Fernando Mena Burgos v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Fernando Edgardo Mena Burgos. Decision: Affirmed. Petition Denied. 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.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10901
Non-Argument Calendar
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Agency No. A206-252-384

FERNANDO EDGARDO MENA BURGOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 18, 2017)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:

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Fernando Edgardo Mena Burgos (“Mena”), proceeding pro se, petitions our
court for review of the Board of Immigration Appeals’ (“BIA”) decision affirming
the Immigration Judge’s (“IJ”) denial of his application for asylum and
withholding of removal. On appeal, Mena argues he presented sufficient evidence
and testimony establishing he suffered past persecution at the hands of the Mara
Salvatrucha (“MS”) gang, and that he holds an objectively reasonable wellfounded fear that he would suffer persecution on account of his membership in two
particular social groups: (1) Salvadoran youth who reject gang recruitment, and (2)
members of his mother’s family who refuse to pay extortion fees. Upon review of
the record and the parties’ briefs, substantial evidence supports the BIA and IJ’s
conclusion that Mena failed to meet his burden of showing either past persecution
or that he may suffer future persecution due to his membership in a particular
social group. Accordingly, we affirm.
We generally review the BIA’s decision as the final judgment, unless the
BIA expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765
(11th Cir. 2007). When the BIA explicitly agrees with the IJ’s reasoning, we
review the decisions of both the BIA and the IJ to the extent of the agreement.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Here, the
BIA agreed with the IJ’s findings and reasoning, so both the BIA and IJ’s decisions
are subject to review. See id.
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We review legal determinations de novo. Ayala v. U.S. Att’y Gen., 605 F.3d
941, 948 (11th Cir. 2010). Whether an asserted group qualifies as a particular
social group under the Immigration and Nationality Act (“INA”) is reviewed de
novo as a question of law. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th
Cir. 2016).
We review administrative fact findings for substantial evidence, a highly
deferential standard. Ayala, 605 F.3d at 948. Under the substantial-evidence test,
we affirm the IJ’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. We may reverse
only when compelled by the record, and we may not reweigh the evidence from
scratch. Id. The substantial-evidence test requires that we view the evidence in the
record 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).
An alien present in the United States may apply for asylum. INA
§ 208(a)(1), 8 U.S.C. § 1158(a)(1). The government has the discretion to grant
asylum if the alien establishes that he is a “refugee.” INA § 208(b)(1)(A),
8 U.S.C. § 1158(b)(1)(A). A refugee is a person “who is unable or unwilling to
return to, and is unable or unwilling to avail himself or herself of the protection of,
[his country of nationality] because of persecution or a well-founded fear of
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persecution on account of . . . membership in a particular social group.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the
burden of proving that his membership in a particular social group “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). In order to establish this, applicants must provide
some evidence, direct or circumstantial, of their persecutors’ motives. I.N.S. v.
Elias-Zacarias, 502 U.S. 478, 483 (1992).
To demonstrate asylum eligibility, the applicant must, with credible
evidence, establish either (1) past persecution on account of a protected ground
such as membership in a particular social group; or (2) a well-founded fear of
persecution on account of one of the statutory factors. 8 C.F.R. § 208.13(b); Mejia
v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The refugee’s wellfounded fear of future persecution must be both “subjectively genuine and
objectively reasonable.” Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001).
The applicant must show a “reasonable possibility” of suffering persecution, and
can do so by “presenting specific, detailed facts showing a good reason to fear that
he or she will be singled out for persecution.” Mehmeti v. U.S. Att’y Gen., 572
F.3d 1196, 1200 (11th Cir. 2009) (quotation omitted) (emphasis in original). If an
applicant establishes past persecution, it creates a rebuttable presumption of a

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“well-founded fear” of future persecution. 8 C.F.R. § 208.13(b)(1), (2); see
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004).
Persecution is an “extreme concept,” which requires a showing of “more
than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (finding no persecution
despite alien receiving menacing phone calls and threats, coupled with a bombing
at the restaurant where she worked). Private acts of violence, general criminal
activity, and failure to cooperate with criminals do not qualify as persecution based
on a statutorily protected ground. See Ruiz, 440 F.3d at 1258; Sanchez, 392 F.3d at
438 (11th Cir. 2004) (determining that a refusal to cooperate with criminals is
insufficient to find persecution based on a political opinion). Furthermore,
recruitment by a criminal group does not necessarily constitute persecution on
account of a statutorily protected ground. See Elias-Zacarias, 502 U.S. at 482.
A particular social group is one sharing a common characteristic that is
immutable or fundamental to its members’ individual identities or consciences.
Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006). Society’s
perception of the alleged social group is considered in determining whether that
particular social group is protected under the INA. See Matter of W-G-R-, 26
I.&N. Dec. 208, 216–17 (BIA 2014). Members of the group need not be visibly
recognizable, but there must be evidence showing that society in general perceives,
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considers, or recognizes persons sharing the particular characteristic as a group.
Id. at 217. Society must commonly recognize that the shared characteristic defines
the group. Id. Membership in a particular social group is not defined so broadly
that it becomes a “catch-all for all groups who might claim persecution.” CastilloArias, 446 F.3d at 1197.
The BIA declined to recognize social groups where the proposed members
were at no greater risk of persecution than the general public. In

In re A-M-E- &

J-G-U-, the BIA held that the social group of “wealthy Guatemalans” lacked both
(1) the requisite social visibility, because there was no evidence “to indicate that
wealthy Guatemalans would be recognized as a group that is at a greater risk of
crime in general or of extortion or robbery in particular,” and (2) the requisite
particularity, because “the concept of wealth” was too subjective “to provide an
adequate benchmark for determining group membership.” In re A-M-E- & J-G-U-,
24 I.&N. Dec. 69, 73-76 (BIA 2007).
In a pair of companion cases similar to the one on appeal, the BIA held that
Salvadoran youth subjected to recruitment efforts by the MS gang and rejected or
resisted membership based on their own personal, moral, and religious opposition
to the gang’s values and activities did not constitute a “particular social group.”
Matter of S-E-G-, 24 I.&N. Dec. at 583-86. In S-E-G-’s companion case, Matter of
E-A-G-, the BIA refused to recognize Hondurans who resist joining gangs as a
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particular social group because they were not socially visible or distinct in
Honduran society and no evidence was presented that members of this group
possessed any characteristics that would cause other Hondurans to recognize them
as an individual who refused gang recruitment. Matter of E-A-G-, 24 I.&N. Dec.
591, 594-95 (BIA 2008). Although individuals who resist gang recruitment may
face the risk of harm from rejecting the gang, the BIA noted that the risk arises
from the individualized reaction of the gang to the specific behavior of the
prospective recruit, rather than due to his membership in a particular social group.
Id. at 594.
Where a petitioner fails to establish an asylum claim on the merits, his claim
for withholding of removal necessarily fails. Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1288 n.4 (11th Cir. 2005); see also Nkacoang v. INS, 83 F.3d 353, 355 (11th
Cir. 1996) (“If an applicant is unable to meet the ‘well-founded fear’ standard for
asylum, he is generally precluded from qualifying for either asylum or withholding
of deportation.”).
Here, substantial evidence supports the BIA’s denial of Mena’s asylum and
withholding claims because he failed to establish past persecution or that a
protected ground was or will be at least “one central reason” for any future
persecution.

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First, substantial evidence supports the IJ’s and BIA’s determination that
Mena did not suffer any past persecution. His past mistreatment consisted merely
of threats and harassment, without any physical harm or attempt to kill or seriously
injure him by the gang members attempting to recruit him or seeking extortion
payments. See Sepulveda, 401 F.3d at 1231 (stating that persecution is an
“extreme concept,” which requires a showing of “more than a few isolated
incidents of verbal harassment or intimidation”). Mena testified that MS members
approached him on “about four” occasions within a single week and that, although
they threatened to kill him if he did not join their gang during at least one of these
encounters, he was only “shoved around” during these encounters and was not
physically harmed. Additionally, neither his mother nor cousins were harmed by
gang members, even after his mother failed to pay the full amount of money
demanded. See Sepulveda, 401 F.3d at 1231 (finding no persecution despite the
alien receiving menacing phone calls and threats, coupled with a bombing at the
restaurant where she worked). Mena’s past mistreatment consisted merely of
threats and harassment, without any physical harm or attempt to kill him or
seriously injure him. Thus, substantial evidence supports the BIA and IJ’s finding
that Mena failed to establish that he suffered past persecution.
Secondly, the record does not compel a finding that any future persecution
would be on account of Mena’s membership in a statutorily protected social group.
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Neither of his asserted groups qualify as a particular social group under the INA.
His family is not a socially distinct group in Salvadoran society, see Matter of WG-R-, 26 I.&N. Dec. at 216–17, nor are those who resist gang recruitment. Matter
of E-A-G-, 24 I.&N. Dec. at 594-95; cf. Sanchez, 392 F.3d at 438 (determining that
persecution for refusing to cooperate with criminals is not on account of the
protected ground of political opinion). Furthermore, Mena provided no evidence
that one central reason for the MS members to target him would be due to his
membership in the proposed social groups.
Finally, Mena failed to establish that MS members would target him: (1)
because he receives money from the United States, as opposed to having wealth for
some other reason, or (2) due to his membership in a group of young Salvadorans
resistant to gang recruitment, rather than his particular individual act of rebuffing
their recruitment efforts. Elias-Zacarias, 502 U.S. at 483. Substantial evidence
instead shows that Mena fears private acts of violence and criminal activity, which
is not a protected ground under the INA. Ruiz, 440 F.3d at 1258.
Because Mena failed to demonstrate past persecution or a well-founded fear
of future persecution on account of a protected ground sufficient to support his
asylum claim, he necessarily fails to establish eligibility for withholding of
removal. Forgue, 401 F.3d at 1288 n.4.
PETITION DENIED.
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