Nelson Roney Funez-Turcios v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 20, 2021
• Docket: 20-13177
• Status: Unpublished

Opinion

USCA11 Case: 20-13177 Date Filed: 04/20/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13177 Non-Argument Calendar ________________________

Agency No. A206-775-482

NELSON RONEY FUNEZ-TURCIOS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 20, 2021)

Before WILSON, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13177 Date Filed: 04/20/2021 Page: 2 of 10

Nelson Roney Funez-Turcios petitions for review of a decision of the Board

of Immigration Appeals (BIA), affirming the denial of his application for asylum

and withholding of removal under the Immigration and Nationality Act (INA), and

relief under the Convention Against Torture (CAT). He argues that the BIA erred

in concluding that the group of “former public-school student[s] who refused gang

recruitment and return[] to Honduras as a member of an American family, spouse

to a U.S. Citizen and stepfather to three U.S. Citizen children” does not qualify as a

“particular social group” under the INA, and that the record compels a finding that

he would be tortured by or with the acquiescence of the Honduran government if

he were returned to Honduras. Because the BIA properly found that Funez-

Turcios’s proposed group did not qualify as a “particular social group” and

substantial evidence supports the BIA’s CAT determination, we deny the petition.

I. Background

Funez-Turcios, a native and citizen of Honduras, entered the United States

without authorization in 2014. In January 2015, he filed an application for asylum,

withholding of removal, and CAT relief, followed by an amended application in

2018. He claimed that he suffered and feared persecution on account of his

membership in a particular social group, and that he feared that he would be

tortured if he returned to Honduras.

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In his application, Funez-Turcios stated that the neighborhood where he

lived in Honduras was controlled by criminal gangs known as the Maras, and that

the Maras forced young men like him to join them, sell drugs, and “do other illegal

things.” He stated that while he was in school in Honduras in 2013, a group of

Maras would wait around the school looking for recruits, and that one day, they

threatened him. Specifically, while he was attending a school event at a local park,

the group caught him and told him he “had to join them sooner or later.” After he

refused, the group beat him and told him that he had to join the gang and that they

knew where he lived and who his family was. The next day, his parents spoke to

his school’s principal about the incident. Funez-Turcios stated that the principal

told his parents that he would call the police and get security for the school, but

that it never happened.

After the group of Maras pursued him a second time as he was leaving

school, Funez-Turcios decided to quit school and stay at home. On two occasions

thereafter, he saw members from the group riding up and down his street on

motorbikes. As a result, he decided to leave Honduras. In his application for

asylum, he stated that the Maras controlled the entire country and would find him

wherever he moved in Honduras. He wrote that he feared that if he returned to

Honduras, the Maras would beat, torture, or kill him because he decided to flee to

the United States instead of joining them. He asserted that the government could

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not protect him because the Maras controlled the neighborhoods and were stronger

than the police, and also that the police were “corrupt and sometimes protect[ed]

the Maras.”

In support of his application, Funez-Turcios submitted several country

conditions reports. The reports noted that the military had taken charge of most

aspects of public security in Honduras and had instituted a children’s training

program in an attempt to keep young people “from joining the ranks of warring

street gangs that control[led] entire sections of the country’s most violent cities,”

but that there had been cases of military police engaging in murder, torture, and

extortion. The reports also noted that national police had captured high-profile

gang members and drug traffickers, that the government had transferred high-

security detainees, including gang members, to two newer maximum-security

facilities, and that the Honduran government had dismissed more than 1,000 police

officers suspected of corruption or human rights violations—but also that the mass

firings led to the gangs hiring many of the former officers as security or trainers.

After a hearing on Funez-Turcios’s claims, an immigration judge (IJ) issued

an oral decision denying Funez-Turcios’s claims. The IJ found that

Funez-Turcios’s proposed social group of “former public school student[s] who

refused gang recruitment and return[] to Honduras as a member of an American

family, spouse to a U.S. citizen and stepfather to three U.S. citizen children” was

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not a particular social group under the INA because there was no evidence that the

group was socially distinct in Honduran society, and it was not defined with

particularity. The IJ also found that Funez-Turcios’s proposed social group was

circularly defined because it was defined in part by the risk of persecution.

Therefore, the IJ denied Funez-Turcios’s asylum and withholding of removal

claims for failure to establish a particular social group.

As to Funez-Turcios’s CAT claim, the IJ found that Funez-Turcios did not

establish that the government “would torture him or acquiesce and turn a blind eye

to his torture,” noting that evidence that the police were aware of a particular crime

but failed to apprehend the criminals was insufficient to show government

acquiescence to the criminals’ behavior.

Funez-Turcios appealed the IJ’s decision to the BIA, and the BIA ultimately

dismissed his appeal. The BIA agreed with the IJ that Funez-Turcios’s proposed

social group was not cognizable, “which [was] dispositive of his asylum

application” and his request for withholding of removal. Regarding Funez-

Turcios’s CAT claim, the BIA agreed with the IJ that Funez-Turcios failed to show

that it was more likely than not that he would be tortured by or with the consent or

acquiescence of the Honduran government upon his return to Honduras. The BIA

noted that Funez-Turcios’s generalized statements about the Honduran

government’s corruption and inability to control gang violence did not prove error

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in the IJ’s denial of his CAT claim. Funez-Turcios then petitioned for review of

the BIA’s decision.

II. Asylum & Withholding of Removal

Funez-Turcios argues that the BIA erroneously denied his application for

asylum and withholding of removal. He maintains that he established past

persecution or a well-founded fear of future persecution on account of his

membership in a particular social group.

“We review the decision of the [BIA] and the decision of the [IJ] to the

extent that the [BIA] expressly adopted the opinion of the [IJ].” Ayala v. U.S. Att’y

Gen., 605 F.3d 941, 947–48 (11th Cir. 2010) (quoting Kazemzadeh v. U.S. Att’y

Gen., 577 F.3d 1341, 1350 (11th Cir. 2009)). “[W]e review conclusions of law de

novo.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).

To qualify for asylum, Funez-Turcios had the burden to prove that he is a

refugee—that he is a person who is unable or unwilling to return to his or her home

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), 1158(b)(1)(A), 1158(b)(1)(B)(i). Similarly,

to qualify for withholding of removal, Funez-Turcios had the burden to show that,

if returned to Honduras, his “life or freedom would be threatened in that country

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because of [his] race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1231(b)(3).

Funez-Turcios based his claims for asylum and withholding of removal on

his membership in the social group of “[f]ormer public-school student[s] who

refused gang recruitment and return[] to Honduras as a member of an American

family, spouse to a U.S. Citizen and stepfather to three U.S. Citizen children.” The

BIA affirmed the IJ’s conclusion that “this group fails the particular social group

and the particularity requirements.” Funez-Turcios argues that the BIA erred in

doing so. Whether the proposed group qualifies as a “particular social group”

under the INA is a question of law reviewed de novo. Gonzalez v. U.S. Att’y Gen.,

820 F.3d 399, 403 (11th Cir. 2016).

For a group to qualify as a “particular social group” under the INA: (1) “the

group’s members must have a common characteristic other than their risk of being

persecuted, and that characteristic must be immutable or fundamental to a

member’s individual conscience or identity”; (2) the group must have “sufficient

social distinction,” meaning it must “be perceived as a distinct group by society . . .

as a whole”; and (3) the “group must be defined with particularity, meaning 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). A “particular social group” cannot be defined by a risk

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of persecution because such a definition would be “impermissibly circular.”

Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1309–10 (11th Cir. 2019).

The BIA did not err in concluding that Funez-Turcios’s proposed group does

not qualify as a “particular social group.” See Amezcua-Preciado, 943 F.3d at

1342–43. First, the group is impermissibly circular because it is defined in part by

its risk of persecution. See Perez-Zenteno, 913 F.3d at 1310. Part of the group’s

definition is those who “refused gang recruitment,” and Funez-Turcios’s feared

persecution is from gang members. See id. Second, the proposed group is not

socially distinct because Funez-Turcios provided no evidence that “former public

school student[s] who refused gang recruitment and return[] to Honduras as a

member of an American family, spouse to a United States citizen and step-father to

three United States citizen children” are perceived, considered, or recognized as a

distinct group by Honduran society as a whole. See id.; Amezcua-Preciado, 943

F.3d at 1342–43. Thus, Funez-Turcios’s proposed group is not cognizable, and the

BIA properly denied his claims for asylum and withholding of removal.

III. Convention Against Torture Relief

Funez-Turcios next argues that the BIA erred in denying his claim for CAT

relief. To be eligible for CAT relief, Funez-Turcios had the burden to prove that

he more likely than not would be tortured “at the instigation or with the consent or

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

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removed to Honduras. 1 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1); see Jean-Pierre v.

U.S. Att’y Gen., 500 F.3d 1325, 1322–23 (11th Cir. 2007). The BIA found that

Funez-Turcios failed to prove that he would be tortured “by or with the

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

We review this finding for substantial evidence. Silva v. U.S. Att’y Gen., 448 F.3d

1229, 1236 (11th Cir. 2006).

A review of the record confirms that Funez-Turcios did not present any

evidence of conduct remotely resembling torture in the immigration proceedings.

Nevertheless, he argues that, if removed to Honduras, he would be tortured “by or

with the acquiescence” of the Honduran government because “the Honduran

government, despite its general efforts, is ultimately powerless to contain the

violence caused by the Maras and widespread corruption of law enforcement

officials, including in the judiciary.” But a government does not acquiesce in

torture if it actively, albeit unsuccessfully, tries to combat crime. Reyes-Sanchez v.

U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004). Here, although some

record evidence supports the rampant gang violence and corruption of police, the

record does not compel us to find that Funez-Turcios would more likely than not

suffer torture by the Honduran government or with its acquiescence. Honduras

1 To constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. 8 C.F.R. § 208.18(a)(5).

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prohibits government torture, and the record shows that the Honduran government

is actively attempting to combat gang violence. For example, the government

instituted a program designed to keep young people from joining gangs, captured

high-profile gang members and drug traffickers, moved high-security inmates to

new maximum-security facilities, and dismissed over 1,000 police officers

suspected of corruption or human rights violations. Thus, substantial evidence

supports the BIA’s denial of Funez-Turcios’s claim for CAT relief. See

Jean-Pierre, 500 F.3d at 1324.

IV. Conclusion

For these reasons, we deny Funez-Turcios’s petition for review.

PETITION DENIED.