Reibin Catalan-Lopez v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2840
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REIBIN EDUARDO CATALAN-LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
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On Petition for Review of a final Order of the
Board of Immigration Appeals
(Agency No. A208-985-848)
Immigration Judge: John B. Carle
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Submitted Under Third Circuit L.A.R. 34.1(a) on
June 21, 2023
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Before: BIBAS, MATEY, and FREEMAN, Circuit Judges
(Filed: July 19, 2023)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
MATEY, Circuit Judge.
Reibin Eduardo Catalan-Lopez is a native citizen of Guatemala charged with
removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). He seeks asylum, withholding of
removal, and protection under the Convention Against Torture (CAT), claiming
persecution as a Christian “openly and vehemently opposed to organized crime.” A.R. 136.
An IJ determined his past experiences did not rise to the level of persecution, and that his
proposed particular social group was not legally cognizable. The IJ also found Catalan-
Lopez could relocate to the part of Guatemala where his mother and brother had safely
moved. The BIA agreed, 1 but incorrectly mentioned El Salvador instead of Guatemala in
its analysis. An error the BIA corrected in deciding Catalan-Lopez’s motion to reconsider,
explaining that “[o]ther than incorrectly identifying the country name in the decision, the
conclusions in the decision are derived from the record and correct.” A.R. 2. 2
1
Catalan-Lopez did not challenge the IJ’s denial of CAT protection, so the BIA
twice noted the issue was waived. Catalan-Lopez now asks us to remand on his CAT claim
under Guzman Orellana v. Attorney General, 956 F.3d 171, 182 (3d Cir. 2020). But
Guzman Orellana was decided before both BIA decisions and did not change the standard
for CAT claims, so we decline Catalan-Lopez’s invitation. See 8 U.S.C. § 1252(d)(1);
Gonzalez v. Thaler, 565 U.S. 134, 146 (2012) (“[C]alling a rule nonjurisdictional does not
mean that it is not mandatory or that a timely objection can be ignored.”).
2
The BIA had jurisdiction under 8 C.F.R. § 1003.2(b). We have jurisdiction under
8 U.S.C. § 1252(a)(1). We review factual findings under the substantial evidence standard.
8 U.S.C. § 1252(b)(4)(B); Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 590 (3d Cir.
2011). Whether a proposed social group is cognizable is a mixed question of law and fact,
so we “review de novo the ultimate legal conclusion as to the existence of a particular
social group, while we review the underlying factual findings for ‘substantial evidence[.]’”
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018) (citation omitted). Procedural due
process claims are also reviewed de novo. Hernandez Garmendia v. Att’y Gen., 28 F.4th
476, 482 (3d Cir. 2022).
The BIA’s decision after granting rehearing is the only final order on review. That
does not, however, prevent us from considering the analysis in the BIA’s prior decision if
2
In this petition, Catalan-Lopez argues that the BIA incorrectly denied him asylum
and withholding of removal when it determined that the proposed social group of
“Christians who are openly and vehemently opposed to organized crime” was not
cognizable. We disagree. Asylum and withholding of removal require the applicant to show
past persecution, or a well-founded fear of future persecution, 3 on account of “race,
religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. §§ 1158(b)(1) (asylum); 1231(b)(3)(A) (withholding of removal). “[A]n applicant
for asylum or withholding of removal seeking relief based on ‘membership in a particular
social group’ must establish that the group is (1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014);
see also 8 C.F.R. § 208.1(c) (2020).
Catalan-Lopez’s proposed group does not satisfy this standard. See S.E.R.L., 894
F.3d at 550–53 (defining particularity as having “discrete and definable boundaries that are
the BIA’s later decision affirmed that analysis. Cf. Garcia v. Att’y Gen., 665 F.3d 496, 502
(3d Cir. 2011), as amended (Jan. 13, 2012) (“When the BIA adopts or defers to the
underlying decision of the IJ, we review the IJ’s opinion as the decision of the agency.”).
3
Catalan-Lopez argues that the agency incorrectly focused on past persecution to
determine whether he established fear of future persecution. But the IJ determined that
Catalan-Lopez did not have a well-founded fear of future persecution because he could
reasonably relocate to another part of the country, where his mother and brother have lived
without threats from gangs. See 8 C.F.R. § 1208.13(b)(1), (b)(2). And “[t]he Board was . . .
not required to reach the issue of whether the respondent suffered past harm rising to the
level of persecution” because the BIA “affirmed the Immigration Judge’s determination
that the respondent’s proposed particular social group was not sufficiently particular or
socially distinct, and that the asserted harm was not on account of a protected ground.”
A.R. 2–3.
3
not amorphous, overbroad, diffuse, or subjective,” and social distinction as “whether the
people of a given society would perceive a proposed group as sufficiently separate or
distinct” (cleaned up)). But even strident opposition to organized crime is too amorphous
and not narrowed by reference to his faith. 4
We also see no error in the BIA’s analysis of Catalan-Lopez’s due process claim.
Catalan-Lopez says the incorrect mention of El Salvador in the BIA’s original opinion
made clear that the BIA did not conduct an independent review of the record. But the BIA’s
decision discussed specific facts about Guatemala. No substantial prejudice resulted from
the BIA’s mistake. See Freza v. Att’y Gen., 49 F.4th 293, 298 (3d Cir. 2022) (“To show
substantial prejudice, the noncitizen must establish ‘that the infraction ha[d] the potential
for affecting the outcome’ of their removal proceedings.” (citation omitted)).
For these reasons, we will deny the petition for review.
4
Although the determination that Catalan-Lopez’s claimed social group is not
cognizable resolves his asylum and withholding of removal claims, we also note the lack
of nexus between the group and the claimed harm. “[A]n alien targeted out of a simple
desire for money has not experienced persecution on account of a ground protected by the
INA.” Thayalan v. Att’y Gen., 997 F.3d 132, 144 (3d Cir. 2021). Nothing in the record
suggests that Catalan-Lopez expressed his Christian views to the gang, or that the gang
targeted him for his faith. Indeed, Catalan-Lopez believes he was targeted because of his
access to cars for drug distribution.
4