NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 19-3038 ______
ANGEL MAURICIO ZAPATA SUQUILANDA Petitioner,
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
On Petition for Review of an Order of the Board of Immigration Appeals (A206-030-966) Immigration Judge: Alice Song Hartye ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 11, 2020
Before: McKEE, AMBRO, and PHIPPS, Circuit Judges.
(Filed: June 1, 2020)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
Angel Mauricio Zapata Suquilanda, a native and citizen of Ecuador, entered the
United States in 2007 without admission or parole, and he now appeals a final order of
the Board of Immigration Appeals for his removal. In that order, the BIA rejected
Zapata’s requests for withholding of removal and for protection under the Convention
Against Torture. Zapata premised both requests on his fear of violence in Ecuador, but
the BIA determined that any persecution that he experienced or feared arose from a land
dispute and was not on account of his membership in a particular social group, which he
asserts as his nuclear family. In exercising jurisdiction over his petition, see 8 U.S.C.
§ 1252(a), and in reviewing the BIA’s legal conclusions de novo and factual findings
under the substantial-evidence standard, see Lin-Zheng v. Att’y Gen., 557 F.3d 147, 154,
155 (3d Cir. 2009), we will deny Zapata’s petition.
Zapata’s petition arises in the context of a land dispute that turned violent. In
2000, one of Zapata’s neighbors in Ecuador, a man named Victor, sold land to Zapata’s
mother, but then he demanded the land back. When Zapata’s family did not acquiesce,
Victor threatened to kill Zapata and his younger siblings. The situation escalated in 2003,
when Victor shot Zapata’s father in the street. Before fleeing the scene, Victor threatened
to kill Zapata, who witnessed the shooting. Shortly afterwards, Zapata moved to his
grandmother’s house, about two hours away. He lived with her for over three years, until
2007, when he arrived in the United States – reportedly in flight from Victor. Zapata’s
father recovered from the shooting and left Ecuador in 2005. Zapata’s mother and her
2 other children did not move away; they continue to reside five blocks away from Victor’s
family. Victor subsequently took possession of the land, and he has not personally
threatened Zapata or his family since, although Zapata’s family reports neighborhood
gossip that Victor still harbors animosity toward them.
Zapata now seeks withholding of removal to prevent his removal to Ecuador. To
qualify for such relief, Zapata must demonstrate that it is more likely than not, see
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011), that his “life or
freedom would be threatened” in Ecuador because of his “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 208.16(b); see also Valdiviezo-Galdamez, 663 F.3d at 591. A showing of past
persecution on account of membership in a protected group creates a rebuttable
presumption that an alien would experience similarly motivated future persecution. See
Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011); 8 C.F.R. § 208.16(b). And as
with all claims of persecution, the acts must either be committed by the government or by
“forces the government is either unable or unwilling to control.” Garcia, 665 F.3d at 505
(quoting Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)).
Zapata contends that the BIA erred in finding an insufficient nexus between his
membership in a particular social group (his nuclear family) and his persecution. In so
finding, the BIA noted that Zapata’s nuclear family, like most nuclear families, should
not be assumed to be inherently socially distinct, see Matter of L-E-A-, 27 I. & N. Dec.
581, 593-96 (A.G. 2019), and then determined that Zapata’s family membership was not
3 one central reason for the feared harm. Instead, the BIA agreed with the Immigration
Judge’s finding that any persecution would be motivated by “greed or some kind of
retribution” related to the land dispute. In reaching that conclusion, the BIA correctly
articulated the legal principle that “[t]argeting a family member as a means to an end is
not by itself sufficient to establish the required nexus.” AR 3. See Gonzalez-Posadas v.
Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015) (“Conflicts of a personal nature and isolated
criminal acts do not constitute persecution on account of a protected characteristic.”).
And because a reasonable adjudicator would not be compelled to reach a different factual
finding, viz., that a nexus existed between the persecution and Zapata’s nuclear family,
substantial evidence supports the BIA’s decision denying the withholding of removal.
See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Zapata raises several other challenges in this appeal, but none of those succeed –
either because the BIA did not base its decision on the challenged ground or because
Zapata did not administratively exhaust the issue.
First, because the BIA dismissed Zapata’s appeal only for a lack of nexus, several
of Zapata’s additional contentions exceed the scope of appellate review, which is limited
to the grounds invoked by the agency for its decision. See Dia v. Ashcroft, 353 F.3d 228,
241 (3d Cir. 2003) (en banc); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
While the BIA expressed doubts that Zapata’s nuclear family constitutes a particular
social group, it did not reach a conclusion on that issue in dismissing Zapata’s
administrative appeal. Thus, that issue falls outside the scope of appellate review. The
4 same holds true for two findings by the Immigration Judge that Zapata challenged on
appeal to the BIA. Those determinations were that the death threat to Zapata was not
harm rising to the level of past persecution, see Chavarria v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 19-3038 ______
ANGEL MAURICIO ZAPATA SUQUILANDA Petitioner,
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
On Petition for Review of an Order of the Board of Immigration Appeals (A206-030-966) Immigration Judge: Alice Song Hartye ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 11, 2020
Before: McKEE, AMBRO, and PHIPPS, Circuit Judges.
(Filed: June 1, 2020)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
Angel Mauricio Zapata Suquilanda, a native and citizen of Ecuador, entered the
United States in 2007 without admission or parole, and he now appeals a final order of
the Board of Immigration Appeals for his removal. In that order, the BIA rejected
Zapata’s requests for withholding of removal and for protection under the Convention
Against Torture. Zapata premised both requests on his fear of violence in Ecuador, but
the BIA determined that any persecution that he experienced or feared arose from a land
dispute and was not on account of his membership in a particular social group, which he
asserts as his nuclear family. In exercising jurisdiction over his petition, see 8 U.S.C.
§ 1252(a), and in reviewing the BIA’s legal conclusions de novo and factual findings
under the substantial-evidence standard, see Lin-Zheng v. Att’y Gen., 557 F.3d 147, 154,
155 (3d Cir. 2009), we will deny Zapata’s petition.
Zapata’s petition arises in the context of a land dispute that turned violent. In
2000, one of Zapata’s neighbors in Ecuador, a man named Victor, sold land to Zapata’s
mother, but then he demanded the land back. When Zapata’s family did not acquiesce,
Victor threatened to kill Zapata and his younger siblings. The situation escalated in 2003,
when Victor shot Zapata’s father in the street. Before fleeing the scene, Victor threatened
to kill Zapata, who witnessed the shooting. Shortly afterwards, Zapata moved to his
grandmother’s house, about two hours away. He lived with her for over three years, until
2007, when he arrived in the United States – reportedly in flight from Victor. Zapata’s
father recovered from the shooting and left Ecuador in 2005. Zapata’s mother and her
2 other children did not move away; they continue to reside five blocks away from Victor’s
family. Victor subsequently took possession of the land, and he has not personally
threatened Zapata or his family since, although Zapata’s family reports neighborhood
gossip that Victor still harbors animosity toward them.
Zapata now seeks withholding of removal to prevent his removal to Ecuador. To
qualify for such relief, Zapata must demonstrate that it is more likely than not, see
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011), that his “life or
freedom would be threatened” in Ecuador because of his “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 208.16(b); see also Valdiviezo-Galdamez, 663 F.3d at 591. A showing of past
persecution on account of membership in a protected group creates a rebuttable
presumption that an alien would experience similarly motivated future persecution. See
Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011); 8 C.F.R. § 208.16(b). And as
with all claims of persecution, the acts must either be committed by the government or by
“forces the government is either unable or unwilling to control.” Garcia, 665 F.3d at 505
(quoting Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)).
Zapata contends that the BIA erred in finding an insufficient nexus between his
membership in a particular social group (his nuclear family) and his persecution. In so
finding, the BIA noted that Zapata’s nuclear family, like most nuclear families, should
not be assumed to be inherently socially distinct, see Matter of L-E-A-, 27 I. & N. Dec.
581, 593-96 (A.G. 2019), and then determined that Zapata’s family membership was not
3 one central reason for the feared harm. Instead, the BIA agreed with the Immigration
Judge’s finding that any persecution would be motivated by “greed or some kind of
retribution” related to the land dispute. In reaching that conclusion, the BIA correctly
articulated the legal principle that “[t]argeting a family member as a means to an end is
not by itself sufficient to establish the required nexus.” AR 3. See Gonzalez-Posadas v.
Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015) (“Conflicts of a personal nature and isolated
criminal acts do not constitute persecution on account of a protected characteristic.”).
And because a reasonable adjudicator would not be compelled to reach a different factual
finding, viz., that a nexus existed between the persecution and Zapata’s nuclear family,
substantial evidence supports the BIA’s decision denying the withholding of removal.
See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Zapata raises several other challenges in this appeal, but none of those succeed –
either because the BIA did not base its decision on the challenged ground or because
Zapata did not administratively exhaust the issue.
First, because the BIA dismissed Zapata’s appeal only for a lack of nexus, several
of Zapata’s additional contentions exceed the scope of appellate review, which is limited
to the grounds invoked by the agency for its decision. See Dia v. Ashcroft, 353 F.3d 228,
241 (3d Cir. 2003) (en banc); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
While the BIA expressed doubts that Zapata’s nuclear family constitutes a particular
social group, it did not reach a conclusion on that issue in dismissing Zapata’s
administrative appeal. Thus, that issue falls outside the scope of appellate review. The
4 same holds true for two findings by the Immigration Judge that Zapata challenged on
appeal to the BIA. Those determinations were that the death threat to Zapata was not
harm rising to the level of past persecution, see Chavarria v. Gonzales, 446 F.3d 508, 518
(3d Cir. 2006), and that the Ecuadorian government was not “unable or unwilling to
control Victor,” AR 64, see Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting
Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000). Those findings by the Immigration
Judge, if invoked by the BIA, may have presented other independent bases for denying
Zapata’s petition, but the BIA did not rest its decision on those grounds. For that reason,
those issues are beyond the scope of appellate review.
Second, Zapata raises two issues that he did not challenge in his administrative
appeal to the BIA. He argues that he has a well-founded fear of future persecution and
that the BIA erred in denying his request for protection under the Convention Against
Torture. But by not appealing those issues to the BIA, Zapata did not place the BIA “on
notice of a straightforward issue being raised on appeal.” Lin v. Att’y Gen., 543 F.3d 114,
121 (3d Cir. 2008) (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006)).
Without doing so, Zapata failed to exhaust administrative remedies. Consequently, those
two challenges fall outside the scope of this Court’s jurisdiction, see 8 U.S.C.
§ 1252(d)(1); Lin, 543 F.3d at 120-21, and do not provide a basis for granting his petition.
In sum, because substantial evidence supports the BIA’s decision on the only issue
before this Court – the lack of sufficient nexus between persecution and a particular
social group – we will deny the petition for review.