Jose Luis Alonzo-Simaj v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 5, 2023
• Docket: 23-3186
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0498n.06

No. 23-3186

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 05, 2023 JOSE LUIS ALONZO-SIMAJ, ) KELLY L. STEPHENS, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) ) FROM THE BOARD OF ) IMMIGRATION APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) OPINION )

Before: BUSH, LARSEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge. Gang members in Guatemala repeatedly robbed Jose Luis

Alonzo-Simaj and threatened to kill him if he did not pay a weekly “fee” out of his bakery’s

earnings. These crimes led Alonzo-Simaj and his wife to flee to the United States. After he

arrived, he applied for asylum and withholding of removal. But neither remedy offers relief to

immigrants who are robbed or extorted in their home country by criminals acting solely for

financial gain. An immigration judge thus denied Alonzo-Simaj’s application, and the Board of

Immigration Appeals upheld this decision. Substantial evidence supported their conclusion that

Alonzo-Simaj suffered harm in Guatemala solely on account of the gang’s desire for money. So

although we have sympathy for his plight, we must deny his petition for review. No. 23-3186, Alonzo-Simaj v. Garland

I

Alonzo-Simaj was born in Guatemala in 1996. While still a teenager, he began to date his

future wife, Josselyn Morales-Velasquez. Josselyn’s grandfather owned a family-run bakery.

In 2014, Alonzo-Simaj took a job at this bakery helping the family package bread. The next year,

he turned 18 and married Josselyn. Around this time, he also began driving the bakery’s bread to

various customers in the nearby communities.

Starting in January 2014, the family’s bakery operations became a recurring target of gang

violence at the hands of “Barrio 18” (also known as the “18th Street Gang,” “Mara 18,” or “M-

18”). That month, armed gang members stole money from the bakery and held Alonzo-Simaj, his

wife, and her sister “hostage” in the process. Admin. R. (A.R.) 90–91. Although this incident

resulted only in “bruises,” Alonzo-Simaj also suffered the traumatic “scare” of being held at

gunpoint. A.R. 91.

The family lived without incident for over a year after the robbery because the police

“chased” Barrio 18 out of their city. A.R. 91, 102–03. But the peace did not last. Alonzo-Simaj

encountered the gang again in November 2015 on his way home from delivering bread. Gang

members forced him out of his car. They then hit him with a gun, kicked him, “took all the money”

from his sales, and demanded that he pay a weekly extortion fee. A.R. 92, 106–07. He suffered

“bruises” again. A.R. 107.

After this second robbery, Alonzo-Simaj’s father-in-law decided to transport the bread

himself in order to keep Alonzo-Simaj safe. When the gang’s extortion demand came due, though,

armed gang members robbed and beat his father-in-law. Alonzo-Simaj and his father-in-law

decided to stop making deliveries, and his wife’s grandfather temporarily closed the bakery.

Despite these precautions, gang members continued their threats over the phone and when they

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saw the men on the street. The family did not report these threats to the police out of fear of

retaliation. Instead, Alonzo-Simaj’s father-in-law left for Mexico in January 2016.

That April, members of Barrio 18 stopped Alonzo-Simaj and his wife on their way home

from a visit with his wife’s grandfather at the bakery. They beat him, continued to demand that

he pay the extortion fee, and threatened to rape his wife and murder them both if he refused. Gang

members followed up a week later by demanding the fee and (falsely) accusing Alonzo-Simaj of

killing a fellow gang member. The accusation led to more death threats. Scared for their lives,

Alonzo-Simaj and his wife chose to leave Guatemala for the United States the next month.

Immigration authorities detained Alonzo-Simaj and his wife at the border in Texas. The

authorities ordered Alonzo-Simaj to appear at removal proceedings. In those proceedings, he

conceded his removability but requested asylum and withholding of removal. (He also requested

protection under the Convention Against Torture but abandoned that claim.) As his basis for relief,

Alonzo-Simaj alleged that gang members had harmed him because of his membership in two

“particular social groups,” which he described as family members of his wife and transportation

workers.

An immigration judge denied relief. Two of the judge’s findings matter now. First, the

judge held that Alonzo-Simaj failed to prove that he suffered past persecution in Guatemala. The

judge reasoned that he had not shown that the gang members targeted him because of his

membership in the particular social groups that he identified. She instead found that they targeted

Alonzo-Simaj because of his family’s wealth, hoping to obtain their money. Second, the judge

held that Alonzo-Simaj failed to establish that he had an objectively reasonable fear of future

persecution in Guatemala. The lack of past persecution in the country meant that he could not rely

on any regulatory presumption of future persecution. And he did not present enough evidence that

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he would face harm from the gang members if he returned to Guatemala, especially considering

that his wife’s family had continued to operate the bakery. The Board of Immigration Appeals

upheld these findings.

II

In his petition for review, Alonzo-Simaj challenges the rejection of his asylum and

withholding-of-removal claims. When considering these challenges, we review the Board’s legal

conclusions (such as its interpretation of a statute) de novo. See Guzman-Vazquez v. Barr, 959

F.3d 253, 259 (6th Cir. 2020). But we review the administrative findings of fact under the

deferential substantial-evidence test. See Rodriguez de Palucho v. Garland, 49 F.4th 532, 538–39

(6th Cir. 2022). We must treat those findings as “conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

A. Asylum

The immigration laws grant the Attorney General discretion to grant asylum to “refugees.”

See id. § 1158(b)(1)(A). Immigrants qualify as “refugees” only if they have suffered past

“persecution” in their home country or have “a well-founded fear of persecution” there “on account

of” certain protected traits, including their “race,” “religion,” or, as relevant here, “membership in

a particular social group[.]” Id. § 1101(a)(42)(A). To prove that “persecution” has arisen or will

arise “on account of” a protected trait, immigrants must show that this trait (such as their

membership in a particular social group) “was or will be at least one central reason” for the

persecution. Id. § 1158(b)(1)(B)(i). In other words, a “nexus” must exist between the immigrant’s

protected trait and the persecutor’s infliction of harm: the former must motivate the latter. Bonilla-

Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010); see INS v. Elias-Zacarias, 502 U.S. 478,

483 (1992). And this motive issue raises a classic question of fact, so we must uphold the

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immigration judge’s findings on it as long as a reasonable adjudicator could have reached them.

See Elias-Zacarias, 502 U.S. at 481; Cruz-Guzman v. Barr, 920 F.3d 1033, 1037 (6th Cir. 2019).

We have repeatedly considered this “nexus” element in the context of gang violence.

Immigrants regularly claim that gang members have targeted them because of their membership

in various “particular social groups.” Many immigrants have suggested that gangs harmed them

because of their family relationships. See Reyes Almendarez v. Barr, 817 F. App’x 35, 39 (6th

Cir. 2020); Mateo-Vasquez v. Barr, 822 F. App’x 317, 322 (6th Cir. 2020); Lino-Sabio v. Barr,

805 F. App’x 385, 388–89 (6th Cir. 2020) (per curiam); Quintero-Florentino v. Barr, 788 F. App’x

348, 350 (6th Cir. 2019) (per curiam); Majano-De Hernandez v. Barr, 777 F. App’x 810, 812 (6th

Cir. 2019); Cruz-Guzman, 920 F.3d at 1037; Lopez-Arias v. Barr, 777 F. App’x 793, 797 (6th Cir.

2019); Contreras-Torres v. Holder, 542 F. App’x 456, 458 (6th Cir. 2013) (per curiam); Bonilla-

Morales, 607 F.3d at 1137. Others have suggested that gangs harmed them because of their status

as business owners. See Alfaro-Urbina v. Barr, 813 F. App’x 205, 209 (6th Cir. 2020); Lorenzana-

Montepeque v. Barr, 781 F. App’x 490, 494 (6th Cir. 2019). And still others have argued that

gang violence arose from their gender. See Amaya-Hernandez v. Garland, 2022 WL 1112771, at

*2 (6th Cir. Apr. 14, 2022).

But these claims have generally failed when an immigration judge had an evidentiary-

rooted basis to find that a different reason drove the gang members to harm an immigrant. Most

commonly, we have upheld the finding that a gang committed crimes against an immigrant because

of a desire for “financial gain” rather than the immigrant’s family relationships. Id.; Lino-Sabio,

805 F. App’x at 389; Cruz-Guzman, 920 F.3d at 1037–38. As we said in one case, the immigrants’

claims failed because the gang targeted them on account of their “perceived wealth” rather than

their family identity. Lopez-Arias, 777 F. App’x at 797. Or, as we said in another, the immigrants’

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claims failed because the gang targeted them out of a “desire for profit, not to harm [them] because

of their family ties.” Majano-De Hernandez, 777 F. App’x at 812.

Alonzo-Simaj’s asylum claim has the same problem. He argues that he qualifies as a

“refugee” because he suffered past persecution (and fears future persecution) “on account of” his

“membership” in two purported “particular social group[s]”: relatives of his wife and

transportation workers. 8 U.S.C. § 1101(a)(42)(A). Like the Board, we need not decide whether

these two groups could qualify as cognizable particular social groups within the meaning of the

immigration laws. That is because a “reasonable adjudicator” could agree with the immigration

judge that the Barrio 18 gang did not target Alonzo-Simaj because of his membership in either

group. See Rodriguez de Palucho, 49 F.4th at 538 (quoting 8 U.S.C. § 1252(b)(4)(B)). This fact

dooms both Alonzo-Simaj’s claim that he suffered past persecution in Guatemala and his claim

that he reasonably fears future persecution there.

Start with his claim of past persecution. The record contains overwhelming evidence that

the gang extorted Alonzo-Simaj to obtain “money, and not on account of a protected ground.”

A.R. 3. To begin with, Barrio 18 gang members stole money from Alonzo-Simaj (or demanded it

under threat of violence) during every encounter with him. In January 2014, they took “money

from the bakery” at gunpoint even before Alonzo-Simaj became a transportation worker (his

second purported social group). A.R. 90; cf. Bonilla-Morales, 607 F.3d at 1137. And when they

accosted him while delivering bread in November 2015, they again stole money and demanded a

“weekly” fee. A.R. 92. They engaged in a similar financially motivated robbery against his father-

in-law a week later. A.R. 93. And they “demanded the fee” and threatened to kill Alonzo-Simaj

and his wife if he did not pay during the final incident in April 2016. A.R. 96. This record shows

that, as a gang member told Alonzo-Simaj, the gang “sought [him] out as a target for extortion for

6 No. 23-3186, Alonzo-Simaj v. Garland

the business.” A.R. 91. In other words, the gang targeted Alonzo-Simaj because of his “earnings

from selling bread,” not because of his family ties or status as a transportation worker. Contreras-

Torres, 542 F. App’x at 458 (emphasis added).

Next, both Alonzo-Simaj and his wife admitted that the gang committed its crimes against

him out of an “ordinary criminal desire for financial gain.” Cruz-Guzman, 920 F.3d at 1037. When

asked why gang members targeted him, Alonzo-Simaj opined it was “[b]ecause [he] worked for

the bakery . . . and they wanted me to get a weekly fee for” the gang. A.R. 99; cf. Contreras-

Torres, 542 F. App’x at 458. He did not mention his relationship to his wife or his transportation

job as even a partial motivation. Alonzo-Simaj’s wife similarly opined that the gang threatened to

injure him “[b]ecause he wasn’t agreeing to pay the extortion,” not because of his relationship to

her or his transportation job. A.R. 125; cf. Alfaro-Urbina, 813 F. App’x at 209.

Lastly, the gang’s many other targets confirm that Alonzo-Simaj’s relationship to his wife

and his transportation job did not motivate the gang’s crimes. Alonzo-Simaj noted that Barrio 18

gang members had been “robbing all the business” near the bakery. A.R. 115, 163. Why? The

gang sought to obtain “easy money” by threatening the lives of anyone who operated businesses

(and so likely had money). A.R. 116. Alonzo-Simaj’s evidence about the general conditions in

Guatemala reiterated that gangs, including Barrio 18, broadly “terrorize businesses and private

citizens through targeted extortion attempts” designed to obtain money. A.R. 190. Barrio 18 gang

members thus did not limit their many crimes to relatives of Alonzo-Simaj’s wife or to

deliverymen (Alonzo-Simaj’s two particular social groups). Alonzo-Simaj’s injuries instead arose

on account of the gang’s “indiscriminate” quest for criminal profit. Lorenzana-Montepeque, 781

F. App’x at 494 (citation omitted).

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Turning to Alonzo-Simaj’s alternative theory, the same evidence about the gang’s motives

for injuring him in the past also dooms his distinct claim that he reasonably fears future persecution

if he returns to Guatemala. Alonzo-Simaj does not dispute the Board’s conclusion that he has no

forward-looking evidence to suggest that the gang would harm him based on a protected trait if he

returned to Guatemala. After all, he conceded that his wife’s grandfather now “runs” the bakery

“business” without issue (although the grandfather no longer delivers baked goods outside the

city). A.R. 112. Alonzo-Simaj instead claims that his past persecution required the immigration

judge to presume that he had a “well-founded fear of persecution” in Guatemala. 8 C.F.R.

§ 1208.13(b)(1); see Mbonga v. Garland, 18 F.4th 889, 894–95 (6th Cir. 2021). To trigger this

regulatory presumption, however, Alonzo-Simaj needed to connect his past injuries to his

identified social groups. Because the immigration judge reasonably concluded that Alonzo-Simaj

did not do so, he cannot invoke the presumption. See Cruz-Guzman, 920 F.3d at 1036–38. We

thus must uphold the Board’s rejection of his asylum claim.

B. Withholding of Removal

Alonzo-Simaj’s withholding-of-removal claim fails for the same reason. Unlike the

discretionary asylum remedy, the withholding statute “compels” the Board to grant protection to

immigrants who meet its elements. Rodriguez de Palucho, 49 F.4th at 536. Those elements require

immigrants to prove that their “life or freedom would be threatened” in their home country

“because of” one of the same protected grounds identified in the asylum statute, including their

“membership in a particular social group[.]” 8 U.S.C. § 1231(b)(3)(A). Generally, immigrants

must meet a “higher” standard to obtain withholding protection than asylum relief because the

statute requires them to prove its elements under a “more likely than not” burden of proof.

Mbonga, 18 F.4th at 899 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)). At the

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same time, we have held that the withholding statute’s “nexus” element sets a lower substantive

bar than its asylum counterpart. See Guzman-Vazquez, 959 F.3d at 272. Rather than prove that a

protected ground was “one central reason” for the identified harm, 8 U.S.C. § 1158(b)(1)(B)(i)

(emphasis added), immigrants need only show that the ground was “a reason” for that harm, id.

§ 1231(b)(3)(C).

This legal difference does not matter here. As the Board recognized, the immigration judge

found as a fact that one—and only one—motive drove the gang’s crimes against Alonzo-Simaj:

“money.” A.R. 3. The immigration judge’s opinion did not suggest (let alone find) that Alonzo-

Simaj’s two social groups were even a partial reason for those crimes. To the contrary, the judge

noted that he “was not targeted on account of his membership in any particular group.” A.R. 48.

Put another way, those particular social groups were neither a “central reason” nor “a reason” for

the gang’s crimes against Alonzo-Simaj. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C).

Alonzo-Simaj nevertheless asks us to remand because the Board did not expressly refer to

our holding in Guzman-Vazquez that the withholding statute has a more lenient nexus test. 959

F.3d at 272. Yet the Board’s decision mentioned neither the asylum statute’s “central reason” test

nor the withholding statute’s “a reason” test. The Board likely did not raise this issue because

Alonzo-Simaj’s briefing before the Board did not flag or even cite Guzman-Vazquez. In all events,

Alonzo-Simaj identifies no legal error in the Board’s analysis. It properly upheld the immigration

judge’s factual finding that Barrio 18 was motivated exclusively by money and not by Alonzo-

Simaj’s claimed social groups. That finding simultaneously doomed Alonzo-Simaj’s asylum and

withholding claims even considering the latter statute’s distinct test.

We deny the petition for review.