Alexander Gutierrez-Jose v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 15, 2021
• Docket: 20-11852
• Status: Unpublished

Opinion

USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11852 Non-Argument Calendar ________________________

Agency No. A208-134-160

ALEXANDER GUTIERREZ-JOSE, JUAN GUTIERREZ-GUTIERREZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 15, 2021) USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 2 of 13

Before JORDAN, LAGOA, and BRASHER Circuit Judges.

PER CURIAM:

Juan Gutierrez-Gutierrez seeks review of a final order of the Board of

Immigration Appeals affirming an immigration judge’s denial of his application for

asylum, withholding of removal, and protection under the Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The IJ

concluded that Mr. Gutierrez’s application for asylum should be denied due to the

failure to establish past persecution on account of a statutorily protected ground and

the failure to establish a well-founded fear of future prosecution based on that

protected ground. The BIA affirmed without opinion.

On appeal Mr. Gutierrez argues the IJ erred by holding that his proposed

group—business owners who are threatened—was ineligible for protection and that

there was an insufficient nexus between his social group and any persecution he

suffered. The government argues that we should affirm the BIA’s decision because

its denial was supported by substantial evidence.

For reasons explained below, we conclude that Mr. Gutierrez administratively

exhausted his claims, but that substantial evidence supports the IJ’s conclusions. We

therefore deny the petition.

I.

2 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 3 of 13

Mr. Gutierrez, a citizen of Guatemala, left his country on June 10, 2015, and

entered the United States two weeks later. Mr. Gutierrez was issued a Notice to

Appear by the Department of Homeland Security. The DHS charged that he was

removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being

present in the United States without being admitted or paroled.

In June of 2016, Mr. Gutierrez, on behalf of himself and his son Alexander,

filed an application for asylum and withholding of removal based on his membership

in a particular social group and for relief under the Convention Against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment, 8 C.F.R. §

1208.16(c). Mr. Gutierrez stated in his application that he was threatened by gang

members because he reported them to the police after they stole from his small

business. He feared the gangs would kill or torture him and his family due to the

police report, his son’s refusal to join the gang, and the police’s refusal to help and

frequent work with the gangs.

Along with his application for asylum, Mr. Gutierrez submitted a letter further

detailing the robbery and ensuing events. Specifically, the letter detailed how some

people stole from his business, he notified the police, and the police arrested the

individuals. The police, however, released the suspects, and in retaliation they again

robbed and vandalized his store and threatened his son because they wanted him to

join the gang. These events, along with the general lack of opportunities, high

3 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 4 of 13

violent crime rate, and the power of the gangs in Guatemala led Mr. Gutierrez to flee

to the United States.

In support of his application, Mr. Gutierrez submitted two additional letters.

The first letter was from Mr. Gutierrez to the Justice of the Peace detailing the items

that were stolen from his shop. The second letter, from a policeman to the Justice

of the Peace, explained that in following up on a complaint by Mr. Gutierrez, he

found that 2 boys, ages 14 and 10, had sold to another merchant some soap which

presumably had been stolen from Mr. Gutierrez’s store.

Mr. Gutierrez also submitted a Guatemala 2015 Human Rights Report, which

noted widespread institutional corruption in the police and judiciary, police and

military involvement in crimes such as kidnapping and extortion, and arbitrary

killings, abuse, and mistreatment by National Civil Police members. He also

submitted a U.S. Department of State 2015 Crime and Safety Report for Guatemala

that rated the overall crime and safety situation as critical. In addition, Mr. Gutierrez

submitted newspaper articles that described gang activity and violent crimes in

Guatemala.

At the merits hearing, Mr. Gutierrez testified about the whereabouts and

immigration status of his family and the events in Guatemala that led him to come

to the United States. On cross-examination, Mr. Gutierrez testified that neither he

nor his son were physically harmed, that his daughter was still in Guatemala with

4 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 5 of 13

her husband, that nothing had happened to the daughter because she had a husband

to protect her, and that Mr. Gutierrez had not tried to move to another part of

Guatemala to avoid retaliation.

The IJ issued an oral decision denying Mr. Gutierrez’s applications for

asylum, withholding of removal, and CAT relief. The IJ found Mr. Gutierrez to be

credible, but also found that he had failed to establish persecution based on one of

the enumerated grounds. Specifically, the IJ stressed that Mr. Gutierrez and his son

were not physically harmed, Mr. Gutierrez’s business was robbed while no one was

there, and Mr. Gutierrez reported the alleged perpetrators, who were arrested. The

IJ noted that the perpetrators were released due to their age and, a week later, Mr.

Gutierrez’s son was threatened. The IJ found that the events were regrettable but,

even in the cumulative, failed to establish past persecution.

The IJ also found that Mr. Gutierrez provided no persuasive evidence to

establish that his proposed particular social group, which consisted of Guatemalan

business owners who were threatened, qualified as a particular social group under

INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B), because it was not defined by a

shared immutable characteristic. Furthermore, the IJ found that the burglary was a

criminal act, and there was no evidence that Mr. Gutierrez was targeted for

membership in a particular social group or any other protected ground.

5 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 6 of 13

The IJ concluded that because he had not established past persecution, there

was no presumption that Mr. Gutierrez had a well-founded fear of future persecution.

Absent this presumption, Mr. Gutierrez failed to establish a well-founded fear of

future persecution if he returned to Guatemala because he presented no evidence to

indicate that the individuals who committed the burglary were searching for Mr.

Gutierrez or any member of his family. The IJ noted that Mr. Gutierrez’s daughter

still lived in Guatemala and there was no evidence that she was targeted or had any

harm come to her because of this incident or the fact that Mr. Gutierrez reported the

matter to the police.

The IJ found that because Mr. Gutierrez failed to meet his burden of proof for

asylum, he had also failed to meet the more stringent burden of proof for withholding

of removal. Finally, the IJ concluded that Mr. Gutierrez was not eligible for CAT

relief because the record did not indicate that it was more likely than not that he

would face torture by or with the consent or acquiescence of a public official upon

his return to Guatemala.

Mr. Gutierrez timely appealed to the BIA. Mr. Gutierrez argued that he

suffered past persecution when the men who robbed his business threatened to beat

up his son. Mr. Gutierrez asserted that he showed a well-founded fear of future

persecution because the people who robbed the store were not detained for longer

than a day and if he went back to Guatemala, he would likely be targeted by these

6 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 7 of 13

individuals again. Mr. Gutierrez also maintained that he had sustained his burden

under the CAT of proving that he was more likely than not to be tortured if he

returned through the 2015 Human Rights Report and the other evidence submitted

in support of his asylum application.

In a single-member order, the BIA affirmed the IJ’s decision without opinion,

making the IJ’s decision the final agency determination. Mr. Gutierrez timely filed

this petition for review.

II

When the BIA issues a summary affirmance of the IJ’s opinion, the IJ’s

decision becomes the final removal order subject to review. See Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). We therefore review the IJ’s

underlying decision. See id.

In petitions for review of immigration decisions, we review factual

determinations under the substantial evidence test and conclusions of law de novo.

See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under the

substantial evidence test, we “view the record evidence in the light most favorable

to the agency’s decision and draw all reasonable inferences in favor of that decision.”

Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). We will

affirm the BIA’s decision if it is supported by “reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. The record must compel a

7 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 8 of 13

contrary conclusion to warrant reversal. See id. The mere fact that the record may

support a different conclusion is not sufficient to justify a reversal of administrative

findings. See id.

We lack jurisdiction to review final orders in immigration cases unless the

applicant has exhausted all administrative remedies available as of right. See INA §

242(d)(1), 8 U.S.C. § 1252(d)(1); Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297

(11th Cir. 2015). An applicant fails to exhaust his administrative remedies with

respect to a particular claim when he does not raise that claim before the BIA. See

Indrawati, 779 F.3d at 1297.

To establish asylum eligibility, a person must establish (1) past persecution

on account of a statutorily listed protected ground, or (2) a well-founded fear that

the statutorily protected ground will cause future persecution. See Diallo v. U.S.

Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). A well-founded fear means a

reasonable possibility of future persecution. See Li Shan Chen v. U.S. Att’y Gen.,

672 F.3d 961, 965 (11th Cir. 2011). Protected grounds include “race, religion,

nationality, membership in a particular social group, or political opinion.” INA

§ 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B).

Persecution requires more than mere harassment or a few isolated incidents of

verbal harassment or intimidation. See Sepulveda, 401 F.3d at 1231. In determining

whether a person suffered past persecution, the focus is on the “cumulative effect”

8 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 9 of 13

of any incidents. See Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir.

2013). Threatening acts or harm against an asylum applicant’s family members do

not necessarily constitute or imply persecution of the applicant where there has been

no threat or harm directed personally against him. See Cendejas Rodriguez v. U.S.

Att’y Gen., 735 F.3d 1302, 1308–09 (11th Cir. 2013).

A showing of past persecution creates a presumption of a well-founded fear

of future persecution, which is subject to rebuttal. See Sepulveda, 401 F.3d at 1231.

An applicant must demonstrate that his fear of future persecution is subjectively

genuine and objectively reasonable. See id. Credible testimony by the applicant that

he genuinely fears persecution can prove the subjective component. See Ruiz v. U.S.

Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). The objectively reasonable

component can be fulfilled by establishing that the applicant has a good reason to

fear future persecution. See id.

Whether an asserted group qualifies as a “particular social group” under the

INA is a question of law. See Gonzalez, 820 F.3d at 403. To qualify as a “particular

social group” under the INA, a group must be defined by a shared, immutable

characteristic “that the members of the group either cannot change or should not be

required to change because it is fundamental to their individual identities or

consciences.” See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1193, 1196 (11th

Cir. 2006). The common characteristic must be something other than the risk of

9 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 10 of 13

being persecuted. See id. at 1198. The petitioner must define the particular social

group with particularity and show that the group is viewed by society as socially

distinct. See Gonzalez, 820 F.3d at 404–06. To meet the particularity requirement,

the proposed group must be discrete and have definable boundaries, and may not be

“amorphous, overbroad, diffuse, or subjective.” See id. at 404.

The applicant must also prove a nexus between the persecution suffered and

the statutorily protected ground. See Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d

1148, 1158 (11th Cir. 2019). To satisfy the nexus requirement, an applicant must

establish that the protected ground was “at least one central reason” for his

persecution. See id. (quoting INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i) (as

amended by the REAL ID Act § 101(a)(3)). One of the five statutory grounds need

not be the only motivation for the persecution. See Sanchez Jimenez, 492 F.3d at

1232 (reaffirming the “mixed-motive” theory of nexus). On the other hand, evidence

that either is consistent with acts of private violence, or that merely shows that a

person has been the victim of criminal activity, does not constitute evidence of

persecution based on a statutorily protected ground. See Ruiz, 440 F.3d at 1258.

The agency’s nexus determination is an assessment of any future persecutor’s

motive, which is a factual inquiry. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483–

84 (1992) (stating that the INA “makes motive critical” and holding that an applicant

must provide some evidence—direct or circumstantial—of a persecutor’s motive).

10 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 11 of 13

The standard for withholding of removal is higher than that for asylum. To

qualify for withholding of removal, an applicant must establish that his life or

freedom would be threatened in his country because of his race, religion, nationality,

membership in a particular social group, or political opinion. See INA

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is more

likely than not that he will be persecuted on account of a protected ground if returned

to his home country. See Rodriguez, 735 F.3d at 1308.

III

Mr. Gutierrez has failed to raise any argument on appeal concerning his claim

for CAT relief. He has therefore abandoned that issue. See Sepulveda, 401 F.3d at

1228 n.2.

In his brief to the BIA, Mr. Gutierrez made an argument challenging the IJ’s

conclusion that he failed to show that he was the subject of past persecution, or

would be subjected to future persecution, on account of a protected ground. See

A.R. at 8–18. So we have jurisdiction to consider his asylum claim. See Indrawati,

779 F.3d at 1297.

Turning to the merits, the record contains substantial evidence supporting the

IJ’s conclusion that Mr. Gutierrez did not suffer past persecution. Mr. Gutierrez

presented evidence that his store was robbed and that he filed a complaint with the

police. See A.R. at 99. Mr. Gutierrez identified the robbers and testified that,

11 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 12 of 13

because he had gone to the police, his son was threatened on one occasion by the

robbers. See id. at 81–83. These actions, involving a single instance of robbery and

one subsequent threat, even taken cumulatively, do not rise to the level of

persecution and instead are examples of harassment or intimidation. See Sepulveda,

401 F.3d at 1231 (stating that persecution is an extreme concept requiring more than

a few isolated incidents of verbal harassment or intimidation). In addition, although

Mr. Gutierrez argues on appeal that the BIA failed to take into account economic

deprivation as a form of persecution, he did not make that argument to the BIA and,

thus, failed to exhaust that particular contention. See Appellant’s Br. at 12; A.R. at

8–18; Indrawati, 779 F.3d at 1297.

Substantial evidence also supports the IJ’s conclusion that Mr. Gutierrez did

not establish a well-founded fear of future persecution. Because he did not show

that he had suffered past persecution, it was Mr. Gutierrez’s burden to show that his

fear of persecution was subjectively genuine and objectively reasonable. See

Indrawati, 779 F.3d at 1297. Although Mr. Gutierrez likely satisfied the subjective

prong through his personal testimony, which the IJ found credible, he did not

establish that this fear was objectively reasonable because he presented no evidence

that those who committed the robbery were searching for him or any member of his

family. Thus, Mr. Gutierrez did not show that he had good reason to fear future

persecution if he returned to Guatemala and consequently failed to establish that his

12 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 13 of 13

fear was objectively reasonable. See Ruiz, 440 F.3d at 1257, 1259 (finding no well-

founded fear where the applicant’s son and parents remained unharmed in the region

where the applicant was allegedly threatened).

In sum, we cannot say that the IJ’s conclusions were unfounded. Although

Mr. Gutierrez properly preserved his claims for appeal, the record does not compel

reversal of the IJ’s determination that Mr. Gutierrez was not eligible for asylum

because he failed to establish either past persecution or a well-founded fear of future

persecution. For the same reasons listed above, the record does not compel reversal

of the agency’s determination that Mr. Gutierrez would not be able to meet the higher

burden of proof for withholding of removal. See Sepulveda, 401 F.3d at 1232–

1233. 1

IV

After careful review, we conclude that the record does not merit reversal of

the IJ’s determination that Mr. Gutierrez is not eligible for asylum.

PETITION DENIED.

1 We do not consider the IJ’s ruling on the proposed social group because there is substantial evidence that Mr. Gutierrez did not establish past or future persecution. Further, because Mr. Gutierrez did not argue nexus or that his proposed group qualifies as a protected ground in his brief to the BIA, see A.R. at 8-18, he abandoned those arguments. 13