Oscar Alexis Pacheco v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2858
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OSCAR ALEXIS PACHECO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A94-752-867)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 2, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: September 03, 2009 )
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OPINION
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PER CURIAM
Oscar Alexis Pacheco petitions for review of the Board of Immigration Appeals’
(“BIA”) final order of removal. For the following reasons, we will deny his petition.
Pacheco, a native and citizen of Honduras, entered the country in 1997 and

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remained beyond the time period authorized by the Immigration Service. On March 15,
2006, Pacheco was served with a notice to appear charging him with removability under
INA § 237(a)(1)(B). Pacheco conceded removability as charged, but applied for
withholding of removal, and protection under the Convention Against Torture (“CAT”),
on the ground that he had suffered past persecution and feared future persecution because
of his employment as a money transporter for a bank. Specifically, Pacheco alleged that
while he worked for the bank he was the victim of crime, his co-workers were robbed and
killed by criminals, and his uncle was murdered while transporting automobiles from
Guatemala to Honduras.
On November 8, 2006, an Immigration Judge (“IJ”) rendered an oral decision and
order denying Pacheco’s petitions for relief. The IJ determined that Pacheco was not a
victim of past persecution due to his race, religion, political opinion, nationality or
membership in a social group. Further, the IJ found that Pacheco did not show that he
would likely be tortured if he were removed to Honduras. On appeal, the BIA affirmed
the IJ’s decision. Pacheco then filed a timely petition for review of the BIA’s decision in
this Court.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations
if they are supported by reasonable, substantial, and probative evidence on the record
considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). Under
the substantial evidence standard, the BIA’s determinations “must be upheld unless the

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evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992)).
To be eligible for withholding of removal, Pacheco must demonstrate that “there is
a greater-than-fifty-percent chance of persecution” in Honduras based on his race,
religion, nationality, membership in a particular social group or political opinion.
Senathiraja v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C).
For relief under the CAT, Pacheco must demonstrate that it is more likely than not that he
would be tortured if removed to Honduras. See 8 C.F.R. § 208.16(c)(2). The torturous
acts must be inflicted “by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
Pacheco argues that the BIA improperly determined that he was not a member of a
particular social group for purposes of withholding of removal. We have held that:
membership in a “particular social group” can be attributed to either:
1) those who possess immutable characteristics such as race, gender or
a prior position, status or condition; or 2) those who possess a
characteristic that is capable of being changed but is of such
fundamental importance that individuals should not be required to
modify it, e.g., religion. . . . Past persecution itself does not define the
group.
Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005).
Pacheco’s job as a transporter for a bank is not an immutable characteristic nor is it
of such fundamental importance that he should not be required to modify it. See Matter

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of Acosta, 19 I. & N. Dec. 211 (BIA 1985)(voluntary members in a taxi cab cooperative
that refused to yield to a guerilla group were not part of a social group) overruled in part
as stated in Matter of Mogharrabi, 19 I. N. Dec. 439 (BIA 1987). Further, as the BIA
found, there is no evidence that gangs would target former bank employees who
transported checks.
Pacheco’s experience in Honduras, namely being robbed while transporting
money, does not constitute past persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217
(3d Cir. 2003) (citations omitted) (“persecution connotes extreme behavior, including
‘threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.’”). Moreover, while the murder of Pacheco’s uncle
is undoubtedly a tragic event, Pacheco has not shown how the murder is related to his
withholding of removal claim. Finally, Pacheco has not presented any evidence that upon
his return to Honduras he would be tortured by the government or that the government
would acquiesce in any torture of him by third parties. Thus, Pacheco is not eligible for
protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en
banc).
For these reasons we will deny Pacheco’s petition for review.

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