Juan Gabriel Jiminez-Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 8, 2022
• Docket: 21-11315
• Status: Unpublished

Opinion

USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 1 of 8

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-11315 Non-Argument Calendar ____________________

JUAN GABRIEL JIMENEZ-HERNANDEZ, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A206-862-396 ____________________ USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 2 of 8

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Before WILSON, JORDAN, and BRASHER, Circuit Judges. PER CURIAM: Juan Gabriel Jimenez-Hernandez seeks review of a final or- der from the Board of Immigration Appeals (BIA). The BIA af- firmed without opinion the Immigration Judge’s (IJ) denial of his applications for withholding of removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 1208.16(c). I. Jimenez-Hernandez, a native and citizen of Mexico, entered the United States on November 7, 2007. He was issued a Notice to Appear (NTA) by the Department of Homeland Security, which charged that he was removable for remaining in the United States for a time longer than permitted. Jimenez-Hernandez admitted the allegations and conceded to the charge. He then filed applications for withholding of removal based on his membership in a particular social group under the INA and for relief under CAT. In support of his application for withholding of removal, Jimenez-Hernandez identified his particular social group as Mexi- can public transportation drivers who were forced to give rides to gang members for free. In 2007, he left Mexico for Florida because such gang members forced him to work for them against his will. He claims that he went to the police for help but that they would USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 3 of 8

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not intercede due to fear of the gang. Jimenez-Hernandez stated that these gang members would hurt him if he did not comply, but he also testified that the gang members never actually hurt him. Jimenez-Hernandez further testified that the gang members kid- napped his father, also a driver, because they wanted to know Jimenez-Hernandez’s whereabouts. However, a police report de- scribed the incident as a carjacking, not a kidnapping. In support of his application for CAT relief, Jimenez-Her- nandez submitted evidence and further testified during the hearing with the IJ. On one hand, he submitted an affidavit stating that he did not fear persecution or torture if he returned to his country of citizenship. But on the other hand, during his hearing, Jimenez- Hernandez testified that the government acquiesced in the com- plained of gang violence. He also submitted the 2016 Country Conditions Report for Mexico which provided that the govern- ment was fighting against corruption and gangs. However, the government’s action against gangs was further demonstrated by evidence showing that the perpetrators of the carjacking—whom Jimenez-Hernandez maintained were gang members—served nine months in jail as punishment for the crime. After review of the submissions and a merits hearing, the IJ issued a written decision denying the applications for withholding of removal under the INA and CAT relief. The IJ found that Jimenez-Hernandez was not credible based on several inconsisten- cies and inaccuracies in his testimony and other evidence. USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 4 of 8

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II. “When the BIA summarily affirms the IJ’s decision without an opinion, the IJ’s decision becomes the final removal order sub- ject to review.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam). “Our review for substantial evidence is highly deferential.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009). We review “the record evidence in the light most favorable to the agency’s decision and draw all reasona- ble inferences in favor of that decision.” Id. We review credibility determinations under the substantial- evidence test. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir. 2006) (per curiam). 1 Once an adverse credibility finding is made, the burden is on the undocumented immigrant to show that the IJ’s credibility decision was not supported by “cogent rea- sons” or was not based on substantial evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (per curiam). An adverse credibility determination alone may be sufficient to sup- port a denial of withholding of removal, especially if the [undocu- mented immigrant] fails to produce corroborating evidence.

1 A credibility determination may be based on all relevant factors and the to- tality of the circumstances, including: (1) the applicant’s demeanor, candor, and responsiveness; (2) the plausibility of the applicant’s account; (3) the con- sistency between the applicant’s written and oral statements; (4) the internal consistency of each statement; (5) the consistency of the applicant’s statements with other record evidence; and (6) any inaccuracies or falsehoods in state- ments, regardless of whether any inconstancy, inaccuracy, or falsehood touches the heart of the applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 5 of 8

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Kueviakoe v. U.S. Att’y. Gen., 567 F.3d 1301, 1304–05 (11th Cir. 2009) (per curiam). To be eligible for withholding of removal, an applicant must “present specific, detailed facts showing a good rea- son to fear that he” would be singled out for persecution on ac- count of a protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam). Evidence consistent with acts of private violence, or that merely shows that the petitioner was the victim of criminal activity, does not show a nexus to a protected ground. Id. To be eligible for CAT relief, an applicant must show that it is more likely than not that he would be tortured if returned to the proposed country of removal. 8 C.F.R. § 208.16(c)(2); Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020). He also must show that the torture would be by or with the consent or acquiescence of a public official or person acting in an official ca- pacity. 8 C.F.R. § 1208.18(a)(1); Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1375–76 (11th Cir. 2021).� � III. On appeal, Jimenez-Hernandez argues that the IJ’s adverse credibility finding was not supported by substantial evidence. He also argues that the IJ erred in determining that his proposed par- ticular social group, “Mexican public transportation drivers who used to give rides to gang members,” was not cognizable as a pro- tected ground under the INA because it lacked social distinction. He further argues that substantial evidence did not support the IJ’s determination that he failed to establish a nexus between his past USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 6 of 8

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harm and fear of future harm and his proposed particular social group. Finally, Jimenez-Hernandez argues that he is more likely than not to be tortured or killed upon his return to Mexico. Upon review, substantial evidence supports the IJ’s determi- nation that Jimenez-Hernandez was not credible. Specifically, the IJ found that Jimenez-Hernandez’s credibility was undercut by in- consistencies found when comparing his testimony, written state- ments, and other evidence. For instance, in one written statement, Jimenez-Hernandez made no reference to any past interactions with the gang. However, in another written statement, Jimenez- Hernandez indicated that the gang had threatened and hurt him when he refused to work for them, but then during the hearing, Jimenez-Hernandez repeatedly testified that he was never harmed by the gang and could not provide an explanation for this incon- sistency. In another instance, a written statement by Jimenez-Her- nandez indicated that, one year after he came to the United States, his father was kidnapped and physically harmed after refusing to give the gang information concerning Jimenez-Hernandez’s whereabouts. However, Jimenez-Hernandez repeatedly testified that his father was not kidnapped but was carjacked by two men who served time for committing the carjacking against his father. There were also inconsistencies in terms of when this alleged kid- napping or carjacking occurred and whether his father was shot at during the incident. And finally, Jimenez-Hernandez’s statements and testimony regarding whether he was forced by gang members USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 7 of 8

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to transport the gang members themselves or non-gang members, as well as drugs, also appeared to be riddled with inconsistencies. The IJ’s adverse credibility findings are supported in the rec- ord, and the record does not compel a finding that Jimenez-Her- nandez was credible. Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc) (providing this court must affirm the BIA’s decision if it is “supported by reasonable, substantial, and pro- bative evidence on the record considered as a whole”). When pro- vided the opportunity, Jimenez-Hernandez was unable to provide further evidence to rehabilitate the credibility of his own testi- mony. Forgue, 401 F.3d at 1287. Without credible testimony or further corroborative evidence, the IJ could not conclude that Jimenez-Hernandez did or would face harm or torture in Mexico nor that the government would acquiesce to such. Id. (providing that an adverse credibility determination may be the basis for deny- ing relief if the applicant produces no evidence other than his testi- mony). Moreover, the IJ was entitled to rely on inconsistencies and inaccuracies in Jimenez-Hernandez’s written statements and testi- mony as part of the overall credibility calculus, even where those inconsistencies and inaccuracies did not go to the heart of the mat- ter. 8 U.S.C. § 1158(b)(1)(B)(iii); Dailide v. U.S. Att’y Gen., 387 F.3d 1335, 1343 (11th Cir. 2004). Considering the adverse-credibility determination, substan- tial evidence review supports the finding that Jimenez-Hernandez is not eligible for withholding of removal. Kueviakoe, 567 F.3d at 1304–05. The remaining record evidence, without Jimenez- USCA11 Case: 21-11315 Date Filed: 03/08/2022 Page: 8 of 8

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Hernandez’s own testimony, does not compel a finding that he met the standard to show that he had a subjectively genuine and objec- tively reasonable fear of returning to Mexico. See Kazemzadeh, 577 F.3d at 1352. For example, evidence of generalized violence and corruption in Mexico in the 2016 Country Report was not enough to show that anyone specific would try to harm him. See Rodriguez v. U.S. Att’y. Gen., 735 F.3d 1302, 1307, 1310–11 (11th Cir. 2013) (per curiam). Likewise, regarding the CAT claim, the police report filed by Jimenez-Hernandez’s father about the carjacking incident does not indicate that Jimenez-Hernandez was persecuted in the past or has a well-founded fear that he would be specifically targeted in the future. See Kazemzadeh, 577 F.3d at 1351–52. Thus, nothing in the record would compel a reasonable fact finder to reverse the agency’s finding. See Chen, 463 F.3d at 1233. PETITION DISMISSED.