Santos Elias Paz-Castillo v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13557
Non-Argument Calendar
____________________
SANTOS ELIAS PAZ-CASTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A209-768-438
____________________
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2 Opinion of the Court 22-13557
Before ROSENBAUM, J ILL PRYOR , and T JOFLAT, Circuit Judges.
PER CURIAM:
Petitioner Santos Elias Paz-Castillo—a Honduran citizen—
seeks review of the Board of Immigration Appeals’ (BIA) final or-
der. The BIA affirmed the Immigration Judge’s (IJ) denial of his
application for asylum, withholding of removal, and Convention
Against Torture (CAT) relief. He argues that the BIA erred be-
cause his proposed particular social group was cognizable and
that the record compels reversal because he is likely to be tor-
tured with the acquiescence of the Honduran government if he
returns. For the reasons stated below, Paz-Castillo’s petition is
dismissed in part for lack of jurisdiction and denied in part.
I. Background
Around January 2006, Paz-Castillo unlawfully entered the
United States. In September 2017, the Department of Homeland
Security (DHS) served Paz-Castillo with a Notice to Appear. DHS
charged Paz-Castillo as removable under Immigration and Na-
tionality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) and
ordered him to appear before an IJ.1 Paz-Castillo later admitted
the allegations in the notice and conceded to the charge of re-
movability.
1 Under 8 U.S.C. § 1182(a)(6)(A)(i), a noncitizen “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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22-13557 Opinion of the Court 3
A month later, Paz-Castillo applied for asylum, withhold-
ing of removal, and CAT relief. He asserted persecution on ac-
count of membership in a particular social group. He defined his
particular social group as “Honduran men with construction
skills.” In his application, he stated that he did not want to go
back to Honduras “because of the crime.” He alleged that the po-
lice do nothing to address the crime, do not respond when called,
and do not investigate when someone is killed. He also stated the
gangs have repeatedly tried to recruit him and described one inci-
dent when he was chased by alleged gang members after he re-
fused to get in their truck.
Paz-Castillo also filed a personal statement. In it, he stated
that he witnessed several assaults on the buses he took home
from work in Honduras. He reiterated that two competing gangs
controlled the area where he lived, and both tried to recruit and
threatened him. And he stated that he could not trust the Hon-
duran police because he could not know which police officers
were involved with the gangs.
In support of his application, Paz-Castillo submitted the
U.S. Department of State’s Honduras 2018 Human Rights Report.
The report stated that violence and organized crime are pervasive
in Honduras, but that the government had made efforts to reduce
these problems, such as removing police officers for corruption or
involvement in criminal activity.
At his hearing before the IJ, Paz-Castillo—through his at-
torney—admitted that he arrived in the United States in 2006 and
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4 Opinion of the Court 22-13557
that he filed for asylum in 2017. He also conceded that he had no
evidence or testimony to support a waiver of the one-year dead-
line for asylum applications.
The IJ denied Paz-Castillo’s application for asylum, with-
holding of removal, and CAT relief. As to his asylum application,
the IJ found that Paz-Castillo was ineligible because he applied
eleven years after his arrival and no circumstances justified his late
filing. Even if Paz-Castillo’s asylum application were timely, the
IJ explained that he would deny it because Paz-Castillo did not
demonstrate that he suffered past persecution or was a member
of a cognizable particular social group. Because Paz-Castillo failed
to meet the lower standard for asylum, the IJ found that he inher-
ently failed to qualify for withholding of removal. Finally, the IJ
found that there was no testimony that Paz-Castillo would be tor-
tured by, or with the acquiescence of, a Honduran government
official and thus denied CAT relief.
Paz-Castillo appealed the IJ’s decision to the BIA. The BIA
adopted and affirmed the decision of the IJ because it found that
Paz-Castillo had neither identified any clear error of fact in the IJ’s
decision nor made any argument that would cause the BIA to dis-
turb the IJ’s decision. Paz-Castillo timely petitioned for review.
II. Legal Standards
A few standards of review govern this case. “We review
our own subject matter jurisdiction de novo.” Ponce Flores v. U.S.
Att’y Gen., 64 F.4th 1208, 1217 (11th Cir. 2023). “We review the
BIA’s decision as the final judgment, unless the BIA expressly
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22-13557 Opinion of the Court 5
adopted the IJ’s decision.” Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016) (per curiam). “Whe[n] the BIA
agrees with the IJ’s reasoning, we review the decisions of both the
BIA and IJ to the extent of the agreement.” Id. We review de no-
vo a social group’s validity and afford Chevron deference to an
agency’s consideration of ambiguous provisions in the statute it
administers.2 See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301,
1306 (11th Cir. 2019).
Finally, we review “the BIA’s factual findings to determine
whether they are supported by substantial evidence.” Rodriguez v.
U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013) (per curiam).
“Under the substantial evidence standard, we ‘view the record ev-
idence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.’” Id.
(quoting Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)
(en banc)). “We may reverse the BIA’s factual findings only when
the record compels a reversal.” Id.; 8 U.S.C. § 1252(b)(4)(B).
III. Discussion
Paz-Castillo makes three arguments. First, as to his asylum
application, he argues that the BIA erred in upholding the IJ’s de-
termination that his particular social group is not cognizable and
that the nexus requirement was not met. Second, he contends
that the BIA erred in upholding the IJ’s determination that he
failed to meet the requirements for withholding of removal be-
2 See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
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6 Opinion of the Court 22-13557
cause he is likely to be targeted by gang violence if he returns to
Honduras. Last, he asserts that the BIA erred in affirming the IJ’s
denial of CAT protection because he witnessed gang members
assault others, was targeted by those gangs, and could not rely on
Honduran police to protect him.
We first explain why we lack jurisdiction to review
Paz-Castillo’s asylum claim. Next, we address why the BIA did
not err in upholding the IJ’s decision as to Paz-Castillo’s withhold-
ing of removal and CAT protection applications.
A. Asylum
All asylum applicants must file their application within one
year of their arrival in the United States. See 8 U.S.C.
§ 1158(a)(2)(B). The Attorney General may consider an untimely
asylum application if the applicant demonstrates “either the exist-
ence of changed circumstances which materially affect the appli-
cant’s eligibility for asylum or extraordinary circumstances relat-
ing to the delay in filing an application within the [one-year] peri-
od.”3 Id. § 1158(a)(2)(D). “No court shall have jurisdiction to re-
view any determination of the Attorney General” that an asylum
application was not filed within the one-year deadline. Id.
§ 1158(a)(3); see also Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287
(11th Cir. 2003). And we lack jurisdiction to review an otherwise
reviewable issue if it would not affect the outcome because of an
3 See 8 C.F.R. § 208.4(a)(4)–(5) (identifying events that qualify as changed cir-
cumstances and extraordinary circumstances).
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22-13557 Opinion of the Court 7
alternative argument subject to a jurisdictional bar. See Malu v.
U.S. Att’y Gen., 764 F.3d 1282, 1290–91 (11th Cir. 2014), abrogated
on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023).
We lack jurisdiction to review the denial of Paz-Castillo’s
asylum claim. The IJ determined that Paz-Castillo did not file his
application within one-year of his arrival to the United States and
that no extraordinary circumstances justified the late filing. The
BIA affirmed and adopted the IJ’s determination. The BIA’s deci-
sion whether Paz-Castillo “complied with the one-year time limit
or established extraordinary circumstances . . . is not reviewable
by any court.” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th
Cir. 2002) (per curiam).4 Accordingly, we dismiss Paz-Castillo’s
petition as it relates to his asylum claim.
B. Withholding of Removal
Under the INA, a noncitizen shall not be removed to a
country if his “life or freedom would be threatened in that coun-
try because of the [noncitizen’s] race, religion, nationality, mem-
bership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The applicant bears the burden of establishing
that persecution based on one of these protected grounds is
“more likely than not” if he or she were to return to the country
of removal. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th
Cir. 2006) (per curiam) (noting that this standard is “‘more strin-
4 We do not consider the IJ’s alternative basis for denying Paz-Castillo’s asy-
lum application because it would not change the outcome. See Malu v. U.S.
Att’y Gen., 764 F.3d 1282, 1290–91 (11th Cir. 2014).
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8 Opinion of the Court 22-13557
gent’ than the standard for asylum relief” (quoting Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam))).
Relevant here is the protected ground: “membership in a
particular social group.” A particular social group must (1) have
members “who[] share a common, immutable characteristic”;
(2) be “defined with particularity”; and (3) be “socially distinct
within the society in question.” See Gonzalez, 820 F.3d at 404 (ci-
tations omitted). “An immutable characteristic under BIA deci-
sions is one ‘that the members of the group either cannot change,
or should not be required to change because it is fundamental to
their individual identities or consciences.’” Id. at 405 (quoting
Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on
other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
1987)). “Regarding the particular[it]y requirement, the BIA has
stated that ‘[t]he [proposed] group must also be discrete and have
definable boundaries—it must not be amorphous, overbroad, dif-
fuse, or subjective.’” Id. at 404 (alterations in original) (quoting
Matter of W-G-R-, 26 I. & N. Dec. 208, 214 (BIA 2014), vacated in
part on other grounds, Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016)).
“Social distinction requires the particular social group to be per-
ceived as a distinct group by society.” Amezcua-Preciado v. U.S.
Att’y Gen., 943 F.3d 1337, 1342 (11th Cir. 2019) (per curiam).
The IJ and BIA correctly concluded that Paz-Castillo’s pro-
posed particular social group was not cognizable under the INA
because it lacked particularity and social distinction. Even assum-
ing Paz-Castillo’s proposed social group—Honduran men with
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22-13557 Opinion of the Court 9
construction skills—is sufficiently immutable, it lacks particularity
and social distinction. As to particularity, Paz-Castillo’s proposed
group is broad and amorphous; its boundaries are subjective as it
is unclear how skilled in construction a person must be to qualify.
See Perez-Zenteno, 913 F.3d at 1304, 1309 (concluding that the pro-
posed particular social group was not particular because it “lacked
any definable boundaries and actually encompassed a very large
percentage of the Mexican population”). Likewise, Paz-Castillo
has not shown that Honduran men with construction skills are
perceived by Honduran society to be a distinct group. See Cas-
tillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1194 (11th Cir. 2006);
see also Matter of W-G-R-, 26 I. & N. at 217 (“To have the ‘social
distinction’ necessary to establish a particular social group, there
must be evidence showing that society in general perceives, con-
siders, or recognizes persons sharing the particular characteristic
to be a group.”).
Paz-Castillo was ineligible for withholding of removal.
And the BIA did not err when it adopted the IJ’s denial of
Paz-Castillo’s withholding of removal application. We therefore
deny his petition as it pertains to withholding of removal.
C. CAT
To be eligible for CAT relief, an applicant must show that
it is more likely than not he will be tortured “by or . . . with the
consent or acquiescence of a public official acting in an official ca-
pacity or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1). “Acquiescence ‘requires that the public official,
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10 Opinion of the Court 22-13557
prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to in-
tervene to prevent such activity.’” Reyes-Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1242 (11th Cir. 2004) (quoting 8 C.F.R.
§ 208.18(a)(7)). “Such awareness requires a finding of either actu-
al knowledge or willful blindness.” 8 C.F.R. § 208.18(a)(7). But
when the government “actively, albeit not entirely successfully,
combats” a violent group, the government has not acquiesced to
harm inflicted by that group. Reyes-Sanchez, 369 F.3d at 1243.
Substantial evidence supports the BIA’s conclusion that it is
not more likely than not that Paz-Castillo would be tortured by,
or with the consent or acquiescence of, the Honduran govern-
ment if he returned. True, Paz-Castillo stated that Honduran po-
lice do nothing to control gangs and that he could not trust the
police because it is unclear which police officers are involved with
the gangs. But Paz-Castillo made no specific allegations of police
misconduct or inaction. The 2018 Honduras Human Rights Re-
port that Paz-Castillo included with his application also notes that
violence and organized crime are pervasive in Honduras. How-
ever, the report later states that the government has made efforts
to reduce these problems, including removing or suspending cor-
rupt police officers. Because the Honduran government actively
works to prevent the harm done by gangs—though often unsuc-
cessfully—its actions do not rise to acquiescence to torture. See
id.
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22-13557 Opinion of the Court 11
Accordingly, substantial evidence supports the IJ’s and
BIA’s denial of Paz-Castillo’s CAT application. We therefore de-
ny his petition as it pertains to his CAT claim.
IV. Conclusion
We dismiss Paz-Castillo’s petition as it pertains to his asy-
lum application for lack of jurisdiction. And we deny his petition
as it relates to his withholding of removal and CAT applications.
DISMISSED, IN PART, AND DENIED, IN PART.
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