Aurelia Santacruz v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1582
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AURELIA ALEJANDRES SANTACRUZ;
WILBER SOLORIO ALEJANDRES,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
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On Petition for Review of an Order of the Board of Immigration Appeals
(A209-167-344 & A209-167-345)
Immigration Judge: John B. Carle
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Submitted Under Third Circuit LAR 34.1(a)
May 25, 2022
Before: KRAUSE, PHIPPS, Circuit Judges and STEARNS *, District Judge.
(Filed: June 23, 2022)
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OPINION ∗∗
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*
Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.
∗∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
STEARNS, District Judge.
Petitioners Aurelia Alejandres Santacruz and her minor son, who are natives and
citizens of Mexico, arrived in the United States in June of 2016 without valid entry
documents. They now appeal a final removal order of the Board of Immigration Appeals.
We have jurisdiction under 8 U.S.C. § 1252(a). We review the Board’s legal conclusions
de novo, see Cheruku v. Att’y Gen., 662 F.3d 198, 202 (3d Cir. 2011), and “we must
regard all determinations about facts grounding the final order as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Mendoza-
Ordonez v. Att’y Gen., 869 F.3d 164, 169 (3d Cir. 2017) (quoting 8 U.S.C §
1252(b)(4)(B)).
The petition arises against the backdrop of a power struggle between two drug
cartels based in the Michoacán State— La Familia Michoacán and Jalisco Nueva
Generacion—battling for control of the drug trade in the area where petitioner lived
before coming to the United States. Petitioner Alejandres had joined El Timbrichi, a
ranching collective consisting of some two hundred farming households. On June 9,
2016, Alejandres witnessed a deadly shootout between members of the rival gangs.
Although Alejandres was not personally threatened (nor were members of her family),
she feared for her continuing safety. She left for the United States with her son and
applied for asylum, claiming that she was being persecuted by partisans of the Jalisco
gang, with the acquiescence of the Mexican government, because of her membership in a
social group, El Timbrichi. She also sought withholding of removal, and relief under the
Convention Against Torture (CAT).
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The Board determined that Alejandres’s experience, while “regrettable,” did not
rise to the level of persecution. App. 19. Further, to the extent that the ranching
community constituted a social group, she was unable to establish that her membership in
the collective was “at least one central reason” for her fear of harm. The Board found
that there was no evidence that “either of the rival groups intended then or now . . . to
specifically harm [Alejandres] . . . .” Id. The Board also concluded that she had not
established that she and her son could not safely relocate to another area of Mexico, as
her mother and in-laws were living safely elsewhere in the country. Finally, the Board
deemed that petitioners had waived their CAT claim.
Alejandres contends in general terms that the Board “overlooked the law and
evidence” in rejecting her asserted fear of future persecution and in determining that
membership in El Timbrichi was not “at least one central reason” for her fear of
persecution. 1 Appellant’s Br. 12–13. To be eligible for asylum, a petitioner bears the
burden to “demonstrate either (i) proof of past persecution, or (ii) a well-founded fear of
future persecution in [their] home country ‘on account of race, religion, nationality,
membership in a particular social group, or political opinion.’” Sesay v. Att’y Gen., 787
F.3d 215, 218–19 (3d Cir. 2015) (quoting 8 U.S.C. § 1101(a)(42)). Applicants seeking
withholding of removal must also carry the heavier burden of establishing that they
would “more likely than not” be persecuted on account of a protected characteristic.
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Alejandres and her son do not substantively challenge the Board’s determination
that they did not suffer past persecution and that they could safely relocate to another area
of Mexico.
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Thayalan v. Att’y Gen., 997 F.3d 132, 138 (3d Cir. 2021). In either case, the “protected
characteristic must be ‘or will be at least one central reason’ for [the] persecution.” Id. at
142 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
“For a protected characteristic to qualify as ‘one central reason’, it must be
an essential or principal reason for the persecution.” Gonzalez-Posadas [v.
Att’y Gen.], 781 F.3d [677,] 685 [(3d. Cir. 2015)]. As a result, neither
asylum nor withholding of removal may be granted “when the
characteristic at issue ‘played only an incidental, tangential, or superficial
role in persecution.’” Id. (quoting Ndayshimiye v. Att’y Gen., 557 F.3d 124,
130 (3d Cir. 2009)). The characteristic “must be both a but-for cause of
[the] persecution and it must play more than a minor role that is neither
incidental nor tangential to another reason for the harm or a means to a non-
protected end.” Matter of A-B-, 28 I. & N. Dec. 199, 211 (A.G. 2021).
Id. at 142-43. We see no error in the Board’s finding of facts or application of law.
Alejandres does not identify any evidence in the record that reflects that she was a target
rather than an adventitious spectator of the gun battle between rival gang members, or
that her membership in El Timbrichi was a but-for cause of any persecution. See
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 609 (3d Cir. 2011) (“There must be
evidence that the gang knew of his political opinion and targeted him because of
it. However, there is no such evidence here.”).
Alejandres also faults the Board for not considering the evidence that the Mexican
government would not protect her from future torture if she and her son are removed.
Applicants for relief under CAT must establish that “that it is more likely than not that
[they] would be tortured if removed to the proposed country of removal.” Sevoian v.
Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).
Torture, under the regulations, is defined as acts done “by or at the
instigation of or with the consent or acquiescence of a public official or
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other person acting in an official capacity,” by means of which “severe pain
and suffering, whether physical or mental, is intentionally inflicted” for
purposes such as obtaining confessions, punishment, intimidation or
coercion.
Id. (quoting 8 C.F.R. § 208.18(a)(1)). Alejandres does not address the Board’s rejection
of her CAT claim on grounds of waiver. Even putting aside the procedural default, given
the Board’s unchallenged determination that her experience does not rise to the level of
persecution and that she has available the avenue of safe relocation to another area of
Mexico, the record does not establish that she and her son would “more likely than not”
be tortured if returned to Mexico.
For the foregoing reasons, we will deny the petition for review.
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