Marvin Fernando Zacarias-Lopez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 4, 2021
• Docket: 20-12949
• Status: Unpublished

Opinion

USCA11 Case: 20-12949 Date Filed: 06/04/2021 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12949 Non-Argument Calendar ________________________

Agency No. A208-455-102

MARVIN FERNANDO ZACARIAS-LOPEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(June 4, 2021)

Before WILSON, JORDAN, and GRANT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12949 Date Filed: 06/04/2021 Page: 2 of 11

Marvin Fernando Zacarias-Lopez petitions for review of the Board of

Immigration Appeals final order affirming the immigration judge’s denial of his

application for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture. We deny the petition.

I.

Zacarias-Lopez, a native and citizen of Guatemala, entered the United States

illegally at or near Hidalgo, Texas in 2015. The Department of Homeland Security

initiated removal proceedings against him by filing of a notice to appear in

immigration court, charging that he was removable under 8 U.S.C.

§ 1182(a)(6)(A)(i) as an alien who was present in the United States without being

admitted or paroled. Zacarias-Lopez admitted the factual allegations in the notice

to appear, conceded removability as charged, and filed an application for asylum,

withholding of removal, and protection under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(CAT).

In support of his application, Zacarias-Lopez stated that beginning in 2009

when he was 11 years old, members of the gang called the Zetas threatened and

harassed him. He was mistreated by the Zetas because he did not have enough

money to pay them a monthly fee so that they would leave him alone. They asked

him for money and threatened him but did not physically harm him. Zacarias-

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Lopez reported the mistreatment to the police, but the police have an agreement

with the Zetas to set them free after they are arrested. Under pressure from the

Zetas—and from his father, who wanted Zacarias-Lopez to quit school and work

with him—Zacarias-Lopez eventually dropped out and began working. His mother

sent him to the United States to find freedom and security for his family.

Zacarias-Lopez testified that the Zetas were aggressive and violent—

sometimes they hit people, or they pointed guns at people and threatened to kill

them. The Zetas controlled the territory in Guatemala where Zacarias-Lopez and

his family lived, and he did not believe that he could safely relocate within

Guatemala today because the country was contaminated with corruption and the

Zetas would find him wherever he went. He acknowledged that his family still

lived in Guatemala and the Zetas had not been looking for him since he left, but he

said that they still bothered people who lived in the same town.

Zacarias-Lopez also submitted the State Department’s 2015 Human Rights

Report for Guatemala and 2016 Crime and Safety Report for Guatemala. The

2015 Guatemala Human Rights Report stated that primary human rights abuses in

Guatemala included widespread institutional corruption, particularly in the police

and judicial sectors; police and military involvement in serious crimes, such as

kidnapping, drug trafficking, trafficking in persons, and extortion; and societal

violence.

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The 2016 Crime and Safety Report for Guatemala reported that Guatemala’s

homicide rate was one of the highest in the Western Hemisphere, driven by four

key factors: narco-trafficking activity, gang related violence, a heavily armed

population, and a legal system that remains unable or unwilling to hold many

criminals accountable. In spite of regional initiatives to combat drug trafficking

and gangs, they continued to be a concern in Guatemala City and rural areas.

The immigration judge concluded that the evidence did not support a finding

that Zacarias-Lopez had been persecuted in the past or that he had a well-founded

fear of future persecution. It also found that Zacarias-Lopez failed to show a nexus

between his mistreatment by the Zetas and any of the grounds for asylum or

withholding of removal. Finally, it found no evidence that Zacarias-Lopez was

tortured in his country or that it was more likely than not that he would be tortured

if he returned to Guatemala. It denied his application for asylum, withholding of

removal, and CAT relief, and ordered his removal.

Zacarias-Lopez appealed to the Board of Immigration Appeals. The Board

found no error in the immigration judge’s findings that Zacarias-Lopez was a

victim of crime, not persecution, and that his fear of future criminal activity was

not a basis for asylum. The Board concluded that Zacarias-Lopez had not

established membership in a cognizable particular social group, and it agreed with

the immigration judge that Zacarias-Lopez was ineligible for asylum and

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withholding of removal because he had not established the requisite nexus between

his alleged fear of persecution and his membership in the putative social group.

Finally, regarding CAT relief, it agreed with the immigration judge that Zacarias-

Lopez did not experience torture in Guatemala and found no clear error in the

determination that Zacarias-Lopez did not establish that it was more likely than not

that he would experience torture if he returned to Guatemala. The Board therefore

dismissed Zacarias-Lopez’s appeal, and this petition for review followed.

II.

We review the decision of the Board as the agency’s final decision, and we

review the immigration judge’s opinion to the extent that the Board expressly

adopted or explicitly agreed with that opinion. Ayala v. U.S. Att’y Gen., 605 F.3d

941, 947–48 (11th Cir. 2010). We review the agency’s conclusions of law, such as

whether an asserted group qualifies as a “particular social group” under the

Immigration and Nationality Act, de novo. Gonzalez v. U.S. Att’y Gen., 820 F.3d

399, 403 (11th Cir. 2016).

We review the agency’s factual determinations under the substantial

evidence test. Id. Under this highly deferential test, we 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, 1026–27

(11th Cir. 2004) (en banc) (citation omitted). We view the evidence in the light

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most favorable to the agency’s decision and draw all reasonable inferences in favor

of that decision. Id. at 1027. Under the substantial evidence test, we can reverse

the agency’s decision only if we conclude that the evidence compels a contrary

conclusion. Id. Only “in a rare case does the record compel the conclusion that an

applicant for asylum suffered past persecution or has a well-founded fear of future

persecution.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir. 2006).

III.

The Attorney General may grant asylum to an alien who meets the statutory

definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as a

person who is located outside the country of his nationality and who is unable or

unwilling to return to and avail himself of the protection of that country “because

of persecution or a well-founded fear of persecution on account of race, religion,

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

U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a

refugee. 8 U.S.C. § 1158(b)(1)(B)(i). To qualify for asylum based on past

persecution, the applicant must prove both that he was persecuted and “that the

persecution was on account of a protected ground.” Kazemzadeh v. U.S. Att’y

Gen., 577 F.3d 1341, 1351 (11th Cir. 2009) (citation omitted). To establish a well-

founded fear of future persecution, the applicant must show that (1) he is unable or

unwilling to return to his country because he fears that he will be persecuted on

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account of a protected ground; (2) his fear of persecution is both “subjectively

genuine and objectively reasonable;” and (3) there is a “reasonable possibility” that

he will be persecuted on account of a protected ground, or that “he is a member of,

or is identified with, a group that is subjected to a ‘pattern or practice’ of

persecution in his country of nationality.” Id. at 1352 (citation omitted).

To qualify for withholding of removal under the INA, an alien must show

that, if returned to his country, his life or freedom would be threatened on account

of race, religion, nationality, membership in a particular social group, or political

opinion. 8 U.S.C. § 1231(b)(3). If a petitioner is unable to meet the standard of

proof for asylum, he cannot meet the more stringent standard for withholding of

removal. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).

Importantly, both asylum and withholding of removal require the applicant

to show that his mistreatment was or would be because of a protected ground. 8

U.S.C. §§ 1101(a)(42)(A); 1231(b)(3). In other words, the applicant must show a

nexus between the harm he suffered or fears and one of the statutory grounds for

asylum or withholding of removal. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d

1148, 1158 (11th Cir. 2019).

Zacarias-Lopez’s application for asylum and withholding of removal was

based on his claim that he had been persecuted by the Zetas and had a well-

founded fear of future persecution because of his membership in a particular social

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group, which he defined as “Guatemalan youth that have resisted the Zetas cartel.”

We must deny Zacarias-Lopez’s petition regarding his application for asylum and

withholding of removal for at least three reasons. First, substantial evidence

supports the immigration judge’s finding that Zacarias-Lopez had not experienced

past persecution and had no well-founded fear of future persecution. Zacarias-

Lopez’s written statement and testimony established that he had experienced acts

of extortion and gang recruitment, but the Zetas had never physically harmed him.

This mistreatment does not amount to persecution; “persecution is an extreme

concept, requiring more than a few isolated incidents of verbal harassment or

intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)

(citation and quotation marks omitted). Evidence that is consistent with acts of

private violence or that merely shows that a person has been the victim of criminal

activity does not constitute evidence of persecution based on a statutorily protected

ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). The lack

of any past persecution, combined with Zacarias-Lopez’s testimony that his family

had remained in Guatemala without incident and that the Zetas had not been

looking for him since he left, supported the immigration judge’s finding that

Zacarias-Lopez had no well-founded fear of future persecution if he returned to

Guatemala.

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Second, the Board did not err in determining that Zacarias-Lopez had not

shown that he was a member of a cognizable “particular social group” as that term

is used in the Immigration and Nationality Act. To qualify as a “particular social

group,” (1) the group’s members must have a common characteristic that must be

immutable or fundamental to a member’s individual conscience or identity; (2) the

group must have sufficient social distinction so as to be perceived as a distinct

group by society as a whole; and (3) the group must be defined with particularity,

meaning that it must “be discrete and have definable boundaries,” and not be

“amorphous, overbroad, diffuse, or subjective.” Amezcua-Preciado v. U.S. Att’y

Gen., 943 F.3d 1337, 1342–43 (11th Cir. 2019) (citation omitted).

Zacarias-Lopez’s proposed particular social group of “Guatemalan youth

who resisted the Zetas cartel” was too broad and amorphous to be cognizable,

considering that the terms “youth” and “resist” were undefined. The group could

potentially encompass a large portion of the Guatemalan population, given that

(1) Zacarias-Lopez’s own “resistance” appeared to be nothing more than an

inability to pay the monthly fee that the Zetas demanded, and (2) based on the

evidence of country conditions that Zacarias-Lopez provided and his testimony

regarding the pervasive presence of the Zetas, a proposed social group potentially

implicating all Guatemalan youths who experience extortion or intimidation by the

Zetas would be vast. See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1311

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(11th Cir. 2019) (rejecting proposed social group as “amorphous, insufficiently

defined, and potentially” vast). Additionally, none of the evidence that Zacarias-

Lopez provided demonstrated that Guatemalan youth who resisted the Zetas were

viewed as socially distinct. See id. at 1309.

Third, and last, although Zacarias-Lopez mentions the Board’s conclusion

that he failed to show a nexus between the mistreatment he suffered and his

membership in his proposed social group, he does not make any argument

challenging that conclusion. He has therefore abandoned any argument on that

issue, and the decision of the Board is due to be affirmed on that ground alone. See

See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014);

Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009); see Perez-Sanchez,

935 F.3d at 1158.

IV.

“To be eligible for relief pursuant to CAT, an applicant must meet a higher

burden than for asylum eligibility, and show ‘that it is more likely than not that he

or she would be tortured if removed to the proposed country of removal.’”

Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020) (quoting 8

C.F.R. § 1208.16(c)(2)). Torture “is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or degrading

treatment or punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2).

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To constitute torture, an act must be specifically intended to inflict severe physical

or mental pain or suffering. Id. § 1208.18(a)(5).

The Board did not err in determining that Zacarias-Lopez does not qualify

for withholding of removal pursuant to CAT. As we have already explained,

substantial evidence supports the immigration judge’s finding that Zacarias-Lopez

had not been persecuted and did not have a well-founded fear that he would be

persecuted if he returned to Guatemala. Again, the “burden of proof for an

applicant seeking withholding of removal under the Convention, like that for an

applicant seeking withholding of removal under the statute, is higher than the

burden imposed on an asylum applicant.” Lingeswaran, 969 F.3d 1293 (citation

omitted). The same evidence that supports the finding that Zacarias-Lopez did not

suffer past persecution and is not likely to suffer future persecution necessarily also

supports the agency’s finding that Zacarias-Lopez is not likely to be tortured if he

returns to Guatemala.

V.

Zacarias-Lopez has not demonstrated legal error by the immigration judge or

the Board of Immigration Appeals, and substantial evidence supports the agency’s

denial of his applications for asylum, withholding of removal, and CAT relief.

Accordingly, we deny his petition for review.

PETITION DENIED.