Fredi Eliseo Cux-Lopez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 3, 2023
• Docket: 23-10528
• Status: Unpublished

Opinion

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-10528 Non-Argument Calendar ____________________

FREDI ELISEO CUX-LOPEZ, FLORIDALMA CUX-LOPEZ, Petitioners, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A206-894-341 USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 2 of 10

2 Opinion of the Court 23-10528

Before ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges. PER CURIAM: Guatemalan citizens, Floridalma Cux-Lopez and her son Fredi Cux-Lopez (collectively “Petitioners”) seek review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of their applications for asylum, withholding of removal, and relief under the United Nations Con- vention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). On appeal, Petitioners argue that the BIA erred by determining that they were ineligible for asy- lum, withholding of removal, and CAT relief. After reviewing the record and the applicable law, we affirm. I. Denial of Asylum & Withholding of Removal We review only the decision of the BIA, except to the extent that the BIA expressly adopts or explicitly agrees with the IJ’s deci- sion. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We do not consider issues that the BIA did not reach. Id. We review de novo the BIA’s legal conclusions, such as whether a petitioner’s claimed social group qualifies as a particular social group under the INA. Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Our review is informed by Chev- ron 1 deference, meaning that if a statute that the agency administers

1 Chevron, U.S.A., Inc. v Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 3 of 10

23-10528 Opinion of the Court 3

is silent or ambiguous, we determine whether the agency’s inter- pretation is permissible and if so, defer to that interpretation. Id. Because the INA does not clearly define the phrase “particular so- cial group,” we have deferred to the BIA’s interpretation as set forth in its unpublished, three-member decisions. Id. at 1307; see also Gonzalez, 820 F.3d at 404 (“We have previously held that the BIA’s interpretation of the phrase ‘particular social group’ in 8 U.S.C. § 1231(b)(3)(A) is entitled to Chevron deference because the INA does not define the phrase and it is ambiguous.”). The noncitizen bears the burden of establishing that she is entitled to asylum, which requires the noncitizen to establish, with specific and credible evidence, that: (1) she suffered past persecu- tion on account of a statutorily protected ground; or (2) she has a well-founded fear that she will be persecuted on account of a stat- utorily protected ground. Id.; 8 C.F.R. § 1208.13(a), (b). The stat- utorily protected grounds include, among other things, member- ship in a particular social group. 8 U.S.C. § 1158(b)(1)(B)(i). To qualify as a particular social group under the INA, the group must be composed of members who “share a common, im- mutable characteristic” that the group members either cannot change, or should not be forced to change, “because it is fundamen- tal to their individual identities or consciences.” Perez-Zenteno, 913 F.3d at 1309-10 (internal quotation marks and citation omitted). The “particular social group also must be defined with particular- ity,” meaning the group has discrete, definable boundaries, and is not vague or amorphous. Id. at 1310 (internal quotation marks and USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 4 of 10

4 Opinion of the Court 23-10528

citation omitted). Moreover, the group should be seen within the given society as a “sufficiently distinct group.” Id. (internal quota- tion marks and citation omitted). Importantly, the particular social group cannot be circularly defined by the persecution of its mem- bers, meaning the particular social group’s defining attribute can- not be its risk of persecution stemming from being targeted by gangs. Id. at 1309-10 (holding that the BIA reasonably determined that the noncitizen’s proposed social group of “Mexican citizens targeted by criminal groups because they have been in the United States and have families in the United States” was impermissibly circular) (underline in original); see also Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1344-45 (11th Cir. 2019) (holding that the BIA reasonably determined that the noncitizen’s proposed social group of “women in Mexico who cannot leave domestic relation- ships” was impermissibly circular); Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (holding that the BIA did not err in finding incognizable a noncitizen’s proposed social group of “mem- bers of a family targeted by a drug-trafficking organization because a family member sought criminal justice against a member of the drug-trafficking organization” because the social group was imper- missibly defined by the risk of persecution). Additionally, the petitioner must establish a nexus between the feared persecution and a statutorily protected ground by demonstrating that one of the protected grounds was or will be at least one central reason for persecuting her. 8 U.S.C. § 1158(b)(1)(B)(i). Evidence “consistent with acts of private vio- lence or the petitioner’s failure to cooperate with guerillas,” or USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 5 of 10

23-10528 Opinion of the Court 5

evidence merely showing the petitioner “has been a victim of crim- inal activity,” is insufficient to support a finding that the noncitizen faced persecution based on a statutorily protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). A noncitizen is eligible for withholding of removal if she shows that, upon return to her country, she will be persecuted in that country because of a protected ground, such as her member- ship in a particular social group. 8 U.S.C. § 1231(b)(3). The stand- ard for withholding of removal is more stringent than that for asy- lum, meaning if the petitioner fails to meet the standard of proof for asylum, she necessarily cannot meet the standard for withhold- ing of removal. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007). Before the BIA and IJ, Cux-Lopez framed her proposed par- ticular social group as “Guatemalan mothers fleeing personal gang persecution and that of their young student children.” Fredi framed his proposed particular social group as “young Guatemalan male students who are targeted by gang members for repeated re- jection of gang recruitment to protect themselves and their family members.” At the hearing before the IJ, Petitioners presented evi- dence that they suffered from and feared gang violence. Fredi stated that when he was about 10 years old, he began experiencing repeated pressure to join gangs that chased, attacked, threatened, and harassed him. He indicated that some of those gang encoun- ters resulted in him getting bruised, but his mother acknowledged that he never received any medical attention for those injuries. USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 6 of 10

6 Opinion of the Court 23-10528

Petitioners also witnessed the murder of their pastor, and Cux- Lopez was grabbed by one of the assailants and had her phone sto- len so that she could not report the crime. Given these experiences, Petitioners feared leaving their home, and Fredi quit attending school due to this fear. Cux-Lopez further stated that she has fam- ily living in Guatemala City, about a four to five-hour drive from her hometown. However, her reluctance to relocate within Gua- temala was not based on fear, but instead because she has no money and her siblings told her she could not move there. After considering Petitioners’ testimony and the other evi- dence introduced, including reports regarding Guatemala’s human rights conditions, the IJ denied the Petitioners’ applications for asy- lum and withholding of removal, which the Petitioners appealed to the BIA. The BIA, in a single-member decision relying on prec- edent from this Court and the BIA, affirmed the IJ’s decision, con- cluding that Petitioners failed to sufficiently establish their mem- bership in a particular social group due to the circular nature of their proposed social group and the lack of a nexus between their claimed persecution and their proposed social group. We affirm the BIA’s decision. 2 As to asylum, Petitioners did not meet their burden of proof under the INA. Petitioners’ basis for asylum was that they are members of a particular social group and face a risk of persecution due to that status—specifically, as

2 On appeal, Petitioners also argue that they demonstrated past persecution.

Because the BIA did not reach that issue, Petitioners’ argument is not properly before the Court. Gonzalez, 820 F.3d at 403. USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 7 of 10

23-10528 Opinion of the Court 7

“Guatemalan mothers fleeing personal gang persecution and that of their young student children” and “young Guatemalan male stu- dents who are targeted by gang members for repeated rejection of gang recruitment to protect themselves and their family mem- bers.” However, the definition of their “particular social groups” is circular in that the risk of persecution defines the very risk they fear. Cux-Lopez’s proposed social group’s defining attribute is the risk of persecution stemming from being a mother with a young student child fleeing gang persecution, which is the definition of an impermissibly circular social group. Perez-Zenteno, 913 F.3d at 1310. Fredi’s proposed social group suffers the same fate, for his proposed social group’s defining attribute is the fact that he has been targeted by gang members. Rodriguez, 735 F.3d at 1310 (holding that “family [members] targeted by a drug-trafficking organization” was an im- permissibly circular social group) (emphasis added). Thus, the pro- posed groups were not legally cognizable, and because they as- serted no other protected ground, they could not establish the req- uisite nexus between the claimed persecution and a protected ground. 8 U.S.C. § 1158(b)(1)(B)(i). Moreover, Petitioners’ fear of gang-related violence directed towards them, while obviously troubling, does not establish a widespread fear of violence against every Guatemalan mother or young student. The same, as a mat- ter of statutory interpretation and application, is true for Fredi who defined his proposed social group as all “young Guatemalan male students” targeted by gangs. Ruiz, 440 F.3d at 1258. As such, the BIA did not err in affirming the IJ’s denial of Petitioners’ application for asylum. Likewise, because Petitioners are not eligible for USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 8 of 10

8 Opinion of the Court 23-10528

asylum, they necessarily cannot establish their eligibility for with- holding of removal, and the BIA did not err in affirming the IJ’s denial of such relief. Rodriguez Morales, 488 F.3d at 891. II. Denial of CAT Relief We review the BIA’s factual findings for substantial evi- dence, wherein we “view the record evidence in the light most fa- vorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Perez-Zenteno, 913 F.3d at 1306 (internal quotation marks omitted) (quoting Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)). Under this standard of re- view, “we must affirm the BIA’s decision if it is supported by rea- sonable, substantial, and probative evidence” in consideration of the entire record. Id. (internal quotation marks omitted) (quoting Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)). To be eligible for CAT relief, the noncitizen must meet a higher burden of proof than for asylum eligibility and show that she will more likely than not be tortured if she returned to the des- ignated country of removal. Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020) (quoting 8 C.F.R. § 1208.16(c)(2)). All relevant evidence must be considered, including the applicant’s ability to relocate and information regarding conditions within the country. 8 C.F.R. § 1208.16(c)(3). “Torture” is defined as an inten- tionally inflicted “extreme form of cruel and inhuman treatment” that includes “severe pain or suffering” which can be either mental or physical. 8 C.F.R. § 208.18(a)(1), (2). USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 9 of 10

23-10528 Opinion of the Court 9

Importantly, CAT only protects noncitizens from torture that is being inflicted, instigated, or acquiesced to by a public offi- cial or another individual acting in his or her official capacity. Lin- geswaran, 969 F.3d at 1293. For a public official to acquiesce to the torture, the public official must have awareness of the activity be- fore it occurs and be aware of his or her responsibility to intervene to prevent the activity. Id. A government does not acquiesce to torture when it “actively, albeit not entirely successfully, combats the alleged torture.” Lingeswaran, 969 F.3d at 1294 (internal quota- tion marks omitted) (quoting Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004)). Before the IJ, Petitioners only presented evidence of criminal gang activity by private actors they directly experienced or wit- nessed. Although their evidence showed that crime rates were high in Guatemala, the record does not demonstrate that the Gua- temalan government inflicted, instigated, or acquiesced to any ac- tivities that constitute torture under CAT. Although perhaps woe- fully inadequate and thus far unsuccessful, Petitioners’ evidence nevertheless did show some modest efforts on the part of the Gua- temalan government to curb the violence. Additionally, Petition- ers never reported the incidents of violence they personally experi- enced to Guatemalan officials. Based on this evidence, the IJ denied Petitioners’ application for CAT relief, and the BIA affirmed the de- nial. Here, the record, taken as a whole, does not support a find- ing that Petitioners would more likely than not be tortured with USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 10 of 10

10 Opinion of the Court 23-10528

the acquiescence of the Guatemalan government upon their re- turn. 8 C.F.R. § 1208.16(c)(2), (3); Perez-Zenteno, 913 F.3d at 1306; Lingeswaran, 969 F.3d at 1293-94. While Petitioners may under- standably be afraid of continued violence in Guatemala, their rea- sonable fears unfortunately do not satisfy the heightened standard to be eligible for CAT relief. PETITION DENIED.