Jose Cendejas Rodriguez v. U.S. Attorney General , 735 F.3d 1302 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14387
________________________
Agency No. A078-257-907
JOSE CENDEJAS RODRIGUEZ,
a.k.a. Jose Aguilar Rodriguez,
a.k.a. Jose Zendejas Rodriguez,
a.k.a. Jose Cendejas,
a.k.a. Jose Rodriguez,
a.k.a. Jose Ascencion Aguilar-Rodriguez,
a.k.a. Jose Zendjos-Rodriguez,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 19, 2013)
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Before HULL and HILL, Circuit Judges, and MOTZ, * District Judge.
PER CURIAM:
Jose Ascencion Cendejas Rodriguez, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals’s (“BIA”) decision, affirming the
Immigration Judge’s (“IJ”) denial of his application for withholding of removal.
After careful review, and with the benefit of oral argument, we deny the petition.
I. BACKGROUND
A. Reinstatement of the Prior Order of Removal
In 2008, Cendejas Rodriguez illegally reentered the United States for at least
the third time. He had illegally entered the United States in 1996 and 2001. He
also had once been removed, pursuant to a removal order entered on July 15, 2000.
Following his 2008 illegal entry, the Department of Homeland Security reinstated
the 2000 removal order, pursuant to Immigration and Nationality Act (“INA”)
§ 241(a)(5), 8 U.S.C. § 1231(a)(5).
Because of the 2008 reinstatement of his 2000 removal order following his
2008 illegal reentry, Cendejas Rodriguez concedes that he was ineligible for and
could not apply for asylum. See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5);
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34-35 & n.4, 126 S. Ct. 2422, 2426 &
*
Honorable J. Frederick Motz, United States District Judge for the District of Maryland,
sitting by designation.
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n.4 (2006) (providing that, although an alien may not seek asylum following the
reinstatement of a prior removal order, he may still seek withholding of removal).
Thus, this appeal involves only Cendejas Rodriguez’s application for withholding
of removal.
B. Withholding of Removal
At some point between 2008 and 2011, Cendejas Rodriguez was located and
an asylum officer interviewed Cendejas Rodriguez and determined that he had a
reasonable fear of persecution. Thus, in January 2012, the asylum officer referred
Cendejas Rodriguez to an IJ for withholding-of-removal proceedings, pursuant to 8
C.F.R. § 208.31(e). In February 2012, Cendejas Rodriguez also filed an
application for withholding of removal based on his membership in a particular
social group.1
We review Cendejas Rodriguez’s application, evidence submitted in support
of his application, and his testimony at his withholding-of-removal hearing:
Cendejas Rodriguez’s family owned a ranch, consisting of 40 square miles of
farmland in the state of Michoacán de Ocampo, Mexico. However, Cendejas
Rodriguez did not personally own any of the land. The family had previously used
1
In his application, Cendejas Rodriguez also sought relief under the Convention Against
Torture (“CAT”). However, Cendejas Rodriguez did not challenge the denial of CAT relief
before the BIA or in his brief to this Court. Therefore, we do not address his CAT claim. See
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009) (deeming abandoned
petitioner’s CAT claim to which petitioner’s brief made only a “passing reference”).
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the land to grow sugar cane, mangos, and tomatoes and to raise cattle. The land
was fertile and produced large quantities of fruit.
As a child, Cendejas Rodriguez helped his father work the farmland. When
Cendejas Rodriguez was eight or nine, men attempted to enter Cendejas
Rodriguez’s family’s home at night. The men ran away after Cendejas
Rodriguez’s grandfather fired two shots. Cendejas Rodriguez later learned that the
people who entered his home were associated with the Toledos, a Mexican family
involved in drug-trafficking.
In 1993, Erasto Toledo (“Erasto”) asked Cendejas Rodriguez’s father to
grow illegal drugs for Erasto on the Cendejas Rodriguez family’s farmland and to
then transport the drugs to the United States. Cendejas Rodriguez’s father refused,
producing tension between the Cendejas Rodriguez and Toledo families.
In 1996, Cendejas Rodriguez’s father told him that he believed his family
was in danger, and thus, he sent the family to the United States. Cendejas
Rodriguez’s father remained in Mexico. On November 20, 1996, Erasto and his
son, Israel, murdered Cendejas Rodriguez’s father. Cendejas Rodriguez was in the
United States at the time of his father’s death and did not return to Mexico until
2000.
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After the murder, Israel fled to the United States. A detective hired by
Cendejas Rodriguez’s grandmother found Israel, and Israel was extradited to
Mexico. Mexican officials jailed Israel, but did not prosecute him and eventually
released him. In addition, the Mexican police arrested Erasto, but immediately
released him without prosecuting him. The Toledo family developed “a vendetta”
against Cendejas Rodriguez and his family because of Erasto’s and Israel’s arrests
and Israel’s extradition.
In 2000, Cendejas Rodriguez returned to Mexico, and he discovered that the
ranch was “destroyed.” He saw his mother, who stayed by herself. Associates of
the Toledo family told Cendejas Rodriguez that Erasto was looking for his family.
The associates asked Cendejas Rodriguez if he had returned to Mexico for
vengeance. In his testimony before the IJ, Cendejas Rodriguez did not state what
his reply was to them. Cendejas Rodriguez remained in Mexico for 15 days. He
returned to the United States in 2001.
In 2008, Cendejas Rodriguez returned to Mexico to see his mother and the
farmland and he discovered “that people were using” the farmland. His mother
warned Cendejas Rodriguez to not remain in Mexico for long. Thus, Cendejas
Rodriguez remained in Mexico for only 15 days. Cendejas Rodriguez returned to
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the United States that same year and has not returned to Mexico since. There is no
indication of any threats or harm to his mother who has remained in Mexico.
In August 2011, Cendejas Rodriguez’s uncle, Aquilino Cendejas, was
kidnapped and tortured by three armed associates of the Toledo family. After
Cendejas Rodriguez’s family paid part of a negotiated ransom amount, the
kidnappers released the uncle. If the ransom had not been paid, the kidnappers
would have killed Cendejas Rodriguez’s uncle.
Alejandro Rodriguez Garcia, Cendejas Rodriguez’s cousin, had witnessed
Cendejas Rodriguez’s father’s murder. Rodriguez Garcia had testified against
Erasto in connection with his arrest warrant for the murder of Cendejas
Rodriguez’s father. In 2011, Rodriguez Garcia was killed and left underneath his
own vehicle to make his death appear to be an accident.
In 2012, Cendejas Rodriguez believed that the Toledo family was currently
using Cendejas Rodriguez’s family’s land to grow marijuana. If Cendejas
Rodriguez returned to Mexico, he feared the Toledo family due to: (1) his
opposition to the Toledos’ confiscation and use of Cendejas Rodriguez’s family’s
farmland for production of illegal drugs; (2) Cendejas Rodriguez’s family’s
involvement in Erasto’s and Israel’s arrests; and (3) Cendejas Rodriguez’s family’s
not having paid the whole ransom amount after the uncle’s kidnapping. Cendejas
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Rodriguez testified that, if he returned to Mexico, he wanted to do farm work.
However, he did not want to return to his family’s land because of his fear.
After receiving threats from drug traffickers, most of Cendejas Rodriguez’s
family members fled to the United States, and at least three of his family members
are now U.S. citizens. The Toledo family targeted other families in Mexico whose
land the Toledo family wanted.
C. Post-Hearing Brief
In a post-hearing brief, Cendejas Rodriguez argued that he was eligible for
withholding of removal based on his persecution on account of his membership in
two particular social groups. He defined his particular social groups as:
(1) Mexican farmers in the State of Michoacán, owning . . . farmland
suitable for producing high yields of illegal drug crops (cannabis),
who are subject to Drug Trafficking Organizations’ (DTOs’)
extortion tactics on account of their ownership of said farmland
and unwillingness to collaborate with the DTOs by refusing to
grow and produce illegal drug crops or participate in illegal drug
trafficking
(2) Family members of a family who has pursued Mexican law
enforcement authority to prosecute associates of a Mexican DTO
for the murder or assassination of a family member[.]
D. Decisions of the IJ and the BIA
The IJ credited Cendejas Rodriguez’s hearing testimony, but denied
withholding-of-removal relief. First, the IJ determined that Cendejas Rodriguez
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failed to present evidence of past persecution because he was never harmed, and he
had lived in the United States for most of his life.
Second, the IJ determined that Cendejas Rodriguez failed to show a clear
probability of future persecution on account of his membership in a particular
social group. The IJ found that Cendejas Rodriguez had not established that he
was a former landowner or the current owner of the farmland seized by the Toledo
family. The IJ observed that, under this Court’s precedent, neither of Cendejas
Rodriguez’s proposed social groups constituted a protected social group under the
INA. Further, Cendejas Rodriguez had not shown that the Toledo family would
target him “on account of” his proposed social groups. Cendejas Rodriguez
appealed the IJ’s decision to the BIA.
The BIA dismissed Cendejas Rodriguez’s appeal. The BIA determined that
the IJ correctly found insufficient evidence to support Cendejas Rodriguez’s claim
that he was persecuted. The BIA first explained that Cendejas Rodriguez did not
show that any harm or mistreatment he described rose to the level of persecution.
Although his father and cousin were murdered and his uncle was kidnapped,
Cendejas Rodriguez did not claim to have been physically harmed himself. The
BIA concluded that, under the circumstances, harm to Cendejas Rodriguez’s
family members did not constitute persecution of the applicant.
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The BIA agreed with the IJ’s decision that Cendejas Rodriguez failed to
show that it is more likely than not that he will face future persecution. Cendejas
Rodriguez’s claim lacked the required nexus between any feared harm in Mexico
and a protected ground. The BIA concluded that Cendejas Rodriguez failed to
show that his proposed social group—comprised of members of a family targeted
by a drug-trafficking organization because a family member sought criminal
justice against a member of the drug-trafficking organization—was recognized as a
group in Mexican society, as required for the group to qualify as a particular social
group. In addition, despite Cendejas Rodriguez’s claim that he was a member of
particular social group described as landowners in a Mexican state, Cendejas
Rodriguez had not shown that he owned substantial farmland in Mexico. Finally,
he presented no evidence that the Toledo family or associates of a drug-trafficking
organization were motivated to harm him due to his affiliation with either of his
two proposed social groups. Cendejas Rodriguez filed this petition for review.
II. DISCUSSION
On appeal, Cendejas Rodriguez argues that: (1) the IJ and BIA erred in
determining that he was not a member of a particular social group; and (2) the IJ
and BIA erred in determining that he failed to establish past persecution or that he
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would more likely than not be persecuted on account of his membership in a
particular social group.
A. Standard of Review
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). In this case, because the BIA agreed with the IJ’s
findings, and made additional observations, we review both decisions. Id.
We review the BIA’s factual findings to determine whether they are
supported by substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27
(11th Cir. 2004) (en banc). Under the substantial evidence standard, 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.” Id. at 1027. We may reverse the
BIA’s factual findings only when the record compels a reversal. Id. We review
the IJ’s and the BIA’s legal conclusions de novo. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009).
B. Withholding of Removal
To qualify for withholding of removal, an applicant must establish that his
life or freedom would be threatened in his country of origin on account of the
alien’s “race, religion, nationality, membership in a particular social group, or
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political opinion.” See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The
applicant must demonstrate that he would “more likely than not” be persecuted
upon being returned to his country of origin. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1232 (11th Cir. 2005) (internal quotation marks omitted).
An alien may satisfy his burden of proof for withholding of removal in two
ways. First, an alien may establish past persecution based on a protected ground.
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004). Past persecution
creates a rebuttable presumption that the alien’s life or freedom would be
threatened upon return to his country. Id. Second, an alien is entitled to
withholding of removal if he establishes that it is more likely than not that he
would face a future threat to his life or freedom upon removal due to a protected
ground. Id.
“[We have] held that persecution is an extreme concept requiring more than
a few isolated incidents of verbal harassment or intimidation . . . mere harassment
is not persecution.” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (internal
quotation marks omitted). In determining whether an alien suffered past
persecution, the IJ must consider the “cumulative effect” of the incidents. See id.
In this case, substantial evidence supports the agency’s determination that
Cendejas Rodriguez did not establish either past persecution or that he will “more
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likely than not” be persecuted based on his membership in a particular social group
if returned to Mexico. In addition, Cendejas Rodriguez cannot show that the
record compels a contrary conclusion. We explain why.
C. Past Persecution
First, Cendejas Rodriguez did not demonstrate past persecution of him. We
have held that threats or harm to a person other than the alien may constitute
evidence that the alien suffered past persecution “where that act concomitantly
threatens the petitioner.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1009
n.7 (11th Cir. 2008). However, we have not yet expressly said that threatening acts
or harm against other family members does not constitute or imply persecution of
the petitioner where there has been no threat or harm directed against the
petitioner. We now say so as explained below.
The BIA has concluded that harm to an applicant’s family members does not
serve to establish persecution of the applicant personally. In re A-K-, 24 I. & N.
Dec. 275, 278-79 (BIA 2007). The BIA, in its decision In re A-K-, explained that
“[a]utomatically treating harm to a family member as being persecution to others
within the family is inconsistent with the derivative asylum provisions,” and noted
that the INA “does not permit derivative withholding of removal under any
circumstances.” Id. The BIA recognized that there may be a case where a person
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persecutes a family member “with the intended purpose of causing emotional harm
to the applicant” but that “persecution would not be ‘derivative’ as the applicant
himself would be the target of the emotional persecution that arises from physical
harm to a loved one.” Id. at 278. The pattern of persecution must be “tied to the
applicant personally.” Id.
In addition, other circuit courts have indicated that a petitioner cannot show
past persecution based on threatening or harmful acts against family members
where the petitioner has not been directly threatened or harmed. See Zhou Ji Ni v.
Holder, 635 F.3d 1014, 1018-19 (7th Cir. 2011) (explaining that an asylum
applicant cannot rely on the arrest and beating of his parents for their religious
beliefs and “derivative persecution” to establish that he was subjected to past
persecution, and noting applicant “did not argue that his family was seized and
beaten on account of his Christianity in an effort to persecute him”); Tamang v.
Holder, 598 F.3d 1083, 1087, 1091-93 (9th Cir. 2010) (recognizing, in a
withholding-of-removal case, that harm to an applicant’s close family members
may be relevant to addressing whether the applicant suffered past persecution, but
“we have not found that harm to others may substitute for harm to an applicant,
such as Tamang in this case, who was not in the country at the time he claims to
have suffered past persecution” and who “was not directly impacted”); Jalloh v.
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Gonzales, 418 F.3d 920, 923 (8th Cir. 2005) (providing that, in order for acts of
violence against family members to constitute persecution against the petitioner,
“[t]here must be evidence of a pattern of persecution on account of a protected
ground, and the persecution must be tied to the petitioner”); Ahmadshah v.
Ashcroft, 396 F.3d 917, 920 (8th Cir. 2005) (finding past persecution “tied to the
petitioner” where petitioner Ahmadshah’s sister was murdered for her Christian
activities, Ahmadshah was beaten because of his Christian religious beliefs, and
the murder “was coupled with a threat directed at Ahmadshah himself”); Tamas-
Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000) (upholding the agency’s
finding that the petitioner was not subject to past persecution when his father,
grandfather, and uncle were arrested for opposing government policies).
Based on our decision in De Santamaria and the BIA’s decision in Matter of
A-K-, we conclude that Cendejas Rodriguez has not shown past persecution based
on the acts committed on his father, cousin, and uncle because he did not show any
acts that threatened or harmed him personally. Because Cendejas Rodriguez’s
testimony established that he was never personally threatened, harmed, or
mistreated while in Mexico or during later visits to Mexico, he did not show past
persecution. In addition, Cendejas Rodriguez was in the United States when his
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father and cousin were murdered and when his uncle was kidnapped and thus he
was not even in Mexico at the time he claims to have suffered past persecution.
D. Future Persecution
Second, Cendejas Rodriguez did not demonstrate that he will “more likely
than not” be persecuted if returned to Mexico based on his membership in a
particular social group. An alien must present “specific, detailed facts showing a
good reason to fear that he or she will be singled out for persecution on account of
[a protected ground].” Najjar, 257 F.3d at 1287 (internal quotation marks omitted).
“[E]vidence that either is consistent with acts of private violence or the petitioner’s
failure to cooperate with guerillas, 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.” Ruiz, 440 F.3d at 1258 (citing Sanchez, 392 F.3d at
438 (holding that the petitioner failed to establish a nexus between her political
opinion and the alleged persecution by a guerrilla group because the evidence
established that she was harassed due to her refusal to cooperate with the group)).
“A particular social group” refers to persons who share a common,
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.” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1193,
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1196 (11th Cir. 2006) (internal quotation marks omitted) (discussing and adopting
the BIA’s definition of “particular social group”). “The risk of persecution alone
does not create a particular social group within the meaning of the INA.” Id. at
1198. To qualify as a particular social group under the INA, a group must not be
“too numerous or inchoate.” Id.
Cendejas Rodriguez claimed membership in the following two particular
social groups: (1) landowners of substantial farmland in Mexico; and (2) members
of a family targeted by a drug-trafficking organization because a family member
sought criminal justice against a member of the drug-trafficking organization.
The IJ and BIA correctly determined that Cendejas Rodriguez is not a
member of a particular social group. Based on Cendejas Rodriguez’s testimony
that his family owned land in Mexico and the deeds that reflected that other
members of his family owned the land in Mexico, the IJ and BIA concluded that
Cendejas Rodriguez failed to establish that he owned substantial farmland, and the
record does not compel a contrary conclusion. 2
2
In a footnote in his appellate brief, Cendejas Rodriguez asserts that, because the grounds
for persecution can be actual or imputed under the law, whether Cendejas Rodriguez personally
owned the land is irrelevant to determining whether he has shown he will more likely than not be
persecuted if returned to Mexico based on his membership in a particular group. Because
Cendejas Rodriguez never raised this claim before the BIA, we conclude that it is not exhausted,
and we lack jurisdiction to address it. See Fernandez–Bernal v. Att’y Gen., 257 F.3d 1304, 1317
n.13 (11th Cir. 2001) (providing that the exhaustion requirement is jurisdictional and precludes
review of a claim that was not presented to the BIA).
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The IJ and BIA also did not err in determining Cendejas Rodriguez’s
proposed family member group did not constitute a particular social group. As the
BIA found, the defining attribute of Cendejas Rodriguez’s proposed group is its
persecution by the drug-trafficking organization, and the “risk of persecution alone
does not create a particular social group.” See Castillo-Arias, 446 F.3d at 1198.
But even if Cendejas Rodriguez was a member of a cognizable social group
of either landowners or family members, the IJ and BIA correctly determined that
Cendejas Rodriguez failed to show that the harm he feared at the hands of the
Toledo family arose from his membership in either group. Instead, the record
reflects that the members of his family were killed or kidnapped due to their failure
to cooperate with the drug traffickers or were the victims of criminal activity. See
Ruiz, 440 F.3d at 1258. Accordingly, substantial evidence supports the IJ’s and
BIA’s decisions that Cendejas Rodriguez failed to establish a nexus between his
membership in a particular social group and the harm he feared in Mexico.
For all of the foregoing reasons, we deny Cendejas Rodriguez’s petition.
PETITION DENIED.
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