NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO ARIAS DE ALVAREZ, AKA No. 15-73257 Pedro Alberto Arias, Agency No. A077-089-025 Petitioner,

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 13, 2020** Pasadena, California

Before: SCHROEDER, BYBEE, and COLLINS, Circuit Judges.

Pedro Arias De Alvarez (“Arias”) petitions for review of the decision of the

Board of Immigration Appeals (“BIA”), which upheld the order of the Immigration

Judge (“IJ”) directing his removal to Guatemala. Arias had moved to terminate his

removal proceedings on the ground that he had acquired derivative U.S. citizenship

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C).

1 upon his mother’s naturalization in 1999, but the IJ rejected this argument. The IJ

also denied Arias’s request for protection under the United Nations Convention

Against Torture (“Torture Convention”). We have jurisdiction under § 242 of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252, and we deny the

petition.

1. In reviewing whether Arias acquired U.S. citizenship, we apply the

version of the derivative citizenship statute in force when Arias turned eighteen in

January 2000. See United States v. Casasola, 670 F.3d 1023, 1026 (9th Cir. 2012).

Under the then-existing terms of § 321 of the INA, Arias would acquire derivative

citizenship by virtue of his mother’s naturalization if he either [1] was “residing in

the United States pursuant to a lawful admission for permanent residence at the

time of the naturalization of [his mother], or [2] thereafter beg[an] to reside

permanently in the United States while under the age of eighteen years.” 8 U.S.C.

§ 1432(a)(5) (1999 ed.) (repealed effective February 2001). Because Arias did not

become a legal permanent resident until June 2001, he was not residing in the U.S.

“pursuant to a lawful admission for permanent residence” at the time of his

mother’s naturalization in 1999. Id. (emphasis added). Arias nonetheless argues

that, because he has been living continuously in the U.S. since 1990, he is covered

by the second clause of § 321(a)(5), which did not expressly refer to a “lawful

admission” and required only that he begin “to reside permanently” in the U.S.

2 while under age 18. We rejected this precise argument in Romero-Ruiz v.

Mukasey, 538 F.3d 1057 (9th Cir. 2008), holding that under this clause of § 321(a)

“a petitioner must not only establish permanent residence, but also demonstrate

that he was residing in some lawful status.” Id. at 1062.1 Because Arias did not

acquire such lawful status until 2001, when he was 19 years old, he did not begin

to reside permanently in the U.S. “while under the age of eighteen years.”

8 U.S.C. § 1432(a)(5) (1999 ed.). The BIA therefore properly affirmed the IJ’s

denial of Arias’s motion to terminate his removal proceedings.

2. Arias also challenges the denial of his request for deferral of removal

under the Torture Convention. To establish his eligibility for such relief, Arias had

to show that he “is more likely than not to be tortured” if removed to Guatemala.

8 C.F.R. § 1208.17(a). Arias argues that that his non-gang-related tattoos and his

criminal record would cause the Guatemalan police to wrongly assume that he was

a gang member and that, for similar reasons, he would become a target of

Guatemalan gangs or anti-gang vigilantes. The BIA properly upheld the IJ’s

conclusion that Arias had failed to show that deferral was warranted on this theory.

1 Arias urges us to follow Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013), in which the Second Circuit rejected our decision in Romero-Ruiz on the ground that we had given insufficient attention to the legislative history of § 321. Id. at 328 n.5. We are bound by Romero-Ruiz. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

3 The BIA agreed that the documentary evidence submitted by Arias to the IJ

indicated that there was mistreatment of persons with “gang-style tattoos,” but the

BIA noted that Arias did not have any such tattoos. Although there are some

statements in the documentary evidence that might have supported a competing

inference that any unfamiliar tattoo might be perceived as gang-related, the record

does not compel that inference. See Andrade v. Lynch, 798 F.3d 1242, 1245 (9th

Cir. 2015). The BIA likewise properly rejected Arias’s contention that his criminal

record would lead the Guatemalan police to assume that he was a gang member

and to torture him. The BIA acknowledged that Arias’s evidence on this score

supported an inference that the police might sometimes detain or harass returning

deportees based on speculation and profiling. But reviewing the record evidence

as a whole, the BIA concluded that the IJ did not clearly err in finding no clear

probability that Arias would “be tortured upon return to Guatemala.” We cannot

say that the evidence compelled a contrary conclusion to that of the agency.

Andrade, 798 F.3d at 1245.

PETITION DENIED.

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