Juan Mendez-Velasquez v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Juan Mendez-Velasquez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DENIED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 03/27/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12924
Non-Argument Calendar
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Agency No. A206-471-762

JUAN MENDEZ-VELASQUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 27, 2017)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Juan Mendez-Velasquez petitions for review of the Board of Immigration
Appeals’s (“BIA”) final order of removal affirming the Immigration Judge’s (“IJ”)
denial of withholding of removal under Immigration and Nationality Act (“INA”)
§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and of 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). He argues that his testimony before
the IJ established both past and probable future persecution. After careful review,
we deny the petition.
I.
In March 2014, the Department of Homeland Security served MendezVelasquez, a native and citizen of Mexico, with a Notice to Appear alleging that he
was removable for having entered the United States without authorization. See
INA §§ 212(a)(6)(A)(i), (7)(A)(i)(I), 8 U.S.C. §§ 1182(a)(6)(A)(i), (7)(A)(i)(I).
Mendez-Velasquez conceded removability and applied for withholding of removal
and CAT relief.
At the merits hearing, Mendez-Velasquez testified that he had been a soldier
in the Mexican army for a six-year period before he came to the United States.
One of his duties involved destroying drug plantations. On one occasion, he was
threatened by some individuals that he and his military unit had detained at a drug
plantation. The detainees told him that if they ever saw him again they would
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harm or kill him. Mendez-Velasquez did not know the detainees by name, whom
they worked for, or what happened to them after they went to trial. He reported the
incident to his commander, but his commander did nothing about it.
Soon after the incident, Mendez-Velasquez left both the army and Mexico
because he was afraid of the threats. He entered the United States in the late 1990s
or early 2000s. He stayed for about a year before returning to his wife and three
children in Mexico. About six months after he returned to Mexico, his wife told
him that some unknown individuals who looked like “bad people” had come to
their house looking for him. Thereafter, he moved his family to his wife’s parents’
place in another area of Mexico. He then returned to the United States. About a
year later, Mendez-Velasquez arranged to have his wife and three children join him
in the United States.
Mendez-Velasquez did not suffer any harm from the drug cartels while he
was in Mexico. Nevertheless, he was afraid of returning because of the threats and
the possibility that he might be recognized.
Following Mendez-Velasquez’s testimony, his attorney argued that his
military service qualified as an immutable and recognized social group for
purposes of withholding of removal. Counsel also argued that the threats against
him qualified as past persecution and gave a presumption as to future persecution.

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The IJ denied his applications for withholding of removal and CAT relief
and ordered him removed to Mexico. Finding Mendez-Velasquez’s basic story
credible, the IJ nonetheless determined that his testimony did not establish a nexus
to a statutorily protected ground. Under BIA precedent, the IJ explained, police or
security work was not an immutable characteristic or belief so as to qualify as a
“particular social group” under the INA. Further, the IJ determined that the nearly
twenty-year-old threats from unknown individuals were insufficient to establish
either past persecution or torture or a clear probability of future persecution or
torture. The IJ also found that Mendez-Velasquez could relocate to a different part
of the country to avoid the threat.
Mendez-Velasquez appealed the IJ’s decision to the BIA, which affirmed the
IJ’s decision without an opinion. Mendez-Velasquez now seeks review in this
Court.
II.
When the BIA adopts the IJ’s decision without opinion, as in this case, we
review the IJ’s decision. Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir.
2007). We review factual findings for substantial evidence and conclusions of law
de novo. Id. Review for substantial evidence is deferential and is based on a
construction of the record evidence that is most favorable to the agency’s decision.
Id.

We must affirm the agency decision if it is supported by reasonable,
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substantial, and probative evidence on the record considered as a whole. Id.
Findings of fact may be reversed only if the record compels a different result. Id.
In order to qualify for withholding of removal under the INA, an applicant
must show that his life or freedom would be threatened in the proposed country of
removal because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.
§ 1231(b)(3)(A).

INA § 241(b)(3)(A), 8 U.S.C.

Evidence that the petitioner has been the victim of private

violence or criminal activity does not constitute evidence of persecution on a
statutorily protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th
Cir. 2006). Additionally, those who engage in risks similar to those of the police
or military, regardless of motive, generally do not receive protection as a particular
social group under the INA. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1198 (11th Cir. 2006).
An applicant for withholding of removal bears the burden of showing that it
is more likely than not he will be persecuted or tortured upon returning to his
native country. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006).
Persecution is an extreme concept, requiring 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) (“[T]he menacing telephone calls and threats to [the

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petitioner], her brother, and other members of the university group do not rise to
the level of past persecution that would compel reversal of the IJ’s decision.”).
An applicant for withholding of removal may prove persecution in one of
two ways. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1365 (11th Cir. 2011). First, he
may establish past persecution based on a protected ground, which creates a
rebuttable presumption that his life or freedom would be threatened in the future in
that country. Id. Alternatively, an applicant who has not suffered past persecution
may demonstrate that his life or freedom would be threatened in the future based
on a protected ground. Id.
An applicant seeking protection under the CAT must establish that it is more
likely than not that he will be tortured if removed to the proposed country of
removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).
Additionally, the alien must demonstrate a likelihood that he will be tortured with
the acquiescence of the government, meaning that the government was aware of
the torture but failed to intervene. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d
884, 891 (11th Cir. 2007).
Initially, Mendez-Velasquez does not adequately challenge in his initial brief
the IJ’s determination that he failed to demonstrate a nexus to a cognizable social
group. Thus, Mendez-Velasquez abandoned this issue, see Sepulveda, 401 F.3d at
1228 n.2 (“When an appellant fails to offer argument on an issue, that issue is
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abandoned.”), which is dispositive of his application for withholding of removal
under the INA, see Seck, 663 F.3d at 1364–65 (petitioner must show persecution
“based on a protected ground”). But even if he did adequately raise the issue on
appeal, the IJ correctly determined that evidence of threatened violence by drug
cartels on account of Mendez-Velasquez’s military service did not constitute
evidence of persecution on account of a protected ground. See Castillo-Arias, 446
F.3d at 1198; Ruiz, 440 F.3d at 1258.
Assuming arguendo that Mendez-Velasquez could establish a nexus to a
protected ground, substantial evidence supports the IJ’s finding that he did not
meet his burden of showing that it was more likely than not he would be
persecuted or tortured upon returning to Mexico. See Tan, 446 F.3d at 1375. With
regard to past persecution, Mendez-Velasquez’s claim is based on two incidents:
(a) while serving in the military, he was threatened by unidentified men who had
been detained by his military unit on a drug plantation; (b) about a year later,
several unidentified men his wife described as “bad people” came looking for him.
These two isolated incidents of intimidation and harassment do not rise to the level
of past persecution that would compel a reversal of the IJ’s finding.

See

Sepulveda, 401 F.3d at 1231.
Nor has Mendez-Velasquez shown that the record compels a finding that his
life or freedom would be threatened in the future. See Seck, 663 F.3d at 1365. The
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threats occurred nearly twenty years ago, and Mendez-Velasquez does not know
what happened to the individuals who threatened him. Further, Mendez-Velasquez
does not challenge the IJ’s determination that he could avoid the threat by
relocating to another part of Mexico, which defeats a showing of future
persecution. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.
2003) (“An alien cannot demonstrate that he more-likely-than-not would be
persecuted on a protected ground if the IJ finds that the alien could avoid a future
threat by relocating to another part of his country.”).
Because Mendez-Velasquez has not shown a threat to his life or freedom if
he returns to Mexico, substantial evidence also supports the IJ’s determination that
Mendez-Velasquez did not demonstrate a likelihood that he would be tortured if
removed to Mexico. See Rodriguez Morales, 488 F.3d at 891. Nor is there any
indication that he would be tortured with the acquiescence of the Mexican
government. See id.
Accordingly, we DENY Mendez-Velasquez’s petition for review.

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