Jesus Ramos-Garcia v. Pamela Bondi,1 Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 23-3225
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Jesus Ramos-Garcia
Petitioner
v.
Pamela Bondi,1 Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 21, 2024
Filed: March 14, 2025
[Unpublished]
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Before LOKEN, SMITH, and GRASZ, Circuit Judges.
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PER CURIAM.
Jesus Ramos-Garcia petitions for review of a Board of Immigration Appeals
(BIA) order upholding an immigration judge’s (IJ) denial of his application for
asylum and withholding of removal. We affirm.
1 Attorney General Bondi is automatically substituted for her predecessor
under Federal Rule of Appellate Procedure 43(c)(2).

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I. Background
Ramos-Garcia is a native and citizen of Mexico. While in Mexico, members
of a criminal cartel harassed Ramos-Garcia and his cousin while they were at work
to influence them to sell drugs for the cartel. This happened three to four times per
week for an unspecified, prolonged period. One day in June 2012, Ramos-Garcia
and his cousin were driving home from work when men believed to be “narco
criminals” reached in the car and stabbed Ramos-Garcia. His cousin escaped from
the car and ran away to Monterrey, Mexico, where he was later murdered. Police
responded to the scene, but the assailants had escaped. Ramos-Garcia testified that
there was a police report, but he was unsure if the assailants were ever caught. In his
testimony, he attributed these events to their refusal to sell drugs for the cartel.
Ramos-Garcia legally entered the United States in January 2016,
accompanied by his wife and three children, with permission to remain until June
2016. The family overstayed their visa. In March 2018, immigration officers
detained Ramos-Garcia during a fugitive investigation. The Department of
Homeland Security charged Ramos-Garcia with removability under 8
U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than permitted.
Ramos-Garcia admitted that the allegations in the Notice to Appear were true and
conceded his removability. The IJ sustained the charge of removal.
In October 2019, Ramos-Garcia filed an application for asylum and
withholding of removal based on membership in a particular social group and
political opinion. His claimed particular social group was “persons who have
suffered violence and who have a well-founded fear of future violence for which the
Mexican government is unable and unwilling to control.” A.R. 73 (capitalization
altered). He also claimed holding an anti-crime, anti-gang political opinion.
The IJ denied Ramos-Garcia’s application. First, the IJ found that Ramos-
Garcia was not eligible for asylum. Asylum applications must be filed within one
year of entering the United States, but Ramos-Garcia filed his application over three
years after entering the United States. Ramos-Garcia argued for an exception to the

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one-year bar based on his ignorance of the one-year bar, his fear, and the current
crime levels in Mexico. The IJ rejected those excuses because there was no
testimony or evidence to support the claims, only argument through counsel. Further,
to the extent Ramos-Garcia argued that there were changed circumstances in
Mexico, the IJ rejected that argument because Ramos-Garcia’s basis for the
application—fear of criminals—existed when he entered the country.
Second, the IJ denied his request for withholding of removal. The IJ concluded
that Ramos-Garcia could not establish persecution. First, private actors, not the
government, harmed him. Second, he did not show that the Mexican government
was unable or unwilling to protect him from those private actors. In fact, police
responded to the crime scene, took a police report, and tried to apprehend the
assailants. Further, Ramos-Garcia’s particular social group was not cognizable
because it was “impermissibly circularly defined and [was] otherwise made up of
legal conclusions.” Id. at 75. He also showed no nexus between the social group that
he identified and the harm suffered because past harm defined the social group. For
his claimed political opinion, the IJ found that Ramos-Garcia could not establish a
nexus between the political opinion and the harm. His harm resulted from refusing
to sell drugs for the cartel, and there was no evidence that the gang attributed a
political opinion to him.
Ramos-Garcia appealed the IJ’s decision, and the BIA affirmed for essentially
the reasons stated by the IJ—untimeliness, an incognizable social group, and lack of
proof that his political opinion motivated the mistreatment. On appeal, Ramos-
Garcia argues that the BIA erred on each of its conclusions.
II. Discussion
“We will uphold the denial of asylum and withholding of removal if the
decision is supported by substantial evidence in the record.” Prieto-Pineda v. Barr,
960 F.3d 516, 519 (8th Cir. 2020). This is a “deferential standard,” and
“administrative findings of fact are conclusive unless any reasonable adjudicator

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would be compelled to conclude to the contrary.” Id. (internal quotation marks
omitted). We review legal determinations de novo. Id.
A. Asylum
An asylum applicant must apply within one year of entering the United States.
8 U.S.C. § 1158(a)(2)(B). An untimely application may be considered “if the alien
demonstrates to the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s eligibility for asylum
or extraordinary circumstances relating to the delay in filing an application.”
Id. § 1158(a)(2)(D). Courts do not have “jurisdiction to review any determination of
the Attorney General” under § 1158(a)(2). Id. § 1158(a)(3).
Ramos-Garcia filed his asylum application in October 2019, over three years
after he entered the United States. The IJ and BIA found that he did not establish an
exception to the one-year bar because he did not demonstrate extraordinary or
changed circumstances. This court does not have jurisdiction to review the agency’s
determination that Ramos-Garcia did not establish an exception to the one-year bar.
Pacheco-Moran v. Garland, 70 F.4th 431, 438 (8th Cir. 2023) (“The IJ’s finding
that [Petitioner] did not demonstrate extraordinary or changed circumstances is an
unreviewable discretionary judgment of the Attorney General.”); see also Cambara–
Cambara v. Lynch, 837 F.3d 822, 825 (8th Cir. 2016).
B. Withholding of Removal
The Attorney General must withhold removal upon a determination that the
applicant’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). Ramos-Garcia “must establish a clear
probability that his life or freedom would be threatened” because of the protected
group or opinion. Pacheco-Moran, 70 F.4th at 437 (internal quotation marks
omitted). This “clear probability” standard for withholding of removal is stronger
than the “well-founded fear” standard for asylum. See La v. Holder, 701 F.3d 566,
573 (8th Cir. 2012).

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Further, Ramos-Garcia must demonstrate a nexus between the protected
ground and the persecution, which means that he must show that the protected
ground was one central reason for the harm. See Durakovic v. Garland, 101 F.4th
989, 996 (8th Cir. 2024). Under this standard, the “protected ground need not be the
sole reason for persecution, but the protected ground cannot be incidental or
tangential to the persecutor’s motivation.” Garcia-Moctezuma v. Sessions, 879 F.3d
863, 868 (8th Cir. 2018) (internal quotation marks omitted).
1. Particular Social Group
Ramos-Garcia argues membership in the particular social group of “persons
who have suffered violence and who have a well-founded fear of future violence for
which the Mexican government is unable and unwilling to control.” Appellant’s Br.
at 8 (capitalization altered). The IJ and BIA both held that this group was not
cognizable because it was impermissibly circular. “Whether a group is a particular
social group presents a question of law, which we review de novo.” Ngugi v. Lynch,
826 F.3d 1132, 1137–38 (8th Cir. 2016) (internal quotation marks omitted).
A particular social group is: “(1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question.” Id. at 1138 (internal quotation marks omitted). The
group must be “defined by characteristics that provide a clear benchmark for
determining who falls within the group” and must be “discrete and have definable
boundaries—it must not be amorphous, overbroad, diffuse, or subjective.” Fuentes
v. Barr, 969 F.3d 865, 871 (8th Cir. 2020) (per curiam) (internal quotation marks
omitted). “[P]ersecutory conduct alone cannot define the group.” Id. (quoting Rivas
v. Sessions, 899 F.3d 537, 541 (8th Cir. 2018)).
We agree with the BIA’s determination that Ramos-Garcia’s proposed social
group is not cognizable. The putative group is defined solely by persecutory conduct.
It does not “exist independently of the persecution.” De Guevara v. Barr, 919 F.3d
538, 540 (8th Cir. 2019) (internal quotation marks omitted); Matter of W-G-R-, 26
I. & N. Dec. 208, 215 (BIA 2014) (“Circuit courts have long recognized that a social

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group must have ‘defined boundaries’ or a ‘limiting characteristic,’ other than the
risk of being persecuted, in order to be recognized.”). The putative group is
comprised of people who suffered harm and have a well-founded fear of future harm.
This description incorporates the test for asylum and withholding of removal. See
Rivas, 899 F.3d at 541 (“An applicant is eligible for asylum if she is unable or
unwilling to return to her country because of persecution or a well-founded fear of
persecution . . . .” (internal quotation marks omitted)). The modifier “for which the
Mexican government is unable and unwilling to control” also originates from the
persecution test for when the harm is caused by a private actor. See Prieto-Pineda,
960 F.3d at 520. Thus, this social group is not cognizable because it is defined by
legal conclusions from the persecution test.
2. Political Opinion
Ramos-Garcia also argues persecution on account of his anti-crime and anti-
gang political opinion. The IJ and BIA rejected this argument because he did not
show a nexus between the claimed political opinion and the harm. We review the
BIA’s nexus determination under the deferential substantial evidence standard and
“will reverse only if we determine that a reasonable factfinder would have to
conclude” that the protected ground motivated the persecutor’s actions. See Garcia-
Moctezuma, 879 F.3d at 869 (cleaned up).
We agree with the BIA’s conclusion that Ramos-Garcia has not demonstrated
that his claimed political opinion was one central reason for the harm he suffered in
Mexico. See Gomez-Rivera v. Sessions, 897 F.3d 995, 999 (8th Cir. 2018) (denying
asylum and withholding of removal because the evidence did not compel a finding
that petitioner was persecuted for an anti-gang political opinion rather than a concern
for recruiting new members and finding insufficient evidence that the gang attributed
any political opinion to the petitioner); Marroquin-Ochoma v. Holder, 574 F.3d 574,
578–79 (8th Cir. 2009) (denying asylum to a petitioner who left Guatemala because
gang members threatened and pressured her to join the gang); Prieto-Pineda, 960
F.3d at 521 (denying asylum and withholding of removal because “[a]lthough the
Mara 18 gang may have some political motivations, the record here supports a

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finding that Prieto-Pineda was harassed for refusing to provide rides, not for any
political opposition to the gang”); Garcia v. Holder, 746 F.3d 869, 873 (8th Cir.
2014) (denying withholding of removal because “nothing in the record suggests that
MS–13 targeted [petitioner] for political reasons” but “the gang [instead] attacked
him for resisting its extortionate demands”).
Ramos-Garcia argues that he was stabbed for refusing to work with the gang,
but “refusal to join the gang is not necessarily politically motivated.” Marroquin-
Ochoma, 574 F.3d at 578–79. “[T]he mere refusal to join [a gang], without more,
does not compel a finding that the gang’s threats were on account of an imputed
political opinion.” Id. at 579. Ramos-Garcia has not shown that the criminals who
harmed him attributed any political opinion to him, so he cannot show that his anti-
gang or anti-crime political opinion was a central reason for any persecution.
III. Conclusion
Accordingly, we deny the petition for review.
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