Enrique Mejia Chavez v. U.S. Attorney General , 571 F. App'x 861 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15486
Non-Argument Calendar
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Agency No. A070-848-642
ENRIQUE MEJIA CHAVEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 9, 2014)
Before TJOFLAT, FAY, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Enrique Mejia Chavez, a native and citizen of Guatemala, petitions for
review of the order of the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of his application for asylum under the
Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a),
withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). In his
petition, Mejia Chavez argues that the agency erred because its determination was
not supported by substantial evidence. Particularly given the deference owed the
BIA, we see no reversible error.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (citation omitted). We may only review those issues ruled upon by the
BIA. See Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1279 (11th Cir. 2013).
Factual determinations are reviewed under the “highly deferential substantial
evidence test,” which requires us to “view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
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that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en
banc). We “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) . “To reverse the
. . . fact findings, we must find that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
We review the IJ’s and BIA’s legal conclusions de novo. Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1350 (11th Cir. 2009).
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or the
Secretary of the Department of Homeland Security has discretion to grant asylum
if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257
F.3d at 1284. To establish eligibility, the alien must, with specific and credible
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evidence, establish (1) past persecution on account of a statutorily listed factor or
(2) a well-founded fear that the statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(b); Al Najjar, 257 F.3d at 1287.
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005) (quotations and alteration omitted). Moreover, the persecution must be
personal to the applicant --“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.” Rodriguez v. U.S. Att’y Gen., 735
F.3d 1302, 1308-09 (11th Cir. 2013); see also In re A-K-, 24 I. & N. Dec. 275, 278
(BIA 2007) (persecution must be “tied to the applicant personally”).
An applicant must also establish a nexus between the persecution and a
ground listed in the statute. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)
(defining a “refugee” as a person who cannot or will not return to their country
because of past persecution or a well-founded fear of future persecution “on
account of” a protected ground). The applicant must demonstrate that one of the
enumerated grounds “was or will be at least one central reason” for the
persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).
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The statutory grounds for asylum specifically include “membership in a
particular social group, or [a] political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A). “Persecution on account of political opinion is persecution on
account of the victim’s political opinion, not the persecutor’s.” Sanchez v. U.S.
Att’y Gen., 392 F.3d 434, 437-38 (11th Cir. 2004) (emphasis in original)
(alterations omitted). The key question is whether the persecutor is acting because
of the applicant’s political opinion. See id. at 438. We have said that “evidence
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 v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006);
see also Sanchez, 392 F.3d at 438 (petitioner failed to establish a nexus between
her alleged political opinion and the guerillas’ alleged persecution when she
established merely that the guerillas harassed her because of her failure to
cooperate).
Congress has not defined what constitutes a “particular social group” under
the INA; and we must defer to the BIA’s reasonable interpretation of that term,
pursuant to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Castillo-Arias v. U.S. Att’y Gen., 446 F.3d
1190, 1195-96 (11th Cir. 2006). In Castillo-Arias, we approved the BIA’s
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definition of a “particular social group” as a group of persons who “share a
common, immutable characteristic . . . such as sex, color, or kinship ties, or in
some circumstances . . . a shared past experience such as former military
leadership or land ownership.” Id. at 1193, 1196-97 (citing Matter of Acosta, 19 I.
& N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of
Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987)). “[T]his characteristic must be
one 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.”
Id. at 1193 (quotations omitted). Reasoning that membership in a particular social
group should not be defined so broadly that it becomes “a ‘catch-all’ for all
persons alleging persecution who do not fit elsewhere,” we affirmed the BIA’s
determination that noncriminal informants working against the Colombian drug
cartels are not a particular social group. See id. at 1198 (“The risk of persecution
alone does not create a particular social group within the meaning of the INA, as
virtually the entire population of Colombia is a potential subject of persecution by
the cartel.”).
To qualify as a “particular social group,” a group must (1) “share a common,
immutable characteristic,” (2) not be defined by the risk of persecution alone, and
(3) not be “too numerous or inchoate.” Rodriguez, 735 F.3d at 1310. In addition, a
particular social group must have “social visibility” (which the BIA recently
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renamed “social distinction”), which requires a group to be “socially distinct
within the society in question,” that is, it must be perceived as a distinct group by
society. See Matter of W-G-R-, 26 I. & N. Dec. 208, 212 (BIA 2014); Matter of M-
E-V-G-, 26 I. & N. Dec. 227, 237, 240 (BIA 2014). Mere resistance to a violent
group does not confer social distinction. See Matter of E-A-G-, 24 I. & N. Dec.
591, 594-95 (BIA 2008) (holding that the proposed “social group” of people “who
resist joining gangs [has] not been shown to be part of a socially visible group
within Honduran society”).
To establish a well-founded fear of future persecution, the applicant must
show either (1) past persecution that creates a presumption of a “well-founded
fear” of future persecution, or (2) that there is a “reasonable possibility” of
suffering persecution if he returns to his home country. 8 C.F.R. § 208.13(b)(1),
(2). If the applicant is entitled to the presumption based on past persecution, that
presumption may be rebutted if, for example, a fundamental change of
circumstances has happened such that the applicant would no longer have a well-
founded fear of persecution in his or her country. Id. § 208.13(b)(1)(i)(A). The
applicant must demonstrate a well-founded fear of future persecution that is
“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
“The subjective component is generally satisfied by the applicant’s credible
testimony that he or she genuinely fears persecution[,]” and “[i]n most cases, the
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objective prong can be fulfilled either by establishing past persecution or that he or
she has a good reason to fear future persecution.” Id. (quotations omitted). The
applicant must present “specific, detailed facts showing a good reason to fear that
he or she will be singled out for persecution on account of [the statutorily protected
factor].” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)
(quotation omitted) (emphasis in original).
To qualify for withholding of removal, the applicant bears the burden of
showing that his life or freedom would be threatened in the proposed country of
removal: threatened on account of a protected ground. See INA § 241(b)(3)(A), 8
U.S.C. §1231(b)(3)(A); 8 C.F.R. § 208.16(b). The applicant meets this burden by
showing that it is “more likely than not” he or she will be persecuted or tortured
upon being returned to their country. Sepulveda, 401 F.3d at 1232. This standard
is a more stringent one than the one required for asylum eligibility; therefore, if an
applicant is unable to meet the “well-founded fear” standard for asylum, he
generally is unable to qualify for withholding of removal. See Kazemzadeh, 577
F.3d at 1352.
To qualify for protection under CAT, the applicant bears the burden of
showing that it is more likely than not that he would be tortured if returned to the
proposed country of removal. 8 C.F.R. § 208.16(c)(2). To obtain CAT relief, the
applicant must demonstrate that the torture would be inflicted by the government
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or that the government would be aware of the torture and allow it to happen. See
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).
Substantial evidence supports the denial of Mejia Chavez’s asylum,
withholding of removal, and CAT claims. First, the record does not compel the
finding that Mejia Chavez was personally persecuted on account of a protected
ground. Mejia Chavez did not demonstrate a connection between his political
opinion and the guerillas’ mistreatment of him and his family. See Ruiz, 440 F.3d
at 1258. Furthermore, the agency’s determining that the “social group” proposed
by Mejia Chavez -- people affiliated with the Guatemalan army and government --
is no “particular social group” under the meaning of the INA is free of error: the
purported “social group” is both too inchoate, numerous, and not socially
distinctive. Second, substantial evidence supports the agency’s determination that
Mejia Chavez’s fear of persecution upon return to Guatemala is not objectively
reasonable because of the passage of time and the changed circumstances -- for
example, the Peace Accords -- in Guatemala; he therefore cannot show a well-
founded fear of future persecution.
Because Mejia Chavez failed to carry his burden for asylum, he necessarily
failed to carry the higher burden required to qualify for withholding of removal. In
addition, nothing evidences torture of Mejia Chavez or evidences that the
government of Guatemala would participate or acquiesce in such torture; so the
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record fails to compel reversal of the agency’s determination that Mejia Chavez
was unentitled to CAT relief.
PETITION DENIED.
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