Javier Miguel-Francisco v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15351 ELEVENTH CIRCUIT
JUNE 7, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
Agency No. A089-228-585
JAVIER MIGUEL-FRANCISCO,
a.k.a. Javier Esteban-Francisco,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 7, 2011)
Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Javier Miguel-Francisco, a citizen of Guatemala, seeks review of the Board
of Immigration Appeals’s (“BIA”) final order affirming the Immigration Judge’s
(“IJ”) denial of his application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture (“CAT”).1 After review, we deny the petition.
I. BACKGROUND
We outline the events recounted in Miguel-Francisco’s hearing testimony
and asylum application. When Miguel-Francisco was fourteen in 2005, members
of a Guatemalan street gang, variously referred to as the Maras, the Mareros or the
Maredos (“the Maras”), threatened, beat and threw stones at him. The Maras told
Miguel-Francisco, who is a Mayan Indian, that they hated him because he was not
like them. The Maras told him to join them and dress like them and tattoo his
body. Miguel-Francisco refused because the Maras hurt people and did drugs.
Every week, the Maras visited the home Miguel-Francisco shared with his
mother and threatened to kill him if he did not join them. In 2006, six teenaged
Maras stopped Miguel-Francisco as he was making his way home, teased him
1
On appeal, Miguel-Francisco does not challenge the denial of CAT relief. Thus, we do
not address this claim. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir.
2009) (deeming abandoned petitioner’s CAT claim to which the brief made only a passing
reference).
2
because he was fatherless, hit him on the head and again threatened to kill him if
he did not join their gang.
After the attack, Miguel-Francisco fled his village and lived on the street in
the capital city for about three months. In October 2006, Miguel-Francisco
followed a man through Mexico and into the United States. According to Miguel-
Francisco’s mother, the Maras came looking for Miguel-Francisco many times in
2006 and 2007.
Miguel-Francisco admitted that one of the Maras members had been his
friend for three years before the attacks and was a Mayan. Miguel-Francisco
explained that the Maras attacked him only because they wanted him to join their
gang and that is why they never harmed his mother.
Although the IJ credited Miguel-Francisco’s testimony, the IJ denied all
relief. The IJ concluded that Miguel-Francisco was statutorily ineligible for
asylum or withholding of removal because, inter alia, he had not shown a nexus
between the Maras’s mistreatment of him and the fact that he is Mayan. The IJ
stated that “acts of private violence,” “failure to cooperate with gangs,” “fear of
being the victim of crime” and “chaotic conditions in one’s homeland” were not
persecution on account of a protected ground.
3
On appeal, the BIA agreed that Miguel-Francisco failed to show the
required nexus. The BIA stated that “the fear of harm resulting from general
conditions of violence and civil unrest affecting the populace as a whole does not
constitute an enumerated ground with the meaning of the [INA].” Miguel-
Francisco petitioned this Court for review.
II. DISCUSSION
To carry his burden to prove statutory refugee status, an asylum applicant
must show either past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group or
political opinion. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.
§ 208.13(a); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).2
Under the REAL ID Act of 2005, an asylum applicant must demonstrate that one
of the protected grounds “was or will be at least one central reason” for the
persecution. INA § 208(b)(1)(B)(i); 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis
2
Similarly, an alien seeking withholding of removal must show that it is more likely than
not that he will be persecuted on account of race, religion, nationality, membership in a particular
social group or political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). Because this standard is more stringent than
the standard for asylum, an alien who fails to establish asylum eligibility generally cannot satisfy
the higher burden for withholding of removal.
4
added).3 Evidence of acts of private violence or criminal activity do not
demonstrate persecution on a protected ground. Ruiz, 440 F.3d at 1258. Under
the substantial evidence standard of review, we will reverse the finding that an
applicant failed to demonstrate the required nexus only if the record compels a
finding to the contrary. See Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
890 (11th Cir. 2007).4
Here, substantial evidence supports the finding that Miguel-Francisco failed
to show he was persecuted or had a well-founded fear he would be persecuted
based on his Mayan race or his membership in the particular social group of
Mayan Indians.5 Although Miguel-Francisco asserts that the Maras threatened
him because he is Mayan, he presented no evidence to support this claim. In fact,
Miguel-Francisco repeatedly testified that the Maras threatened and attacked him
because they wanted him to join their gang and he refused to do so. Miguel-
3
The REAL ID Act applies to applications filed after May 11, 2005. See Pub. L. No. 109-
13, § 101(h)(2), 119 Stat. 231, 305-06 (2005). Because Miguel-Francisco’s application was filed
in July 2009, the REAL ID Act’s provisions apply to his case.
4
Because the BIA’s decision adopted the IJ’s reasoning as to the lack of a nexus, we
review the decisions of both the IJ and the BIA. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001).
5
Miguel-Francisco does not challenge the IJ’s ruling that, to the extent the relevant group
is young Guatemalan men who resist gang recruitment, that group does not meet the definition of
a “particular social group” under the INA. Thus, we do not address this issue. See Sepulveda,
401 F.3d at 1228 n.2 (explaining that “[w]hen an appellant fails to offer argument on an issue,
that issue is abandoned”).
5
Francisco admitted that the Maras gang in his village had at least one Mayan
member already and had never harmed his Mayan mother. Although Miguel-
Francisco’s application stated that the Maras did not like him because he was not
like them, this was not a reference to his Mayan ethnicity given that they told him
to dress like them and tattoo his body.
The U.S. State Department’s 2008 Human Rights Report for Guatemala
indicates that societal violence from non-state actors, such as gangs, organized
crime and narcotics traffickers, is “widespread” and “rampant” in Guatemala and
that gangs often recruit street children “for purposes of stealing, transporting
contraband, prostitution, and illegal drug activities.” The 2008 Report also noted
that indigenous people suffer discrimination and cited examples of threats or
violence by unidentified individuals against activists and leaders in indigenous
communities.6 However, nothing in the 2008 Report suggested that the Maras, or
any other street gang, singled Mayans out for violence or threats.
On the record in this particular case, the evidence does not compel a
conclusion that one of the Maras’s central reasons for targeting Miguel-Francisco
was the fact that he is Mayan. Because Miguel-Francisco failed to carry his lower
6
The Maya are only one of 22 ethnic groups that make up Guatemala’s indigenous people.
6
burden of proof with regard to asylum, he was also ineligible for withholding of
removal. Accordingly, we deny Miguel-Francisco’s petition for review.
PETITION DENIED.
7