatemala.

       The BIA dismissed Munoz-Cano’s appeal.             First, the BIA agreed with the IJ’s

determination that Munoz-Cano’s proposed group lacked social distinction as required to

constitute a particular social group. The BIA further found no error in the IJ’s determination that

Munoz-Cano failed to adequately corroborate his claim. With respect to Munoz-Cano’s claim

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No. 16-4723, Munoz-Cano v. Sessions

for CAT protection, the BIA found no clear error in the IJ’s determination that he failed to

establish a clear likelihood that he would be tortured in Guatemala by members of the Mara-18

gang and, pursuant to its de novo review, determined that he failed to establish acquiescence by a

government official in relation to his feared torture.

       This timely petition for review followed. “Where, as here, the BIA issues its own

decision rather than summarily affirming the IJ, the BIA decision is reviewed as the final agency

decision, but the IJ’s decision is also reviewed to the extent that the BIA adopted it.” Harmon v.

Holder, 758 F.3d 728, 732 (6th Cir. 2014). We review the agency’s factual determinations for

substantial evidence, reversing only if “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Dieng v. Holder, 698 F.3d 866, 871-72

(6th Cir. 2012).

       The BIA found no error in the IJ’s determination that Munoz-Cano, while credible, did

not adequately corroborate his claim for withholding of removal. “Where the trier of fact

determines that the applicant should provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the applicant does not have the evidence and

cannot reasonably obtain the evidence.”            8 U.S.C. § 1158(b)(1)(B)(ii); see 8 U.S.C.

§ 1231(b)(3)(C). “The absence of such corroborating evidence can lead to a finding that an

applicant has failed to meet [his] burden of proof.” Lin v. Holder, 565 F.3d 971, 977 (6th Cir.

2009) (quoting Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004)). We may not reverse the

finding as to the availability of corroborating evidence unless we find “that a reasonable trier of

fact is compelled to conclude that such corroborating evidence is unavailable.”          8 U.S.C.

§ 1252(b)(4).

       Substantial evidence supports the determination that Munoz-Cano failed to adequately

corroborate his claim with reasonably available evidence and therefore failed to meet his burden

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No. 16-4723, Munoz-Cano v. Sessions

of proof for withholding of removal. As the BIA pointed out, the IJ reasonably expected

corroborating evidence to establish an objective basis for Munoz-Cano’s alleged fear, which was

based on events that happened twelve years earlier. Munoz-Cano asserted that his family

members in Guatemala could not provide affidavits because they feared retribution from the

Mara-18 gang. This explanation was weakened by the fact that the family’s neighbor submitted

a notarized affidavit. Even if they were afraid of going to a notary, Munoz-Cano’s family

members could have sent letters to corroborate his claims. Munoz-Cano submitted a note

demanding 600,000 quetzals that his father mailed him but failed to provide a letter from his

father explaining how or when the note was received. His father’s ability to send the note

undercuts Munoz-Cano’s explanation for the failure to send a letter. See Zhitian Zhang v.

Holder, 542 F. App’x 458, 461 (6th Cir. 2013) (“Zhang’s suggestion that his family would be

harassed for sending supporting letters appears implausible as his wife was able to send him the

fine receipt and the medical report.”). Munoz-Cano has failed to show that the record compels

the conclusion that corroborating evidence from his family was unavailable.

       The BIA agreed with the IJ’s determination that Munoz-Cano’s proposed group lacked

social distinction as required to constitute a particular social group. To qualify for withholding

of removal, Munoz-Cano must show a “clear probability” that, if removed to Guatemala, his

“life or freedom would be threatened in that country because of [his] . . . membership in a

particular social group.” 8 U.S.C. § 1231(b)(3)(A); see Zaldana Menijar v. Lynch, 812 F.3d 491,

498 (6th Cir. 2015). To constitute a particular social group, the proposed group must be socially

distinct—“that is, members of the group ‘must be perceived as a group by society.’” Zaldana

Menijar, 812 F.3d at 498 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240 (BIA 2014)).

       Substantial evidence supports the determination that Munoz-Cano’s proposed group—

men who were involved with a gang who left the gang without permission—lacked social

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No. 16-4723, Munoz-Cano v. Sessions

distinction as required to constitute a particular social group. The BIA has considered whether a

similar group—“former Mara 18 gang members in El Salvador who have renounced their gang

membership”—constituted a particular social group and found the proposed group lacking social

distinction. Matter of W-G-R-, 26 I. & N. Dec. 208, 209 (BIA 2014); see Zaldana Menijar,

812 F.3d at 498-500 (upholding agency’s determination that proposed group of former gang

members lacked social distinction). Although Munoz-Cano submitted documentary evidence

showing that Guatemala is a dangerous country with prevalent gang activity, he failed to submit

any proof that his proposed group is perceived as a socially distinct group within Guatemalan

society. See Zaldana Menijar, 812 F.3d at 499-500. The record does not compel a conclusion

contrary to the determination that Munoz-Cano’s proposed group lacked social distinction.

       With respect to his claim for CAT protection, Munoz-Cano argues that the BIA failed to

make a determination as to whether it is more likely than not that he would be tortured if he

returns to Guatemala, asserting without explanation that the BIA failed to apply the proper legal

standard. The IJ found that Munoz-Cano “failed to demonstrate that it is more likely than not

that he would be tortured if he is returned to Guatemala.” The BIA found no clear error in the

IJ’s determination that Munoz-Cano failed to establish “a clear likelihood that he would be

tortured in Guatemala by members of the Mara 18.” An IJ’s “predictive findings of what may or

may not occur in the future are findings of fact,” which the BIA reviews under the clearly

erroneous standard. Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015). Because the BIA

applied the correct standard, Munoz-Cano’s argument fails.

       For these reasons, we DENY Munoz-Cano’s petition for review.




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