NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 17-2783 ________________
GERMAN CORDERO MARTINEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________
On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A045-045-877) Immigration Judge: Honorable John B. Carle ________________
Submitted Under Third Circuit LAR 34.1(a) March 12, 2018
Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
(Opinion filed: March 26, 2018) ________________
OPINION* ________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Petitioner German Martinez, a native and citizen of Guatemala who was deported
earlier this year, petitions for review of the BIA’s decision to affirm withholding of
removal and denial of relief under the Convention Against Torture (CAT). We will deny
review.
I. Background
Following the murder of his father, a military recruiter who carried out mandatory
conscription orders for the Guatemalan government, and the murder of a young sister,
Martinez joined his mother and siblings in the United States and was admitted as a lawful
permanent resident. He was subsequently deemed inadmissible and removed to
Guatemala as a result of a conviction for committing a lewd act with a minor, a crime
involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Upon his removal,
according to Martinez, he initially remained in his hometown where he was threatened by
the same family that had murdered his father and sister; he then relocated and ultimately
lived for approximately six years in Guatemala City, where he was not contacted again
by the family that threatened him but was required, like others in the area, to make “rent”
payments, a form of extortion, to the MS-18 gang.
After Martinez illegally reentered the United States, and the Department of
Homeland Security reinstated his earlier order of removal, Martinez sought withholding
of removal on the ground that he was persecuted due to his membership in three
purportedly protected “particular social group[s],” see 8 CFR § 1208.16(b)(1)(i): (1) his
2 family, which he contends was targeted on account of his father’s former occupation, (2)
a group of Guatemalans with “American accent[s],” AR 401, targeted by the MS-18 gang
because it is assumed they have access to resources, and (3) a group of Guatemalans
targeted by MS-18 because of previous resistance to the gang’s extortions. He also seeks
relief under the CAT.
Following a hearing and testimony, the IJ rejected his claims. The IJ concluded
that Martinez failed to allege a clear probability of future persecution on account of a
particular group because, even accepting that Martinez’s family was a particular social
group that was threatened because of his father’s former employment, his “past
experiences in Guatemala do not rise to the level of past persecution,” AR 135, such that
he could not establish a rebuttable presumption of future persecution, and the record
demonstrated Martinez could avoid persecution by relocating to another part of
Guatemala. The IJ found Martinez’s other two purported groups were not cognizable and
determined his fears were largely due to “general conditions of crime and violence,” that
do not “constitute a basis for a well-founded fear of persecution” within the meaning of
the INA, AR 137.1 For those reasons, the IJ denied Martinez’s application, and the BIA
summarily affirmed. This petition for review followed.
II. Jurisdiction and Standard of Review
1 Martinez also sought protection under the CAT, but the IJ held Martinez had not met his burden to prove a clear probability of torture by the acquiescence of the government. Martinez did not challenge that ruling on appeal to the BIA in his petition for review. It is therefore waived. 3 The BIA had jurisdiction over Martinez’s appeal from the IJ’s removal order
under 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over his
petition for review of the BIA’s final order of removal under 8 U.S.C. § 1252(a)(1).
Where, as here, the BIA affirmed the IJ’s decision without opinion, we review the IJ’s
decision as the “final agency determination.” Borrome v. Att’y Gen., 687 F.3d 150, 154
(3d Cir. 2012). We review legal determinations de novo, Alimbaev v. Att’y Gen., 872
F.3d 188, 194 (3d Cir. 2017), but when evaluating factual findings, we apply a deferential
standard of review: “We must accept factual findings if supported by substantial
evidence,” which means “we must uphold the [IJ’s] determination unless the evidence
would compel any reasonable fact finder to reach a contrary result.” Gonzalez-Posadas
v. Att’y Gen., 781 F.3d 677, 684 n.5 (3d Cir. 2015).
III. Discussion
Martinez raises three arguments in this case, but none are persuasive. First,
Martinez contends that, because the family that threatened him and killed his father and
sister is large and found throughout the country, the IJ erred in finding that he was able to
relocate within Guatemala to avoid persecution. In his own testimony, however,
Martinez acknowledged that he was “not threatened or harmed by the group that targeted
his father” when he moved to Guatemala City and that he was able to remain there with
no further contact or threats from that family for approximately six years. AR 141. The
IJ’s finding is thus supported by “substantial evidence,” Gonzalez-Posadas, 781 F.3d at
684 n.5, and because it is “reasonable to expect” Martinez to relocate from his
hometown, 8 C.F.R. § 208.16(b)(2), as he had done before, this claim of error fails.
4 Second, Martinez argues that the IJ, in concluding he failed to establish a history
of past persecution, ignored an incident in which a gun was put to his head by a member
of the family that threatened him. But the record reflects otherwise: At a hearing, the IJ
expressly acknowledged Martinez’s testimony that he was “threatened at gunpoint, but
never physically harmed,” AR 137, concluding that this and other incidents were not “so
menacing as to cause significant, actual suffering or harm.” AR 137 (quoting Chavarria
v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006)). Martinez conceded that he wasn’t
“physically harmed” nor did he “suffer any injuries,” from MS-18. AR 198. Thus,
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 17-2783 ________________
GERMAN CORDERO MARTINEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________
On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A045-045-877) Immigration Judge: Honorable John B. Carle ________________
Submitted Under Third Circuit LAR 34.1(a) March 12, 2018
Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
(Opinion filed: March 26, 2018) ________________
OPINION* ________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Petitioner German Martinez, a native and citizen of Guatemala who was deported
earlier this year, petitions for review of the BIA’s decision to affirm withholding of
removal and denial of relief under the Convention Against Torture (CAT). We will deny
review.
I. Background
Following the murder of his father, a military recruiter who carried out mandatory
conscription orders for the Guatemalan government, and the murder of a young sister,
Martinez joined his mother and siblings in the United States and was admitted as a lawful
permanent resident. He was subsequently deemed inadmissible and removed to
Guatemala as a result of a conviction for committing a lewd act with a minor, a crime
involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Upon his removal,
according to Martinez, he initially remained in his hometown where he was threatened by
the same family that had murdered his father and sister; he then relocated and ultimately
lived for approximately six years in Guatemala City, where he was not contacted again
by the family that threatened him but was required, like others in the area, to make “rent”
payments, a form of extortion, to the MS-18 gang.
After Martinez illegally reentered the United States, and the Department of
Homeland Security reinstated his earlier order of removal, Martinez sought withholding
of removal on the ground that he was persecuted due to his membership in three
purportedly protected “particular social group[s],” see 8 CFR § 1208.16(b)(1)(i): (1) his
2 family, which he contends was targeted on account of his father’s former occupation, (2)
a group of Guatemalans with “American accent[s],” AR 401, targeted by the MS-18 gang
because it is assumed they have access to resources, and (3) a group of Guatemalans
targeted by MS-18 because of previous resistance to the gang’s extortions. He also seeks
relief under the CAT.
Following a hearing and testimony, the IJ rejected his claims. The IJ concluded
that Martinez failed to allege a clear probability of future persecution on account of a
particular group because, even accepting that Martinez’s family was a particular social
group that was threatened because of his father’s former employment, his “past
experiences in Guatemala do not rise to the level of past persecution,” AR 135, such that
he could not establish a rebuttable presumption of future persecution, and the record
demonstrated Martinez could avoid persecution by relocating to another part of
Guatemala. The IJ found Martinez’s other two purported groups were not cognizable and
determined his fears were largely due to “general conditions of crime and violence,” that
do not “constitute a basis for a well-founded fear of persecution” within the meaning of
the INA, AR 137.1 For those reasons, the IJ denied Martinez’s application, and the BIA
summarily affirmed. This petition for review followed.
II. Jurisdiction and Standard of Review
1 Martinez also sought protection under the CAT, but the IJ held Martinez had not met his burden to prove a clear probability of torture by the acquiescence of the government. Martinez did not challenge that ruling on appeal to the BIA in his petition for review. It is therefore waived. 3 The BIA had jurisdiction over Martinez’s appeal from the IJ’s removal order
under 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over his
petition for review of the BIA’s final order of removal under 8 U.S.C. § 1252(a)(1).
Where, as here, the BIA affirmed the IJ’s decision without opinion, we review the IJ’s
decision as the “final agency determination.” Borrome v. Att’y Gen., 687 F.3d 150, 154
(3d Cir. 2012). We review legal determinations de novo, Alimbaev v. Att’y Gen., 872
F.3d 188, 194 (3d Cir. 2017), but when evaluating factual findings, we apply a deferential
standard of review: “We must accept factual findings if supported by substantial
evidence,” which means “we must uphold the [IJ’s] determination unless the evidence
would compel any reasonable fact finder to reach a contrary result.” Gonzalez-Posadas
v. Att’y Gen., 781 F.3d 677, 684 n.5 (3d Cir. 2015).
III. Discussion
Martinez raises three arguments in this case, but none are persuasive. First,
Martinez contends that, because the family that threatened him and killed his father and
sister is large and found throughout the country, the IJ erred in finding that he was able to
relocate within Guatemala to avoid persecution. In his own testimony, however,
Martinez acknowledged that he was “not threatened or harmed by the group that targeted
his father” when he moved to Guatemala City and that he was able to remain there with
no further contact or threats from that family for approximately six years. AR 141. The
IJ’s finding is thus supported by “substantial evidence,” Gonzalez-Posadas, 781 F.3d at
684 n.5, and because it is “reasonable to expect” Martinez to relocate from his
hometown, 8 C.F.R. § 208.16(b)(2), as he had done before, this claim of error fails.
4 Second, Martinez argues that the IJ, in concluding he failed to establish a history
of past persecution, ignored an incident in which a gun was put to his head by a member
of the family that threatened him. But the record reflects otherwise: At a hearing, the IJ
expressly acknowledged Martinez’s testimony that he was “threatened at gunpoint, but
never physically harmed,” AR 137, concluding that this and other incidents were not “so
menacing as to cause significant, actual suffering or harm.” AR 137 (quoting Chavarria
v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006)). Martinez conceded that he wasn’t
“physically harmed” nor did he “suffer any injuries,” from MS-18. AR 198. Thus,
substantial evidence also supports the IJ’s determination that Martinez did not experience
past persecution. See Chavarria, 446 F.3d at 518.
Finally, Martinez asserts that the IJ committed legal error in concluding that the
social groups of Americanized Guatemalans and those who had previously been extorted
by MS-18 were not cognizable under the INA. But we need not resolve this issue
because, even assuming they are cognizable, we agree with the IJ that Martinez failed to
show a nexus between the persecution he claims he will endure and these purported
protected grounds. See Ndayshimiye v. Att’y Gen., 557 F.3 124, 129 (3d Cir. 2009).
Martinez’s own testimony reflected that his fears of making rent payments to MS-18 and
being threatened because MS-18 members think he has access to resources are shared by
“everyone in their surrounding areas,” AR 532, and as the IJ correctly observed, it is
“well-established” that fear of “general conditions of crime and violence affecting the
populous,” does not qualify for protection absent a “nexus to a statutorily protected
ground.” AR 137. See Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001) (holding
5 that mere “random street violence” and “ordinary criminal activity,” when “motivated . . .
by arbitrary hostility or by a desire to reap financial rewards,” is insufficient to establish
eligibility for protection under the INA).
III. Conclusion
For the foregoing reasons, we will deny Martinez’s petition for review.