Eduardo Zapeta-Canastuj v. Eric Holder, Jr. ( 2014 )

Case: 13-60733 Document: 00512834627 Page: 1 Date Filed: 11/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60733 November 12, 2014
Summary Calendar
Lyle W. Cayce
Clerk
EDUARDO FLORENCIO ZAPETA-CANASTUJ, also known as Jorge Moralez-
Mendoza,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 592 438
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Eduardo Florencio Zapeta-Canastuj (Zapeta), a native and citizen of
Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA)
decision dismissing his appeal of the Immigration Judge’s (IJ) denial of his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Zapeta—who claims to be of indigenous
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-60733
Mayan descent, namely, the Quiché ethnic population—sought relief on the
basis of mistreatment he allegedly suffered in Guatemala at the hands of gang
members, as well as the family of a former girlfriend (the Cifuentes family).
With respect to the denial of asylum and withholding of removal, Zapeta
challenges the determination that the complained-of acts did not rise to the
level of past persecution. Relatedly, he argues that the BIA and the IJ erred
in mischaracterizing an incident in which he was stabbed with a broken bottle
and in finding that he could not identify his assailants. He also challenges the
determination that he did not establish the requisite nexus between his
persecution and a protected ground, namely, his Quiché race and/or nationality
and his articulated particular social group consisting of young Quiché males in
his rural community. Further, Zapeta contends that his past persecution
establishes a presumption of his well-founded fear of persecution, which the
Government did not rebut, and that the substantial evidence supports his
well-founded fear of persecution if returned to Guatemala. Additionally, he
contends that the BIA erred by finding that any error on the part of the IJ in
applying an incorrect standard to his asylum claim was harmless.
We review the decision of the BIA and will consider the underlying
decision of the IJ only to the extent it influenced the BIA. Shaikh v. Holder,
588 F.3d 861, 863 (5th Cir. 2009). Questions of law are reviewed de novo, and
factual findings are reviewed for substantial evidence. Id. Under the
substantial evidence standard, “reversal is improper unless we decide not only
that the evidence supports a contrary conclusion, but [also] that the evidence
compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (internal
quotation marks and citation omitted). Among the findings that we review for
substantial evidence are factual conclusions that an alien is not eligible for
asylum, withholding of removal, or relief under the CAT. Id.
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An alien seeking asylum must demonstrate past persecution or a
well-founded fear of persecution because of one of five protected grounds,
including race, nationality, and membership in a particular social group.
8 U.S.C. §§ 1158(b)(1)(A), (B)(i), and 1101(a)(42)(A). He must show that the
protected ground “was or will be at least one central reason for persecuting”
him. § 1158(b)(1)(B)(i) (emphasis added). In his petition, Zapeta contends that
the evidence establishes that the “fundamental reason,” or at least a central
reason, that the gangs targeted their victims, including Zapeta, was because of
their Quiché ethnicity and that the gang members’ attempt to recruit him was
“incidental” to the mistreatments he suffered. He argues that, in reaching a
contrary conclusion, the BIA and the IJ failed to fully consider his ethnicity.
The determination that Zapeta failed to show that any persecution by
the gangs was or will be “on account of” his status as a Quiché is supported by
the record and is substantially reasonable. See Shaikh v. Holder, 588 F.3d 861,
864 (5th Cir. 2009). Zapeta’s own testimony and his expert’s testimony
establish that the gangs acted tenaciously in their pursuit of persons whom
they viewed as vulnerable or valuable to the gang, regardless of their
indigenous or non-indigenous status, and that the gangs retaliated against
anyone perceived to be in opposition to them. Further, contrary to Zapeta’s
assertions, nothing in the documentary evidence indicates that there exists a
unique problem between criminal gangs and any particular race, nationality,
or group of indigenous persons. Accordingly, because he has not demonstrated
that any protected ground was or will be a central reason for the alleged
persecution, Zapeta has not demonstrated that the BIA and the IJ erred in
denying asylum.
Zapeta, who is represented by counsel, does not adequately brief the
denial of his asylum claim as it pertains to alleged persecution by the Cifuentes
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No. 13-60733
family. This issue therefore is deemed abandoned. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003). Further, Zapeta has not shown that the BIA
erred in determining that the IJ’s single reference to the “more likely than not”
standard of proof in discussing the issue of a well-founded fear of persecution
was a harmless error. Cf. United States v. Mikhail, 115 F.3d 299, 305-07 (5th
Cir. 1997).
Having failed to satisfy the requirements for asylum, Zapeta has also
failed to satisfy the requirements for withholding of removal under the
Immigration and Nationality Act. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th
Cir. 2002).
Finally, Zapeta challenges the denial of his request for CAT protection.
An alien seeking relief under the CAT must show that it is more likely than
not that he would be tortured upon return to his home country. Zhang, 432
F.3d at 344-45. Zapeta asserts that, if he is returned to Guatemala, he will be
subject to torture by gang members and that Guatemalan authorities maintain
willful blindness to the actions of gangs and are unable to control them. We
conclude, however, that the evidence does not compel a finding that
Guatemalan officials will acquiesce to or be willingly blind to any acts of
torture. The fact that officials try, but are unsuccessful, in their efforts to
combat criminal elements does not satisfy this standard. See Chen v. Gonzales,
470 F.3d 1131, 1142-43 (5th Cir. 2006).
The petition for review is DENIED.
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