Jose Lopez-Flores v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2218
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Jose Jorge Lopez-Flores
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 12, 2021
Filed: August 27, 2021
[Unpublished]
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Before KELLY, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.
An Immigration Judge (“IJ”) denied asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”) to Jose Jorge Lopez-Flores.
The Board of Immigration Appeals (“Board”) adopted and affirmed the IJ’s
decision. Lopez-Flores challenges the Board’s order denying asylum and
withholding of removal. 1 We deny his petition for review.
We review the Board’s order as the final agency action, and we consider the
IJ’s findings and reasoning because the Board expressly adopted them. See Degbe
v. Sessions, 899 F.3d 651, 655 (8th Cir. 2018). “We will uphold the denial of asylum
and withholding of removal if the decision is supported by substantial evidence in
the record.” Prieto-Pineda v. Barr, 960 F.3d 516, 519 (8th Cir. 2020). Under this
standard, we “will uphold the denial of relief unless the alien demonstrates that the
evidence [i]s so compelling that no reasonable fact finder could fail to find the
requisite fear of persecution.” Uzodinma v. Barr, 951 F.3d 960, 964 (8th Cir. 2020)
(alteration in original) (quoting Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir.
2008)).
To establish eligibility for asylum, an applicant must show he is a “refugee.”
8 U.S.C. § 1158(b)(1)(A). A refugee is “an alien who is unwilling or unable to return
to his or her country of nationality ‘because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.’” Ixtlilco-Morales v. Keisler, 507 F.3d 651, 654
(8th Cir. 2007) (quoting 8 U.S.C. § 1101(a)(42)(A)). “We have explained that in
order to meet the requirements for persecution, the harm must be ‘inflicted either by
the government of a country or by persons or an organization that the government
was unable or unwilling to control.’” Prieto-Pineda, 960 F.3d at 520 (quoting
Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005)).
Lopez-Flores, a native and citizen of El Salvador, illegally entered the United
States in 2013. He was charged with being removable, conceded the charge, and
applied for asylum, withholding of removal, and relief under CAT. Lopez-Flores
said he left El Salvador after he refused gang members’ single attempt to recruit him
1
Lopez-Flores does not challenge the BIA’s conclusion that he waived his
CAT-protection claim.
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to join their gang. He claimed those gang members threatened to harm him and his
family if he did not join. Further, Lopez-Flores’s sisters stated that gang members
sexually assaulted and harassed them after Lopez-Flores left El Salvador.
The BIA affirmed the IJ’s findings that Lopez-Flores (1) did not suffer harm
amounting to persecution; (2) did not demonstrate the government was unwilling or
unable to control the gang; (3) did not show the harm he suffered or feared was on
account of a protected ground; and (4) otherwise failed to demonstrate he had an
objective well-founded fear of future persecution.
The record does not compel us to conclude that the Board erred in finding that
Lopez-Flores “failed to establish a causal nexus between the persecution he suffered
[or feared he would suffer] and his membership in [his] proposed particular social
group.” Gonzalez Cano v. Lynch, 809 F.3d 1056, 1059 (8th Cir. 2016). The
evidence here did not establish that the gang attempted to recruit Lopez-Flores or
targeted his sisters because they were part of the Lopez-Flores family. Indeed,
Lopez-Flores testified that the gangs target everyone in El Salvador whether they are
related to him or not.
Although “the lack of a nexus [itself] is a basis to deny an asylum application,”
Baltti v. Sessions, 878 F.3d 240, 245 (8th Cir. 2017), we also hold that the record
does not compel us to conclude the Salvadoran government is unable or unwilling
to control the country’s gangs. Lopez-Flores never reported the gang-related
incident to the police. Nor did he turn to them for protection. And the country-
conditions evidence demonstrates that the Salvadoran government has attempted to
curtail gang violence, including forming an anti-extortion task force.
Because the withholding-of-removal standard is higher than the asylum
standard, see Cubillos v. Holder, 565 F.3d 1054, 1058 (8th Cir. 2009), we also affirm
the IJ’s conclusion, adopted and affirmed by the Board, that Lopez-Flores is not
eligible for withholding of removal.
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For these reasons, we deny the petition for review.
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