Francisco De La Rosa Garcia v. William P. Barr ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3378
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Francisco de la Rosa Garcia
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 18, 2019
Filed: December 10, 2019
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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SHEPHERD, Circuit Judge.
Francisco de la Rosa Garcia (de la Rosa) petitions for review of an order of the
Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) denial of
his application for withholding of removal pursuant to § 241(b)(3) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1231(b)(3). Having jurisdiction under 8
U.S.C. § 1252, we deny the petition.
I.
De la Rosa, a native and citizen of Mexico, entered the United States without
inspection in or about 1999. On July 21, 2008, the Department of Homeland Security
initiated removal proceedings against de la Rosa, charging him as removable pursuant
to 8 U.S.C. § 1182(a)(6)(A)(i) (being present in the United States without being
admitted or paroled). De la Rosa conceded that he was removable as charged, but he
filed an application for relief from removal in the form of, inter alia, withholding of
removal under § 1231(b)(3) (restriction on removal to a country where alien’s life or
freedom would be threatened).1
In seeking relief from removal, de la Rosa claimed that he feared persecution
in Mexico due to his membership in a particular social group consisting of “members
of the de la Rosa family.” As support, de la Rosa testified that his uncle had been
kidnapped and extorted in 2016; that, until about 2015, his sister was receiving phone
calls from unknown individuals falsely claiming to have kidnapped de la Rosa and
seeking payment in exchange for his release; and that his father’s cousin was killed
in 2016 when he was opening his business because he had refused to submit to
extortionate demands. De la Rosa explained that, “if you have a business [in Mexico,
criminals] will ask you for money every month.” De la Rosa noted that his family
owns a small business in Mexico. Further, de la Rosa testified that, while his siblings
1
De la Rosa also applied for and was denied asylum, cancellation of removal,
and protection under the Convention Against Torture (CAT). The only issue
identified by de la Rosa before this Court is the denial of his application for
withholding of removal pursuant to § 1231(b)(3), and he does not submit argument
with respect to the denial of his applications for asylum, cancellation of removal, or
protection under the CAT. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th
Cir. 2004) (holding that claims that are not meaningfully argued in the opening brief
are waived).
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continue to live in Mexico, they have not been targeted because “they only make
enough [money] to survive.”
The IJ denied de la Rosa’s application for withholding of removal pursuant to
§ 1231(b)(3). The IJ found that, although membership in the de la Rosa family
constitutes a cognizable particular social group, he failed to satisfy his burden of
showing that his membership in that particular social group will be a central reason
for his persecution. Specifically, the IJ determined that the evidence indicated that
de la Rosa’s family members had been targeted because of their wealth, not because
of their membership in the de la Rosa family. Further, the IJ found that de la Rosa
failed to show that the Mexican police are unwilling or unable to protect him. The
BIA affirmed and dismissed the appeal, adding that de la Rosa had “not established
that his family relationship will be at least one central reason for the harm he claims
to fear in the future.”
II.
De la Rosa now seeks review of the denial of his application for withholding
of removal. He argues that the IJ and the BIA erred in finding that (1) de la Rosa
failed to establish that his membership in the de la Rosa family is at least one central
reason why he will be targeted for persecution, and (2) de la Rosa failed to establish
that the Mexican government is unable or unwilling to protect him. “We review the
BIA’s decision, as it is the final agency decision; however, to the extent that the BIA
adopted the findings or reasoning of the IJ, we also review the IJ’s decision as part
of the final agency action.” Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir.
2008). We review questions of law de novo, and we review the agency’s factual
findings by applying the deferential substantial evidence standard. Turay v. Ashcroft,
405 F.3d 663, 666-67 (8th Cir. 2005). Under that standard, “[f]act determinations
may be reversed only if the petitioner demonstrates that the evidence was so
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compelling that no reasonable fact finder could fail to find in favor of the petitioner.”
Id. at 667.
“To be eligible for withholding of removal to a particular country, an alien
must show a ‘clear probability’ that he would suffer persecution on account of a
protected ground such as political opinion or membership in a social group.” Miah
v. Mukasey, 519 F.3d 784, 787 (8th Cir. 2008). With respect to the first issue, de la
Rosa argues that the IJ and the BIA engaged in improper speculation to reach an
unsupported conclusion that criminals will harm de la Rosa only if they deem him
wealthy, and not because of his membership in the de la Rosa family. We disagree.
While de la Rosa testified to instances in which his family members were
targeted by criminals, he “provided no proof that the criminal[s] targeted members of
the family because of family relationships, as opposed to the fact that, as [business
owners], they were obvious targets for extortionate demands.” Cambara-Cambara v.
Lynch, 837 F.3d 822, 826 (8th Cir. 2016). In fact, de la Rosa’s testimony, as a whole,
undermines his claim that these family members were singled out because of their
membership in the de la Rosa family and, instead, suggests that criminals target
wealthy individuals regardless of family membership. For example, de la Rosa
testified that the reason he does not want to return to Mexico is because crime is
prevalent there, and people will assume that he has more money just because he has
lived in the United States. In addition, de la Rosa testified that his siblings continue
to live in Mexico but have not been targeted by criminals because they make only
enough money to survive. De la Rosa also testified that, just like his father’s cousin,
a non-relative neighbor was killed for refusing to submit to extortionate demands.
This suggests that the de la Rosa family “is no different from any other [Mexican]
family that has” been the victim of extortion. Id. (holding that Cambara failed to
establish a sufficient nexus between the alleged persecution and family membership,
because substantial evidence supports a finding that Cambara’s family is no different
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from any other Guatemalan family that has experienced gang violence) (quoting
Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011)).
Importantly, de la Rosa also testified that his family has not suffered further
violence or received any threats since his uncle’s kidnapping in 2016. De la Rosa
also testified that, while his sister had received phone calls from individuals claiming
to have kidnapped de la Rosa and seeking payment for his return, she stopped
receiving these phone calls in approximately 2015 when she changed her phone
number. Finally, de la Rosa testified that his parents continue to live in Mexico and
are able to operate their business without paying any money to criminal organizations.
On this record, substantial evidence supports the finding that de la Rosa failed
to establish a clear probability that he would suffer persecution in Mexico on account
of his membership in the de la Rosa family. Accordingly, we find that the IJ and the
BIA did not err in denying de la Rosa’s application for withholding of removal under
§ 1231(b)(3).
III.
Because we find that the IJ and the BIA did not err in finding that de la Rosa
failed to show a likelihood of persecution on account of membership in a particular
social group, we need not address the argument that the IJ and the BIA erred in
finding that de la Rosa failed to establish that the Mexican government is unable or
unwilling to protect him. See Salazar-Ortega v. Lynch, 654 F. App’x 854, 858 (8th
Cir. 2016) (affirming the BIA’s finding that, because petitioner had not shown that
she suffered persecution on account of a statutorily protected basis, it need not
address whether the Guatemalan government was unable or unwilling to control the
perpetrators).
The petition for review is denied.
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