Mayron Castellanos-Gonzalez v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 20-2272
_______________________
MAYRON DANILO
CASTELLANOS-GONZALEZ,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA
_______________________
On Petition for Review from the
Board of Immigration Appeals
BIA-1 No. A206-313-957
Immigration Judge: John P. Ellington
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 21, 2021
Before: SMITH, Chief Judge, MATEY, and FISHER, Circuit Judges
(Filed: June 22, 2021)
__________________________
OPINION*
__________________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.
Mayron Castellanos-Gonzalez seeks review of a Board of Immigration
Appeals (BIA) decision affirming the Immigration Judge’s (IJ) denial of
withholding of removal. For the reasons that follow, we will deny the petition for
review.
I.
The Government initiated removal proceedings against Castellanos-
Gonzalez in July 2014. He applied for withholding of removal and protection
under the Convention Against Torture (CAT).
At his hearing before the IJ, Castellanos-Gonzalez testified that he grew up
in San Pedro Sula, Honduras. In 2006, members of the MS-13 gang attempted to
recruit him. He refused because he is an evangelical Christian and gang
membership is against his religion. In response, the gang members threatened to
kill him. After giving him a week to reconsider joining, the same gang members
shot him. Castellanos-Gonzalez suffered serious injuries. He did not report the
attack to the police, and no one was arrested for the shooting.
After recovering, Castellanos-Gonzalez left for another town, Puerto Cortes,
about two and a half hours away by bus from San Pedro Sula. He lived in Puerto
Cortes without incident for seven years, although he went back and forth to San
Pedro Sula because his wife and family remained there. In 2013, while leaving
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San Pedro Sula on a bus to return to Puerto Cortes, Castellanos-Gonzalez had
another violent encounter with armed gang members. Again, he did not report the
incident to the police. He left for the United States thereafter but was soon
deported. Castellanos-Gonzalez re-entered the United States in July 2014.
The IJ found Castellanos-Gonzalez credible and concluded that the harm he
experienced rose to the level of persecution. But the IJ denied withholding of
removal because Castellanos-Gonzalez failed to show that the harm was “on
account of” his religion.1 On appeal, the BIA determined there was no clear error
in the IJ’s finding. The BIA also declined to remand the matter to the IJ to
consider whether Castellanos-Gonzalez was harmed on account of membership in
a particular social group (PSG).
Castellanos-Gonzalez timely filed this petition for review.2
II.
To qualify for withholding of removal, Castellanos-Gonzalez needed to
“establish a ‘clear probability of persecution,’ i.e., that it is more likely than not,
1
The IJ also denied CAT relief. Because Castellanos-Gonzalez did not contest that
denial before the BIA or in his petition for review, we need not consider the CAT
claim further.
2
We have jurisdiction to review the BIA’s final order of removal. Shehu v. Att’y
Gen., 482 F.3d 652, 656 (3d Cir. 2007); 8 U.S.C. §1252(a). Although we review
the BIA’s opinion, we also consider the IJ’s opinion “where the BIA has
substantially relied on that opinion.” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d
Cir. 2009). Here, the BIA “adopt[ed] and affirm[ed]” the IJ’s decision, JA 17, so
we consider both.
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that [he] would suffer persecution upon returning home.” Valdiviezo-Galdamez v.
Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011) (citing INS v. Stevic, 467 U.S. 407,
429–30 (1984)); 8 U.S.C. § 1231(b)(3). He was required to show that the past
persecution was “on account of” a protected ground—in his case, religion or
membership in a PSG. See Valdiviezo-Galdamez, 663 F.3d at 591. In other words,
he needed to establish a nexus between the persecution and the protected ground.
Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009).
III.
Castellanos-Gonzalez contends that the BIA and IJ erred by not crediting his
position that religion was one central reason for his persecution at the hands of
MS-13 gang members. Castellanos-Gonzalez bore the burden of proof on that
issue.3 Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015) (“[T]he
applicant bears the burden of proving that one central reason for the persecution
was a protected characteristic.”). Where the agency determines that a petitioner
failed to establish past persecution on account of a protected characteristic (i.e.,
failed to prove nexus), we review the determination for substantial evidence. Id. at
3
To be a central reason, “it must be an essential or principal reason”—if the
characteristic played only a tangential, incidental, or superficial role, it will not
qualify. Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015). While
there may be more than one central reason, the protected characteristic must be a
but-for cause of the persecution. Thayalan v. Att’y Gen., --- F.3d ---, 2021 WL
1847752, at *7 (3d Cir. May 10, 2021).
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686; Ndayshimiye, 557 F.3d at 131. To obtain relief, Castellanos-Gonzalez must
demonstrate that he presented evidence so compelling that no reasonable factfinder
could fail to find that the nexus element was satisfied. Thayalan, --- F.3d ---, 2021
WL 1847752, at *8.
Substantial evidence supports the IJ’s finding, upheld by the BIA, that
religion was not one central reason for Castellanos-Gonzalez’s persecution, and
that the gang members instead were motivated by Castellanos-Gonzalez’s “build,
character, and to obtain money in furtherance of their criminal enterprises.” JA 18;
see also JA 12. Castellanos-Gonzalez testified that the gang targeted him because
they were trying to “grow the gang.” AR 149. When asked why the gang took an
interest in him, he responded, “[b]ecause of . . . the way I am, the way I look, my
build.” AR 150. He also testified that “I attracted them because they wanted me to
join the gang, and that’s the problem that I still have.” AR 173. Moreover, when
Castellanos-Gonzalez was asked whether he had ever encountered any issues
practicing his religion, he responded, “no.” AR 149.
Although Castellanos-Gonzalez testified that “they asked me to join the
gang, and I told them, no, because . . . I’m Christian,” AR 149; see also AR 150–
51, this evidence is not so compelling that no reasonable factfinder could fail to
find that he established a nexus between the gang’s actions and his religion.
Thayalan, --- F.3d ---, 2021 WL 1847752, at *8. Because there is substantial
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evidence that the gang was persecuting Castellanos-Gonzalez for money and as a
potential recruit, but not on account of his faith, we will uphold the agency’s
determination that religion was not one central reason for the persecution. See
Gonzalez-Posadas, 781 F.3d at 687 (upholding the agency’s decision based on
substantial evidence that the persecution was not on account of sexual orientation,
although “other interpretations of the record are certainly possible”).
IV.
Castellanos-Gonzalez also claims that the BIA erred by not considering his
membership in a PSG of “young religious Honduran attempted gang recruits.”
Pet’r. Br. 16. The BIA declined to consider his claim because he did not present
this PSG to the IJ in the first instance. Castellanos-Gonzalez takes issue with this,
arguing that he presented this PSG both during his hearing and on his I-589
application.
The record does not support Castellanos-Gonzalez’s position. Before the IJ,
he relied on religion as a central reason for his persecution and did not articulate a
“young religious Honduran attempted gang recruits” PSG. Although his I-589
application includes a checked box claiming membership in a PSG, he did not
enumerate a specific PSG. Before the IJ, Castellanos-Gonzalez bore the burden to
specify the “exact delineation” of any PSG. Matter of W-Y-C- & H-O-B-, 27 I. &
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N. Dec. 189, 191 (BIA 2018). Because he did not do so, the BIA did not err by
declining to address the PSG claim.
V.
For the foregoing reasons, the petition for review will be denied.
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