Delmy Huezo-Rivera, et al. v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10364
Non-Argument Calendar
____________________
DELMY HUEZO-RIVERA,
ADONAY ALVAREZ-HUEZO,
ARIADNA ORTEGA-HUEZO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-783-469
____________________
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2 Opinion of the Court 21-10364
Before LUCK, LAGOA, and EDMONDSON, Circuit Judges.
PER CURIAM:
Delmy Huezo-Rivera (“Petitioner”),1 a native and citizen of
El Salvador, petitions for review of the order by the Board of Im-
migration Appeals (“BIA”) affirming the decision of the Immigra-
tion Judge (“IJ”). The IJ’s decision denied Petitioner’s applications
for asylum and for withholding of removal.2 No reversible error
has been shown; we deny the petition.
Petitioner sought asylum and withholding of removal based
on her fear of future persecution3 by members of the Mara MS
gang in El Salvador on account of Petitioner’s membership in a par-
ticular social group: a group consisting of Petitioner’s family. On
10 June 2014, eight members of the MS gang approached Peti-
tioner’s then 11-year-old son (Adonay) as Adonay and his younger
sister walked to school. The MS gang members threatened to kill
Adonay unless he agreed to join their gang. The men told Adonay
1 Petitioner’s two minor children are included as riders on Petitioner’s appli-
cation for relief; so, our decision about Petitioner also applies to them.
2 The IJ also denied Petitioner relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment (“CAT”). Petitioner raised no challenge to the IJ’s denial of her CAT
claim either in her appeal to the BIA or in this appeal; that claim is not before
us.
3 Petitioner concedes expressly that the harm she suffered was not sufficiently
severe to constitute past persecution.
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21-10364 Opinion of the Court 3
that he had until 30 June to decide. After that incident, Petitioner
began accompanying her children to school.
On 12 June, two MS gang members approached Petitioner
and her children as they walked to school. The men grabbed Peti-
tioner and Adonay by their arms, demanded $18,000, and said they
knew that Petitioner’s parents and sisters lived in the United States.
The men threatened to kill Petitioner and her children if Petitioner
failed to deliver the money by 3 July. The men fled when a police
car drove by.
After Petitioner took her children to school, Petitioner re-
ported the incident to the police. Police officers specializing in
gangs and extortion interviewed Petitioner, opened an investiga-
tion, and offered Petitioner 24-hour protection. The officers ad-
vised Petitioner to return to her normal routine and said they
would be watching over her.
As Petitioner and her children walked to school the next day,
Petitioner saw different MS gang members. The men asked Peti-
tioner why she had filed a report with the police; the men said and
did nothing else. Later that day, Petitioner learned that one of
Adonay’s friends had been killed by MS gang members. Like Peti-
tioner, the friend’s parents also had family members living in the
United States, had been extorted by the MS gang, and had been
given 24-hour police protection. Petitioner no longer felt safe and
fled to the United States.
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4 Opinion of the Court 21-10364
We review only the decision of the BIA, except to the extent
the BIA adopts expressly the IJ’s decision.
See Gonzalez v. U.S.
Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Because the BIA
agreed expressly with parts of the IJ’s reasoning in this case, we re-
view the IJ’s decision to the extent of that agreement.
See id.
We review
de novo the BIA’s legal conclusions.
See id. We
review fact determinations under the “highly deferential substan-
tial evidence test” whereby we “must affirm the BIA’s decision if it
is ‘supported by reasonable, substantial, and probative evidence on
the record considered as a whole.’”
See Adefemi v. Ashcroft, 386
F.3d 1022, 1026-27 (11th Cir. 2004) (
en banc). 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.”
Id. at
1027. To reverse a fact finding, we must conclude “that the record
not only supports reversal, but compels it.”
See Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An asylum applicant bears the burden of proving statutory
“refugee” status with specific and credible evidence.
Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005). A “refugee”
means a person unable or unwilling to return to his country of na-
tionality “because of persecution or a well-founded fear of persecu-
tion on account of” a protected ground, including membership in
a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1),
(b)(1).
The IJ denied Petitioner’s application for asylum. In perti-
nent part, the IJ concluded that Petitioner failed to demonstrate
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21-10364 Opinion of the Court 5
sufficiently a nexus between her mistreatment and a statutorily-
protected ground. The IJ determined that Petitioner failed to
demonstrate that she had been targeted because of her family ties
and determined, instead, that Petitioner had been targeted based
upon the gang’s perception that Petitioner had access to money
through her United-States-based family.
Petitioner appealed to the BIA. The BIA affirmed the IJ’s
decision, concluding that Petitioner had not shown that she was or
would be targeted for persecution on account of her family mem-
bership.
To satisfy the “on account of” or “nexus” requirement, an
applicant need not show that a protected ground is “the
only mo-
tivation for the persecution.”
Sanchez Jiminez v. U.S. Att’y Gen.,
492 F.3d 1223, 1232 (11th Cir. 2007) (emphasis in original). But an
applicant must demonstrate “that a protected ground ‘was or will
be at least one central reason’” for persecution.
See 8 U.S.C. §
1158(b)(1)(B)(i);
Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281,
1286 (11th Cir. 2021). “A reason is central if it is ‘essential’ to the
motivation of the persecutor” and not merely “incidental, tangen-
tial, superficial, or subordinate to another reason for harm.”
Sanchez-Castro, 998 F.3d at 1286. “[E]vidence that either is con-
sistent with acts of private violence or the petitioner’s failure to co-
operate with guerillas, or that merely shows that a person has been
the victim of criminal activity, does not constitute evidence of per-
secution based on a statutorily protected ground.”
Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006).
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6 Opinion of the Court 21-10364
On appeal, Petitioner first contends that the BIA applied an
incorrect legal standard in assessing Petitioner’s mixed-motive asy-
lum claim. Petitioner says the BIA erred by requiring her to estab-
lish that her membership in a particular social group (her family)
was “the one central reason” (instead of “at least one central rea-
son”) for her mistreatment by the MS gang. Petitioner miscon-
strues the BIA’s decision. Contrary to Petitioner’s assertion, the
BIA stated expressly that -- in a mixed-motive case -- Petitioner was
required to show that her family membership “was or will be at
least one central reason” for her feared mistreatment.
We also reject Petitioner’s assertion that, by citing to our de-
cision in
Ruiz, the BIA crafted impermissibly a “categorical rule”
that an asylum applicant in a mixed-motive case fails to satisfy the
nexus requirement when one motivation for the persecution is not
a protected ground. The BIA said correctly (citing to both
Ruiz and
BIA precedent) that “merely” being a victim of criminal activity or
an act of private violence does not satisfy the nexus requirement.
Never did the BIA hint that being a victim of criminal activity was
a categorical bar to relief.
Petitioner next contends that the record compels the conclu-
sion that her family membership was one of the central reasons for
her mistreatment by the MS gang. We disagree.
We have distinguished “persecution of a family as a means
to an unrelated end from persecution based on animus against a
family
per se.”
See Sanchez-Castro, 998 F.3d at 1287. “Where a
gang targets a family only as a means to another end, the gang is
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21-10364 Opinion of the Court 7
not acting because of who the family is; the identity of the family
is only incidentally relevant.”
Id. In
Sanchez-Castro, the petitioner
asserted that members of the MS-13 gang in El Salvador “targeted
her family [for extortion] based on the assumption that her father’s
work in the United States made [the family] wealthy.”
Id. at 1283.
Because nothing evidenced that the MS-13 gang harbored particu-
lar animus toward petitioner’s family
per se -- and was instead tar-
geting the family because of the family’s perceived wealth -- we
concluded that substantial evidence supported the BIA’s finding
that petitioner’s family membership was no central reason for her
mistreatment.
Id. at 1287-88.
In contrast, in
Perez-Sanchez, we concluded that the peti-
tioner’s family membership did constitute a central reason for pe-
titioner’s mistreatment by a Mexican drug cartel.
See Perez-
Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1158-59 (11th Cir. 2019).
There, the record evidenced that the drug cartel targeted petitioner
for extortion specifically because the petitioner’s father-in-law had
lost a shipment of cocaine belonging to the cartel.
Id. at 1150, 1158.
When the cartel was unable to locate petitioner’s father-in-law, the
cartel sought repayment of the father-in-law’s outstanding debt
from petitioner.
Id. at 1151. Given the record in that case, we said
that “[a]bsent the familial relationship between [petitioner and his
father-in-law], the cartel would never have hunted [petitioner]
down to begin with . . ..”
Id. at 1158. The record thus compelled
the conclusion that petitioner’s family ties constituted a central
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8 Opinion of the Court 21-10364
reason -- and not merely an incidental role -- in the cartel’s decision
to target petitioner.
Id. at 1158-59.
The circumstances presented in this appeal are more similar
to the circumstances involved in
Sanchez-Castro than to those in-
volved in
Perez-Sanchez. Like the petitioner in
Sanchez-Castro,
nothing in the record compels the conclusion that the MS gang
members targeted Petitioner based on animosity specifically to-
ward Petitioner’s family, in themselves. Instead, substantial evi-
dence supports a finding that the MS gang perceived Petitioner as
having access to money because Petitioner’s family members lived
in the United States and, thus, targeted Petitioner for financial gain.
The individual identity of Petitioner’s family members (beyond
merely that they resided in the United States) was “only inci-
dentally relevant” to -- and not a central reason for -- the MS gang’s
decision to target Petitioner.
See Sanchez-Castro, 998 F.3d at 1286-
87. In a similar way, the record also supports an inference that the
MS gang attempted to recruit Adonay not because of the identity
of Petitioner’s family, but because the gang often recruited children
to serve as lookouts.
See id. (concluding that the record supported
the inference that the harm to petitioner’s family members -- in-
cluding attempted kidnapping, physical assault, and sexual harass-
ment -- were the result of the gang’s ordinary criminal activity un-
related to petitioner’s family status).
The record compels no conclusion that Petitioner was or
would be targeted by the MS gang “on account of” her family
membership. Substantial evidence supports the BIA’s
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21-10364 Opinion of the Court 9
determination that Petitioner was unentitled to asylum. Because
Petitioner has not satisfied her burden of establishing eligibility for
asylum, she is unable to demonstrate eligibility for withholding of
removal.
See Forgue, 401 F.3d at 1288 n.4.
PETITION DENIED.
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