Rene Israel Rivera-Perez v. U.S. Attorney General

704 F. App'x 891
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 17, 2017
Docket16-17695 Non-Argument Calendar
StatusUnpublished

This text of 704 F. App'x 891 (Rene Israel Rivera-Perez v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rene Israel Rivera-Perez v. U.S. Attorney General, 704 F. App'x 891 (11th Cir. 2017).

Opinion

PER CURIAM:

Petitioner Rene Rivera-Perez, a native and citizen of El Salvador, petitions for review from the Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his application for asylum. On appeal, he argues that substantial evidence does not support the BIA’s determination that he was ineligible for asylum because he failed to show a nexus between the persecution he faced and his membership in a particular social group. Specifically, he argues that he is a member of a particular social group consisting of multi-generational farmers, and that the Mara Salvatrucha (“MS-13”) gang targeted him because, as a member of that social group, he could inconspicuously transport drugs while herding cattle on horseback. After careful review, we deny the petition for review. ■

I. BACKGROUND

In September 2014, Petitioner arrived in the United States without being admitted or paroled. The Department of Homeland Security subsequently issued Petitioner a notice to appear, charging him with remov-ability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien present in the United States without being admitted or paroled. Petitioner conceded removability and indicated that he would be seeking relief in the form of asylum and withholding of removal.

Petitioner applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), alleging that he feared returning to El Salvador on account of his membership in a particular social group. Specifically, he asserted that he was targeted by the MS-13 gang because he was a farmer. He feared that MS-13 members would torture and murder him because he refused to join their gang.

The IJ conducted a merits hearing on Petitioner’s applications. According to Petitioner, a criminal gang had threatened to kill him because he did not want to join their group and he therefore feared returning to El Salvador. On one occasion, while he was taking cattle to another part of the farm, the gang grabbed him, took him to a vacant home, and burned the shape of a cross on his arm with cigarettes. His grandparents still live in El Salvador and the gang had asked them about his whereabouts. If he returned to El Salvador, Petitioner believed the gang would kill him. He could not go to another part of El Salvador because there are gangs all over the country and they communicate with each other.

Petitioner testified that he moved cattle from his grandfather’s farm to another plot of land because the cattle had run out of grass to eat. He encountered the gang each time he moved the cattle to the other plot of land. They took his money and told him they want him to transport marijuana and cocaine. On cross-examination, Petitioner stated that the gang members had not asked his grandfather to transport drugs. Petitioner acknowledged that when transporting the cattle, he had to cross over the gang-controlled territory. Petitioner later stated that the gang that threatened him was known as MS-13.

The IJ denied Petitioner’s applications for asylum, withholding of removal, and CAT relief. Though finding Petitioner credible, the IJ determined that Petitioner had not demonstrated past persecution or that he had a well-founded fear of future persecution on account of one of the statutorily protected grounds. Specifically, the IJ determined that Petitioner had failed to show that he was targeted because of his membership in a particular social group consisting of multi-generational farmers, or that any other protected ground was the central reason that Petitioner was targeted. Instead, the record showed that the gang members’ actions were motivated by money and recruitment goals, not by animus directed against a protected group. The IJ noted that if Petitioner had established that he suffered past persecution on account of a protected ground, the IJ would have granted asylum as a matter of discretion. The IJ also denied Petitioner’s applications for withholding of removal and relief under CAT.

Petitioner appealed to the BIA, arguing in relevant part that he had established a nexus between the harm he feared and a statutorily protected ground because MS-13 members targeted him based on his membership in a multi-generational farming family. Further, he had a well-founded fear of persecution because MS-13 members had questioned his grandparents about his whereabouts. Finally, he argued that he was entitled to withholding of removal.

The BIA affirmed the IJ’s decision. The BIA first agreed with the IJ’s determination that Petitioner had not established that he suffered past persecution on account of a protected ground. The BIA explained that regardless of whether mul-ti-generational farmers qualified as a particular social group, Petitioner had failed to show that he was targeted because of his membership in that group. The BIA further determined that the IJ did not clearly err in concluding that the gang members targeted Petitioner to enhance their criminal enterprise. Petitioner could likewise not establish a well-founded fear of future persecution for the same reasons: he could not show that the gang members’ aggression was motivated by a protected ground. Therefore, he could not establish eligibility for asylum and because the latter requires a lesser burden of proof, the BIA concluded that he likewise could not show that he qualified for withholding of removal.

II. DISCUSSION

A. Standard of Review

We review the BIA’s decision as the final judgment, unless the BIA has expressly adopted the IJ’s decision, in which case we review both decisions. Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1330 (11th Cir. 2011). We also review the IJ’s decision to the extent that the BIA adopted its reasoning or found the reasons to be supported by the record. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). Here, because the BIA issued its own opinion, we review the BIA’s decision. But because the BIA also agreed with some aspects of the IJ’s opinion, we review the decision of the IJ to the extent of that agreement. See id.

We review factual findings for substantial evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Under the substantial evidence test, we must affirm a determination “if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quotation omitted). We review the evidence in the light most favorable to the agency’s decision, drawing all reasonable inferences in favor of that decision. Id. In other words, we cannot overturn a finding of fact unless the record compels it. See id. at 1287.

B. Asylum

Petitioner argues that he met his burden to demonstrate eligibility for asylum because he established that he was targeted by MS-13 members based on his membership in a group of multi-generational farmers.

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704 F. App'x 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rene-israel-rivera-perez-v-us-attorney-general-ca11-2017.