Ernesto Nunez-Avina v. Eric Holder, Jr.

Filing

OPINION filed : The petition for review is DENIED, decision not for publication. John M. Rogers, Circuit Judge (Authoring); Bernice Bouie Donald, Circuit Judge and Thomas M. Rose, U.S. District Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0693n.06

FILED

No. 15-3058

Oct 13, 2015
DEBORAH S. HUNT, Clerk

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
ERNESTO NUNEZ-AVINA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

BEFORE:

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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

ROGERS and DONALD, Circuit Judges; ROSE, District Judge.

ROGERS, Circuit Judge.

Ernesto Nunez-Avina is a Mexican citizen who seeks

withholding of removal. Nunez-Avina claims that, if he returns to Mexico, he will be targeted
by gangs for robbery and extortion because he will be seen as a wealthy, Americanized Mexican.
The Board of Immigration Appeals denied his application for withholding of removal, in part
because it found that he did not establish that he was likely to be harmed upon his return to
Mexico. Although Nunez-Avina makes several arguments in his petition for review, the BIA’s
finding was supported by substantial evidence and disposes of most of his arguments. NunezAvina’s other arguments lack merit.
In 2011, the Department of Homeland Security (DHS) began removal proceedings
against Nunez-Avina. DHS charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as
an alien present in the United States without having been admitted or paroled. Nunez-Avina

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conceded removability but sought withholding of removal and protection under the Convention
Against Torture. Nunez-Avina sought withholding of removal based on a statute that prohibits
the Attorney General from removing an alien to a country if “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). Nunez-Avina claimed
that he would be persecuted in Mexico because he was a member of a particular social group,
Americanized Mexicans, and because of imputed nationality, i.e., he would be mistakenly taken
to be a United States citizen. See 8 U.S.C. § 1231(b)(3)(A). After a hearing, the Immigration
Judge (IJ) denied his application for relief.
At the hearing, Nunez-Avina proffered several witnesses and affidavits in support of his
claim. Leopoldo Francisco Orozco, a United States citizen who had emigrated from Mexico,
testified that he had recently travelled to Mexico and felt unsafe. He also admitted that, despite
being Americanized and well-known as a United States citizen, he had never been threatened or
harmed during any of his several visits to Mexico. Juan Castillo Ramirez, also a United States
citizen who had emigrated from Mexico, testified that drug cartels targeted travelers from the
United States because they believed those travelers had money. He also testified that he had
been too scared to return to Mexico, that armed robbers had attacked a bus his brother was riding
in Mexico, and that his children had been approached by drug dealers at a shopping mall during a
recent visit to Mexico. He admitted that his children had not been threatened or harmed during
their visit. Maria Serna, who was married to a Mexican citizen, testified that she had never been
to Mexico but had heard that it was unsafe.
Nunez-Avina also offered his own testimony. He testified that his parents still lived in
Mexico and had been able to avoid the gangs by not taking calls and not leaving their house in

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the evening. However, he contradicted himself by testifying that, eight months before the
hearing, unknown people told his parents that that they would kill him unless his parents paid
them money. When asked whether his parents paid that money, he replied, “Of course not.”
Neither he nor his parents were harmed. In his application, he claimed that two of his second
cousins, Andres Murillo and Javier Ballesteros, were kidnapped and killed by drug cartels in
2011. However, at the hearing, Nunez-Avina testified that Javier escaped his kidnappers and
returned to the United States.
Nunez-Avina submitted several affidavits from family members and acquaintances that
suggested that he would be targeted by gangs for robbery or extortion because he had lived in the
United States. These affidavits did not mention Andres or Javier or indicate that Nunez-Avina’s
parents had ever been threatened or harmed. He also submitted various documents describing
conditions in Mexico, including two State Department reports.
At the end of the hearing, the IJ issued an oral decision denying Nunez-Avina relief.
While the IJ acknowledged criminals in Mexico might target Nunez-Avina because of his
wealth, the IJ noted that Nunez-Avina’s wealth was not a basis for withholding of removal.
Next, the IJ concluded that Nunez-Avina was not credible because of inconsistences between his
application, affidavits, and testimony. The IJ also observed that some affidavits appeared to
have been forged because they had been notarized before they were typed. Apart from the
adverse credibility determination, the IJ concluded that Nunez-Avina had not shown that
Americanized Mexicans were a social group eligible for protection under the removal statute or
that he would be persecuted because of his membership in that group. The IJ also found that
Nunez-Avina had failed to show that it was “more likely than not that he would be harmed at all

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if he went back to Mexico, let alone” for reasons that would make him eligible for withholding
of removal or protection under the Convention Against Torture.
The BIA affirmed. It determined that Nunez-Avina had not shown that he was likely to
be persecuted or tortured if he returned to Mexico, had not shown that any persecution or torture
would be because of his status as an Americanized Mexican or his imputed nationality, and had
not shown that Americanized Mexicans were a social group eligible for protection. The Board
did not rely on the IJ’s adverse credibility determination.
Nunez-Avina petitions for review. He requests remand in light of three recent decisions
of the BIA and Sixth Circuit concerning the definition of “a particular social group,” and he
argues that the BIA erred in not distinguishing between his particular social group and imputed
nationality claims. He also requests that the court take judicial notice of State Department and
DHS reports on Mexico and immigration. Because Nunez-Avina failed to show that he would
likely be persecuted if he returned to Mexico, it is unnecessary to decide whether he is a member
of a particular social group or had an imputed nationality, or to remand the case for those
purposes. He also argues that the BIA abused its discretion in failing to address a motion to
remand, but that argument lacks merit because the BIA did address his motion.
Substantial evidence supports the BIA’s findings that Nunez-Avina was not likely to be
persecuted if he returned to Mexico, and that in any event he was “not likely to be persecuted or
tortured as a result of being perceived as ‘Americanized’ claimed as an ‘imputed nationality.’”
Nunez-Avina admitted that he had never been harmed in Mexico. He testified that his parents
had never been kidnapped or physically harmed, despite their having started a business,
remodeled their home, and bought cars and clothes with money he had remitted. Although he
claimed that, eight months earlier, a gang had demanded money from his parents, he also

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admitted that they never paid, and were never harmed. Two of Nunez-Avina’s witnesses—both
immigrants who had lived in the United States longer than he had—testified that they had
repeatedly visited Mexico without being harmed. One of those witnesses, Juan Castillo Ramirez,
allowed his minor children to visit Mexico, and they were not threatened or harmed during their
visit. Considered cumulatively, this evidence supports the BIA’s finding.
It is true that for the purposes of his petition for review, the court must assume that he
was credible. An assumption about Nunez-Avina’s credibility does nothing to disturb the BIA’s
finding that Nunez-Avina was not likely to be persecuted or tortured upon return to Mexico. The
IJ’s adverse credibility determination was an alternative reason for rejecting Nunez-Avina’s
application. Indeed, the BIA affirmed the IJ’s finding, even as it expressly declined to reach the
issue of credibility.
Any remand for reconsideration to determine whether Americanized Mexicans are a
“particular social group” is unnecessary. Nunez-Avina requests that his case be remanded to the
IJ for reconsideration in light of recent decisions of the BIA and the Sixth Circuit concerning the
definition of “particular social group,” although the BIA cited these very precedents.

See

Umana-Ramos v. Holder, 724 F.3d 667 (6th Cir. 2013); Matter of M-E-V-G-, 26 I. & N. Dec.
227, 2014 WL 524499 (B.I.A. 2014); Matter of W-G-R-, 26 I. & N. Dec. 208, 2014 WL 524498
(B.I.A. 2014). Nunez-Avina argues that these decisions fundamentally changed the standard
applicable to his withholding application and that due process compelled the BIA to remand to
the IJ with the opportunity for Nunez-Avina to present new arguments and evidence. However,
any error concerning whether Americanized Mexicans are a particular social group did not affect
the outcome of the proceeding because Nunez-Avina did not sufficiently show that he is likely to
be persecuted on that basis in Mexico, which is a necessary element of his claim for withholding

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of removal. “To prevail on a due process challenge, an alien must demonstrate not only error,
but also substantial prejudice, or show the alleged violation affected the outcome of the
proceeding.” Fayzullina v. Holder, 777 F.3d 807, 815 (6th Cir. 2015). Both the IJ and BIA
determined that Nunez-Avina failed to show likelihood of persecution based on the asserted
categories, and a change in law concerning the definition of a particular social group provides no
reason to revisit this determination.
Contrary to Nunez-Avina’s argument, the BIA did address his motion for remand.
Nunez-Avina argues that the BIA abused its discretion by failing to rule on his motion to remand
for reconsideration in light of Umana-Ramos. In his motion for remand before the BIA, NunezAvina failed to provide any additional evidence showing that he would be eligible for
withholding of removal under Umana-Ramos if a new hearing was granted. In its opinion, the
BIA acknowledged Umana-Ramos and determined that Nunez-Avina had not shown that
Americanized Mexicans had “sufficient social distinction” or were “defined with sufficient
particularity” to qualify as a particular social group for withholding of removal. The BIA
concluded its opinion by stating that it found “no basis to remand” the case. Although the BIA
must “consider the issues raised,” it “need not write an exegesis on every contention.” Scorteanu
v. INS, 339 F.3d 407, 412 (6th Cir. 2003).
We have considered the other arguments and “motions” in petitioner’s brief and
determine that they do not affect our decision.
The petition for review is denied.

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