Diego Merino-De Jesus v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11249
Non-Argument Calendar
____________________
DIEGO MERINO-DE JESUS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-655-946
____________________
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2 Opinion of the Court 21-11249
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
Diego Merino-De Jesus, a native and citizen of Mexico, en-
tered the United States illegally in 1999. After conceding remova-
bility, he filed for withholding of removal and protection under the
Convention Against Torture. An Immigration Judge denied relief,
and the Board of Immigration Appeals affirmed. Because the BIA’s
conclusions are legally sound and supported by substantial evi-
dence, we deny Merino-De Jesus’s petition for review.
I
At the age of 15, Merino-De Jesus crossed the U.S.-Mexico
border without authorization. He eventually made his way to
Florida, and for several years worked various jobs in the construc-
tion industry. In 2012, after Merino-De Jesus was arrested for driv-
ing with a suspended license, the Department of Homeland Secu-
rity served him with a notice to appear. At the ensuing proceed-
ings, Merino-De Jesus conceded removability. But he was tempo-
rarily granted relief in the form of Deferred Action for Childhood
Arrivals (DACA).
This relief, however, proved to be temporary. Merino-De
Jesus lost his DACA eligibility following a DUI conviction in 2016.
His case was then re-calendared before an IJ, and Merino-De Jesus
applied for withholding of removal and CAT relief.
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21-11249 Opinion of the Court 3
In support of his requests, Merino-De Jesus explained that
his father beat him when he was young. This caused him to live
on the streets, where he was often harassed by “Los Locos,” an al-
leged gang. In addition, Merino-De Jesus testified that his fear of
persecution stemmed from his membership in the indigenous
Triqui Tribe. He said that his uncle Juan Merino—the leader of his
tribal village—was murdered around 1998, supposedly because he
wanted to help the village. Another uncle, Alberto Merino, took
over, and Merino-De Jesus believes that Alberto still advocates on
behalf of the village. Merino-De Jesus testified that he feared for
his life should he return to Mexico, because of his membership in
the Triqui Tribe and his familial relation to Juan and Alberto. He
also feared that a group of Triqui fighters known as MULT would
attack him, suspecting that he had money.
The IJ denied relief. As to Merino-De Jesus’s fear of the two
groups, the IJ found that he had never been harmed by MULT, and
the harm he received at the hands of Los Locos did not rise to the
level of persecution. Nor did Merino-De Jesus establish that any
statutorily protected ground was a central reason why the gang had
targeted him, or why MULT might target him in the future. In-
stead, Los Locos primarily harassed him because they wanted
money and to recruit him as one of their own. And Merino-De
Jesus himself believed that MULT would come after him because
of his perceived wealth—not on the basis of any protected ground.
With respect to Merino-De Jesus’s fear of his father, the IJ
found that he had established past persecution on account of his
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4 Opinion of the Court 21-11249
membership in his father’s family. But any presumption of fear
created by his father’s past abuse was rebutted by the record. In
particular, the IJ observed that Merino-De Jesus hadn’t been beaten
since 1993; thus, he had already lived in Mexico for six years with-
out his father harming him before he moved to the United States.
Merino-De Jesus was also now much older, and as a full-grown
adult, there was no reason why he would have to live with his fa-
ther upon returning to Mexico.
Accordingly, the IJ concluded that Merino-De Jesus hadn’t
established that he would more likely than not be persecuted be-
cause of a statutorily protected characteristic, which is a showing
necessary for withholding of removal. Nor did he establish eligibil-
ity for CAT protection, as there was no evidence suggesting that
he would more likely than not be tortured by or with the acquies-
cence of the Mexican government. The BIA then affirmed the IJ’s
removal order, largely for the reasons stated in the IJ’s opinion.
II
Generally, “[w]hen the BIA issues a decision, we review only
that decision.”
Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir.
2016). But where, as here, “the Board explicitly agreed with several
findings of the immigration judge, we review the decisions of both
the Board and the immigration judge as to those issues.”
Ayala v.
U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). Although our
review of the agency’s legal determinations is de novo, we review
administrative fact findings only for “substantial evidence.”
Id. Un-
der that “highly deferential” standard, we must affirm the BIA’s
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21-11249 Opinion of the Court 5
decision if it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.”
Adefemi v. Ash-
croft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc) (quotation
omitted). This requires us to view the evidence “in the light most
favorable to the agency’s decision and draw all reasonable infer-
ences in favor of that decision.”
Id. at 1027. A decision “can be
reversed only if the evidence ‘compels’ a reasonable fact finder to
find otherwise.”
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304
(11th Cir. 2009) (per curiam) (quotation omitted);
see 8 U.S.C.
§ 1252(b)(4)(B). That’s not the case here.
A
Start with the withholding-of-removal claim. To qualify for
withholding of removal, an individual must show that, if returned
to his country, his “life or freedom would be threatened” on ac-
count of “race, religion, nationality, membership in a particular so-
cial group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
see
Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir.
2021). An applicant can meet his burden of proof on this front in
either of two ways.
Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1365
(11th Cir. 2011). First, he “may establish past persecution in [his]
country based on a protected ground, which creates a rebuttable
presumption that [his] life or freedom would be threatened in the
future in that country.”
Id.;
see 8 C.F.R. § 208.16(b)(1). Second, he
may rely on traditional, circumstantial evidence to establish the
likelihood of a future threat to his life or freedom.
See Seck, 663
F.3d at 1365; 8 C.F.R. § 208.16(b)(2).
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6 Opinion of the Court 21-11249
The BIA found that Merino-De Jesus had established past
persecution based on his father’s beatings. But even assuming
membership in his father’s family is a cognizable social group, sub-
stantial evidence supports the agency’s decision that the presump-
tion of future persecution had been rebutted. First, the last time
Merino-De Jesus’s father had beaten him was in 1993. That means
he thereafter lived in Mexico for six years without further incident.
Second, there is no evidence that Merino-De Jesus’s father sought
him out or had contact with him in the following two decades that
Merino-De Jesus spent in the United States. Third, Merino-De Je-
sus is now an adult, and he conceded that he wouldn’t have to live
with his father—who he wasn’t even sure was still alive. Fourth,
the BIA found—and Merino-De Jesus does not dispute—that he
could relocate to another part of Mexico, away from his father.
See
8 C.F.R. § 208.16(b)(2) (providing that “an applicant cannot demon-
strate that his or her life or freedom would be threatened” if he can
“avoid a future threat to his or her life or freedom by relocating to
another part of the proposed country of removal”). Together, this
evidence more than suffices to support the BIA’s conclusion.
Next, Merino-De Jesus contends that he fears persecution at
the hands of Los Locos or MULT. But the BIA found (1) that his
past incidents with Los Locos didn’t amount to persecution and
(2) that Merino-De Jesus failed to establish that any statutorily pro-
tected ground was a “central reason” for the alleged persecution—
either in the past or as he fears in the future. The record doesn’t
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21-11249 Opinion of the Court 7
compel us to conclude otherwise as to either finding.
See Kuevia-
koe, 567 F.3d at 1304.
As to the first, persecution is an “extreme concept,” which
requires more than “mere harassment” or “a few isolated incidents
of verbal harassment or intimidation.”
Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (quotation omitted).
Moreover, a showing of “[m]inor physical abuse” does not suffice.
Id. Merino-De Jesus testified that Los Locos would harass him for
money and, when he wouldn’t give them anything, beat him and
call him names. Even so, Merino-De Jesus didn’t present any evi-
dence of “significant or severe physical injuries.”
Martinez v. U.S.
Att’y Gen., 992 F.3d 1283, 1292 (11th Cir. 2021). Nor did he present
any testimony as to the frequency of the alleged beatings or any
other form of severe mistreatment. As a result, we cannot say that
the record compels a finding of past persecution by the gang.
See
Kazemzadeh, 577 F.3d at 1353 (holding that the record didn’t com-
pel a finding of persecution where the petitioner was “interrogated
and beaten for five hours,” because he “did not prove that he suf-
fered any physical harm”);
Djonda v. U.S. Att’y Gen., 514 F.3d
1168, 1174 (11th Cir. 2008) (same where petitioner “suffered a mi-
nor beating” resulting in only “scratches and bruises”);
Murugan v.
U.S. Att’y Gen., 10 F.4th 1185, 1192–93 (11th Cir. 2021) (same
where, during a four-day detention, petitioner “was tied to a chair,
slapped, and kicked”);
Martinez, 992 F.3d at 1291–92 (same despite
a beating that left the petitioner “briefly unconscious and with a cut
on his head”).
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8 Opinion of the Court 21-11249
The BIA’s finding that Merino-De Jesus failed to establish
the nexus requirement is also supported by substantial evidence.
To prove that persecution is “because of” a statutorily protected
ground, 8 U.S.C. § 1231(b)(3)(A), an immigrant must show that the
protected ground “was a central reason for the harm [he] suffered
or feared that [he] would suffer.”
Sanchez-Castro, 998 F.3d at 1286.
Merino-De Jesus says that Los Locos targeted him because of his
race and religion. But citing Merino-De Jesus’s own testimony, the
BIA found that the overarching reason that Los Locos harassed him
was that they wanted money and for him to join their group. The
agency was entitled as the factfinder to accept that explanation and
to reject Merino-De Jesus’s later speculation as to alternative mo-
tives.
See id. at 1286–87;
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1258 (11th Cir. 2006) (per curiam) (holding that evidence that “is
consistent with acts of private violence or the petitioner’s failure to
cooperate” with a criminal organization, “or that merely shows
that a person has been the victim of criminal activity, does not con-
stitute evidence of persecution based on a statutorily protected
ground”).
Merino-De Jesus’s fear of MULT fails for the same reason.
He worries that the organization would target him for his per-
ceived wealth. Yet even if that’s true, such speculation about a “ge-
neric pecuniary motive” does not establish a link between the harm
Merino-De Jesus fears and any statutorily protected ground.
Sanchez-Castro, 998 F.3d at 1287.
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21-11249 Opinion of the Court 9
Merino-De Jesus last insists that he will be killed due to his
relationship to his uncles and membership in the Triqui Tribe. But
as the IJ noted, there is no evidence that Merino-De Jesus was
harmed in the past because of his membership in these particular
social groups. And unlike his uncles, Merino-De Jesus doesn’t plan
on being politically active. The IJ also found that Merino-De Jesus’s
testimony as to the conditions he would face in Mexico was “very
speculative.” He hasn’t been to the country in over two decades,
and he hasn’t had contact with anyone from Mexico during most
of that span. Nor did Merino-De Jesus present any documentary
evidence or testimony from others to corroborate his contentions.
Finally, the IJ found that Merino-De Jesus could reasonably move
to a different area of Mexico to avoid the harm that he fears.
See 8
C.F.R. § 208.16(b)(2). Again, he doesn’t contest that finding on ap-
peal.
In short, we cannot say that the record compels a finding
that Merino-De Jesus would more likely than not be persecuted be-
cause of a statutorily protected ground upon his return to Mexico.
That is fatal to his withholding-of-removal claim.
B
Merino-De Jesus fares no better on his request for CAT re-
lief. An applicant seeking CAT protection must establish “that it is
more likely than not that he . . . would be tortured if removed to
the proposed country of removal.”
Reyes-Sanchez v. U.S. Att’y
Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting 8 C.F.R.
§ 208.16(c)(2)). For CAT purposes, torture involves “‘an[] act by
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10 Opinion of the Court 21-11249
which severe pain or suffering . . . is inflicted by or at the instigation
of or with the consent or acquiescence of’ a government official or
other person acting in an official capacity.”
Sanchez-Castro, 998
F.3d at 1288 (alterations in original) (quoting 8 C.F.R.
§ 208.18(a)(1)).
Substantial evidence supports the agency’s determination
that Merino-De Jesus doesn’t qualify for CAT protection. As he
admitted, he had never been harmed by the Mexican authorities.
And he does not allege that he would be. So, even if we assume
Merino-De Jesus has established a sufficient likelihood of being tor-
tured, that’s not enough for him to prevail. He must show that the
government would acquiesce in that torture. The record does not
“compel” this finding.
Lingeswaran v. U.S. Att’y Gen., 969 F.3d
1278, 1293 (11th Cir. 2020). Merino-De Jesus testified that he never
filed a police report following the incidents of harm he experienced
in Mexico, which undermines his claim that the police would turn
a blind eye should he be tortured in the future. And, though he
points out that nobody was arrested or brought to justice for his
uncle’s murder, we have rejected such an argument in the past.
“That the police did not catch the culprits does not mean that they
acquiesced in the harm.”
Reyes-Sanchez, 369 F.3d at 1243;
see
Sanchez-Castro, 998 F.3d at 1288;
Zaldana Menijar v. Lynch, 812
F.3d 491, 502 (6th Cir. 2015). Thus, Merino-De Jesus’s CAT claim
fails.
* * *
PETITION DENIED.
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