Delmar Antonio Corrales-Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 18, 2020
• Docket: 19-14691
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14691 Non-Argument Calendar ________________________

Agency No. A206-005-099

DELMAR ANTONIO CORRALES-HERNANDEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(November 18, 2020)

Before JILL PRYOR, LUCK and DUBINA, Circuit Judges.

PER CURIAM: USCA11 Case: 19-14691 Date Filed: 11/18/2020 Page: 2 of 10

Petitioner Delmar Corrales-Hernandez (“Corrales”) seeks review of a final

order of the Board of Immigration Appeals (“BIA”) affirming the Immigration

Judge’s (“IJ”) denial of Corrales’s application for asylum, withholding of removal,

and protection under the Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT”). Corrales argues that the BIA erred

in determining that there was no nexus between his past persecution or fear of

future persecution by the MS-13 gang and a protected ground of membership in a

particular social group of his family.

I.

We review only the decision of the BIA, except to the extent that the BIA

expressly adopts the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,

1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s reasoning, we will also

review the IJ’s decision to that extent. Id. Here, the BIA did not expressly adopt

the IJ’s decision but agreed with the IJ’s findings regarding a lack of nexus

between any past or future persecution and a protected ground. Thus, we review

both decisions to that extent. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th

Cir. 2010).

On petition for review of the BIA’s decision, we review legal questions de

novo. Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013).

Factual determinations are reviewed under the highly deferential substantial-

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evidence test, which requires us to “view the record evidence in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en

banc). “We must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Id. at

1027 (quotation marks omitted). To reverse administrative factual findings, we

must determine that the record “compels” reversal, not merely supports a different

conclusion. Id. “[T]he mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the [agency’s] findings.” Id.

To adequately raise an issue on appeal, the party must “specifically and

clearly identif[y] it in its opening brief; otherwise, the claim will be deemed

abandoned and its merits will not be addressed.” Cole v. U.S. Att’y Gen., 712 F.3d

517, 530 (11th Cir. 2013) (quotation marks omitted), abrogated on other grounds

by Nasrallah v. Barr, 140 S. Ct. 1683 (2020).

An applicant for asylum must meet the Immigration and Nationality Act’s

(“INA”) definition of a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The

INA defines a refugee as a person “who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection of” his home

country due to “persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group, or political

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opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The alien bears the

burden to establish that he is a refugee. Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1230 (11th Cir. 2005).

Thus, to establish eligibility for asylum, a petitioner must demonstrate either

past persecution, or a well-founded fear of future persecution, based on a

statutorily listed protected ground. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332

(11th Cir. 2010). The alien must present “specific, detailed facts showing a good

reason to fear that he will be singled out for persecution on account of” the

statutorily listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir.

2006) (quotation marks omitted).

The asylum applicant must prove he suffered persecution on account of a

protected ground. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1158 (11th

Cir. 2019). This connection between persecution and the statutorily protected

ground is known as the “nexus” requirement. Id. To satisfy this nexus

requirement, the asylum applicant must demonstrate that one of those enumerated

grounds was or will be “at least one central reason” for his persecution. 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)) (effective May 11, 2005, for “applications for asylum,

withholding, or other relief from removal made on or after” that effective date)).

We have not specifically construed the term “central” in any published decision,

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but we have stated that one of the five statutory grounds need not be the only

motivation for the persecution. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223,

1232 (11th Cir. 2007) (reaffirming the “mixed-motive” theory of nexus). “Rather,

it is by now well-established in our case law that an applicant can establish

eligibility for asylum as long as he can show that the persecution is, at least in part,

motivated by a protected ground.” Id. (quotation marks and emphasis omitted).

However, evidence consistent with acts of private violence, which merely shows

that the petitioner was the victim of criminal activity or mistreated due to a refusal

to cooperate with a criminal group, does not show a nexus to a protected ground.

Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310-11 (11th Cir. 2013).

II.

In Perez-Sanchez, we considered whether the applicant established that

persecution by a cartel in Mexico was based on his family ties. 935 F.3d at 1158.

There, the record established that members of the Gulf Cartel broke into the

applicant’s home and told him they were there to collect a debt based on his

estranged father-in-law’s loss of a shipment of cocaine, although neither Perez-

Sanchez nor his partner had knowledge of the man or his involvement with the

cartel. Id. at 1150–51. After the members beat Perez-Sanchez, he agreed at

gunpoint to pay a monthly sum, and after running out of money, fled to the United

States. Id. at 1151. The BIA acknowledged that “the issue of nexus [was] close,”

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because Perez-Sanchez’s “relationship to his father-in-law [was] a reason for the

harm and extortion he experienced,” but nonetheless agreed with the IJ that the

family relationship was not a central reason for Perez-Sanchez’s suffering. Id. at

1152 (quotation marks omitted). We held that the BIA’s decision was not based on

substantial evidence because it was “impossible to disentangle his relationship to

his father-in-law from the Gulf Cartel’s pecuniary motives: they [were] two sides

of the same coin.” Id. at 1158. We noted that the record was replete with evidence

that the Gulf Cartel sought out and continuously extorted Perez-Sanchez because

of his father-in-law’s past affiliation with the cartel. Id.

In contrast, in Rodriguez, we denied Rodriguez’s petition for review, stating

that he failed to establish a nexus between a particular social group (landowners, or

his family, members of which had sought law enforcement help against drug

traffickers) and the harm he feared. 735 F.3d at 1310-11. In that case, drug

traffickers approached Rodriguez’s father about growing illegal drugs on the

family farm, which he refused to do. Id. at 1305. A few years later, the drug

traffickers murdered Rodriguez’s father. Id. In addition, Rodriguez’s uncle was

kidnapped and tortured until Rodriguez’s family paid a ransom, and his cousin,

who testified against the drug traffickers for the murder of Rodriguez’s father, was

himself murdered. Id. at 1306. In denying Rodriguez’s petition, we stated that

Rodriguez failed to show that the harm he feared at the hands of the drug

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traffickers arose from his membership in a particular social group. Id. at 1310.

Rather, the record showed that “the members of his family were killed or

kidnapped due to their failure to cooperate with the drug traffickers or were the

victims of criminal activity.” Id. at 1310-1311.

Likewise, in Rivera v. U.S. Attorney General, we denied a petition for

review of an asylum application because there was substantial evidence to support

the IJ’s finding that the motive of the FARC, a Colombian rebel group, for

persecuting the petitioners’ wealthy family was “to raise funds,” and was not based

on political opinion. 487 F.3d 815, 821–23 (11th Cir. 2007). We reasoned that

country conditions evidence established that business owners like the applicants,

once targeted for taxation, would be harassed until they paid a “war tax,” but that

even a grudging payment of the war tax ordinarily ended the harassment. Id. at

822.

III.

BIA precedent analyzing the nexus requirement requires the BIA and IJ to

assess the alleged persecutor’s motives as a factual matter. See Matter of W-G-R-,

26 I. & N. Dec. 208, 223–24 (BIA 2014) (“Whether that nexus [to a protected

ground] exists depends on the views and motives of the persecutor.”); Matter of N-

M-, 25 I. & N. Dec. 526, 532 (BIA 2011) (“A persecutor’s actual motive is a

matter of fact to be determined by the Immigration Judge and reviewed by [the

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Board] for clear error.”). In Matter of L-E-A-, the BIA denied the noncitizen’s

asylum application because of the absence of the necessary nexus between his

membership in the group and the persecution. Matter of L-E-A-, 27 I. & N. Dec.

40, 43–47 (BIA 2017). There, a drug cartel in Mexico attempted to coerce the

asylum applicant’s father into selling contraband in his store. Id. at 46. When he

refused, the cartel approached the asylum applicant to sell its product. Id. The

BIA concluded that the asylum applicant was targeted to sell its product because of

his position, which allowed him access to the store, not because of his family

membership. Id. at 47. Thus, the cartel targeted him solely to achieve its objective

to increase its profits by selling drugs in the store owned by his father. Id.

The BIA stated that “[a] persecution claim cannot be established if there is

no proof that the applicant or other members of the family were targeted because

of the family relationship.” Id. at 43. “An asylum applicant’s membership in a

family-based particular social group does not necessarily mean that any harm

inflicted or threatened by the persecutor is because of, or on account of, the family

membership.” Id. Furthermore, “[i]f the persecutor would have treated the

applicant the same if the protected characteristic of the family did not exist, then

the applicant has not established a claim on this ground.” Id. at 43-44. The BIA

also noted that the question of a persecutor’s motive “will involve a particularized

evaluation of the specific facts and evidence in an individual claim.” Id. at 44. It

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stated that the “nexus would be established based on family membership where a

persecutor is seeking to harm the family members because of an animus against the

family itself.” Id. “[N]exus is not established simply because a particular social

group of family members exists and the family members experience harm.” Id. at

45.1 Our circuit has not adopted the nexus standard as articulated in Matter of L-E-

A- in a published decision. However, we will defer to the agency’s reasonable

construction of ambiguous terms in the INA. See Alim v. Gonzales, 446 F.3d 1239,

1247 (11th Cir. 2006); Chevron, U.S.A., Inc. v. Nat. Res. Def. Counsel, Inc., 467

U.S. 837, 843–44, 104 S. Ct. 2778, 2782–83 (1984).

IV.

Here, the record does not compel a conclusion that Corrales’s alleged

persecution was or would be on account of his membership in a particular social

group of his family. Instead, the evidence supports the BIA’s determination that

the gang members were motivated by criminality and financial gain, not by any

protected ground. Cf. Rodriguez, 735 F.3d at 1305, 1310–11 (finding that the

motive of the drug traffickers was expanding their enterprise by using the family

farm to grow illegal drugs; motive was not based on membership in the particular

1 The acting Attorney General affirmed the BIA’s analysis of the required nexus between alleged persecution and the alleged protected ground, clarifying that most nuclear families are not inherently socially distinct and therefore do not qualify as particular social groups. Matter of L- E-A-, 27 I. & N. Dec. 581, 586, 597 (A.G. 2019). 9 USCA11 Case: 19-14691 Date Filed: 11/18/2020 Page: 10 of 10

social group of his family or landowners). The gang members repeatedly asked

Corrales to join the gang and sell drugs and tried to extort money from him by

threatening to kidnap his nephews. As the BIA found, Corrales fails to establish

that his membership in his family was at least one central reason for the

persecution he endured and fears if he returns to Honduras. Accordingly, the

record evidence supports the conclusion that the threats he received and the harm

done to his family were acts of private violence and constituted general criminal

activity, which is not sufficient to show a nexus to a protected ground. See Ruiz,

440 F.3d at 1258. Thus, the record does not compel reversal of the BIA’s

determination that Corrales failed to meet this burden of establishing eligibility for

asylum, and we deny Corrales’s petition. 2

PETITION FOR REVIEW DENIED.

2 Furthermore, because Corrales failed to raise any argument on appeal concerning his withholding of removal and CAT claims, we deem these issues abandoned. See Cole, 712 F.3d at 530. 10