Case: 19-12985 Date Filed: 04/08/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12985 Non-Argument Calendar ________________________
Agency No. A206-916-769
BENARD I. NDUKWU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(April 8, 2020)
Before JORDAN, NEWSOM and MARCUS, Circuit Judges.
PER CURIAM:
Benard Ndukwu, a native and citizen of Nigeria, petitions for review the
Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s
(“IJ”) denial of his application for asylum pursuant to the Immigration and Case: 19-12985 Date Filed: 04/08/2020 Page: 2 of 7
Nationality Act (“INA”), 8 U.S.C. § 1158(a). On appeal, Ndukwu argues that
substantial evidence does not support the BIA’s determination that he failed to prove
his membership in a cognizable particular social group. After careful review, we
deny the petition. 1
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts or explicitly agrees with the IJ’s opinion. Tang v. U.S. Att’y Gen.,
578 F.3d 1270, 1275 (11th Cir. 2009). Findings of the IJ that are not reached by the
BIA are not properly before this Court. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016).
Factual findings are reviewed under the highly deferential substantial
evidence test. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). We
must affirm the decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Silva, 448 F.3d at 1236 (quotations
omitted). 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. Id. Thus, an
IJ’s decision can only be reversed if “the evidence compels a reasonable fact finder
to find otherwise.” Chen v U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006)
1 Ndukwu also alleged that he was persecuted based on his religion and political opinion, which the IJ rejected. In addition to asylum, Ndukwu sought withholding of removal and CAT relief, which were also denied by the IJ. Because he does not challenge those decisions now on appeal, we do not discuss them. Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir. 2013). 2 Case: 19-12985 Date Filed: 04/08/2020 Page: 3 of 7
(quotations omitted). Indeed, just because the record may support a conclusion
contrary to the IJ’s decision, it may still not be enough to justify a reversal of the
administrative findings. Silva, 448 F.3d at 1236.
The Attorney General may grant asylum to an alien who meets the INA’s
definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a
refugee. 8 U.S.C. § 1158(b)(1)(B)(i). The applicant must demonstrate that he (1)
was persecuted in the past on account of a protected ground or (2) has a well-founded
fear that he will be persecuted in the future on account of a protected ground. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
A well-founded fear means a “reasonable possibility” of future persecution.
8 C.F.R. § 208.13(b)(2)(i)(B). To establish a well-founded fear of future
persecution, the applicant must present “specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution,” and demonstrate
that he cannot “avoid persecution by relocating to another part of the applicant’s
[home] country,” if such relocation would be reasonable. Id. § 208.13(b)(2)(ii); Al
3 Case: 19-12985 Date Filed: 04/08/2020 Page: 4 of 7
Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2004) (quotations and emphasis
omitted).
We defer to the BIA’s reasonable interpretation of what constitutes a
particular social group, including the BIA’s decision in Matter of Acosta, 19 I. & N.
Dec. 211 (BIA 1985). Gonzalez, 820 F.3d at 404. Relying on Matter of Acosta, we
have determined that membership in a particular social group requires the members
to: (1) share a common, immutable characteristic; (2) define their group with
particularity; and (3) be socially distinct within the society in question. Perez-
Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1309 (11th Cir. 2019).
We have not addressed, in a published opinion, whether the particular social
group proposed by Ndukwu -- “Nigerians who have witnessed serious crimes
committed by Boko Haram and have reported the crimes to law enforcement” -- is
cognizable under the INA. Nevertheless, evidence of private violence, or that a
person would be the victim of criminal activity, “does not constitute evidence of
persecution based on a statutorily protected ground.” Rodriguez v. U.S. Att’y Gen.,
735 F.3d 1302, 1310 (11th Cir. 2019). Additionally, “the INA does not extend
eligibility for asylum to anyone who fears the general danger that inevitably
accompanies political ferment and factional strife.” Mazariegos v. U.S. Att’y Gen.,
241 F.3d 1320, 1328 (11th Cir. 2001) (quotations omitted).
4 Case: 19-12985 Date Filed: 04/08/2020 Page: 5 of 7
Moreover, in Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir.
2006), we deferred to the BIA’s determination that noncriminal informants working
against the Cali cartel did not constitute a particular social group within the meaning
of Matter of Acosta. Id. at 1197. We reasoned that noncriminal informants did not
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Case: 19-12985 Date Filed: 04/08/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12985 Non-Argument Calendar ________________________
Agency No. A206-916-769
BENARD I. NDUKWU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(April 8, 2020)
Before JORDAN, NEWSOM and MARCUS, Circuit Judges.
PER CURIAM:
Benard Ndukwu, a native and citizen of Nigeria, petitions for review the
Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s
(“IJ”) denial of his application for asylum pursuant to the Immigration and Case: 19-12985 Date Filed: 04/08/2020 Page: 2 of 7
Nationality Act (“INA”), 8 U.S.C. § 1158(a). On appeal, Ndukwu argues that
substantial evidence does not support the BIA’s determination that he failed to prove
his membership in a cognizable particular social group. After careful review, we
deny the petition. 1
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts or explicitly agrees with the IJ’s opinion. Tang v. U.S. Att’y Gen.,
578 F.3d 1270, 1275 (11th Cir. 2009). Findings of the IJ that are not reached by the
BIA are not properly before this Court. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016).
Factual findings are reviewed under the highly deferential substantial
evidence test. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). We
must affirm the decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Silva, 448 F.3d at 1236 (quotations
omitted). 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. Id. Thus, an
IJ’s decision can only be reversed if “the evidence compels a reasonable fact finder
to find otherwise.” Chen v U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006)
1 Ndukwu also alleged that he was persecuted based on his religion and political opinion, which the IJ rejected. In addition to asylum, Ndukwu sought withholding of removal and CAT relief, which were also denied by the IJ. Because he does not challenge those decisions now on appeal, we do not discuss them. Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir. 2013). 2 Case: 19-12985 Date Filed: 04/08/2020 Page: 3 of 7
(quotations omitted). Indeed, just because the record may support a conclusion
contrary to the IJ’s decision, it may still not be enough to justify a reversal of the
administrative findings. Silva, 448 F.3d at 1236.
The Attorney General may grant asylum to an alien who meets the INA’s
definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a
refugee. 8 U.S.C. § 1158(b)(1)(B)(i). The applicant must demonstrate that he (1)
was persecuted in the past on account of a protected ground or (2) has a well-founded
fear that he will be persecuted in the future on account of a protected ground. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
A well-founded fear means a “reasonable possibility” of future persecution.
8 C.F.R. § 208.13(b)(2)(i)(B). To establish a well-founded fear of future
persecution, the applicant must present “specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution,” and demonstrate
that he cannot “avoid persecution by relocating to another part of the applicant’s
[home] country,” if such relocation would be reasonable. Id. § 208.13(b)(2)(ii); Al
3 Case: 19-12985 Date Filed: 04/08/2020 Page: 4 of 7
Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2004) (quotations and emphasis
omitted).
We defer to the BIA’s reasonable interpretation of what constitutes a
particular social group, including the BIA’s decision in Matter of Acosta, 19 I. & N.
Dec. 211 (BIA 1985). Gonzalez, 820 F.3d at 404. Relying on Matter of Acosta, we
have determined that membership in a particular social group requires the members
to: (1) share a common, immutable characteristic; (2) define their group with
particularity; and (3) be socially distinct within the society in question. Perez-
Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1309 (11th Cir. 2019).
We have not addressed, in a published opinion, whether the particular social
group proposed by Ndukwu -- “Nigerians who have witnessed serious crimes
committed by Boko Haram and have reported the crimes to law enforcement” -- is
cognizable under the INA. Nevertheless, evidence of private violence, or that a
person would be the victim of criminal activity, “does not constitute evidence of
persecution based on a statutorily protected ground.” Rodriguez v. U.S. Att’y Gen.,
735 F.3d 1302, 1310 (11th Cir. 2019). Additionally, “the INA does not extend
eligibility for asylum to anyone who fears the general danger that inevitably
accompanies political ferment and factional strife.” Mazariegos v. U.S. Att’y Gen.,
241 F.3d 1320, 1328 (11th Cir. 2001) (quotations omitted).
4 Case: 19-12985 Date Filed: 04/08/2020 Page: 5 of 7
Moreover, in Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir.
2006), we deferred to the BIA’s determination that noncriminal informants working
against the Cali cartel did not constitute a particular social group within the meaning
of Matter of Acosta. Id. at 1197. We reasoned that noncriminal informants did not
meet the social visibility requirement because they remained anonymous, and “the
very nature of [their] activity prevent[ed] them from being recognized by society at
large.” Id. We said that the Cali cartel would threaten “anyone and everyone
perceived to have interfered with, or who might present a threat to, their criminal
enterprises,” which would require that informants against the cartel remain
undiscovered. Id. (quotations omitted).
On the record before us, substantial evidence supports the BIA’s decision
affirming the IJ’s denial of Ndukwu’s asylum application because he has failed to
show that his proposed particular social group -- “Nigerians who have witnessed
serious crimes committed by Boko Haram and have reported the crimes to law
enforcement” -- was a cognizable particular social group. Perez-Zenteno, 913 F.3d
at 1309. Ndukwu says he is a member of this group because after Boko Haram
brutally attacked his mother and sister and murdered his father, he reported his
father’s murder and the burning of his house to the police and Boko Haram members
began to target him.
5 Case: 19-12985 Date Filed: 04/08/2020 Page: 6 of 7
But despite Ndukwu’s evidence about Boko Haram’s horrific actions against
his family, he did not show that he was a member of a particular social group. For
starters, Boko Haram’s attacks on the Ndukwu family were, standing alone,
insufficient to establish a particular social group because our case law has held that
victims of crime generally are not a particular social group. Rodriguez, 735 F.3d at
1310; Mazariegos, 241 F.3d at 1328. Moreover, while Ndukwu explained that
Nigerian society perceived Boko Haram as violent extremists, he failed to address
how Nigerian society would be aware of his proposed social group as socially
distinct. Indeed, he offered no evidence that Nigerians would be aware of informants
against the group, making his proposed particular social group similar to the
noncriminal informants at issue in Castillo-Arias, where we recognized that the BIA
had rejected noncriminal informants as a particular social group specifically because
“the very nature of their activity prevents them from being recognized by society at
large.” Castillo-Arias, 446 F.3d at 1197. Although Ndukwu testified that neighbors
in both his hometown and his cousin’s village warned him that Boko Haram was
looking for him, he did not indicate that his neighbors knew he filed police reports
or viewed him as part of a socially distinct group within Nigerian society. Because
Ndukwu has not shown that he was a member of a particular social group, we are
compelled to deny the petition.
PETITION DENIED.
6 Case: 19-12985 Date Filed: 04/08/2020 Page: 7 of 7
JORDAN, Circuit Judge, concurring.
I concur in the court’s opinion, but note that this might be a different case had
Mr. Ndukwu alleged that he and his family were targeted, persecuted, and attacked
by Boko Haram based on their Christian faith. See, e.g., Shi v. U.S. Atty. General,
707 F.3d 1231, 1234-36 (11th Cir. 2013).