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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11852
Non-Argument Calendar
________________________
Agency No. A208-134-160
ALEXANDER GUTIERREZ-JOSE,
JUAN GUTIERREZ-GUTIERREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 15, 2021)
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Before JORDAN, LAGOA, and BRASHER Circuit Judges.
PER CURIAM:
Juan Gutierrez-Gutierrez seeks review of a final order of the Board of
Immigration Appeals affirming an immigration judge’s denial of his application for
asylum, withholding of removal, and protection under the Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The IJ
concluded that Mr. Gutierrez’s application for asylum should be denied due to the
failure to establish past persecution on account of a statutorily protected ground and
the failure to establish a well-founded fear of future prosecution based on that
protected ground. The BIA affirmed without opinion.
On appeal Mr. Gutierrez argues the IJ erred by holding that his proposed
group—business owners who are threatened—was ineligible for protection and that
there was an insufficient nexus between his social group and any persecution he
suffered. The government argues that we should affirm the BIA’s decision because
its denial was supported by substantial evidence.
For reasons explained below, we conclude that Mr. Gutierrez administratively
exhausted his claims, but that substantial evidence supports the IJ’s conclusions. We
therefore deny the petition.
I.
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Mr. Gutierrez, a citizen of Guatemala, left his country on June 10, 2015, and
entered the United States two weeks later. Mr. Gutierrez was issued a Notice to
Appear by the Department of Homeland Security. The DHS charged that he was
removable under INA § 212(a)(6)(A)(i),
8 U.S.C. § 1182(a)(6)(A)(i), for being
present in the United States without being admitted or paroled.
In June of 2016, Mr. Gutierrez, on behalf of himself and his son Alexander,
filed an application for asylum and withholding of removal based on his membership
in a particular social group and for relief under the Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment,
8 C.F.R. §
1208.16(c). Mr. Gutierrez stated in his application that he was threatened by gang
members because he reported them to the police after they stole from his small
business. He feared the gangs would kill or torture him and his family due to the
police report, his son’s refusal to join the gang, and the police’s refusal to help and
frequent work with the gangs.
Along with his application for asylum, Mr. Gutierrez submitted a letter further
detailing the robbery and ensuing events. Specifically, the letter detailed how some
people stole from his business, he notified the police, and the police arrested the
individuals. The police, however, released the suspects, and in retaliation they again
robbed and vandalized his store and threatened his son because they wanted him to
join the gang. These events, along with the general lack of opportunities, high
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violent crime rate, and the power of the gangs in Guatemala led Mr. Gutierrez to flee
to the United States.
In support of his application, Mr. Gutierrez submitted two additional letters.
The first letter was from Mr. Gutierrez to the Justice of the Peace detailing the items
that were stolen from his shop. The second letter, from a policeman to the Justice
of the Peace, explained that in following up on a complaint by Mr. Gutierrez, he
found that 2 boys, ages 14 and 10, had sold to another merchant some soap which
presumably had been stolen from Mr. Gutierrez’s store.
Mr. Gutierrez also submitted a Guatemala 2015 Human Rights Report, which
noted widespread institutional corruption in the police and judiciary, police and
military involvement in crimes such as kidnapping and extortion, and arbitrary
killings, abuse, and mistreatment by National Civil Police members. He also
submitted a U.S. Department of State 2015 Crime and Safety Report for Guatemala
that rated the overall crime and safety situation as critical. In addition, Mr. Gutierrez
submitted newspaper articles that described gang activity and violent crimes in
Guatemala.
At the merits hearing, Mr. Gutierrez testified about the whereabouts and
immigration status of his family and the events in Guatemala that led him to come
to the United States. On cross-examination, Mr. Gutierrez testified that neither he
nor his son were physically harmed, that his daughter was still in Guatemala with
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her husband, that nothing had happened to the daughter because she had a husband
to protect her, and that Mr. Gutierrez had not tried to move to another part of
Guatemala to avoid retaliation.
The IJ issued an oral decision denying Mr. Gutierrez’s applications for
asylum, withholding of removal, and CAT relief. The IJ found Mr. Gutierrez to be
credible, but also found that he had failed to establish persecution based on one of
the enumerated grounds. Specifically, the IJ stressed that Mr. Gutierrez and his son
were not physically harmed, Mr. Gutierrez’s business was robbed while no one was
there, and Mr. Gutierrez reported the alleged perpetrators, who were arrested. The
IJ noted that the perpetrators were released due to their age and, a week later, Mr.
Gutierrez’s son was threatened. The IJ found that the events were regrettable but,
even in the cumulative, failed to establish past persecution.
The IJ also found that Mr. Gutierrez provided no persuasive evidence to
establish that his proposed particular social group, which consisted of Guatemalan
business owners who were threatened, qualified as a particular social group under
INA § 101(a)(42)(B),
8 U.S.C. § 1101(a)(42)(B), because it was not defined by a
shared immutable characteristic. Furthermore, the IJ found that the burglary was a
criminal act, and there was no evidence that Mr. Gutierrez was targeted for
membership in a particular social group or any other protected ground.
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The IJ concluded that because he had not established past persecution, there
was no presumption that Mr. Gutierrez had a well-founded fear of future persecution.
Absent this presumption, Mr. Gutierrez failed to establish a well-founded fear of
future persecution if he returned to Guatemala because he presented no evidence to
indicate that the individuals who committed the burglary were searching for Mr.
Gutierrez or any member of his family. The IJ noted that Mr. Gutierrez’s daughter
still lived in Guatemala and there was no evidence that she was targeted or had any
harm come to her because of this incident or the fact that Mr. Gutierrez reported the
matter to the police.
The IJ found that because Mr. Gutierrez failed to meet his burden of proof for
asylum, he had also failed to meet the more stringent burden of proof for withholding
of removal. Finally, the IJ concluded that Mr. Gutierrez was not eligible for CAT
relief because the record did not indicate that it was more likely than not that he
would face torture by or with the consent or acquiescence of a public official upon
his return to Guatemala.
Mr. Gutierrez timely appealed to the BIA. Mr. Gutierrez argued that he
suffered past persecution when the men who robbed his business threatened to beat
up his son. Mr. Gutierrez asserted that he showed a well-founded fear of future
persecution because the people who robbed the store were not detained for longer
than a day and if he went back to Guatemala, he would likely be targeted by these
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individuals again. Mr. Gutierrez also maintained that he had sustained his burden
under the CAT of proving that he was more likely than not to be tortured if he
returned through the 2015 Human Rights Report and the other evidence submitted
in support of his asylum application.
In a single-member order, the BIA affirmed the IJ’s decision without opinion,
making the IJ’s decision the final agency determination. Mr. Gutierrez timely filed
this petition for review.
II
When the BIA issues a summary affirmance of the IJ’s opinion, the IJ’s
decision becomes the final removal order subject to review. See Sepulveda v. U.S.
Att’y Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005). We therefore review the IJ’s
underlying decision. See
id.
In petitions for review of immigration decisions, we review factual
determinations under the substantial evidence test and conclusions of law de novo.
See Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016). Under the
substantial evidence test, we “view the record evidence in the light most favorable
to the agency’s decision and draw all reasonable inferences in favor of that decision.”
Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223, 1230 (11th Cir. 2007). We will
affirm the BIA’s decision if it is supported by “reasonable, substantial, and probative
evidence on the record considered as a whole.”
Id. The record must compel a
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contrary conclusion to warrant reversal. See
id. The mere fact that the record may
support a different conclusion is not sufficient to justify a reversal of administrative
findings. See
id.
We lack jurisdiction to review final orders in immigration cases unless the
applicant has exhausted all administrative remedies available as of right. See INA §
242(d)(1),
8 U.S.C. § 1252(d)(1); Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1297
(11th Cir. 2015). An applicant fails to exhaust his administrative remedies with
respect to a particular claim when he does not raise that claim before the BIA. See
Indrawati, 779 F.3d at 1297.
To establish asylum eligibility, a person must establish (1) past persecution
on account of a statutorily listed protected ground, or (2) a well-founded fear that
the statutorily protected ground will cause future persecution. See Diallo v. U.S.
Att’y Gen.,
596 F.3d 1329, 1332 (11th Cir. 2010). A well-founded fear means a
reasonable possibility of future persecution. See Li Shan Chen v. U.S. Att’y Gen.,
672 F.3d 961, 965 (11th Cir. 2011). Protected grounds include “race, religion,
nationality, membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(B),
8 U.S.C. § 1101(a)(42)(B).
Persecution requires more than mere harassment or a few isolated incidents of
verbal harassment or intimidation. See Sepulveda,
401 F.3d at 1231. In determining
whether a person suffered past persecution, the focus is on the “cumulative effect”
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of any incidents. See Rodriguez v. U.S. Att’y Gen.,
735 F.3d 1302, 1308 (11th Cir.
2013). Threatening acts or harm against an asylum applicant’s family members do
not necessarily constitute or imply persecution of the applicant where there has been
no threat or harm directed personally against him. See Cendejas Rodriguez v. U.S.
Att’y Gen.,
735 F.3d 1302, 1308–09 (11th Cir. 2013).
A showing of past persecution creates a presumption of a well-founded fear
of future persecution, which is subject to rebuttal. See Sepulveda,
401 F.3d at 1231.
An applicant must demonstrate that his fear of future persecution is subjectively
genuine and objectively reasonable. See
id. Credible testimony by the applicant that
he genuinely fears persecution can prove the subjective component. See Ruiz v. U.S.
Att’y Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006). The objectively reasonable
component can be fulfilled by establishing that the applicant has a good reason to
fear future persecution. See
id.
Whether an asserted group qualifies as a “particular social group” under the
INA is a question of law. See Gonzalez, 820 F.3d at 403. To qualify as a “particular
social group” under the INA, a group must be defined by a shared, immutable
characteristic “that the members of the group either cannot change or should not be
required to change because it is fundamental to their individual identities or
consciences.” See Castillo-Arias v. U.S. Att’y Gen.,
446 F.3d 1190, 1193, 1196 (11th
Cir. 2006). The common characteristic must be something other than the risk of
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being persecuted. See
id. at 1198. The petitioner must define the particular social
group with particularity and show that the group is viewed by society as socially
distinct. See Gonzalez, 820 F.3d at 404–06. To meet the particularity requirement,
the proposed group must be discrete and have definable boundaries, and may not be
“amorphous, overbroad, diffuse, or subjective.” See id. at 404.
The applicant must also prove a nexus between the persecution suffered and
the statutorily protected ground. See Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d
1148, 1158 (11th Cir. 2019). To satisfy the nexus requirement, an applicant must
establish that the protected ground was “at least one central reason” for his
persecution. See
id. (quoting INA § 208(b)(1)(B)(i),
8 U.S.C. § 1158(b)(1)(B)(i) (as
amended by the REAL ID Act § 101(a)(3)). One of the five statutory grounds need
not be the only motivation for the persecution. See Sanchez Jimenez,
492 F.3d at
1232 (reaffirming the “mixed-motive” theory of nexus). On the other hand, evidence
that either is consistent with acts of private violence, or that merely shows that a
person has been the victim of criminal activity, does not constitute evidence of
persecution based on a statutorily protected ground. See Ruiz,
440 F.3d at 1258.
The agency’s nexus determination is an assessment of any future persecutor’s
motive, which is a factual inquiry. See I.N.S. v. Elias-Zacarias,
502 U.S. 478, 483–
84 (1992) (stating that the INA “makes motive critical” and holding that an applicant
must provide some evidence—direct or circumstantial—of a persecutor’s motive).
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The standard for withholding of removal is higher than that for asylum. To
qualify for withholding of removal, an applicant must establish that his life or
freedom would be threatened in his country because of his race, religion, nationality,
membership in a particular social group, or political opinion. See INA
§ 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is more
likely than not that he will be persecuted on account of a protected ground if returned
to his home country. See Rodriguez, 735 F.3d at 1308.
III
Mr. Gutierrez has failed to raise any argument on appeal concerning his claim
for CAT relief. He has therefore abandoned that issue. See Sepulveda,
401 F.3d at
1228 n.2.
In his brief to the BIA, Mr. Gutierrez made an argument challenging the IJ’s
conclusion that he failed to show that he was the subject of past persecution, or
would be subjected to future persecution, on account of a protected ground. See
A.R. at 8–18. So we have jurisdiction to consider his asylum claim. See Indrawati,
779 F.3d at 1297.
Turning to the merits, the record contains substantial evidence supporting the
IJ’s conclusion that Mr. Gutierrez did not suffer past persecution. Mr. Gutierrez
presented evidence that his store was robbed and that he filed a complaint with the
police. See A.R. at 99. Mr. Gutierrez identified the robbers and testified that,
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because he had gone to the police, his son was threatened on one occasion by the
robbers. See id. at 81–83. These actions, involving a single instance of robbery and
one subsequent threat, even taken cumulatively, do not rise to the level of
persecution and instead are examples of harassment or intimidation. See Sepulveda,
401 F.3d at 1231 (stating that persecution is an extreme concept requiring more than
a few isolated incidents of verbal harassment or intimidation). In addition, although
Mr. Gutierrez argues on appeal that the BIA failed to take into account economic
deprivation as a form of persecution, he did not make that argument to the BIA and,
thus, failed to exhaust that particular contention. See Appellant’s Br. at 12; A.R. at
8–18; Indrawati, 779 F.3d at 1297.
Substantial evidence also supports the IJ’s conclusion that Mr. Gutierrez did
not establish a well-founded fear of future persecution. Because he did not show
that he had suffered past persecution, it was Mr. Gutierrez’s burden to show that his
fear of persecution was subjectively genuine and objectively reasonable. See
Indrawati, 779 F.3d at 1297. Although Mr. Gutierrez likely satisfied the subjective
prong through his personal testimony, which the IJ found credible, he did not
establish that this fear was objectively reasonable because he presented no evidence
that those who committed the robbery were searching for him or any member of his
family. Thus, Mr. Gutierrez did not show that he had good reason to fear future
persecution if he returned to Guatemala and consequently failed to establish that his
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fear was objectively reasonable. See Ruiz,
440 F.3d at 1257, 1259 (finding no well-
founded fear where the applicant’s son and parents remained unharmed in the region
where the applicant was allegedly threatened).
In sum, we cannot say that the IJ’s conclusions were unfounded. Although
Mr. Gutierrez properly preserved his claims for appeal, the record does not compel
reversal of the IJ’s determination that Mr. Gutierrez was not eligible for asylum
because he failed to establish either past persecution or a well-founded fear of future
persecution. For the same reasons listed above, the record does not compel reversal
of the agency’s determination that Mr. Gutierrez would not be able to meet the higher
burden of proof for withholding of removal. See Sepulveda,
401 F.3d at 1232–
1233. 1
IV
After careful review, we conclude that the record does not merit reversal of
the IJ’s determination that Mr. Gutierrez is not eligible for asylum.
PETITION DENIED.
1
We do not consider the IJ’s ruling on the proposed social group because there is substantial
evidence that Mr. Gutierrez did not establish past or future persecution. Further, because Mr.
Gutierrez did not argue nexus or that his proposed group qualifies as a protected ground in his brief
to the BIA, see A.R. at 8-18, he abandoned those arguments.
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