Jose Chavez-Gutierrez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11513
Non-Argument Calendar
____________________
JOSE EDUARDO CHAVEZ-GUTIERREZ,
a.k.a. Fabricio Jose Chavez Flores,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A077-317-253
____________________
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2 Opinion of the Court 23-11513
Before R OSENBAUM , GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Jose Chavez-Gutierrez seeks review of the Board of Immi-
gration Appeals’ (BIA) denial of his application for asylum and
withholding of removal. He argues that the BIA erred in affirming
the Immigration Judge’s (IJ) finding that his asylum application was
untimely and in affirming the IJ’s alternative finding that that he
failed to establish eligibility for withholding of removal. He con-
tends that substantial evidence does not support the IJ’s finding.
For the reasons below, Chavez-Gutierrez’s petition is denied.
I. Background
Chavez-Gutierrez, a native and citizen of El Salvador, en-
tered the United States without authorization on May 23, 2001. On
June 3, 2001, the Department of Homeland Security served
Chavez-Gutierrez with a Notice to Appear (NTA), charging him
with removal under Immigration and Nationality Act (INA)
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the
United States without admission or parole,1 and requiring him to
appear before an IJ in Los Angeles, California, on October 16, 2001,
1 Under 8 U.S.C. § 1182(a)(6)(A)(i), “[a]n alien present in the United States
without being admitted or paroled, or who arrives in the United States at any
time or place other than as designated by the Attorney General, is inadmissi-
ble.”
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23-11513 Opinion of the Court 3
for a removal hearing. Chavez-Gutierrez failed to appear at the
hearing, and the IJ ordered him removed in absentia.
On June 1, 2017, Chavez-Gutierrez moved to reopen the
case and to change the venue to Miami, Florida. On June 15, 2001,
the IJ granted his motion to reopen and his request to change venue
to Miami, Florida.
On November 3, 2017, Chavez-Gutierrez applied for asy-
lum, withholding of removal, and relief under the United Nations
Convention Against Torture (CAT). He based his asylum and
withholding of removal claims on his membership in a particular
social group. Specifically, he alleged that two Mara 18 gang mem-
bers severely beat him, held a knife to his stomach, and threatened
him. He expressed fear for his life upon returning to El Salvador,
citing the pervasive influence of gangs throughout the country and
the inability of corrupt police to assist those targeted by gangs.
A. Hearing Before Immigration Judge
On May 3, 2018, an IJ conducted a merits hearing. Chavez-
Gutierrez provided testimony about his reasons for leaving El Sal-
vador in 2001 due to threats and violence caused by gangs. During
the hearing, Chavez-Gutierrez recounted multiple incidents illus-
trating the dangers he faced.
In one instance, three Mara 18 gang members armed with
knives sought to recruit him, threatening to beat him or “make him
disappear” if he refused. On another occasion, over four Mara 18
gang members approached him to discuss joining the gang. When
he declined, they resorted to threats and physical violence,
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4 Opinion of the Court 23-11513
demanding his participation. In a separate encounter, four Mara 18
gang members assaulted and threatened him, throwing him to the
ground, hitting him in the face and stomach, and warning that they
would kill him if he did not join. He did not know the reasons for
the gang’s insistence on recruiting him.
Before fleeing El Salvador, Chavez-Gutierrez was ap-
proached once more but managed to escape. In a related incident
in 2000, he had a confrontation with the MS gang, where he was
beaten, robbed of his money, and pressured to join their gang.
Following these encounters, Chavez-Gutierrez fled El Salva-
dor. He explained that relocating within the country was not a vi-
able option due to the omnipresence of gangs. Adding to his ap-
prehension, he was aware of two friends who were killed for refus-
ing to join a gang. Still, he did not report these incidents to the
police, seek medical treatment, or sustain any injuries as a result of
these encounters.
B. The IJ’s Decision
In an oral decision, the IJ denied Chavez-Gutierrez’s applica-
tion for asylum, withholding of removal, and CAT relief. The IJ
found Chavez-Gutierrez’s testimony at the removal hearing credi-
ble. Despite the incidents occurring more than fifteen years ago,
the IJ found Chavez-Gutierrez’s responses candid and consistent.
The IJ then determined that Chavez-Gutierrez’s asylum ap-
plication was untimely, noting that it was filed over fifteen years
after he entered the United States. The IJ rejected his argument
that lack of legal knowledge constituted a valid excuse for the delay
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23-11513 Opinion of the Court 5
and also dismissed claims of changing circumstances in El Salvador,
finding insufficient evidence to support such changes.
Alternatively, the IJ addressed the merits of Chavez-
Gutierrez’s application for asylum and concluded that he failed to
meet his burden of proof. He had not shown a well-founded fear
of persecution, as the beatings he described appeared minor with-
out resulting in injury or the need for medical attention. The IJ
also noted discrepancies between Chavez-Gutierrez’s testimony
and his application, including that he did not testify that a knife was
held to his stomach as he stated in his application for asylum. And
because he failed to provide evidence that the gang members who
harmed him would likely seek to do so again, the IJ determined
that he also did not establish a well-founded fear of future persecu-
tion.
Assuming that Chavez-Gutierrez established past persecu-
tion or a well-founded fear of future persecution, he failed to estab-
lish a nexus between the persecution and a protected ground. The
IJ found that his proposed social group—“Catholics and family
members from El Salvador who resist intimidation and oppose re-
cruitment efforts by Mara 18 based on personal moral and religious
opposition to the gang’s values and activities”—was not cognizable
because of a lack of social distinction. Moreover, he failed to estab-
lish a nexus between the proposed social group and the harm he
suffered because the gang members harmed him as a part of their
criminal activity. Having been the victim of criminal activity is not
a basis for asylum.
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6 Opinion of the Court 23-11513
The IJ also rejected the argument that the gang’s effort to
recruit him constituted a protected ground, finding that he was not
targeted based on any aspect of his membership in the proposed
social group. The IJ underscored Chavez-Gutierrez’s testimony
that he was unsure why the gang members targeted him.
Thus, the IJ denied Chavez-Gutierrez’s claim for asylum,
withholding of removal, and CAT relief, finding that he neither
met his burden for asylum nor the higher burden for withholding
of removal and CAT relief.
C. Appeal to the BIA
Chavez-Gutierrez timely appealed the IJ’s decision to the
BIA and simultaneously submitted a request for consideration of
Mendez-Rojas class membership.2
In his brief, Chavez-Gutierrez raised three key arguments.
First, he argued that because of the settlement agreement in Men-
dez-Rojas v. Wolf, the IJ erred in finding his asylum application un-
timely. Second, he argued that the IJ’s conclusion that he failed to
meet the burden of establishing an asylum claim was erroneous.
Chavez-Gutierrez maintained that—considering the totality of the
circumstances—his credible testimony and detailed information
showed he was a refugee unwilling or unable to return to El
2 On November 4, 2020, the District Court for the Western District of Wash-
ington approved a settlement agreement in Mendez Rojas v. Wolf, No. 2:16-CV-
01024-RSM (W.D. Wash. Nov. 4, 2020). This was a class-action lawsuit per-
taining to the one-year filing deadline for asylum applications.
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23-11513 Opinion of the Court 7
Salvador, having suffered past persecution or harboring a well-
founded fear of future persecution based on his membership in a
particular social group. Last, he asserted that the IJ’s denial of his
asylum application violated due process, as the IJ required precise
boundaries for the particular social group he invoked, unlike other
asylum-protected grounds.
The BIA dismissed the appeal. After noting that the IJ found
Chavez-Gutierrez’s asylum application untimely, the BIA focused
on the IJ’s alternative decision that Chavez-Gutierrez failed to meet
the burden of proof required for asylum. The BIA found no clear
error in the factual findings underpinning the IJ’s denial of asylum,
explaining that the threats, beatings, and the gangs’ efforts to re-
cruit Chavez-Gutierrez did not rise to the level of persecution.
The BIA also found no clear error in the IJ’s conclusion that
Chavez-Gutierrez failed to establish that the harm he encountered
was on account of a protected ground. He was a crime victim but
not due to his membership in the proposed social group. Because
Chavez-Gutierrez failed to meet the lower burden of proof for asy-
lum, he also failed to meet the burden of proving entitlement to
withholding of removal and CAT relief.
II. Discussion
Chavez-Gutierrez contends that the BIA erred in affirming
the IJ’s finding that his asylum application was untimely and the IJ’s
alternative holding that he failed to meet the burden of establishing
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8 Opinion of the Court 23-11513
asylum.3 Regarding the IJ’s alternative holding, Chavez-Gutierrez
argues that the IJ’s finding of no past persecution contradicts the
IJ’s finding that his testimony was credible, testimony that outlined
four incidents establishing past persecution. Furthermore, he cites
a statement the IJ made during the removal hearing in which the IJ
purported to acknowledge that he had established past persecution
or a well-founded fear.
We review the agency’s factual findings for substantial evi-
dence. Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th
Cir. 2019). This entails “view[ing] the record evidence in the light
most favorable to the agency’s decision and draw[ing] all reasona-
ble inferences in favor of that decision.” Id. (quoting Adefemi v. Ash-
croft, 386 F.3d 1022, 1027 (11th Cir. 2004)). Our standard is to affirm
the BIA’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (quot-
ing D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir.
2004)). To reverse any factual findings, we must determine that
the record not only supports reversal but also compels it. Id. Thus,
unless there is no reasonable basis for the agency’s decision, we
must affirm. Id.
3 By not addressing it in his brief, Chavez-Gutierrez forfeited any challenge to
the denial of relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment. See United
States v. Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc), cert. denied, 143 S. Ct.
95 (2022) (“[T]he mere failure to raise an issue in an initial brief on direct ap-
peal should be treated as a forfeiture of the issue.”).
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23-11513 Opinion of the Court 9
To qualify for asylum, the applicant must present specific
and credible evidence showing either past persecution based on a
statutorily listed factor or a well-founded fear of future persecution
based on such a factor. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332
(11th Cir. 2010) (per curiam). “[P]ersecution is ‘an extreme con-
cept, requiring more than a few isolated incidents of verbal harass-
ment or intimidation, and . . . mere harassment does not amount
to persecution.’” Id. at 1333 (quoting Zheng v. U.S. Att’y Gen., 451
F.3d 1287, 1290 (11th Cir.2006)).
When assessing whether an applicant has suffered past per-
secution, the IJ must consider the cumulative effect of incidents.
Id. Although serious physical injury is not a prerequisite for prov-
ing past persecution, lesser physical abuse and brief detentions do
not automatically add up to such a finding. See De Santamaria v.
U.S. Att’y Gen., 525 F.3d 999, 1009 (11th Cir. 2008); see also Kazemza-
deh v. U.S. Att’y Gen., 577 F.3d 1341, 1352–53 (11th Cir. 2009) (evi-
dence that petitioner was arrested, interrogated, beaten for five
hours, and detained for four days did not compel a finding of past
persecution where petitioner did not show he suffered any physical
harm); Zheng, 451 F.3d at 1290–91 (evidence that petitioner had
been detained for five days, forced to watch reeducation videos,
stand in the sun for two hours, and sign a pledge to no longer prac-
tice his religion did not compel a finding of persecution). Moreo-
ver, a credible death threat, made by someone with the immediate
ability to carry it out, constitutes persecution whether or not the
threat is executed. Diallo, 596 F.3d at 1333–34.
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10 Opinion of the Court 23-11513
Past persecution creates a rebuttable presumption of a well-
founded fear of future persecution. De Santamaria, 525 F.3d at
1007. Without establishing past persecution, an asylum applicant
may show a well-founded fear of future persecution by showing
“(1) a subjectively genuine and objectively reasonable fear of per-
secution that is (2) on account of a protected ground.” Id.
Furthermore, the applicant must establish a nexus between
the feared persecution and a protected ground, demonstrating that
one of the enumerated grounds was or will be at least one central
reason for the persecution. See INA § 208(b)(1)(B)(i), 8 U.S.C.
§ 1158(b)(1)(B)(i). Evidence consistent with general criminal activ-
ity does not fulfill the nexus requirement. See Sanchez-Castro v. U.S.
Att’y Gen., 998 F.3d 1281, 1288 (11th Cir. 2021).
An applicant’s testimony, without corroboration, can be suf-
ficient to meet the burden of proof for establishing eligibility for
relief from removal if it is credible. Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1255 (11th Cir. 2006) (per curiam). That said, credible testi-
mony alone does not guarantee relief from removal if the applicant
fails to meet their burden concerning asylum. See, e.g., Djonda v.
U.S. Att’y Gen., 514 F.3d 1168, 1173, 1177 (11th Cir. 2008) (petitioner
had not satisfied the standard for asylum even though the IJ found
the petitioner’s testimony credible); Zheng, 451 F.3d at 1289, 92
(same).
An applicant is eligible for withholding of removal if he
shows that, upon return to his country, he is more likely than not
to be persecuted based on a protected ground. See Sepulveda v. U.S.
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23-11513 Opinion of the Court 11
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam); INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). If an applicant cannot meet the
“well-founded fear” standard of asylum, he generally will not qual-
ify for withholding of removal. Kazemzadeh, 577 F.3d at 1352.
First, although Chavez-Gutierrez appealed the IJ’s finding
that his asylum application was untimely, the BIA’s opinion does
not address the merits of the finding or otherwise rule on the time-
liness issue. We do not consider issues not reached by the BIA. See
Gonzalez v. U.S. Atty. Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per
curiam). Likewise, the BIA did not review the IJ’s finding that
Chavez-Gutierrez’s social group was cognizable. We therefore do
not review that finding. In sum, we decline to address either issue.
As for the issues the BIA did reach, there is substantial evi-
dence supporting its decision to uphold the IJ’s finding that the mis-
treatment Chavez-Gutierrez experienced did not rise to the level of
persecution. Chavez-Gutierrez argues that the IJ’s finding that his
testimony was credible required a finding that he suffered past per-
secution, but that finding is not automatically required by the IJ’s
credibility finding. See, e.g., Djonda, 514 F.3d at 1173–74; Zheng, 451
F.3d at 1289–92. Further, substantial evidence supports the BIA’s
finding that Chavez-Gutierrez failed to establish past persecution.
His testimony revealed a lack of physical injuries or the need for
medical attention as a result of his encounters with the Mara 18
gang members. This suggests that the cumulative effects of his
harm did not rise to the level of past persecution.
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12 Opinion of the Court 23-11513
Substantial evidence also supports distinguishing this case
from Diallo. The IJ found that the Mara 18 members who threat-
ened Chavez-Gutierrez did not have the immediate ability or in-
tention to carry them out. They did not try to kill him and their
threats of physical harm did not result in injuries.
Next, substantial evidence supports the BIA’s holding that
Chavez-Gutierrez did not establish a nexus between the harm suf-
fered and a protected ground. Evidence in the record supports the
finding that the gang members did not target him because of his
membership in his proposed social group. We cannot fault the
BIA’s holding that Chavez-Gutierrez failed to establish a nexus be-
tween the gang members’ criminal behavior and his membership
in the designated social group. See Sanchez-Castro, 998 F.3d at 1288.
Finally, substantial evidence supports a finding that Chavez-
Gutierrez failed to show a fear of future persecution that is subjec-
tively genuine and objectively reasonable given the time that has
passed since the incidents in question occurred. Thus, viewing the
record evidence in the light most favorable to the agency’s decision
and drawing all reasonable inferences in favor of that decision, the
record does not compel reversal of the BIA’s affirmance of the IJ’s
denial of Chavez-Gutierrez’s application for asylum. And because
Chavez-Gutierrez failed to meet the “well-founded fear” standard
for establishing asylum, substantial evidence supports the determi-
nation that he is not eligible for withholding of removal. See
Kazemzadeh, 577 F.3d at 1352.
PETITION DENIED.
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