Raul Yanes-Estevez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 29, 2010
• Docket: 10-10136
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-10136 ELEVENTH CIRCUIT Non-Argument Calendar JULY 29, 2010 ________________________ JOHN LEY CLERK Agency No. A099-982-531

RAUL YANES-ESTEVEZ, Petitioner,

versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll Respondent.

________________________

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

(July 29, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

Raul Yanes-Estevez, a native and citizen of Guatemala proceeding pro se, seeks review of the Board of Immigration Appeals’s (“BIA”) final order affirming

the Immigration Judge’s (“IJ”) denial of his request for withholding of removal

pursuant to the Immigration and Nationality Act (“INA”) § 241(b)(3), 8 U.S.C.

§ 1231(b)(3), and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.

§ 208.16(c). On appeal, Yanes-Estevez first argues that the IJ and BIA erred in

denying him withholding of removal because he showed that gangs in Guatemala

threatened him and killed his brother, at least in part because they were of

indigenous ethnicity. Second, Yanes-Estevez argues that the agency erred in

denying his request for CAT relief because he demonstrated that he will more

likely than not be tortured by gangs if he returns to Guatemala. He argues that his

torture would be with the acquiescence of the Guatemalan government, because

the government cannot control the gangs in Guatemala and was unsuccessful in

preventing or capturing his brother’s killers.

After review of the record and the parties’ briefs, we deny Yanes-Estevez’s

petition for review

I. BACKGROUND

Yanes-Estevez, a native and citizen of Guatemala, entered the United States

at an unknown time. (AR at 79–80, 210). On May 21, 2007, the Department of

2 Homeland Security initiated removal proceedings against Yanes-Estevez by

serving a Notice to Appear (“NTA”), charging him as removable pursuant to INA

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United

States without being admitted or paroled. (AR at 210–11). On July 24, 2008,

Yanes-Estevez submitted an application for asylum, withholding of removal, and

CAT relief, based on membership in a particular social group. (Id. at 163–189).

Yanes-Estevez noted that he was filing the application more than one year after

arriving in the United States and conceded to the IJ that he was not eligible for

asylum. (Id. at 172).

Yanes-Estevez belonged to a farmer’s labor association in Guatemala from

1990 to 1995, during which time he planted crops for the association. (Id. at

89–90). From 1995 to 2002, he worked for a separate farmer’s company. (Id. at

90). Yanes-Estevez testified that in 2001, he and other members of the farmer’s

association began receiving threats from gangs, “[b]ecause [they] worked for the

farmers organization, and [the gangs] didn’t accept that [they] worked as decent

people.” (Id.). In 2002, a gang contacted Yanes-Estevez and asked him to join

them, but he refused. (Id. at 91). Yanes-Estevez’s brother, Pedro, was beaten and

shot to death on July 9, 2002. (Id.). Yanes-Estevez testified that he reported

Pedro’s death to the police, but they never investigated. (Id. at 92).

3 The IJ denied Yanes-Estevez withholding of removal and CAT relief. (Id.

at 102–103). The IJ found that Yanes-Estevez was threatened by gang members

and his brother was killed on account of their failure to join the gangs. (Id. at 73).

Therefore, the IJ concluded that Yanes-Estevez failed to establish that “race,

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

was or will be at least one central reason for any harm he fears may occur”

because the gangs were not motivated by these grounds. (Id. at 74–75).

Yanes-Estevez appealed to the BIA, arguing that substantial evidence failed

to support the IJ’s conclusion that there was not a nexus between the persecution

he and his family suffered and a protected ground. (Id. at 22–26, 57). The BIA

affirmed the IJ’s final order and dismissed Yanes-Estevez’s appeal. (Id. at 3–4).

The BIA concluded that Yanes-Estevez failed to establish past persecution or a

clear probability of persecution or torture in Guatemala by criminal gangs and

affirmed the IJ’s legal conclusions. (Id. at 3).

II. STANDARD OF REVIEW

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA agreed with the reasoning

of the IJ and affirmed for “the reasons stated by the Immigration Judge.”

4 Therefore, we will review both the IJ’s and the BIA’s decisions. See id.

We review the BIA’s conclusions of law de novo, but review findings of

fact for substantial evidence to support them. Kazemzadeh v. U.S. Att’y Gen., 577

F.3d 1341, 1350 (11th Cir. 2009) (citation omitted). “Our review for substantial

evidence is highly deferential,” and we “view the record evidence in the light most

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

that decision.” Id. at 1351 (citation and quotation omitted). We will only reverse

the agency’s decision if evidence would “compel[ ] a reasonable fact finder to find

otherwise.” Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006) (per

curiam) (citation and quotation omitted).

III. DISCUSSION

A. Withholding of Removal

Under the INA, an alien seeking withholding of removal must show that

his “life or freedom would be threatened in [his] country [of origin] because of

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

political opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). Withholding

of removal “protects against persecution by government forces” and “by

nongovernmental groups that the government cannot control.” Sanchez v. U.S.

Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004) (per curiam) (citation and quotation

5 omitted). To establish eligibility for withholding of removal, the burden of proof

lies with the alien. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006)

(citation and quotation omitted). An alien can meet this burden by demonstrating

that he was or will be singled out for persecution on account of a protected ground

in two ways. Id.

First, an alien may establish past persecution based on a protected ground.

Id. (citation omitted). Past persecution creates a rebuttable presumption that the

alien’s “life or freedom would be threatened in the future in the country of removal

on the basis of the original claim” and shifts the burden to the government to show

changed conditions in the country or the ability to avoid a future threat through

relocation. 8 C.F.R. § 208(b)(1).

Second, an alien may establish that it is more likely than not that he will be

persecuted upon removal due to a protected ground. Tan, 446 F.3d at 1375

(citation omitted). An alien must show that he would be singled out individually

for persecution, or alternatively show a “pattern or practice” in his country of

“persecution of a group of persons similarly situated” on account of a protected

ground, and a reasonable fear of persecution based on his inclusion in that group.

8 C.F.R. § 208.16(b)(2)(i) and (ii).

To establish eligibility for withholding of removal, an alien must also

6 establish a nexus between a statutorily protected ground and the persecution. See

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230–31 (11th Cir. 2005) (per

curiam). To warrant a reversal of a finding that an alien failed to demonstrate a

sufficient nexus between the alleged persecution and a protected ground, “we must

be compelled to find that an alien will be persecuted ‘because of’” a protected

ground. Rodriguez Morales v. U.S. Att’y. Gen., 488 F.3d 884, 890 (11th Cir.

2007) (per curiam) (quoting INA v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct.

812, 816 (1992)). Further, under the REAL ID Act of 2005, which applies to all

applications for asylum or withholding of removal filed after May 11, 2005, the

alien petitioner must demonstrate that one of the protected grounds “was or will be

at least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i), 8

U.S.C. § 1158(b)(1)(B)(i) (as amended by § 101(a)(3) of the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005)).

In this case, the BIA concluded that Yanes-Estevez failed to establish past

persecution or a clear probability of persecution by criminal gangs on account of a

protected ground. (AR at 3). Substantial evidence supports this finding, as the

record does not compel the conclusion that Yanes-Estevez was persecuted because

of a protected ground, or that it was more likely than not that he would be

persecuted upon removal because of a protected ground. Tan, 446 F.3d at 1375

7 (citation and quotation omitted).

Yanes-Estevez asserts that as an indigenous Guatemalan and member of a

farmer’s organization he was persecuted by the gangs on account of his ethnicity

and/or membership in a social group. This is not the case, as Yanes-Estevez stated

in his asylum application that he was afraid to return to Guatemala because he

believed the gangs would kill him to prevent him from obtaining revenge or

assistance from the government to arrest the gang members responsible for his

brother’s murder. (AR at 169). This is not substantial evidence to show that he

will be singled out for persecution on account of a protected ground. Yanes-

Estevez also testified that the gang members threatened him and his brother

because “they worked for the farmer’s organization;” however, these threats had

nothing to do with their race or ethnicity, but rather with their lifestyle, which

differed from being in a gang. (AR at 90). The record does not compel a finding

that the gangs targeted Yanes-Estevez or his brother because they were

indigenous.

Instead, the BIA and IJ found that the gang members threatened him and

killed his brother because they refused to join the gang, and substantial evidence

supports this finding. (AR at 92, 98). The Supreme Court and this Court have

repeatedly held that a petitioner’s refusal to cooperate with or join a guerilla group

8 alone is insufficient to satisfy the nexus requirement. See Elias-Zacarias, 502

U.S. at 481–82 (refusal to join guerilla forces); Rodriguez Morales, 488 F.3d at

890–91 (citation omitted) (refusal to provide medical services to guerillas); Rivera

v. U.S. Att’y Gen., 487 F.3d 815, 821–22 (11th Cir. 2007) (citation omitted)

(refusal to pay war taxes demanded by guerillas); Sanchez, 392 F.3d at 438

(citation omitted) (refusal to meet and cooperate with guerillas). Furthermore,

“evidence that either is consistent with acts of private violence or the petitioner’s

failure to cooperate with guerrillas, 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) (per curiam) (citation omitted).

Yanes-Estevez also failed to establish a “pattern of practice” of persecution

against indigenous people or those belonging to farmers’ associations. 8 C.F.R. §

208.16(b)(2)(i) and (ii). He argues that the record shows the Guatemalan

government previously attacked indigenous people, and that they currently

discriminate against the indigenous population. However, the record also

indicates that the Guatemalan government stopped the practice of attacking

indigenous people in 1996, has increased its efforts to crack down on gangs, and

that any discrimination that might exist today does not rise to the level of

9 persecution.1 (See AR at 117–18, 131); see also Zheng, 451 F.3d at 1291 (citation

and quotation omitted).

Lastly, Yanes-Estevez argues that the IJ violated his rights under the Due

Process Clause of the Fifth Amendment when it interpreted BIA precedent to

foreclose any claim for withholding of removal raised by an alien who was

persecuted by gangs. Due process requires aliens to be given notice and an

opportunity to be heard, and in order to prove deprivation of liberty, an alien must

show that this requirement has been violated. Tang v. U.S. Att’y Gen., 578 F.3d

1270, 1275 (11th Cir. 2009) (citations omitted). Here, the IJ permissibly relied on

BIA precedent to support its conclusion that Yanes-Estevez was not entitled to

withholding of removal. See 8 C.F.R. § 1003.1(d)(1). The IJ did not find that BIA

precedent forecloses any claim for withholding of removal, but rather noted that

1 Yanes-Estevez alternatively argues that we should adopt the Ninth Circuit’s decision in Sael v. Ashcroft, which utilized a “disfavored group” test. 386 F.3d 922, 925 (9th Cir. 2004). Under the “disfavored group” test, asylum applicants are eligible for relief if they establish membership in a group that is disfavored “and an individualized risk of being singled out for persecution.” Id. Sael is only persuasive, not controlling authority, and this Court has not adopted this test. Further, the First, Third, and Seventh Circuits have rejected the Ninth Circuit’s “disfavored group” test in published opinions. See Kho v Keisler, 505 F.3d 50, 55 (1st Cir. 2007); Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6 (7th Cir. 2005); Lie v. Ashcroft, 396 F.3d 530, 538 n.4 (3d Cir. 2005). However, even if we adopted the “disfavored group” theory, Yanes- Estevez’s withholding claim would still fail because, while he produced evidence that indigenous persons were discriminated against in Guatemala, he failed to produce any evidence that he faced an individualized risk of persecution because of his ethnicity or membership in a social group. Sael, 386 F.3d at 925–27.

10 the precedential BIA opinions were “on point in this case.” (AR at 74).

Because substantial evidence supports the agency’s conclusion that any

persecution Yanes-Estevez suffered or would suffer in the future would be on

account of his refusal to join or cooperate with gangs, and not based on a protected

ground, the agency correctly concluded that he was ineligible for withholding of

removal.

B. CAT Relief

To qualify for CAT relief, the applicant carries the burden of proof to

“establish that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” Sanchez Jimenez v. U.S. Att’y

Gen., 492 F.3d 1223, 1239 (11th Cir. 2007) (citation and quotation omitted).

Torture is the intentional infliction of “severe pain or suffering, whether physical

or mental.” See 8 C.F.R. § 208.18(a)(1). Moreover, to obtain CAT relief, the

alien must demonstrate that the torture would be inflicted by the government or

with the government’s acquiescence. See Reyes-Sanchez v. U.S. Att’y Gen., 369

F.3d 1239, 1242 (11th Cir. 2004) (citation omitted). “Acquiescence of a public

official requires that the public official, prior to the activity constituting torture,

have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).

11 In this case, substantial evidence supports the agency’s decision that the

record does not demonstrate that it is more likely than not that the Guatemalan

government would acquiesce in torturing Yanes-Estevez if he returned to

Guatemala. (AR at 75). The IJ found that the Guatemalan government did not

acquiesce in gang violence, as supported by the record, which indicates that the

Guatemalan police force is aggressively trying to stop gang violence through

policies such as mass detention of gang members. Id. Where a government

actively combats a non-governmental group, that the government is not entirely

successful in its efforts does not amount to acquiescence in the group’s activities.

See Reyes-Sanchez, 369 F.3d at 1243 (citation omitted). Similarly, a government’s

failure to catch a persecutor after the fact is not acquiescence in the harm.

Yanes-Estevez also argues that the IJ erred by failing to consider explicitly

the reports he submitted detailing the human rights violations that had occurred in

Guatemala. This Court, however, does not require an IJ to specifically address

each piece of evidence that the petitioner presented if the IJ, as in this case, gave

reasoned consideration and made adequate findings. Tan, 446 F.3d at 1374

(citation omitted).

Therefore, the BIA and IJ did not err in denying Yanes-Estevez’s request for

CAT relief. Upon review of the record on appeal and consideration of the parties’

12 briefs, we deny the petition for review.

PETITION DENIED.