Elvin Quinteros-Romero v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-2311
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ELVIN GIOVANNI QUINTEROS ROMERO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
_______________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A205-871-052)
Immigration Judge: Annie S. Garcy
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Submitted Under Third Circuit L.A.R. 34.1(a)
on January 25, 2021.
Before: RESTREPO, BIBAS, and PORTER, Circuit Judges
(Filed: January 25, 2021)
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OPINION*
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BIBAS, Circuit Judge.
Gang violence is horrifying. But ordinary fear of gang violence is not enough to get
relief from deportation. Because Elvin Quinteros Romero fears only that, the Government
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
may deport him. He worries that if he returns to his native El Salvador, MS-13 gang mem-
bers will target him because he once refused to work for them. But he has not shown that
they will target him because of a protected trait. Nor has he shown that the Salvadoran
government will acquiesce in the gang’s violence. So we will deny his petition for review.
I. BACKGROUND
When Quinteros was fifteen, a gang member approached him at school and tried to
recruit him for MS-13. He refused. For the next three months, gang members harassed him.
Finally, they threatened to kill his family unless he joined. He fled to the United States,
entered illegally, and was caught. Now the Government wants to deport him back to El
Salvador.
Quinteros fears that if he is sent home, MS-13 will kill him. So he applied for asylum,
withholding of removal, and relief under the Convention Against Torture. But an immigra-
tion judge denied all his claims. She denied his asylum and withholding claims because
any persecution would not be based on a protected trait. And she denied his Convention
claim because, even if he would face harm, he had not shown that the Salvadoran govern-
ment would acquiesce in it. The Board of Immigration Appeals affirmed, adopting her
reasoning.
Quinteros now petitions for review. We review the Board’s factual findings for sub-
stantial evidence and its legal conclusions de novo. Sesay v. Att’y Gen., 787 F.3d 215, 220
(3d Cir. 2015). That means we must accept the Board’s factual findings unless “the evi-
dence would compel any reasonable fact finder to reach a contrary result.” Id. (internal
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quotation marks omitted). Because the Board adopted the immigration judge’s decision,
we give her decision the same deference. Id.II. THE BOARD PROPERLY DENIED QUINTEROS’S CLAIMS
FOR ASYLUM AND WITHHOLDING OF REMOVAL
Quinteros’s asylum claim fails. To get asylum, Quinteros must be a “refugee”: someone
who is “unable or unwilling to return to . . . [his home] country because of persecution or a
well-founded fear of persecution on account of [a protected trait].” 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A). One protected trait is “membership in a particular social
group.” § 1101(a)(42)(A). Quinteros says he suffered persecution because he belonged to
the social group of “young[,] male Salvadoran students who are targeted for [gang] recruit-
ment.” Pet’r’s Br. 26.
That label probably does not define a particular social group. Courts regularly reject
claims like this. See, e.g., Rodas-Orellana v. Holder, 780 F.3d 982, 991–93 (10th Cir.
2015) (“El Salvadoran males threatened and actively recruited by gangs, who resist joining
because they oppose the gangs”); Mendez-Barrera v. Holder, 602 F.3d 21, 24, 27 (1st Cir.
2010) (“[Salvadoran] young women recruited by gang members who resist such recruit-
ment.”). But we need not decide the issue, because Quinteros’s claim fails for another rea-
son: causation.
Even if “young, male Salvadoran students” counted as a particular social group,
Quinteros cannot get asylum unless he was persecuted or fears persecution because he
belongs to that group. According to the immigration judge, he failed to show that.
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That finding was reasonable. When the immigration judge asked Quinteros why the
gang had targeted him, he admitted that he “d[id]n’t know” and that “[m]aybe they thought
[he] was useful for [their crimes].” AR 147. He never said that the gang was prejudiced
against students. In fact, the only reason his student status came up was because the gang
members tried to recruit him at school. But as he admits, the gang targeted the school be-
cause it had no security. Apparently, the gang had nothing against students.
Because there is no evidence that Quinteros was persecuted for being a student, the
immigration judge’s finding was reasonable and we must defer to it. And “an alien who
fails to qualify for asylum is necessarily ineligible for withholding.” Valdiviezo-Galdamez
v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011). The Board thus properly rejected both the
asylum and the withholding claims.
III. THE BOARD PROPERLY DENIED QUINTEROS’S CONVENTION CLAIM
Quinteros’s Convention claim fares no better. To get relief under the Convention, he
had to show that if he returns to El Salvador, he will more likely than not suffer severe
harm. 8 C.F.R. §§ 208.16(c), 208.18(a)(1) (2020). He also had to show that the Salvadoran
government will cause or acquiesce in that harm. Id. § 208.18(a)(1).
The immigration judge found that even if Quinteros would suffer harm from gangs, the
government would not acquiesce in it. That finding was reasonable. Quinteros’s only rele-
vant evidence was a group of articles about violence in El Salvador. But those articles
mostly refuted his claim: They reported that the Salvadoran government was at war with
the gangs. A State Department report he submitted even described some of the govern-
ment’s efforts as “promis[ing]” and “effective.” AR 179–80. True, one article cites
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unnamed “critics” who thought that gangs had infiltrated the government. AR 193. But
mostly, the articles complained that the government fought the gangs too viciously, killing
gangsters without due process.
To be sure, this evidence did not automatically doom Quinteros’s Convention claim.
“[A] government can acquiesce in torture despite opposing the group inflicting the harm.”
Nelson Quinteros v. Att’y Gen., 945 F.3d 772, 788 (3d Cir. 2019). But his evidence did not
help him either. And since the Salvadoran government generally opposed the gangs,
Quinteros needed specific evidence that the government would, even so, acquiesce in his
torture. See, e.g., Dutton-Myrie v. Att’y Gen., 855 F.3d 509, 517–18 (3d Cir. 2017); Gomez-
Zuluaga v. Att’y Gen., 527 F.3d 330, 350–51 (3d Cir. 2008). Quinteros had no specific
evidence like that, just the general evidence that the government was fighting the gang. So
the Board properly rejected his Convention claim.
* * * * *
Quinteros had no evidence that he was persecuted for being a student and none that the
Salvadoran government would acquiesce in gang violence against him. So we will deny
his petition for review.
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