Jesus Munoz-Maceda v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1693
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JESUS MUNOZ-MACEDA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
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On Petition for Review of a Final Order of the
Board of Immigration Appeals
(No. A209-308-370)
Immigration Judge: Rosalind K. Malloy
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Submitted Under Third Circuit L.A.R. 34.1(a)
on December 14, 2023
Before: BIBAS, PORTER, and FISHER, Circuit Judges
(Filed: December 14, 2023)
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OPINION*
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PORTER, Circuit Judge.
Jesus Munoz-Maceda is a Mexican citizen who entered the United States illegally.
The government placed him into removal proceedings after he was convicted of driving
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
under the influence. He conceded removability, but applied for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT) because he fears
persecution upon returning to Mexico. An immigration judge denied his applications and
ordered his removal to Mexico. The Board of Immigration Appeals (BIA) affirmed.
Munoz-Maceda now petitions for our review. His opening brief does not challenge the
denial of his application for CAT protection, so only his applications for asylum and
withholding of removal are properly raised. See Laborers’ Int’l Union of N. Am. v. Foster
Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a
party raises it in its opening brief[.]”).
To qualify for asylum and withholding of removal, Munoz-Maceda must show a
nexus between the persecution he fears and a “protected ground”—race, religion,
nationality, membership in a particular social group, or political opinion. Asylum is
permitted only for aliens who are refugees. 8 U.S.C. § 1158(b)(1)(A). And “refugee” is
defined as an alien who fears persecution “on account of” a protected ground. 8 U.S.C.
§ 1101(a)(42)(A). Similarly, withholding of removal is permitted only where an “alien’s
life or freedom would be threatened . . . because of” a protected ground. 8 U.S.C.
§ 1231(b)(3)(A). Thus, for both asylum and withholding of removal, Munoz-Maceda
must show that a protected ground will be “one central reason” for the persecution he
fears. Gonzalez-Posadas v. Att’y Gen. of U.S., 781 F.3d 677, 685 n.6 (3d Cir. 2015).
Munoz-Maceda alleges that he will face persecution in Mexico because organized
criminals will extort him. Before the BIA, Munoz-Maceda argued that he would face this
persecution on account of his political opinions. But the BIA found no evidence to
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support this nexus. Munoz-Maceda previously had testified that he would face
persecution only because of his perceived wealth. And the BIA noted that where
persecution is “motivated by a bare desire for money,” the nexus requirement is not
satisfied. Shehu v. Att’y Gen. of U.S., 482 F.3d 652, 657 (3d Cir. 2007).
We have jurisdiction over this petition under 8 U.S.C. § 1252(a). We review the
BIA’s nexus determination for substantial evidence, because it is a question of fact.
Thayalan v. Att’y Gen. of U.S., 997 F.3d 132, 138 (3d Cir. 2021). Munoz-Maceda “must
show that the evidence he presented was so compelling that no reasonable factfinder
could fail to find the requisite” nexus. INS v. Elias-Zacarias, 502 U.S. 478, 483–84
(1992).
We hold that substantial evidence supports the BIA’s determination that there is
no nexus between the persecution Munoz-Maceda fears and any protected ground.
Munoz-Maceda consistently testified that he would face persecution only for money. See
A.R. 127 (“[Criminals] will think that we will carry a lot of money because we were in
the United States.”); A.R. 131–32 (affirming that “the only” reasons he fears physical
harm are his perceived wealth and failure to pay extortion money); A.R. 135 (“[I]f I do
not give money, they will harm somebody from my family or myself.”). He did not
testify that he feared persecution on account of his political opinions, nor for any ground
other than money. And “an alien targeted out of a simple desire for money has not
experienced persecution on account of a [protected] ground . . . .” Thayalan, 997 F.3d at
144.
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Munoz-Maceda argues that resistance to extortion is political expression because
organized criminals control the Mexican government. But even if this is true, it does not
compel the conclusion that Munoz-Maceda faces harm because of political expression.
He testified that he will be harmed if he fails to pay extortion money. But he did not
testify that criminals will perceive his resistance to extortion as political expression, nor
that they will harm him because they perceive his resistance as politically motivated.
Instead, his testimony supports the conclusion that criminals will harm him, if at all,
because they want money.
Finally, Munoz-Maceda challenges the BIA’s decision because the Immigration
Judge cited to Matter of A-B- I, 27 I&N Dec. 316 (AG 2018), which was later vacated.
But this is irrelevant. The BIA’s nexus determination is dispositive of the denial of
Munoz-Maceda’s applications for asylum and withholding of removal, and A-B- I was
not required for that determination.
Because substantial evidence supports the BIA’s nexus determination, we will
deny the petition for review.
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