Gerardo Prieto-Miranda v. U.S. Attorney General
Filing
Opinion issued by court as to Petitioner Gerardo Prieto-Miranda. Decision: Affirmed. Denied in part, Dismissed in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
Case: 15-13841
Date Filed: 06/30/2016
Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13841
Non-Argument Calendar
________________________
Agency No. A201-298-265
GERARDO PRIETO-MIRANDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 30, 2016)
Before TJOFLAT, MARCUS and JILL PRYOR, Circuit Judges.
PER CURIAM:
Gerardo Prieto-Miranda seeks review of the Board of Immigration Appeals’s
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his
application for withholding of removal to Mexico. He argues that he has met his
Case: 15-13841
Date Filed: 06/30/2016
Page: 2 of 5
burden of proving eligibility for withholding of removal by establishing that his
fears of future persecution have a sufficient nexus to a statutorily protected ground.
After careful review, we deny the petition in part, and dismiss it in part.
We “review only the [BIA]’s decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (citation omitted). When the BIA decides that someone is ineligible for
withholding of removal, we review that decision under the substantial evidence
test, where 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.”
Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We must affirm
the BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted). “To reverse the . . . fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). Whether an
asserted group constitutes a particular social group is a question of law, which is
reviewed de novo. See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1195-96
(11th Cir. 2006).
2
Case: 15-13841
Date Filed: 06/30/2016
Page: 3 of 5
The Immigration and Nationality Act (“INA”) provides that “the Attorney
General may not remove an alien to a country if the Attorney General decides that
the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A). Private acts of violence, general
criminal activity, and purely personal retribution do not qualify as persecution
based on a statutorily protected ground. See Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1258 (11th Cir. 2006); Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th
Cir. 2004). We have defined the term “particular social group” to mean “persons
who share a common, immutable characteristic that the members of the group
either cannot change, or should not be required to change because it is fundamental
to their individual identities or consciences.” Rodriguez v. U.S. Atty. Gen., 735
F.3d 1302, 1310 (11th Cir. 2013) (per curiam) (quotation omitted). To meet the
statute’s definition, a group also needs “social visibility,” meaning the group’s
characteristics must be “highly visible and recognizable by others in the country.”
Castillo-Arias, 446 F.3d at 1194 (quotation omitted). Beyond that, a group can’t
be “too numerous or inchoate,” and it shouldn’t be defined so broadly that it is “a
catch-all for all groups who might claim persecution.” Id. at 1197–98.
Here, Prieto-Miranda’s claims of persecution are based on threats he
received from the relatives of a married woman who were upset that he was living
3
Case: 15-13841
Date Filed: 06/30/2016
Page: 4 of 5
with her, his robbing and beating by neighborhood gang members (who included a
relative of the married woman’s husband), his nephew’s stabbing, and his cousin’s
death. But the record supports the conclusion that Prieto-Miranda’s past threats
and beating and his fears for his safety were due to a personal matter relating to his
previous romantic relationship, and persecution based on personal matters is not
based on a protected ground. Similarly, the record supports a finding that the
harms suffered by Prieto-Miranda’s family members were a result of general
criminal activity, and not on account of a protected ground. Thus, substantial
evidence supports the determination that Prieto-Miranda’s asserted persecution did
not have a sufficient nexus to one of the five protected grounds.
As for Prieto-Miranda’s remaining arguments, we lack jurisdiction to review
them. The INA provides that we “may review a final order of removal only if . . .
the alien has exhausted all administrative remedies available to the alien” as a
matter of right.
8 U.S.C. § 1252(d)(1).
The exhaustion requirement is
jurisdictional and precludes review of a claim that was not presented to the BIA.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). A
petitioner must exhaust a claim before the BIA by raising both the core issue and
any discrete arguments he relies on in support of that claim. Jeune v. U.S. Att’y
Gen., 810 F.3d 792, 800 (11th Cir. 2016). A petitioner does not exhaust a claim if
4
Case: 15-13841
Date Filed: 06/30/2016
Page: 5 of 5
they do not present it before the BIA, even if the BIA addresses the issue sua
sponte. Amaya-Artunduaga, 463 F.3d at 1250-51.
Prieto-Miranda did not present before the BIA his discrete arguments that
expatriates who return to Mexico from the United States should be a protected
social group, or that there is a pattern of organized crime and persecution in
Mexico. Because he did not exhaust these claims, we do not have jurisdiction to
review them.
PETITION DENIED IN PART, DISMISSED IN PART.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?