Melvin Isidro Rios-Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 11, 2021
• Docket: 20-13348
• Status: Unpublished

Opinion

USCA11 Case: 20-13348 Date Filed: 05/11/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13348 Non-Argument Calendar ________________________

Agency No. A206-805-711

MELVIN ISIDRO RIOS-HERNANDEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(May 11, 2021)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13348 Date Filed: 05/11/2021 Page: 2 of 10

Melvin Isidro Rios-Hernandez seeks review of a final order of the Board of

Immigration Appeals affirming an immigration judge’s denial of his application for

asylum and withholding of removal under the Immigration and Nationality Act and

relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment. After a review of the record, we

affirm.1

I

Mr. Rios-Hernandez was born in Anamorós, La Unión, El Salvador, on

November 6, 2001. He entered the United States without valid travel documents on

June 18, 2014.

After some initial immigration proceedings, in January of 2015 Mr. Rios-

Hernandez filed an application for asylum and withholding of removal under the

Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1101 et seq., and

withholding of removal under the United Nations Convention Against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment (the “CAT”), see 8

C.F.R. § 1208.16(c).

During the merits hearing before an immigration judge, Mr. Rios-Hernandez

argued that he feared that, if returned to El Salvador, he would be persecuted due to

1 As we write for the parties, we set out only what is necessary to address Mr. Rios-Hernandez’s arguments. 2 USCA11 Case: 20-13348 Date Filed: 05/11/2021 Page: 3 of 10

his membership in two particular social groups: (i) “the Rios-Hernandez family,”

and (ii) “neglected and abandoned young males from Anamorós.” AR at 000120–

21. Mr. Rios-Hernandez testified about his family’s history in El Salvador, its

interactions with the local gang, his and his family’s reasons for emigrating to the

United States, and his fear of persecution. Moreover, he argued that, if sent back to

El Salvador, he could be tortured.

After the hearing, the immigration judge issued her decision. She found Mr.

Rios-Hernandez credible but ruled against him on the merits. On asylum and

withholding of removal, the immigration judge concluded that Mr. Rios-

Hernandez’s proposed groups did not qualify as particular social groups under the

INA. She also determined that Mr. Rios-Hernandez had not established that he was

a member of “neglected and abandoned young males from Anamorós.” Moreover,

the immigration judge found that, even if the proposed particular social groups were

cognizable, Mr. Rios-Hernandez had not established that his alleged persecution

would be on account of his membership in those particular social groups.

The immigration judge also denied Mr. Rios-Hernandez’s request for relief

under the CAT on two grounds. First, she found that Mr. Rios-Hernandez had not

established that the government of El Salvador instigates, consents, or acquiesces to

any torturous gang conduct. Second, the immigration judge determined that the harm

that Mr. Rios-Hernandez had experienced in the past did not amount to torture under

3 USCA11 Case: 20-13348 Date Filed: 05/11/2021 Page: 4 of 10

the CAT—a finding that cut against his argument that he would likely be tortured if

returned to El Salvador.

Mr. Rios-Hernandez appealed the immigration judge’s decision to the Board

of Immigration Appeals. The BIA dismissed his appeal, adopting and affirming the

immigration judge’s decision. It also identified the portions of the immigration

judge’s reasoning that it found most persuasive. Regarding asylum and withholding

of removal, the BIA noted that it agreed with the immigration judge that even if Mr.

Rios-Hernandez’s proposed groups qualified as particular social groups under the

INA, he had not established that any persecution he suffered or feared would be on

account of his membership in those groups. As to CAT relief, the BIA explained that

it agreed with the immigration judge that the past harm that Mr. Rios-Hernandez had

suffered did not amount to torture, and that he had not established that, if removed,

he would be tortured with the consent or acquiescence of the government of El

Salvador.

II

We generally review only the decision of the BIA, but we also review the

decision of the immigration judge when the BIA expressly adopts it. See Mohammed

v. U.S. Atty. Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). Here, the BIA expressly

adopted and affirmed the immigration judge’s decision. As a result, we review the

decisions and reasoning of both the BIA and the immigration judge. See id.

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We review the BIA’s and immigration judge’s conclusions of law—including

whether a group qualifies as a “particular social group” under the INA—de novo.

See Gonzalez v. U.S. Atty. Gen., 820 F.3d 399, 403 (11th Cir. 2016). We review

factual findings for substantial evidence. See Mohammed, 547 F.3d at 1344.

Accordingly, “findings of fact . . . may be reversed by this court only when the record

compels a reversal; the mere fact that the record may support a contrary conclusion

is not enough to justify a reversal of the administrative findings.” Adefemi v.

Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

III

In his petition for review, Mr. Rios-Hernandez challenges the BIA’s and

immigration judge’s decisions on his request for asylum and withholding of removal

under the INA and his request for relief under the CAT. We address each argument

below.

A

With regard to asylum and withholding of removal, Mr. Rios-Hernandez

argues, among other things, (i) that the immigration judge erred in concluding that

the “Rios-Hernandez family” group did not qualify as a particular social group under

the INA, (ii) that the immigration judge erred in concluding that he was not a

member of the “neglected and abandoned young males from Anamorós” group, and

(iii) that the BIA and immigration judge erred in finding that he had not established

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that his purported persecution was on account of his proposed particular social

groups. We disagree.

To be granted asylum, an alien must prove that he is a “refugee.” 8 U.S.C.

§ 1158(b)(1)(A) and (B)(i). The INA defines “refugee” as a person who is outside

of his country, “who is unable or unwilling to return to, and is unable or unwilling

to avail himself or herself 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). To establish that he is a member of a “particular social group,” an

alien must prove that he is a member of a group that is (i) “composed of members

who share a common immutable characteristic,” (ii) “defined with particularity,”

and (iii) “socially distinct within the society in question.” Matter of M-E-V-G-, 26 I.

& N. Dec. 227, 237 (BIA 2014). See also Gonzalez, 820 F.3d at 404.

To receive a withholding of removal to a particular country, an alien must

prove that his “life or freedom would be threatened in that country because of [her]

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

opinion.” 8 U.S.C. § 1231(b)(3)(A). Where an applicant fails to meet the “well-

founded fear” standard for asylum, he is generally precluded from qualifying for

withholding of removal. See Mazariegos v. Off. of U.S. Atty. Gen., 241 F.3d 1320,

1324 (11th Cir. 2001).

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We deny Mr. Rios-Hernandez’s petition for review because he has not

convincingly challenged the immigration judge’s conclusion that his proposed

particular social groups were not cognizable under the INA. The immigration judge

determined that the “Rios-Hernandez family” group did not qualify as a particular

social group under the INA because it was not defined with particularity nor socially

distinct within Salvadoran society. Mr. Rios-Hernandez argues that the immigration

judge’s determination on the “particularity” element is internally contradictory, but

he does not challenge the immigration judge’s determination on the “socially

distinct” element. In our adversarial system of adjudication, we follow the principle

of party presentation. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579

(2020). In other words, we do not construct arguments that parties have not

themselves raised. See id. Social distinction is necessary for a group to qualify as a

particular social group under the INA. See Gonzalez, 820 F.3d at 404. Because Mr.

Rios-Hernandez does not challenge the immigration judge’s conclusion on that

element, he cannot succeed in his petition for review as it relates to his first proposed

particular social group. Cf. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680

(11th Cir. 2014) (explaining that an appealed decision will be affirmed where the

appellant does not challenge properly all the grounds on which the decision is based).

As to the “neglected and abandoned young males from Anamorós” group, the

immigration judge concluded that it was not cognizable because its members did not

7 USCA11 Case: 20-13348 Date Filed: 05/11/2021 Page: 8 of 10

share an immutable characteristic, it was not defined with particularity, and it was

not socially distinct within Salvadoran society. The immigration judge also found

that Mr. Rios- Hernandez had not established that he was a member of that group.

Before us, Mr. Rios-Hernandez challenges only the immigration judge’s

conclusion about his group membership. He does not challenge the immigration

judge’s conclusion that the group lacked all three elements necessary to qualify as

particular social group. Accordingly, however we might rule on his membership

argument, Mr. Rios-Hernandez’s petition for review fails in regard to his second

proposed particular social group. See Sapuppo, 739 F.3d at 680.

Mr. Rios-Hernandez’s failure to establish that his proposed groups qualify as

particular social groups under the INA is dispositive on his requests for asylum and

withholding of removal. 2

IV

Mr. Rios-Hernandez also contends that the BIA and immigration judge erred

in denying his request for CAT relief. He says that he would be tortured if he is

removed to El Salvador because the severe violence perpetrated by local gangs can

be a form of torture. Additionally, he alleges that El Salvador would de facto be

acquiescing to his torture because it has been indifferent to the violence perpetrated

2 As a result, we do not address his remaining arguments relating to those requests. 8 USCA11 Case: 20-13348 Date Filed: 05/11/2021 Page: 9 of 10

by local gangs. We disagree.

Under the CAT, an alien’s removal to a designated country is withheld if he

shows that it is more likely than not that upon removal to that country he would be

tortured. See 8 C.F.R. § 1208.16(c)(2). For an act to constitute “torture” under the

CAT, it must be “inflicted by, or at the instigation of, or with the consent or

acquiescence of, a public official acting in an official capacity or other person acting

in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

Where, as in Mr. Rios-Hernandez’s case, an alien fears torture by private

actors, he must show that the government has acquiesced to that torture. See id. See

also Reyes-Sanchez v. U.S. Atty. Gen., 369 F.3d 1239, 1242–3 (11th Cir. 2004). A

government acquiesces to torture when it “breaches its responsibility to intervene.”

Rodriguez Morales v. U.S. Atty. Gen., 488 F.3d 884, 891 (11th Cir. 2007). But “[a]

government does not acquiesce to torture where it actively, albeit not entirely

successfully, combats the alleged torture.” Lingeswaran v. U.S. Atty. Gen., 969 F.3d

1278, 1294 (11th Cir. 2020).

Mr. Rios-Hernandez’s challenge to the BIA’s and the immigration judge’s

decision on CAT relief fails because there is substantial evidence in the record that

supports the finding that El Salvador would not acquiesce to his torture by local

gangs. In fact, the immigration judge cited to various portions of the record which

evince that, if anything, El Salvador has taken a heavy-handed approach to

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combatting gang violence. For example, beginning in April 2016, El Salvador

prevented communication between imprisoned gang members and outside members,

suspended communication between inmates and their families and attorneys, and

isolated known gang leaders in higher security prisons. The immigration judge’s

conclusion is also supported by other evidence in the record. Though its measures

have not been fully effective, the evidence does not show that El Salvador has been

passive or indifferent to gang violence. Hence, the record does not compel reversal

of the BIA’s and immigration judge’s finding that Mr. Rios-Hernandez failed to

establish that El Salvador would acquiesce to his torture by local gangs.

Because our ruling on this point is dispositive on Mr. Rios-Hernandez’s

petition for review as it relates to his request for CAT relief, we do not address his

remaining arguments relevant to that request.

V

For the foregoing reasons, we deny Mr. Rios-Hernandez’s petition for review.

PETITION DENIED.