Miguel Melo Gutierrez v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: November 12, 2021
• Docket: 20-1692
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1692 ______

MIGUEL ANGEL MELO GUTIERREZ, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (A201-666-374) Immigration Judge: D’Anna H. Freeman ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 17, 2021

Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges.

(Filed: November 12, 2021)

___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.

This immigration petition brought by Miguel Angel Melo Gutierrez, a Mexican

native and national who concedes removability, involves two distinct sets of issues.

The first relates to timeliness. Melo Gutierrez’s petition was due on a day when

the courthouse was closed due to the COVID-19 pandemic. Although he filed his

petition two days after that initial due date, it qualified as timely because the clerk’s

office was inaccessible on those intervening days. See Fed. R. App. P. 26(a)(3)(A).

The second set of issues concerns Melo Gutierrez’s requests for relief from

removal. According to Melo Gutierrez, on four separate occasions while working as a

taxi driver in Mexico, he succumbed to threatening demands for transportation by armed

persons associated with cartels. Due to his experience as a cartel-commandeered taxi

driver, Melo Gutierrez requested asylum, statutory withholding, and protection under the

Convention Against Torture. The Immigration Judge rejected those claims. The Board

of Immigration Appeals upheld those rulings on administrative appeal. In reviewing

factual findings for substantial evidence, see Dia v. Ashcroft, 353 F.3d 228, 248 (3d Cir.

2003) (en banc), and legal issues de novo, see Denis v. Att’y Gen., 633 F.3d 201, 205 (3d

Cir. 2011), we will deny the petition.

I.

The first issue is the timeliness of Melo Gutierrez’s petition. The BIA issued a

final order of removal on February 25, 2020. By statute, a petition to review a final order

of removal must be filed within thirty days of the order. See 8 U.S.C. § 1252(b)(1) (“The

petition for review must be filed not later than 30 days after the date of the final order of

2 removal.”). That time limit is jurisdictional, and a petition will be dismissed if filed after

the thirty-day deadline. See McAllister v. Att’y Gen., 444 F.3d 178, 185 (3d Cir. 2006)

(dismissing a petition filed thirteen days late). Using a thirty-day time limit, Melo

Gutierrez’s petition was due on Thursday, March 26, 2020. But he did not file his

petition until Saturday, March 28.

Melo Gutierrez contends that those additional two days should not count toward

the thirty-day limit because the clerk’s office was inaccessible on those days due to the

COVID-19 pandemic. By rule, the time to file is extended automatically during the

period that the clerk’s office is “inaccessible.” Fed. R. App. P. 26(a)(3)(A) (“[I]f the

clerk’s office is inaccessible . . . on the last day for filing under Rule 26(a)(1), then the

time for filing is extended to the first accessible day that is not a Saturday, Sunday, or

legal holiday[.]”). Thus, the timeliness of Melo Gutierrez’s petition depends on whether

the clerk’s office was inaccessible on either Thursday, March 26, 2020, or Friday,

March 27, 2020.

The clerk’s office was inaccessible on those days. On Wednesday March 25,

2020, the Chief Judge of the United States District Court for the Eastern District of

Pennsylvania issued an order closing the James A. Byrne United States Courthouse due

to two reports of potential COVID-19 infections in the building.1 That order closed the

1 In re: Temporary Closing of the James A. Byrne U.S. Courthouse in Philadelphia, U.S. Dist. Ct. for the E.D. Pa. (Mar. 25, 2020) (available at https://www.ca3.uscourts.gov/sites/ca3/files/Order%20re%20Temporary%20Closing%20 of%20Byrne%20Courthouse_FINAL_032520.pdf).

3 entire building from noon on Wednesday, March 25, 2020, through Sunday, March 29,

2020, and it made explicit that “[n]o one w[ould] be permitted to enter the building

during this closure with the exception of GSA-authorized cleaning personnel.”2 Because

the clerk’s office for the Third Circuit is located within the Byrne Courthouse, it was

inaccessible during that time, so Melo Gutierrez’s petition received an automatic

extension. See Fed. R. App. P. 26(a)(3)(A). With that extension, his petition was timely.

It is immaterial that the Third Circuit’s electronic filing system remained operable

during the period of closure or even that Melo Gutierrez electronically filed his petition

on a day when the courthouse was closed. The plain text of the rule concerns the

accessibility of the “clerk’s office,” not the capability to file electronically. See Fed. R.

App. P. 26(a)(3)(A). And because the building housing the clerk’s office was closed by

court order, the clerk’s office was inaccessible during that period – at least as much as it

is on Saturdays, Sundays, and legal holidays. The option to file electronically on those

days does not diminish the automatic extension for filings otherwise due on those days.

See Fed. R. App. P. 26(a)(1)(C) (extending the time to file if the last day of the period is a

Saturday, Sunday, or legal holiday without regard to electronic filing capabilities on those

days). Likewise, the capability to file electronically during the court-ordered COVID-19

closure does not overcome the inaccessibility of the clerk’s office.

2 Id.

4 II.

The second set of issues relates to Melo Gutierrez’s requests for relief from

removal. The Immigration Judge denied Melo Gutierrez’s requests for asylum and

statutory withholding of removal on two grounds. The Immigration Judge did so, first

because Melo Gutierrez failed to identify a cognizable particular social group as the three

groups that he posited lacked an immutable characteristic and were insufficiently

particular. The other independent rationale articulated by the Immigration Judge was the

lack of a nexus between Melo Gutierrez’s persecution and his membership in a particular

social group. The Immigration Judge also denied Melo Gutierrez’s request for CAT

relief because he did not demonstrate government acquiescence or the inability to

relocate safely to another part of Mexico. On administrative appeal, the BIA adopted and

affirmed the Immigration Judge’s asylum and statutory withholding rulings. The BIA

also upheld the Immigration Judge’s denial of CAT relief, but it did so on modified

grounds. It concluded that Melo Gutierrez did not meet his burden to show more-likely-

than-not-torture in Mexico by or with the consent of a public official. Melo Gutierrez

now petitions for review of those rulings.

A. None of the Novel Particular Social Groups Proffered by Melo Gutierrez Are Legally Cognizable.

Asylum and statutory withholding of removal have a common element:

membership in a particular social group. See 8 U.S.C. § 1158(b)(1)(B)(i) (asylum);

8 U.S.C. § 1231(b)(3)(A) (withholding of removal). To satisfy this element, Melo

Gutierrez postulates that he belongs to three particular social groups: “(1) Mexican male

5 transportation workers compelled to work for cartel organizations; (2) Mexican nationals

who have refused to provide transportation services to cartel members; (3) Males who

return to Mexico after having refused to provide transportation services to Mexican

cartels.” Pet’r’s Br. at 15. None of those groups have ever been recognized as particular

social groups by any court – for good reason.

The first proffered group has two fatal flaws. One is that particular social groups

are typically defined by “immutable characteristics” or, alternatively, other characteristics

of “fundamental importance,” such as religion. Escobar v. Gonzales, 417 F.3d 363, 367

(3d Cir. 2005). A particular social group defined by an occupation that does not require

specialized skills or training typically does not satisfy the immutability requirement.3

Consistent with that reality, this Circuit has not recognized a person’s status as a worker

in the transportation industry as an immutable characteristic for a particular social group.

Such status is not immutable, and it is not of such fundamental importance to override its

malleability. See Gonzalez-De Leon, 932 F.3d at 493; Matter of Acosta, 19 I. & N. Dec.

3 See, e.g., Macedo Templos v. Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021) (concluding that being a wealthy business owner is not an immutable characteristic); Canales-Rivera v. Barr, 948 F.3d 649, 657–58 (4th Cir. 2020) (rejecting a proposed particular social group of “merchants in the formal Honduran economy”); Gonzalez-De Leon v. Barr, 932 F.3d 489, 492–93 (6th Cir. 2019) (rejecting proposed particular social groups based on prior employment as a taxi driver in Guatemala); see also Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA 1985) (rejecting a particular social group consisting of taxi drivers who refused to yield guerillas), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987); cf. Plancarte v. Garland, 9 F.4th 1146, 1154–55 (9th Cir. 2021) (finding that a particular social group consisting of “female nurses” contains immutable characteristics due to “specialized nursing skills” that make nurses “uniquely valuable to the cartel in a way that taxi drivers are not”).

6 at 234. Independently, such a broad definition – premised on working in the

transportation industry, an entire sector of a national economy – is hardly particularized

within the meaning of the asylum and withholding statutes. See 8 U.S.C.

§ 1158(b)(1)(B)(i); 8 U.S.C § 1231(b)(3)(A); Ochoa v. Gonzales, 406 F.3d 1166, 1170–

71 (9th Cir. 2005) (holding that proposed particular social group comprised of “business

owners in Colombia who rejected demands by narco-traffickers to participate in illegal

activity” is insufficiently particularized).

The lack of particularity is also a problem for the second social group that Melo

Gutierrez postulates. That group – Mexican nationals who refuse to provide

transportation services to cartel organizations – is potentially even more expansive than

the first proffered group, which was at least limited to those employed in the

transportation services industry. This second group includes any citizen of Mexico who

can provide transportation and who refused to provide transportation to any member of

any cartel organization. This broad and amorphous group is not “particular” within the

plain and ordinary meaning of that term, especially in its context as a modifier to the term

“social group.”4

4 See Guzman Orellana v. Att’y Gen., 956 F.3d 171, 179 (3d Cir. 2020) (“[A] proposed particular social group must ‘be discrete and have definable boundaries’ – not ‘amorphous, overbroad, diffuse, or subjective.’” (quoting Matter of M-E-V-G, 26 I. & N. Dec. 227, 239 (BIA 2014))); Khan v. Att’y Gen., 691 F.3d 488, 498 (3d Cir. 2012) (rejecting proposed group of Americanized Pakistanis as “too amorphous”); Escobar, 417 F.3d at 368 (finding that characteristics such as “[p]overty, homelessness and youth are far too vague and all encompassing to be characteristics that set the perimeters for a protected group”); see also Castillo-Arias v. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006) (“‘[P]articular social group’ should not be a ‘catch all’ for all persons alleging persecution who do not fit elsewhere.”); Gomez v. INS, 947 F.2d 660,

7 The final posited particular social group – males who return to Mexico after

having refused to provide transportation services to Mexican cartels – is likewise

insufficiently particular. Not every loose amalgam of immutable characteristics, such as

gender and past conduct, as used here, generates a particular social group. The law is

clear that more is required.5 And without additional or more focused defining

characteristics, Melo Gutierrez’s novel group does not constitute a particular social

group.

B. Melo Gutierrez Did Not Establish the Required Nexus Element.

The BIA’s separate basis for denying asylum and statutory withholding – a failure

to establish the requisite nexus between the alleged persecution and membership in a

particular social group – is also supported by substantial evidence. The nexus element

examines whether membership in a particular social group provides “one central reason”

664 (2d Cir. 1991) (“[T]he attributes of a particular social group must be recognizable and discrete. Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group.”). 5 See Radiowala v. Att’y Gen., 930 F.3d 577, 584 (3d Cir. 2019) (“[T]he inquiry is ‘whether those with a common immutable characteristic are set apart, or distinct, from other persons within the society in some significant way.’” (quoting M-E-V-G, 26 I. & N. Dec. at 238)); S.E.R.L. v. Att’y Gen., 894 F.3d 535, 547 (3d Cir. 2018) (stating that a proposed particular social group must “have more in common than simply describing persecution aimed at an immutable characteristic” (quoting M-E-V-G, 26 I. & N. Dec. at 236)); see also Canales-Rivera, 948 F.3d at 658 (“An application for asylum requires more than designating an otherwise undefined group and identifying characteristics that apply to members of society in general.”); Gonzalez v. Att’y Gen., 820 F.3d 399, 405 (11th Cir. 2016) (“[S]haring a common, immutable characteristic is a necessary, but not sufficient, condition to qualify as a particular social group under BIA precedent.”); Mayorga-Vidal v. Holder, 675 F.3d 9, 15 (1st Cir. 2012) (“[L]oose descriptive phrases that are open-ended and that invite subjective interpretation are not sufficiently particular to describe a protected social group.”).

8 for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i); Ndayshimiye v. Att’y Gen., 557 F.3d

124, 131 (3d Cir. 2009); see also Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 684–85

& n.6 (3d Cir. 2015) (extending the one-central-reason test to withholding of removal).

Here, Melo Gutierrez did not show that his membership in any of the groups was

one central reason for the threats he received. As to his first proffered group, which

includes transportation workers who were compelled to work for cartels, Melo Gutierrez

does not provide any evidence that one central reason for his threats was that he had

previously been compelled to work for cartels. The same analysis applies to his other

two proffered particular social groups, which both include persons who refused to

provide transportation to cartels. Melo Gutierrez does not establish that one central

reason for his threats was his previous refusal to drive for cartel members. See Gonzalez-

Posadas, 781 F.3d at 685 (“[I]solated criminal acts do not constitute persecution on

account of a protected characteristic.”). Rather, in reviewing the record, both the

Immigration Judge and the BIA found that the cartel members commandeered taxi

drivers like Melo Gutierrez for their own financial advantage and to survive when

threatened by rival gangs. Thus, substantial evidence supports the BIA’s conclusion that

Melo Gutierrez failed to satisfy the necessary nexus element for asylum and statutory

withholding.

9 C. Melo Gutierrez Did Not Make the Showings Needed for Relief Under the Convention Against Torture.

To obtain CAT relief, Melo Gutierrez must show that it is “more likely than not”

that he will be tortured if removed to Mexico. Radiowala, 930 F.3d at 585 (quoting

Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d Cir. 2002)).

He has not made that showing. His evidence does not demonstrate past torture.

See 8 C.F.R. § 208.16(c)(3)(i). Four isolated instances of threats without physical harm

hardly constitute the “intentional infliction of severe pain and suffering” needed to prove

torture. Radiowala, 930 F.3d at 585; see also 8 C.F.R. § 208.16(c)(3)(i). Although Melo

Gutierrez claims that “the same thing” will happen to him if he relocates to another part

of Mexico,6 see 8 C.F.R. § 208.16(c)(3)(ii), that would still not amount to torture. In also

attempting to prove mass human rights violations against taxi drivers throughout Mexico,

see 8 C.F.R. § 208.16(c)(3)(iii), Melo Gutierrez offers nothing more than his statement

that “the danger exists all throughout the Mexican Republic.”7 That conclusory

assessment does not suffice to qualify for CAT protection.

Beyond failing to establish the possibility of future torture, Melo Gutierrez has

also not shown government acquiescence. See Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d

Cir. 2003) (explaining that a CAT applicant bears the burden of proving the acquiescence

of a public official). He produced evidence that the Mexican government has

unsuccessfully tried to rein in the cartels, but that failure does not rise to the level of

6 Hr’g Tr. at 61 (Aug. 15, 2019) (AR140). 7 Hr’g Tr. at 61–63 (Aug. 15, 2019) (AR140–42).

10 acquiescence, which requires willful blindness or, alternatively, an awareness of torture

coupled with subsequent governmental inaction. See Myrie v. Att’y Gen., 855 F.3d 509,

516 (3d Cir. 2017).

* * *

For the foregoing reasons, we will deny the petition.