Esward Ronaldo Gomez Aceituno v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 4, 2021
• Docket: 20-10176
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20–10176 Non-Argument Calendar ________________________

Agency No. A208-195-523

ESWARD RONALDO GOMEZ ACEITUNO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ____________________________

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

(January 4, 2021)

Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM:

The Board of Immigration Appeals denied Esward Ronaldo Gomez

Aceituno’s application for asylum, 8 U.S.C. § 1158(b)(1)(A), and for withholding USCA11 Case: 20-10176 Date Filed: 01/04/2021 Page: 2 of 9

of removal under the Immigration and Nationality Act, 8 C.F.R. § 208.16(c)(2).

Gomez Aceituno petitioned this Court for review. After considering the briefs, this

Court denies the petition.

I. BACKGROUND

In December 2015, Gomez Aceituno—a citizen and native of Guatemala—

attempted to enter the United States without valid entry documents, violating INA §

212(a)(7)(A)(i)(I). 8 U.S.C. § 1182(a)(7)(A)(i)(I). He applied for asylum and

withholding of removal and had an individual merits hearing in Tacoma,

Washington. At the merits hearing, Gomez Aceituno testified that his father had been

a Guatemalan police officer who investigated gangs and corrupt politicians. Around

eight years earlier, his father had been killed after receiving threats from former

police officers who he had arrested for corruption. Gomez Aceituno did not know

exactly what the threats were, who had killed his father, or why they had killed him.

Around four years later, Gomez Aceituno’s maternal uncle received threats

for unknown reasons, and an unknown person killed him. “[S]ome police” then

“threatened” both of Gomez Aceituno’s older brothers for unknown reasons, causing

one of the brothers to leave Guatemala the next year. Another year later, an unknown

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person shot at the other older brother’s house, prompting that brother to leave

Guatemala as well.

After yet another year passed—now around seven and a half years after the

death of Gomez Aceituno’s father—Gomez Aceituno went to a concert. Walking

home around two in the morning, he was assaulted by five unknown members of an

unidentified gang. The gang members punched him in the face, kicked him,

threatened him, and robbed him. They did not mention his family. About a month

later, an unknown person called Gomez Aceituno, threatening him with death unless

he paid the caller 5,000 quetzals. Gomez Aceituno did not recognize the caller’s

voice, and the caller did not mention his father. But Gomez Aceituno believed that

it was the same “individual that killed [his] father and [his] uncle and the one[] that

threatened [his] brothers” because the caller had “called [him] by [his] name, and

it’s logic.”

Shortly after that call, Gomez Aceituno left Guatemala. His younger brother,

girlfriend, and soon-to-be-born child, all remained and continue to live in

Guatemala. Nothing in the record suggests that they have experienced any

mistreatment since Gomez Aceituno left, although at least until April 2016, they did

not “go out very much.” Gomez Aceituno admitted that he was never “harmed . . .

by the police or the government.” He also conceded that neither the police nor the

government had ever threatened him. When asked who would seek to harm him if

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he returned to Guatemala, Gomez Aceituno replied, “The problem is that I don’t

know who it is.”

The immigration judge found that Gomez Aceituno had not shown that either

the “mugg[ing]” or the attempted extortion were prompted by his family

membership or an imputed political opinion and held that he “[could] []not grant his

Applications.” At that point, Gomez Aceituno’s attorney asked for a continuance so

that she could present more evidence, specifically an affidavit from Gomez

Aceituno’s younger brother still in Guatemala and the live testimony of Gomez

Aceituno’s older brother.

Gomez Aceituno then went to live in Savannah, Georgia, with his family,

prompting an agreed-upon transfer of the case to Atlanta, Georgia. Almost two years

after the initial hearing, Gomez Aceituno still had not submitted the additional

evidence. The immigration judge in Atlanta reviewed the record and denied Gomez

Aceituno’s applications for asylum and withholding of removal. He first found that

Gomez Aceituno’s testimony was credible. He then held that the assault and

attempted extortion did not rise to the level of persecution, that membership in his

family did not count as membership in a statutorily protected “particular social

group,” that he had not established that any political opinion had been imputed to

him, that he had not shown a nexus between the alleged persecution and a protected

ground, that he had not met his burden of proving an objective well-founded fear of

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future persecution, and that he had not demonstrated that Guatemala’s government

was unwilling or unable to protect him. Because Gomez Aceituno failed to show

that he was eligible for asylum, the immigration judge also denied his application

for withholding of removal.

Gomez Aceituno appealed to the BIA, which adopted and affirmed the

immigration judge’s decision. The BIA specifically found that Gomez Aceituno’s

family was not a “cognizable particular social group,” and he had not shown that

either the assault or extortion were because of his family membership or an imputed

political opinion. It also reiterated that because he failed to show asylum eligibility,

he necessarily failed to meet the higher burden for withholding of removal. Gomez

Aceituno timely petitioned this Court for review.

II. STANDARD OF REVIEW

We review the BIA’s legal conclusions de novo, Perez-Zenteno v. U.S. Att’y

Gen., 913 F.3d 1301, 1306 (11th Cir. 2019), and its factual findings under the

“highly deferential substantial evidence test,” Adefemi v. Ashcroft, 386 F.3d 1022,

1026–27 (11th Cir. 2004) (en banc). To the extent that the BIA expressly adopts the

immigration judge’s decision, we review the immigration judge’s reasoning as well,

applying the same standards of review. Juene v. Att’y Gen., 810 F.3d 792, 799 (11th

Cir. 2016). Under the “substantial evidence test,” factual findings “are conclusive

unless the record demonstrates that ‘any reasonable adjudicator would be compelled

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to conclude the contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir.

2002) (quoting 8 U.S.C. § 1252(b)(4)(B)).

III. DISCUSSION

The INA gives the Attorney General discretion to grant asylum to applicants

who qualify as “refugee[s]” under 8 U.S.C. § 1101(a)(42). The applicant bears the

burden of showing his refugee status. 8 U.S.C. § 1158(b)(1)(B)(i). To establish that

status, the applicant must present “credible, direct, and specific evidence in the

record,” Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007),

establishing that “(1) he was persecuted in the past ‘on account of race, religion,

nationality, membership in a particular social group, or political opinion’ (together,

‘protected grounds’), or (2) he has a ‘well-founded fear’ of persecution in

the future ‘on account of’ any of his protected grounds,” Lingeswaran v. U.S. Att’y

Gen., 969 F.3d 1278, 1286 (11th Cir. 2020) (first citing 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1); and then citing 8 C.F.R. § 208.13(a), (b)).

Importantly, the applicant must show that a statutorily protected ground “was

or will be at least one central reason for persecuting the applicant,” 8 U.S.C. §

1158(b)(1)(B)(i), which means that a statutorily protected ground “cannot be

incidental, tangential, superficial, or subordinate to another reason for harm,” In re

J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007). In other words, to be eligible for

asylum relief, an applicant must prove that he was or will be persecuted “because

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of” a protected ground. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992). Whether

an applicant has established that nexus is a factual finding that this Court reviews

for substantial evidence. See Rodriguez Morales, 488 F.3d at 890 (“To warrant

reversal of the BIA's finding that an alien has failed to demonstrate a

sufficient nexus between his political opinion and his alleged persecution, we must

be compelled to find that the alien will be persecuted ‘because of’ his political

opinion.” (quoting Elias-Zacarias, 502 U.S. at 483)).

Gomez Aceituno argues that he was persecuted because of two protected

grounds: (1) his membership in a particular social group and (2) his father’s anti-

corruption stance, imputed to him. But even assuming Gomez Aceituno has

established past or likely future persecution, the record does not compel “any

reasonable adjudicator” to conclude that Gomez Aceituno was or will be targeted

because of his family membership or his father’s anti-corruption efforts.

As to past persecution, the record does not compel the conclusion that it was

because of a protected ground. Gomez Aceituno argues that, because his brothers

and other family members were allegedly persecuted because of a protected ground,

it follows that he was as well. But Gomez Aceituno testified to only two incidents

of threat or violence directed at him in the more than seven years after his father’s

death. In the first incident, he was assaulted and robbed while walking home from a

concert at two in the morning. The assailants were members of a gang, but Gomez

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Aceituno could not identify the gang or any of the individuals. The assailants never

mentioned his father, his family, or any motivation for their actions. Nor did the

extorter in the second incident mention Gomez Aceituno’s father or his family. The

immigration judge found that “the motive of the gang members was criminal

activity” instead of a protected ground. And evidence in the record establishes that

violence and crime—specifically extortion—are prevalent in Guatemala untied to

persecutory motives. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir.

2006) (“[E]vidence 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.” (citation

omitted)). Because the record does not compel “any reasonable adjudicator” to

conclude that general criminal aims did not centrally motivate the assailants and the

extorter, this Court cannot disregard that finding.

Nor does the record compel us to find a sufficient nexus between either

Gomez Aceituno’s family membership or imputed political opinion and potential

future persecution. Gomez Aceituno left Guatemala nearly five years ago, and he

could not identify who he thought would persecute him if he returned to Guatemala.

His girlfriend, child, and brother remain in Guatemala, and there is no evidence in

the record that they have been the victims of any incidents since Gomez Aceituno

left. See Ruiz, 440 F.3d at 1259 (holding that petitioner’s argument that he would be

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persecuted because of a protected ground shared by his family was undercut because

his family remained unharmed in petitioner’s home country). Accordingly,

substantial evidence supports the immigration judge’s factual finding that neither

protected ground would motivate future persecution.

Turning to Gomez Aceituno’s withholding-of-removal claim, because Gomez

Aceituno is not eligible for asylum, neither is he entitled to withholding of removal.

A person shall not be removed to a country if his life or freedom would be threatened

on account of one of the five protected grounds. 8 U.S.C. § 1231(b)(3). He must

show that it is “more likely than not [he] will be persecuted . . . upon being returned

to [his] country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)

(quotation omitted). If an applicant is unable to meet the lower burden for asylum

relief, he is generally precluded from establishing eligibility for withholding of

removal. Najjar, 257 F.3d at 1293, 1303–04. Gomez Aceituno’s failure to establish

eligibility for asylum precludes relief on his withholding-of-removal claim. 1

IV. CONCLUSION

Gomez Aceituno’s petition for review is DENIED.

1 Gomez Aceituno’s original Convention Against Torture (“CAT”) claim is not before this Court. He did not present that claim to the BIA, Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (explaining that failure to exhaust administrative remedies bars this Court from hearing the claim), and he did not present any argument related to CAT before this Court, Sepulveda, 401 F.3d at 1228 n.2 (explaining that issues not briefed are abandoned).