Kenneth Cristian Azurdia-Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 4, 2020
• Docket: 19-11711
• Status: Unpublished

Opinion

Case: 19-11711 Date Filed: 05/04/2020 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11711 Non-Argument Calendar ________________________

Agency No. A216-274-390

KENNETH CRISTIAN AZURDIA-HERNANDEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(May 4, 2020)

Before JORDAN, NEWSOM, and EDMONDSON, Circuit Judges. Case: 19-11711 Date Filed: 05/04/2020 Page: 2 of 11

PER CURIAM:

Kenneth Azurdia-Hernandez (“Petitioner”), a native and citizen of

Guatemala, petitions for review of the order of the Board of Immigration Appeals

(“BIA”) affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision

denied asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). Because we conclude that the BIA and the IJ failed to give

reasoned consideration to some of Petitioner’s claims, we grant the petition for

review, vacate the BIA’s decision, and remand the case to the BIA for further

consideration.

I. Background

Petitioner sought asylum and withholding of removal based on his

membership in a particular social group (“immediate family members of his

mother Orquidia Tamara Hernandez-Garcia”) and based on his religion

(Evangelical Christian). 1

1 The IJ concluded that Petitioner’s proposed family-based particular social group is cognizable under the Immigration and Nationality Act; that issue is not before us on appeal. 2 Case: 19-11711 Date Filed: 05/04/2020 Page: 3 of 11

Petitioner alleged that in June 2012, he and his mother, Orquidia, were

victims of a robbery theatrically staged by a “gang/cartel” called El Cartel del

Golfo. The supposed robbers beat Petitioner and Orquidia and attempted to stab

Petitioner in the stomach. During the attack, members of the cartel arrived,

shouted Orquidia’s name, and shot at the robbers, causing the robbers to flee. The

next day, a member of the cartel came to Petitioner’s family home and returned

Petitioner’s and Orquidia’s stolen identification. Petitioner contends that the cartel

staged the robbery -- and the cartel’s rescue of Petitioner and Orquidia -- so that

Petitioner and Orquidia would be indebted to the cartel.

In early 2013, the cartel approached Orquidia -- who worked as a bank

manager -- at her place of work. In exchange for the cartel’s having saved

Orquidia and Petitioner, the cartel demanded that Orquidia launder $10,000 a day

for them. The cartel threatened to harm Orquidia or Petitioner if Orquidia refused

to cooperate. Orquidia agreed to comply with the cartel’s demands but told them

she could only process transactions up to the legal limit of $3000 per day. The

cartel told Orquidia to find a way to process more money; Orquidia refused to do

so because of her religion. The cartel told Orquidia that they trusted her because of

her religion. In November 2013, the bank terminated Orquidia’s employment --

the bank had discovered the money-laundering transactions.

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Thereafter -- in 2014 and 2015 -- the cartel demanded that Petitioner and

Orquidia continue working for the cartel in other ways. The cartel told Petitioner

and Orquidia that -- because of their religion -- the cartel trusted them not to cheat

or steal from the cartel. The cartel also wanted Petitioner to work as a bodyguard,

given his “height and body structure.” During this time, the cartel beat Petitioner

at least once and several times threatened to harm Petitioner and Orquidia if they

refused to comply. Petitioner and Orquidia agreed to work for the cartel by sorting

the cartel’s money but refused the cartel’s demands that they store weapons and

drugs in their home.

In a written decision, the IJ denied Petitioner relief. The IJ first found that

Petitioner testified credibly and that his testimony was both internally consistent

and consistent with the documentary evidence in the record. The IJ then concluded

that Petitioner was statutorily ineligible for asylum. In pertinent part,2 the IJ

determined that Petitioner failed to demonstrate (1) a nexus between his

mistreatment and a statutorily protected ground, and (2) that the Guatemalan

government was unable or unwilling to protect him. Then given the failure to

satisfy Petitioner’s burden of establishing eligibility for asylum, the IJ concluded

2 The IJ also determined that the mistreatment Petitioner suffered did not rise to the level of persecution. Petitioner appealed this determination to the BIA. The BIA, however, made no ruling on this issue; the BIA decided based on other dispositive grounds. Petitioner now seeks to raise the issues of persecution and future fear in his appeal in this Court. Because these issues were not reached by the BIA, they are not properly before us. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). 4 Case: 19-11711 Date Filed: 05/04/2020 Page: 5 of 11

that Petitioner had also failed to meet the higher burden of proving eligibility for

withholding of removal. The IJ also determined that Petitioner was ineligible for

CAT relief because Petitioner had failed to show that he would be tortured by or

with the acquiescence of a public official. The BIA agreed with the IJ’s reasoning

and dismissed Petitioner’s appeal.

II. Standard of Review

We review both the BIA’s decision and the IJ’s decision in this case to the

extent the BIA adopted the IJ’s reasoning. See Kazemzadeh v. U.S. Att’y Gen.,

577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo legal determinations of

the BIA. Id. And we review fact determinations “under the highly deferential

substantial evidence test” whereby “[w]e must affirm the BIA’s decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-29 (11th Cir.

2004) (en banc) (quotations omitted). To reverse a fact determination, we must

conclude “that the record not only supports reversal, but compels it.” Mendoza v.

U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2005).

“To enable our review, the [BIA and the IJ] must give ‘reasoned

consideration’ to an applicant’s claims and make ‘adequate findings.’” Ali v. U.S.

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Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019) (quotations omitted) (citing Tan

v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)). We stress that although

the IJ and the BIA must consider all evidence introduced by the applicant, it need

not address specifically each claim or piece of evidence presented. Id. We must,

however, “be left with the conviction that the [agency] has heard and thought about

the case and not merely reacted.” Id. (quotations and alterations omitted).

“[T]he agency does not give reasoned consideration to a claim when it

misstates the contents of the record, fails to adequately explain its rejection of

logical conclusions, or provides justifications for its decision which are

unreasonable and which do not respond to any arguments in the record.” Jeune v.

U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016). When the BIA or IJ “has

failed to give reasoned consideration or make adequate findings, we remand for

further proceedings because we are unable to review the decision.” Mezvrishvili v.

U.S. Att’y Gen., 467 F.3d 1292, 1295 (11th Cir. 2006) (quotations and citations

omitted).

III. Discussion

An alien may obtain asylum if he is a “refugee,” that is, a person unable or

unwilling to return to his country of nationality “because of persecution or a well-

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founded fear of persecution on account of” a protected ground, including

membership in a particular social group or religion. 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1). The asylum applicant bears the burden of proving statutory “refugee”

status with specific and credible evidence. Forgue v. U.S. Att’y Gen., 401 F.3d

1282, 1287 (11th Cir. 2005).

A. Causal Connection

To demonstrate persecution “on account of” a protected ground, an alien

must show that a protected ground “was or will be at least one central reason for

persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).

Petitioner contends that the BIA and the IJ erred in concluding that he failed

to establish the required causal link between the mistreatment by the cartel and

Petitioner’s religion. In making that determination, the IJ said only these words:

Additionally, Respondent alleges that he was harmed because of his religion as an Evangelical Christian. However, Respondent testified that the gang members indicated that they trusted him and his mother because of their religion, which indicates to the Court that the cartel members had no intention of harming him or his mother on account of their religious beliefs. They viewed their status as Evangelical Christians as a positive attribute rather than as a negative attribute which would not lead the cartel members to harm them in any way.

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The BIA agreed with the IJ’s conclusion that Petitioner failed to show that a

protected ground was a “central reason” for the alleged harm. The BIA discussed

only the IJ’s reasons for denying Petitioner’s particular social group claim and

made no express mention of Petitioner’s religion-based claim.

We conclude that the BIA and the IJ failed to give “reasoned consideration”

to and make “adequate findings” about Petitioner’s religion-based persecution

claim. The IJ’s determination (that the cartel held a positive view of Petitioner’s

religion and that the positive view made it unlikely that the cartel would harm

Petitioner) ignores and is unreasonable in the light of Petitioner’s credible

testimony that the cartel actually did physically beat Petitioner and did threaten

Petitioner and Orquidia with serious bodily harm if they refused to comply with the

cartel’s demands -- demands that Petitioner and Orquidia labor for the cartel.

Moreover (although we do not decide this issue today), we cannot rule out -- as a

matter of law -- that an asylum applicant might demonstrate religion-based

persecution based on evidence that he was targeted for forced labor or some other

oppressive treatment because the persecutor perceived some positive attribute

(honesty, diligence, or such) associated with the persecuted person’s religion that

would serve the persecutor’s goals.

On appeal to the BIA, Petitioner argued that the IJ’s decision was contrary to

Petitioner’s own testimony. Petitioner also challenged the logic of the IJ’s

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conclusion that because the cartel trusted Petitioner based on his religion, the cartel

would not harm Petitioner. That the BIA neither addressed Petitioner’s arguments

nor made express mention of Petitioner’s religion-based claim casts significant

doubt about whether the BIA heard or thought about Petitioner’s religion-based

persecution claim and the pertinent evidence.

B. Government Unable or Unwilling to Protect

As an alternative ground for denying Petitioner asylum, the IJ also

concluded that Petitioner failed to show that the Guatemalan government was

unable or unwilling to protect him. The IJ provided this explanation, which was

adopted by the BIA:

Respondent testified that his mother reported the robbery to the police, but did not report any of the cartel’s attempts to have them launder money. Additionally, Respondent made no attempt to report any of the threats from the cartel, and thus has not given the Guatemalan government the opportunity to demonstrate that they are unable or unwilling to protect him from his feared persecution.

To prove eligibility for asylum, an applicant must demonstrate that the

alleged persecution was inflicted by a government official or by persons that the

government is unable to control. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948

(11th Cir. 2010). As noted correctly by the IJ, an applicant may establish the

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government’s inability or unwillingness to control a private actor “by presenting

evidence that he reported the persecution to local government authorities or that it

would have been useless to do so.” See id. at 950 (citing Lopez v. U.S. Att’y Gen.,

504 F.3d 1341, 1345 (11th Cir. 2007)).

Because we conclude that the BIA’s and the IJ’s findings on this issue are

inadequate, we are unable to review this alternative ground for denying Petitioner

asylum. First, in finding that Petitioner and Orquidia failed to report to the police

the cartel’s money-laundering demands, the IJ misstated the contents of the record.

The record shows that Petitioner testified that Orquidia did go to the police after

the cartel demanded that she launder money for them, but that the police refused to

help her. The IJ provided no explanation for not crediting this portion of

Petitioner’s otherwise credible testimony.

The BIA’s and IJ’s decisions also failed to address or make factual findings

about Petitioner’s contention and testimony that the police were involved with the

cartel and, thus, that it would have been useless to report the cartel’s ongoing

threats to the police. “Although the failure to report persecution to local

government authorities generally is fatal to an asylum claim, . . . it would be

excused where the petitioner convincingly demonstrates that those authorities

would have been unable or unwilling to protect [him], and for that reason [he]

could not rely on them.” Lopez, 504 F.3d at 1345. Given Petitioner’s testimony

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about police corruption, that Petitioner took no steps to seek protection from the

police -- by itself -- might not be enough to defeat his claim for asylum. See id.

(remanding for further consideration where the BIA concluded only that petitioner

had failed to seek protection from law enforcement and failed to address

petitioner’s claim that those authorities were unable or unwilling to protect her).

For these reasons, we conclude that the BIA and the IJ failed to give

reasoned consideration to all the evidence and claims presented by Petitioner and

failed to make adequate findings. We are thus unable to review meaningfully the

agency’s denial of Petitioner’s application for relief. Accordingly, we grant the

petition for review, vacate the BIA’s decision, and remand the case for further

proceedings.

PETITION GRANTED; VACATED AND REMANDED.