Case: 19-12448 Date Filed: 05/21/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12448 Non-Argument Calendar ________________________
Agency No. A206-860-739
ANTONIO AVILA GUTIERREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(May 21, 2020)
Before LAGOA, EDMONDSON, and HULL, Circuit Judges. Case: 19-12448 Date Filed: 05/21/2020 Page: 2 of 8
PER CURIAM:
Antonio Gutierrez (“Petitioner”), a native and citizen of Mexico, petitions
for review of the order by the Board of Immigration Appeals (“BIA”) affirming the
decision of the Immigration Judge (“IJ”). The IJ’s decision denied Petitioner’s
applications for withholding of removal and for relief under the Convention
Against Torture, 8 C.F.R. § 208.16 (“CAT”). * No reversible error has been shown;
we deny the petition.
We review only the decision of the BIA, except to the extent the BIA adopts
expressly the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Because the BIA agreed expressly with the IJ’s reasoning in this case, we
review both the IJ’s and the BIA’s decisions. See id.
We review de novo the BIA’s legal conclusions. Id. We review fact
determinations under the “highly deferential substantial evidence test” whereby we
“must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Adefemi v. Ashcroft,
386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the record evidence
in the light most favorable to the agency’s decision and draw all reasonable
* The IJ also denied Petitioner’s application for asylum. Petitioner raises no challenge to the denial of this form of relief on appeal; we will not address that claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 2 Case: 19-12448 Date Filed: 05/21/2020 Page: 3 of 8
inferences in favor of that decision.” Id. at 1027. To reverse a fact finding, we
must conclude “that the record not only supports reversal, but compels it.”
Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
To obtain withholding of removal, an alien must establish that his “life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is
‘more likely than not’ [he] will be persecuted or tortured upon being returned to
[his] country.” Tan v. United States Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006). To satisfy this burden, the alien must demonstrate either past persecution
based on a protected ground or that he will more-likely-than-not suffer future
persecution on account of a protected ground. Seck v. United States Att’y Gen.,
663 F.3d 1356, 1365 (11th Cir. 2011).
To establish eligibility for CAT relief, an alien must show “that it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.” Reyes-Sanchez v. United States Att’y Gen., 369 F.3d 1239, 1242
(11th Cir. 2004). The alien must also show that the torture would be inflicted by or
with the acquiescence of the removal country’s government. Id. “Acquiescence
requires that the public official, prior to the activity constituting torture, have
3 Case: 19-12448 Date Filed: 05/21/2020 Page: 4 of 8
awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” Id. (quotations omitted).
Petitioner first entered the United States in 1992, after which he returned to
Mexico two or three times; Petitioner last entered the United States in 2009.
Petitioner says he came to the United States because of the “delinquency” in
Mexico and says he witnessed assaults, deaths, rapes, and kidnappings committed
by a criminal cartel known as “Los Zetas.”
In October 2008, Petitioner was attacked by Los Zetas while Petitioner was
on his way home from work, having just been paid for the week. Petitioner
described his attackers as three men who were heavily armed with lethal weapons.
The attackers demanded Petitioner pay them 30,000 pesos. When Petitioner told
the attackers that he did not have that kind of money and also refused to hand over
the money in his wallet, the attackers beat Petitioner. Petitioner suffered a wound
near his eye, cuts to his face, and other injuries causing him to vomit blood. The
attackers then stole Petitioner’s wallet, watch, cell phone, and wedding ring.
Petitioner was later kidnapped while trying to leave Mexico and to return to
the United States. Petitioner was held hostage for about one month until
Petitioner’s family paid a ransom of 10,000 pesos. During that time, Petitioner
says he was only permitted to eat sometimes. Petitioner says his brother was also
beaten for money in 2010.
4 Case: 19-12448 Date Filed: 05/21/2020 Page: 5 of 8
In his applications for relief, Petitioner sought withholding of removal based
on his membership in a proposed particular social group: “Mexican male[s] that
have lived in the United States for over ten years and will be a target of the
international criminal organizations that operate in their home country because
they are presumed to have money and are in danger of being extorted, kidnapped,
tortured and/or even murdered.” Petitioner also sought protection under CAT
based on his fear that he would be tortured by Los Zetas -- with the acquiescence
of the Mexican government -- upon his return to Mexico.
The IJ denied Petitioner’s applications for relief. The IJ first determined that
Petitioner failed to establish a factual basis for his claims because his testimony
was lacking in detail and uncorroborated by other evidence. As a separate and
independent reason for denying withholding of removal, the IJ also determined that
Petitioner had failed to demonstrate a causal connection between his past
mistreatment or feared future mistreatment and a protected ground. About CAT
relief, the IJ also concluded that Petitioner presented no evidence that he would be
tortured by, or with the acquiescence of, the Mexican government. The BIA
agreed with the IJ’s reasoning.
An applicant’s testimony -- without corroboration -- may be sufficient to
satisfy his burden of proof if the testimony is credible, persuasive, and refers to
specific facts sufficient to establish his claim. See 8 U.S.C. §§ 1158(b)(1)(B)(ii);
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 19-12448 Date Filed: 05/21/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12448 Non-Argument Calendar ________________________
Agency No. A206-860-739
ANTONIO AVILA GUTIERREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(May 21, 2020)
Before LAGOA, EDMONDSON, and HULL, Circuit Judges. Case: 19-12448 Date Filed: 05/21/2020 Page: 2 of 8
PER CURIAM:
Antonio Gutierrez (“Petitioner”), a native and citizen of Mexico, petitions
for review of the order by the Board of Immigration Appeals (“BIA”) affirming the
decision of the Immigration Judge (“IJ”). The IJ’s decision denied Petitioner’s
applications for withholding of removal and for relief under the Convention
Against Torture, 8 C.F.R. § 208.16 (“CAT”). * No reversible error has been shown;
we deny the petition.
We review only the decision of the BIA, except to the extent the BIA adopts
expressly the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Because the BIA agreed expressly with the IJ’s reasoning in this case, we
review both the IJ’s and the BIA’s decisions. See id.
We review de novo the BIA’s legal conclusions. Id. We review fact
determinations under the “highly deferential substantial evidence test” whereby we
“must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Adefemi v. Ashcroft,
386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the record evidence
in the light most favorable to the agency’s decision and draw all reasonable
* The IJ also denied Petitioner’s application for asylum. Petitioner raises no challenge to the denial of this form of relief on appeal; we will not address that claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 2 Case: 19-12448 Date Filed: 05/21/2020 Page: 3 of 8
inferences in favor of that decision.” Id. at 1027. To reverse a fact finding, we
must conclude “that the record not only supports reversal, but compels it.”
Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
To obtain withholding of removal, an alien must establish that his “life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is
‘more likely than not’ [he] will be persecuted or tortured upon being returned to
[his] country.” Tan v. United States Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006). To satisfy this burden, the alien must demonstrate either past persecution
based on a protected ground or that he will more-likely-than-not suffer future
persecution on account of a protected ground. Seck v. United States Att’y Gen.,
663 F.3d 1356, 1365 (11th Cir. 2011).
To establish eligibility for CAT relief, an alien must show “that it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.” Reyes-Sanchez v. United States Att’y Gen., 369 F.3d 1239, 1242
(11th Cir. 2004). The alien must also show that the torture would be inflicted by or
with the acquiescence of the removal country’s government. Id. “Acquiescence
requires that the public official, prior to the activity constituting torture, have
3 Case: 19-12448 Date Filed: 05/21/2020 Page: 4 of 8
awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” Id. (quotations omitted).
Petitioner first entered the United States in 1992, after which he returned to
Mexico two or three times; Petitioner last entered the United States in 2009.
Petitioner says he came to the United States because of the “delinquency” in
Mexico and says he witnessed assaults, deaths, rapes, and kidnappings committed
by a criminal cartel known as “Los Zetas.”
In October 2008, Petitioner was attacked by Los Zetas while Petitioner was
on his way home from work, having just been paid for the week. Petitioner
described his attackers as three men who were heavily armed with lethal weapons.
The attackers demanded Petitioner pay them 30,000 pesos. When Petitioner told
the attackers that he did not have that kind of money and also refused to hand over
the money in his wallet, the attackers beat Petitioner. Petitioner suffered a wound
near his eye, cuts to his face, and other injuries causing him to vomit blood. The
attackers then stole Petitioner’s wallet, watch, cell phone, and wedding ring.
Petitioner was later kidnapped while trying to leave Mexico and to return to
the United States. Petitioner was held hostage for about one month until
Petitioner’s family paid a ransom of 10,000 pesos. During that time, Petitioner
says he was only permitted to eat sometimes. Petitioner says his brother was also
beaten for money in 2010.
4 Case: 19-12448 Date Filed: 05/21/2020 Page: 5 of 8
In his applications for relief, Petitioner sought withholding of removal based
on his membership in a proposed particular social group: “Mexican male[s] that
have lived in the United States for over ten years and will be a target of the
international criminal organizations that operate in their home country because
they are presumed to have money and are in danger of being extorted, kidnapped,
tortured and/or even murdered.” Petitioner also sought protection under CAT
based on his fear that he would be tortured by Los Zetas -- with the acquiescence
of the Mexican government -- upon his return to Mexico.
The IJ denied Petitioner’s applications for relief. The IJ first determined that
Petitioner failed to establish a factual basis for his claims because his testimony
was lacking in detail and uncorroborated by other evidence. As a separate and
independent reason for denying withholding of removal, the IJ also determined that
Petitioner had failed to demonstrate a causal connection between his past
mistreatment or feared future mistreatment and a protected ground. About CAT
relief, the IJ also concluded that Petitioner presented no evidence that he would be
tortured by, or with the acquiescence of, the Mexican government. The BIA
agreed with the IJ’s reasoning.
An applicant’s testimony -- without corroboration -- may be sufficient to
satisfy his burden of proof if the testimony is credible, persuasive, and refers to
specific facts sufficient to establish his claim. See 8 U.S.C. §§ 1158(b)(1)(B)(ii);
5 Case: 19-12448 Date Filed: 05/21/2020 Page: 6 of 8
1231(b)(3)(C). If, however, the IJ determines that corroborating evidence is
necessary, the applicant must provide that evidence unless he can show that he
“does not have the evidence and cannot reasonably obtain [it].” 8 U.S.C. §
1158(b)(1)(B)(ii).
Substantial evidence supports the IJ’s and the BIA’s determinations that
Petitioner failed to provide sufficiently detailed, consistent, and corroborated
testimony to establish a factual basis for his claims for withholding of removal and
CAT relief. Petitioner’s allegations and testimony about past mistreatment --
including the October 2008 attack by Los Zetas, Petitioner’s kidnapping, and the
attack on Petitioner’s brother -- lacked specific details. For example, although
Petitioner testified that he was kidnapped and held hostage for about one month, he
provided no details about the kidnapping itself, about the identity of his
kidnappers, or about the location where he was held.
In the light of Petitioner’s testimony that his family paid a ransom following
Petitioner’s kidnapping and that Petitioner’s brother was also attacked, the IJ and
the BIA determined reasonably that corroborating evidence was necessary.
Petitioner, however, provided no witness testimony or affidavits supporting his
claims. Nor has Petitioner shown that such evidence was unavailable or otherwise
explained his failure to produce such evidence.
6 Case: 19-12448 Date Filed: 05/21/2020 Page: 7 of 8
Substantial evidence also supports the IJ’s and the BIA’s second
independent ground for denying withholding of removal: that Petitioner failed to
demonstrate that he suffered past mistreatment or was likely to suffer future
mistreatment on account of a protected ground. Petitioner’s testimony evidences
that he was targeted by Los Zetas and by his kidnappers chiefly for financial gain.
In a similar way, Petitioner’s proposed particular social group demonstrates
Petitioner’s belief that he was (and will be) targeted by criminal organizations
based on a perception that Petitioner has money. We have said, however, that
evidence -- like the evidence presented by Petitioner in this case -- that “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 v. United States Att’y Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006).
About Petitioner’s application for CAT relief, substantial evidence supports
the IJ’s and the BIA’s determination that Petitioner failed to show that it was more
likely than not that, upon return to Mexico, Petitioner would be tortured by, or with
the acquiescence of, the Mexican government. Petitioner makes no assertion that
he suffered harm or fears harm inflicted directly by a government official.
Although Petitioner presented some evidence of police corruption within Mexico,
nothing evidences that the Mexican police had prior specific knowledge of the
7 Case: 19-12448 Date Filed: 05/21/2020 Page: 8 of 8
October 2008 attack or of Petitioner’s kidnapping but refused to intervene. Nor
did Petitioner provide evidence that he reported these attacks to the Mexican police
or that the police took no action.
The IJ’s and the BIA’s decision that Petitioner was unentitled to withholding
of removal or to CAT relief is supported by reasonable, substantial, and probative
evidence. Nothing on this record compels us to reverse that decision.
PETITION DENIED.