Saul Otoniel Gaspar-Gaspar, et al v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11754
Non-Argument Calendar
____________________
SAUL OTONIEL GASPAR-GASPAR,
EDGAR GASPER-JUAN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-893-010
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2 Opinion of the Court 23-11754
____________________
Before JILL PRYOR , N EWSOM, and A NDERSON , Circuit Judges.
PER CURIAM:
Saul Gaspar-Gaspar and his minor child, Edgar Gaspar-Juan,
petition for review of a decision from the Board of Immigration
Appeals affirming an immigration judge’s denial of Gaspar-Gas-
par’s application for asylum and withholding of removal. In the pe-
tition, Gaspar-Gaspar and his son argue that substantial evidence
does not support the Board’s denial of the asylum claim and that
the Board used the wrong standard to evaluate the withholding-of-
removal claim. After careful review, we deny the petition.
I.
Gaspar-Gaspar and Edgar are citizens of Guatemala who en-
tered the United States in 2016. After entering the country, Gaspar-
Gaspar and his son were charged with being removable as nonciti-
zens present in the United States without having been admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). In immigration proceed-
ings, they conceded removability.
Gaspar-Gaspar applied for asylum and withholding of re-
moval. Edgar was a derivative beneficiary of his father’s asylum ap-
plication. See id. § 1158(b)(3)(A) (providing that a child of an appli-
cant “who is granted asylum . . . may . . . be granted the same status
as the [parent]”).
In his application, Gaspar-Gaspar alleged that he suffered
past persecution and had a well-founded fear of future persecution
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23-11754 Opinion of the Court 3
in Guatemala on account of his race, as an indigenous Mayan, and
his membership in a particular social group. Gaspar-Gaspar as-
serted that he was a member of the following social groups:
(1) Guatemalan young men who were subjected to recruitment ef-
forts by the Mara-18 gang but rejected or resisted gang membership
because of their opposition to the gang’s values and activities,
(2) indigenous Guatemalan Mayans who were targets of discrimi-
nation and aggression from gang members, (3) young Guatema-
lans who were actively recruited by gangs but refused to join, and
(4) indigenous men from Guatemala who were beaten and threat-
ened with death for being a minority and refusing to join the Mara-
18 gang.
The immigration judge held a hearing on Gaspar-Gaspar’s
application. Gaspar-Gaspar testified at the hearing. He told the im-
migration judge that before he left Guatemala, the Mara-18 gang
had threatened and harmed him because of his Mayan race. He was
afraid that if he returned to Guatemala the gang would kill him or
his family.
Gaspar-Gaspar described how gang members targeted and
harassed members of the indigenous community where he grew
up. According to Gaspar-Gaspar, gang members would come to his
village every few weeks to “extort people” and sometimes “would
burn people.” AR at 134.1 Beginning in April 2010, when Gaspar-
Gaspar was 16 years old, gang members sought him out when they
1 “AR” refers to the administrative record.
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4 Opinion of the Court 23-11754
visited the village. On at least three occasions over the next two
years, gang members threatened to kill Gaspar-Gaspar or his family
if he did not join the gang. On the last occasion when gang mem-
bers visited Gaspar-Gaspar in the village, they demanded that he
pay them 60,000 quetzals.
In 2012, fearing for his safety, Gaspar-Gaspar fled from his
village to Guatemala City. Approximately 20 days later, gang mem-
bers tracked him down in Guatemala City and attacked him. They
pinned him against a wall and stabbed him in the leg with a knife.
Although he was in severe pain and barely able to walk, he did not
go to a hospital because he could not afford to pay for medical care.
Instead, he wrapped his leg and let the wound heal on its own.
Over the next few years, gang members threatened Gaspar-
Gaspar several more times. During one confrontation, armed gang
members struck him in the head with a pistol. Eventually he and
his son, Edgar, fled Guatemala and came to the United States.
At his immigration hearing, Gaspar-Gaspar was asked why
the Mara-18 gang had targeted him. He answered that it was be-
cause he was a young man and they wanted him to join the gang.
He also said that it was because he was an “indigenous Mayan” and
they wanted him “to join them.” Id. at 131.
The record before the immigration judge primarily con-
sisted of Gaspar-Gaspar’s testimony. The immigration judge also
considered the Department of State country reports for Guate-
mala. These reports noted that the “[s]ignificant human rights is-
sues in Guatemala” included “crimes involving violence or threats
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23-11754 Opinion of the Court 5
of violence targeting . . . members of indigenous groups.” Id. at 24–
25. The immigration judge also found that there was a “very high
level of criminality” in Guatemala. Id. at 88.
At the conclusion of the hearing, the immigration judge de-
nied Gaspar-Gaspar’s application for asylum and withholding of re-
moval. To be entitled to asylum, the immigration judge stated,
Gaspar-Gaspar had to show that he either had suffered past perse-
cution or had a well-founded fear of future persecution. She ex-
plained that he also had to establish a nexus by proving that a pro-
tected ground, such as race or membership in a particular social
group, was “one central reason” for the past persecution he experi-
enced or future persecution he feared. Id. at 87.
The immigration judge concluded that Gaspar-Gaspar was
not entitled to asylum. She considered his claim that he was enti-
tled to asylum based on his membership in a particular social
group. She concluded that none of Gaspar-Gaspar’s proposed
groups qualified as a particular social group, stating, “[r]esistance
to gang recruitment is not a particular social group as defined by
case law,” and “victims of gang violence are not considered to be
members of a particular social group pursuant to case law.” Id. at
88.
The immigration judge also addressed whether Gaspar-Gas-
par was entitled to asylum based on his allegation that he had been
or would be persecuted because of his race. Because there was no
evidence “that the gangs targeted him because he was Mayan,” she
concluded that he failed to establish that his “Mayan ethnicity was
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6 Opinion of the Court 23-11754
the basis for the threats and the harm he received from the gangs.”
Id. at 89. Thus, Gaspar-Gaspar failed to establish that “his race was
central to” the past persecution he suffered or the future persecu-
tion he feared. Id.
The immigration judge also rejected Gaspar-Gaspar’s appli-
cation for withholding of removal. She explained that to be entitled
to withholding of removal, he had to show that his “life or free-
dom” would be threatened in Guatemala “on account of” a pro-
tected ground such as race or membership in a particular social
group. Id. at 87. The immigration judge explained that Gaspar-Gas-
par had to establish “a clear probability of persecution” based on a
protected ground. Id. She concluded that because he had “not met
the lower burden” for his asylum claim, he also had “not met the
higher burden under withholding of removal.” Id. at 89.
Gaspar-Gaspar and Edgar appealed to the Board of Immigra-
tion Appeals. They argued that the immigration judge erred in
denying asylum and withholding of removal because the record
showed that Gaspar-Gaspar had suffered persecution in Guatemala
“on the account of being an indigenous person.” Id. at 15. In their
appellate brief, they acknowledged that both asylum and withhold-
ing of removal “share[d] a core requirement,” which was “a nexus
between the persecution and a protected ground.” Id. at 16. They
stated that it was “well-settled” that an applicant established the
“required nexus” when he demonstrated that a protected ground
“was or will be a central reason for” persecution. Id. at 17 (emphasis
added) (internal quotation marks omitted). Nowhere in their brief
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23-11754 Opinion of the Court 7
to the Board did they argue that a different, less-demanding nexus
standard applied to a withholding-of-removal claim.
The Board affirmed the immigration judge’s determination
that Gaspar-Gaspar was not eligible for asylum or withholding of
removal. It stated that to be entitled to either asylum or withhold-
ing of removal, Gaspar-Gaspar had to establish, among other
things, a “nexus” between the harm that he experienced or feared
and a protected ground. Id. at 4. To establish the requisite nexus
for both the asylum and withholding-of-removal claims, the Board
explained, Gaspar-Gaspar had to show that a protected ground was
“a central reason” for the claimed past or future harm. Id. (internal
quotation marks omitted).
The Board concluded that the immigration judge’s finding
that Gaspar-Gaspar had failed to establish a nexus was not clearly
erroneous. Because he had not established a “nexus between the
harm he experienced and fears and a protected ground,” the Board
concluded that he was not entitled to asylum or withholding of re-
moval. Id. at 5.
Gaspar-Gaspar and Edgar now petition this Court for re-
view.
II.
“We review the decision of the Board.” Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009) (internal quotation
marks omitted). We review the decision of the immigration judge
“to the extent that the Board expressly adopted” the immigration
judge’s opinion. Id. (internal quotation marks omitted). We review
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8 Opinion of the Court 23-11754
de novo the Board’s conclusions of law. Id. And we review its factual
determinations under a substantial evidence standard, which re-
quires us to “view the record evidence in the light most favorable
to the agency’s decision and draw all reasonable inferences in favor
of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th
Cir. 2004) (en banc). Findings of fact may be reversed “only when
the record compels a reversal.” Id. at 1027. “[T]he mere fact that
the record may support a contrary conclusion is not enough to jus-
tify a reversal of the administrative findings.” Id.
III.
On appeal, Gaspar-Gaspar and Edgar challenge the Board’s
decision denying the application for asylum and withholding of re-
moval. Regarding asylum, they argue that the record “compel[led]
a finding” that Gaspar-Gaspar’s past persecution and fear of future
persecution was on account of “his indigenous Mayan race or eth-
nicity.” Petitioners’ Br. 12–13. And as to withholding of removal,
they say that the Board erred because it applied the wrong standard
to evaluate whether there was a sufficient nexus between Gaspar-
Gaspar’s protected characteristics and the threats he faced if re-
moved to Guatemala. We address each issue in turn.
A.
We begin with the challenge to the denial of the asylum ap-
plication. Under the Immigration and Nationality Act (“INA”), an
undocumented immigrant who is present in the United States may
apply for asylum. 8 U.S.C. § 1158(a)(1). The government has the
discretion to grant asylum if an applicant establishes that he is a
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23-11754 Opinion of the Court 9
“refugee.” Id. § 1158(b)(1)(A). A refugee is a person “who is unable
or unwilling to return to” his country of nationality “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group,
or political opinion.” Id. § 1101(a)(42)(A).
To be eligible for asylum, an applicant must, “with specific
and credible evidence,” show “(1) past persecution on account of a
statutorily listed factor” or “(2) a well-founded fear that the statu-
torily listed factor will cause future persecution.” Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (internal quotation marks
omitted). 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) (al-
teration adopted) (internal quotation marks omitted).
We have described the requirement that an applicant must
show that any past or future persecution was, or would be, “on
account of a protected basis” as a “nexus” requirement. Perez-
Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1158 (11th Cir. 2019) (in-
ternal quotation marks omitted). To satisfy the nexus requirement,
an applicant must show that a protected characteristic—for exam-
ple, his race or membership in a particular social group—“was or is
‘at least one central reason’ for his persecution.” Id. (quoting
8 U.S.C. § 1158(b)(1)(B)(i)). A central reason is one that “is essential
to the motivation of the persecutor.” Sanchez-Castro v. U.S. Att’y
Gen., 998 F.3d 1281, 1286 (11th Cir. 2021) (internal quotation marks
omitted). “In other words, the protected ground cannot play a
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10 Opinion of the Court 23-11754
minor role in the [applicant’s] past mistreatment or fears of future
mistreatment. That is, it cannot be incidental, tangential, superfi-
cial, or subordinate to another reason for harm.” Id. (internal quo-
tation marks omitted). Evidence showing the applicant was the vic-
tim of criminal activity or acts of private violence does not establish
persecution based on a statutorily protected ground. Ruiz, 440 F.3d
at 1258.
Gaspar-Gaspar and Edgar challenge the Board’s determina-
tion that Gaspar-Gaspar failed to satisfy the nexus standard for the
asylum claim. They argue that the record established that Gaspar-
Gaspar’s status as an indigenous Mayan was one central reason for
his persecution in Guatemala. We disagree.
We cannot say that this record compels a conclusion that
Gaspar-Gaspar’s Mayan race played a central role in the gang’s de-
cision to target him. The record before us shows that (1) Gaspar-
Gaspar is an indigenous Mayan person, (2) he was harmed by mem-
bers of the Mara-18 gang in Guatemala, and (3) some criminals in
Guatemala target indigenous Mayan people. The only evidence
showing that Gaspar-Gaspar was targeted because he was Mayan
was his testimony that he believed the gang members had targeted
him because of his race. Even assuming a factfinder could conclude
based on this record that there was a nexus, “the mere fact that the
record may support a contrary conclusion is not enough to justify
a reversal of the administrative findings.” Adefemi, 386 F.3d at 1027.
We simply cannot say that the record required the agency to con-
clude that when the gang targeted Gaspar-Gaspar it was motivated
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23-11754 Opinion of the Court 11
by his race. We thus conclude that substantial evidence supported
the Board’s decision.
B.
We now turn to the challenge to the denial of Gaspar-Gas-
par’s application for withholding of removal. The INA prohibits the
government from removing a noncitizen in the United States to a
country where his “life or freedom would be threatened . . . be-
cause of [his] race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). To be
entitled to withholding of removal, an applicant must show that it
is more likely than not that he would be persecuted or tortured
upon his return to the country in question. Sanchez v. U.S. Att’y
Gen., 392 F.3d 434, 437 (11th Cir. 2004). We have recognized that
to be entitled to withholding of removal, an applicant must meet a
nexus requirement. See Perez-Sanchez, 935 F.3d at 1158.
In their petition, Gaspar-Gaspar and Edgar argue that the
Board applied too demanding a nexus standard when evaluating
the withholding-of-removal claim. They say that to be eligible for
withholding of removal, Gaspar-Gaspar needed to show only that
his race would be “a reason,” as opposed to “one central reason,”
for the threat he would face if returned to Guatemala. Petitioners’
Br. 19. They acknowledge that this Court in a published opinion
adopted the “one central reason” standard to evaluate nexus for a
withholding-of-removal claim. But they urge us to reject the rea-
soning of our precedent, saying that we overlooked that the nexus
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12 Opinion of the Court 23-11754
requirement for withholding-of-removal claims is “distinct” from
the nexus requirement for asylum claims. Id. at 20.
Before we reach the merits of this challenge, we must con-
sider whether Gaspar-Gaspar and Edgar exhausted their adminis-
trative remedies.2 The INA provides, in relevant part, that a “court
may review a final order of removal only if” the noncitizen “has
exhausted all administrative remedies available . . . as of right.”
8 U.S.C. § 1252(d)(1). This exhaustion requirement is satisfied
when a noncitizen “previously argued the core issue now on appeal
before the” Board. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297
(11th Cir. 2015) (internal quotation marks omitted). “Requiring ex-
haustion allows the [Board] to consider the niceties and contours
of the relevant arguments, thereby fully considering the peti-
tioner’s claims and compiling a record which is adequate for judi-
cial review.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250 (11th Cir. 2006) (alterations adopted) (internal quotation
marks omitted).
We cannot reach the merits of Gaspar-Gaspar and Edgar’s
challenge regarding the nexus requirement that applies to with-
holding-of-removal claims because they failed to exhaust adminis-
trative remedies. Although they now argue that an applicant for
2 We previously treated the INA’s exhaustion requirement as a jurisdictional
bar. But the Supreme Court recently held that this exhaustion requirement is
not jurisdictional but, rather, a claim-processing rule. Santos-Zacaria v. Garland,
598 U.S. 411, 419 (2023). Because it is a claim-processing rule, we must enforce
the exhaustion requirement where, as here, the government properly asserts
it. See Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 891 (11th Cir. 2023).
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23-11754 Opinion of the Court 13
withholding of removal establishes the requisite nexus if he shows
that a protected ground would be a reason—as opposed to a central
reason—for any threats he would face if removed, they did not
raise this argument to the Board. Instead, they told the Board that
it was “well-settled” that the “one central reason” standard applied
to withholding-of-removal claims. AR at 17 (internal quotation
marks omitted). Because they did not raise this ”core issue” in their
petition before the Board, we conclude that they failed to exhaust
administrative remedies. See Indrawati, 779 F.3d at 1297 (internal
quotation marks omitted); see also Murugan v. U.S. Att’y Gen.,
10 F.4th 1185, 1196 n.8 (11th Cir. 2021) (concluding that petitioner
failed to exhaust argument about the proper nexus standard when
petitioner failed to raise the argument before the Board).
But even if Gaspar-Gaspar and Edgar had adequately raised
this issue before the Board and exhausted administrative remedies,
we would have to deny their petition. As they acknowledge, we
previously adopted the “one central reason” standard to evaluate
whether an applicant established a sufficient nexus for a withhold-
ing-of-removal claim. See Sanchez-Castro, 998 F.3d at 1286. Gaspar-
Gaspar and Edgar argue that the reasoning in Sanchez-Castro is
flawed because the panel overlooked an argument about why a less
stringent nexus standard should apply in the withholding-of-re-
moval context. But under our prior panel precedent rule, we are
bound by Sanchez-Castro. See Smith v. GTE Corp., 236 F.3d 1292,
1303 (11th Cir. 2001) (“[W]e categorically reject any exception to
the prior panel precedent rule based upon a perceived defect in the
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14 Opinion of the Court 23-11754
prior panel’s reasoning or analysis as it relates to the law in exist-
ence at that time.”).
PETITION DENIED.
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