Jose Giron-Giron v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 25, 2022
• Docket: 21-3472
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0042n.06

Case No. 21-3472

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Jan 25, 2022 ) JOSE ENMANUEL GIRON-GIRON, aka DEBORAH S. HUNT, Clerk ) Jose Emanuel Giron-Giron, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) ____________________________________/

Before: SUTTON, Chief Judge; GUY and DONALD, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge. Petitioner, a native and citizen of El Salvador,

entered the United States unlawfully after two encounters with gang members. During removal

proceedings, the Immigration Judge (IJ) denied his applications for asylum, withholding of

removal, and protection under the Convention Against Torture. The Board of Immigration

Appeals (BIA) affirmed, without an opinion. Because petitioner has not identified anything that

compels a contrary result, the petition for review is denied.

I.

In May 2016, petitioner entered the United States through Texas without a valid entry

document. Three months later, the Department of Homeland Security (DHS) served petitioner

with a Notice to Appear (NTA) and filed it with the immigration court. Petitioner was charged in

the NTA with removal from this country for failure to possess a valid entry document and travel Case No. 21-3472, Giron-Giron v. Garland

document at the time of application for admission, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I).

The NTA stated the place petitioner was to appear and noted that the date and time would be set

later.

In August 2016, petitioner appeared before an IJ, without counsel. The IJ offered to

continue the case to allow petitioner to retain counsel, but petitioner responded that he wished “to

proceed [with] the case right now.” During the hearing, petitioner admitted that he received the

NTA and had entered this county unlawfully. The IJ thus sustained the charge of removal.

Petitioner then applied for asylum and withholding of removal in October 2016.

Petitioner retained counsel and submitted an updated application in November 2016,

adding a request for protection under the Convention against Torture (CAT). Petitioner then filed

his written pleading, in which he conceded the charges against him. Petitioner submitted his

second updated application for asylum, withholding of removal, and protection under the CAT in

March 2019. In his application, petitioner represented that neither he nor any family members

have ever been associated with a political party, student group, labor union, religious organization,

military or paramilitary group, ethnic group, human rights group, or the media in El Salvador.

Nevertheless, at the hearing held on April 4, 2019, petitioner argued he was entitled to

relief because he belonged to two social groups: (1) “persons who are prosperous in El Salvador”;

and (2) “persons who resist[] the gangs in El Salvador.” Before testifying, petitioner signed his

application for relief.

Petitioner then testified about past threats and fear of future harm. When he lived in Ocoro,

Morazon, El Salvador, he worked in mail and receiving at a store. He was paid $500 (USD) per

month, which was more money than other people made in El Salvador. He testified that people in

his community knew that he was “prosperous” because they would “watch [him] at work and [he]

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had more things than other people,” such as a motorcycle. As a result, petitioner explained that on

two occasions, in March and April of 2016, gang members approached him on his way home from

work, pointed a gun to his head, and threatened to kill him if he did not pay the gang members

$100 per month. He allegedly went to the police in March of 2016, but a police report was not

filed. To initiate the investigation process, the police asked petitioner for more information, such

as names, pictures, telephone numbers, or the addresses where the gang members lived. Petitioner

did not have any of that information, so he left and never returned to the police because, in his

view, he “saw that they were not doing anything for [him].”

Because of the gang encounters, a doctor in El Salvador allegedly prescribed petitioner

medication in April 2016. Petitioner paid the gang members for two months (March and April),

and then fled to the United States in May 2016. Since leaving El Salvador, his family and former

boss have allegedly told him that the gang members continue to look for him at his former job, and

his family also reported that gang members have called his old telephone number. Petitioner

claimed that he would be harmed if he returned to El Salvador because he did not continue to pay

the gang.

At the end of the hearing, the IJ issued an oral decision denying the relief petitioner

requested. First, the IJ found petitioner did not experience “persecution” in El Salvador. Second,

the IJ found that, even if the “isolated threats” he received constitute persecution, the threats were

not on account of his membership in a protected, cognizable group. Thus, although petitioner had

a subjective fear of future persecution if he returned to El Salvador, the IJ concluded that his fear

is not objectively reasonable. Third, the IJ found petitioner failed to show that, if removed to El

Salvador, it is more likely than not that he will be tortured at the hands of the Salvadoran

government or someone acting with their consent or acquiescence.

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Petitioner appealed to the BIA. The BIA affirmed the IJ’s decision without opinion in

April 2021. See 8 C.F.R. § 1003.1(e)(4). The instant petition for review followed.

II.

“Where the BIA affirms without opinion the decision of the IJ,” as in this case, “this court

directly reviews the decision of the IJ” as the final agency decision. Sanusi v. Gonzales, 474 F.3d

341, 345 (6th Cir. 2007). “Questions of law are reviewed de novo, but substantial deference is

given to the BIA’s interpretation of the [Immigration and Nationality Act (INA)] and

accompanying regulations.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “[F]indings of

fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B).

In the end, we must uphold the immigration court’s ultimate determination on the relief

requested if it is supported by “substantial evidence.” Kukalo v. Holder, 744 F.3d 395, 399-400

(6th Cir. 2011); Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004). Substantial evidence

“means—and means only—‘such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol.

Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). That is, we may reverse only if the

decision was “manifestly contrary to law,” 8 U.S.C. § 1252(b)(4)(C), such that “the evidence not

only supports a contrary conclusion, but indeed compels it,” Haider v. Holder, 595 F.3d 276, 281

(6th Cir. 2010) (cleaned up) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)).

III.

A.

Asylum. There is no basis for overturning the IJ’s decision to deny petitioner asylum. To

be eligible for asylum at the discretion of the Attorney General, the applicant must establish that

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he is a “refugee.” 8 U.S.C. § 1158(b)(1)(A)-(B)(i); Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.

2005) (per curiam). A refugee is an alien who is “unable or unwilling to return to . . . [their]

country because of [past] persecution or a well-founded fear of [future] persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b); Bonilla-Morales v. Holder, 607 F.3d 1132, 1136

(6th Cir. 2010). Petitioner relies on both past persecution and fear of future persecution. Neither

theory is viable.

The IJ correctly concluded that petitioner did not experience past “persecution” in

El Salvador. Persecution is “the infliction of harm or suffering by the government, or persons the

government is unwilling or unable to control, to overcome a characteristic of the victim.” Bonilla-

Morales, 607 F.3d at 1136 (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 997 (6th Cir. 2009)).

Because this case involves the conduct of non-governmental actors, i.e., gang members, petitioner

was required to show that his alleged persecutors are “either aligned with the government or that

the government is unwilling or unable to control” them. Antonio v. Barr, 959 F.3d 778, 793 (6th

Cir. 2020) (citing Khalili, 557 F.3d at 436). The IJ, however, did not make a finding on the “unable

or unwilling” issue. Although we must assume without deciding that the requirement is satisfied,

see Gonzales v. Thomas, 547 U.S. 183, 186 (2006); Hernandez-Perez v. Whitaker, 911 F.3d 305,

318 (6th Cir. 2018), petitioner is not entitled to relief on two other grounds.

First, the threats petitioner experienced do not amount to persecution. “Persecution

‘requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied

by any physical punishment, infliction of harm, or significant deprivation of liberty.’” Singh v.

Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th

Cir. 1998)). Petitioner was threatened twice by gang members who demanded money, without

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ever harming him. The two payments he made to the gang did not create “economic restrictions

so severe that they constitute a real threat to life or freedom.” Ouda, 324 F.3d at 454 (citation

omitted). As we have held, a couple of “threats and requests for money” is not persecution.

Kukalo, 744 F.3d at 400-01; see also Bonilla-Morales, 607 F.3d at 1137.

Second, petitioner’s purported social groups—“persons who are prosperous in El

Salvador” and “persons who resist[] the gangs in El Salvador”—are not “particular social

group[s]” protected under 8 U.S.C. § 1101(a)(42)(A). A “particular social group” must satisfy

three requirements: “(1) immutability (members must share an immutable characteristic),

(2) particularity (the group has discrete and definable boundaries), and (3) social distinction

(society actually perceives the purported group as a distinct class of persons).” Cruz-Guzman v.

Barr, 920 F.3d 1033, 1036 (6th Cir. 2019); see Umaña-Ramos v. Holder, 724 F.3d 667, 671 (6th

Cir. 2013).

Petitioner has not offered any evidence that either of the two groups he proposes is

perceived as a group by the Salvadoran society. Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir.

2015); Umaña-Ramos, 724 F.3d at 674. And with respect to the first group, a nebulous term like

“prosperous” can hardly “provide a clear benchmark for determining who falls within the group.”

Matter of M- E- V- G, 26 I. & N. Dec. 227, 239 (BIA 2014); cf. Menijar, 812 F.3d at 498. Indeed,

we have held that “affluent Guatemalan[s]” who have “lived in the United States” is not a valid

social group, Esteban v. Holder, 478 F. App’x 301, 303 (6th Cir. 2012), and we have repeatedly

held that “perceived wealth is not considered a social group,” see, e.g., Palokaj v. Holder, 510 F.

App’x 464, 468 (6th Cir. 2013); Diaz-Hernandez v. Holder, 635 F. App’x 159, 161 (6th Cir. 2015);

Reyes-Cardona v. Holder, 565 F. App’x 366, 368 (6th Cir. 2014); Cano-Huerta v. Holder, 568 F.

App’x 371, 373 (6th Cir. 2014).

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The second purported social group is also specifically foreclosed, as we have already held

that “mere defiance of unidentified thugs’ extortion demands” does not make an applicant a

member of a protected social group. Khozhaynova v. Holder, 641 F.3d 187, 195 (6th Cir. 2011)

(quoting Lugovyj v. Holder, 353 F. App’x 8, 10 (6th Cir. 2009)); see also Umaña-Ramos, 724 F.3d

at 673 (holding that “young Salvadorans who have been threatened because they refused to join

the MS gang is not cognizable under the INA” (cleaned up)).

Petitioner has likewise failed to establish a well-founded fear of future persecution if he is

returned to El Salvador. Without past persecution, petitioner must show that: (1) “he genuinely

(subjectively) fears he will be persecuted based on a protected ground if returned to his native

country”; and (2) “his fears are objectively reasonable.” Elias v. Gonzales, 490 F.3d 444, 449 (6th

Cir. 2007). But petitioner has not done so because his fear of harm in returning to El Salvador is

not on account of his membership in a “particular social group.” 8 U.S.C. § 1101(a)(42)(A);

Umaña-Ramos, 724 F.3d at 673; Kukalo, 744 F.3d at 400. Accordingly, the IJ’s decision to deny

petitioner’s asylum application is not manifestly contrary to law.

B.

Withholding of Removal. Withholding of removal is mandatory if an alien shows that

their “life or freedom would be threatened in that country because of the alien’s race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A); see also 8 C.F.R. § 1208.16(b)(1)-(2); Khalili, 557 F.3d at 435. Again, any

persecution petitioner might face upon removal is not because of his membership in any “particular

social group.” Thus, the IJ properly denied his claim for withholding of removal.

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C.

Protection under the CAT. Petitioner fares no better in challenging the IJ’s decision to

deny him protection under the CAT. Such relief is available where an applicant can show that “it

is more likely than not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2). “Torture, in any of its myriad manifestations, must entail the

intentional infliction of severe mental or physical pain upon an individual by or at the instigation

of or with the consent or acquiescence of a public official or other person acting in an official

capacity.” Zheng v. Lynch, 819 F.3d 287, 294-95 (6th Cir. 2016) (citation omitted); accord

8 C.F.R. § 1208.18(a)(1), (4)-(6). “Acquiescence of a public official requires that the public

official, prior to the activity constituting torture, have awareness of such activity and thereafter

breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.

§ 1208.18(a)(7).

Here, there was no acquiescence on the part of the Salvadoran police. As the IJ noted,

during petitioner’s credible fear interview he stated that he did not have any problems with, or fear

of, the Salvadoran police or government. Unlike asylum, any claim “[t]hat the Salvadoran

government is unable to control the gangs does not constitute acquiescence.” Menijar, 812 F.3d

at 502 (collecting cases). And under the CAT, “it is not enough that [a] public official

. . . recklessly disregarded the truth, or negligently failed to inquire.” 8 C.F.R. § 1208.18(a)(7).

That is especially important here where petitioner is the one who failed to provide the police with

any information about the alleged extortionists, much less file a police report. Nothing compels

reversal of the IJ’s decision to deny petitioner relief.

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IV.

Despite the foregoing, petitioner asserts a last-ditch argument urging dismissal of the entire

removal proceedings. He argues for the first time that if the court declines to grant any of the

forms of requested relief, then under Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the court

“should alternatively remand his proceedings for the purpose of rescinding the order of removal

. . . and terminating his proceedings” for lack of jurisdiction because his NTA did not state the date

and time of his first hearing. We have rejected a similar argument. Rafael v. Garland, 15 F.4th

797, 800-01 (6th Cir. 2021). But here, the issue is unreviewable because petitioner did not raise it

before the BIA or the IJ. Khalili, 557 F.3d at 432-33; Ramani v. Ashcroft, 378 F.3d 554, 560 (6th

Cir. 2004).

* * *

The petition for review is DENIED.

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