Mateo Edwin Nolasco-Garcia v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12567
Non-Argument Calendar
____________________
MATEO EDWIN NOLASCO-GARCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-603-429
____________________
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2 Opinion of the Court 22-12567
Before NEWSOM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Mateo Edwin Nolasco-Garcia, a native and citizen of
Guatemala, seeks review of the Board of Immigration Appeals’
(“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his
application for asylum, pursuant to 8 U.S.C. § 1158(a),
and withholding of removal under 8 U.S.C. § 1231(b)(3).1 He
challenges the BIA’s determination that he failed to show a nexus
between the harm he suffered and fears suffering if he is returned
to Guatemala and his membership in a particular social group,
which he defined as the “immediate family of Gaspar Nolasco-
Garcia.”2 After review, we deny the petition for review.
I. Background
Nolasco-Garcia was born in Guatemala in 1998. He
unlawfully entered the United States without inspection in 2016 as
an unaccompanied minor at the age of 17. At that time, the
Department of Homeland Security (“DHS”) issued Nolasco-Garcia
a notice to appear, charging him as removable for being an alien
present in the United States without being admitted or paroled. At
1 Nolasco-Garcia also sought relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), which was denied. See 8 C.F.R. § 1208.16(c). His CAT
claim is not at issue on appeal.
2 Gaspar Nolasco-Garcia is the Petitioner’s father.
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22-12567 Opinion of the Court 3
a hearing before the IJ, he conceded his removability and indicated
that he would be filing an application for asylum.
Nolasco-Garcia then filed an application seeking asylum,
withholding of removal, and CAT relief. As relevant to this appeal,
he indicated that he was seeking asylum and withholding of
removal on account of his membership in a particular social
group.3 He indicated that he was raised by his grandparents in
Guatemala. He experienced past harm in Guatemala when he was
robbed by three men in 2011 on his way home from school late at
night. The men took his money and cell phone, and threatened to
harm him and his family if he reported the crime. The men stated
that they knew who Nolasco-Garcia was and where he lived.
Additionally, when his parents returned to Guatemala from the
United States in 2012, the gang “heard about [his] parents coming
from the U.S,” and the gang called his father and “threatened to kill
[them] all if [they] did not pay [the gang] money.” When his father
did not pay, the gang tried to burn the family’s house down while
the family was sleeping. His father made a police report, but
nothing came of it because the police do “not care [about] what
happens to the indigenous Mayan population.” After the fire
incident, his father received another threatening call and his father
“feared for [their] lives.” Nolasco-Garcia explained that his father
returned to the United States in 2014, and helped Nolasco-Garcia
3 He also sought asylum and withholding of removal based on race, but on
appeal he does not challenge the denial of relief on that ground.
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4 Opinion of the Court 22-12567
and one of his siblings come to the United States as well.4 Finally,
Nolasco-Garcia indicated that, if he returned to Guatemala, he
feared being “beaten or even killed by the gangs because [his father]
never paid them money.” He explained that the town he is from is
very small and that the gangs would know when he returns and
would target him because his father never paid them.
Nolasco-Garcia submitted a sworn statement from his
father, Gaspar, in support of his application. Gaspar stated that in
the mid-1980s, when he was 13 years old, Guatemala was in the
midst of a civil war, and he and his family experienced violence at
the hands of Guatemalan army and the guerillas. First, the guerillas
came through his village and recruited his dad and brother. Then
the Guatemalan army came through the village and went house to
house checking to see if anyone in the village was hiding guerillas.
The Guatemalan army did not understand the people in the village
because they spoke a native dialect, Popti, while the army spoke
Spanish. A group of the soldiers raped Gaspar’s mother and then
killed her in front of Gaspar. After that, Gaspar never felt safe in
Guatemala.
In 1992, Gaspar came to the United States, but was deported
shortly thereafter back to Guatemala. In 1998, he again came to
the United States and was again deported. He returned to the
4 According to his application for asylum, Nolasco-Garcia has three siblings,
one of whom still lives in Guatemala.
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22-12567 Opinion of the Court 5
United States in 2001 and lived in the United States until he
returned to Guatemala in 2012.
When he returned to Guatemala in 2012, he started helping
with “an evangelization of the church” in his village. He then
started receiving threatening calls from the gang telling him to stop
helping “those young people who were members of their gang”
and threatening to kill him. One night, someone set his house on
fire while the family was sleeping. He stated that witnesses saw
that the arsonists, who included his ex-brother-in-law, were
members of a gang. He filed a police report, but the police did not
do anything. The threatening phone calls continued, although he
did not elaborate as to the nature of the threats. Then in 2013,
while working, he was attacked by some men who said “it was time
for [him] to die” and they beat him up and left him unconscious.
When he woke up, he returned home and reported the incident to
the local civil authorities in the village, but they did not help him.
Then, in 2014, gang members attacked his wife by dragging her to
the woods and attempting to rape her. A little while later, he
received another call from the gang stating that they had not
forgotten about him and that they were going to kidnap his
daughters and kill his son, Nolasco-Garcia. At that point, he
decided to return to the United States. He maintained that if
Nolasco-Garcia is returned to Guatemala, he will be in danger from
the gang because the gang “knows [the] family” and that the gang
will kill him “[o]ut of resentment.”
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6 Opinion of the Court 22-12567
Nolasco-Garcia’s mother also submitted a statement. She
stated that she left Guatemala “due to the threats received from the
mara groups, who are gangs that kidnap, torture, and kill good
people if we don’t follow their orders.” She explained that she was
threatened by the gang because of her work in the catholic church
because the gang does not want people helping the youth in the
village because they want to recruit the youth. She stated that in
March 2014, she was leaving church when members of the gang
grabbed her and dragged her to the woods and told her to stop
helping the “street kids” and “orphan kids” “or suffer the
consequences.” The men tried to rape her, but they left when they
saw some farmers coming toward them. Then in June 2014, she
received a threatening phone call telling her not to hide and that
they knew where she lived. A couple of weeks later, three of the
gang members put a gun to her head and kidnapped her, took her
to a nearby cave, tied her up, and beat her. They released her when
a group of students passed by their location. She explained that
those events are why she took her youngest daughter and left
Guatemala in the summer of 2014.
At the 2019 hearing before the IJ, Nolasco-Garcia testified
that, after finishing high school in Guatemala, he came to the
United States in the beginning of 2016 at the age of 17. His parents
currently live in the United States, with two of his siblings, while
his older brother, Freddy, remains in Guatemala. His maternal
grandparents raised him in Guatemala after his parents came to the
United States when Nolasco-Garcia was a toddler.
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22-12567 Opinion of the Court 7
Nolasco-Garcia explained that he left Guatemala because he
“felt threatened” and “was afraid to die.” He explained that his fear
stemmed from when three gang members attacked, assaulted, and
robbed him and threatened his family in 2011 while he was coming
home from school. At the time of the attack, his parents were still
living in the United States and had not yet returned to Guatemala.
When the men attacked him, they stole his money and his cell
phone and “told [him] that [he] was to join [the gang]” and that if
he joined, he would “live in peace.” Nolasco-Garcia did not say
anything to the men, he just nodded his head, so that they would
let him go. He did not report the incident to police and did not
require any medical attention. That was the only time he was
attacked by those gang members.
Nolasco-Garcia further testified that, in 2012, after his
parents returned to Guatemala, a gang set his family’s house on fire
while they were sleeping because his father did not pay the gang an
“extortion.” Neighbors saw that one of the gang members was his
aunt’s ex-husband. Nolasco-Garcia explained that he believed that
the gang that set his house on fire was the same one that attacked
him in 2011 because they told his father about the 2011 attack. He
also stated that, approximately two years ago, someone hit his
brother Freddy in the head with the butt of a gun and beat him up.
He did not know why his brother was beaten up, but noted that his
brother “had a lot of problems with alcohol.” Nolasco-Garcia
stated that no other incidents happened to his family, although his
father “did receive other threats, saying that things were not just
going to stay like this that we’re still going to pay.” Nolasco-Garcia
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8 Opinion of the Court 22-12567
confirmed that he is afraid to return to Guatemala because of the
gang and the threats to his family. He explained that he believes
the gang will kill or torture him, and that the gang will want to
harm him for escaping Guatemala.
On cross-examination, the government pointed out that the
father’s police report concerning the fire indicated that the ex-
husband of the father’s sister-in-law set the fire because he was
drunk, and it did not mention anything about any other individuals
or gang members. Nolasco-Garcia stated that the discrepancy was
possible because his father does not speak Spanish well and the
police speak Spanish. He also stated that the police are afraid of the
gangs and do not want to get involved. Next, the government
focused on the gang recruitment aspect of the interaction. It
pointed out that during his credible fear interview that occurred
after he was caught crossing the border illegally, Nolasco-Garcia
stated that the men in the 2011 attack told him that he needed to
join them if he wanted to be left alone. And Nolasco-Garcia
confirmed that boys his age were getting recruited by the gangs.
The government pointed out that Nolasco-Garcia left Guatemala
in 2016, which was over three years since the gang tried to burn
down his family’s house and that no physical attacks occurred
between 2012 and 2016. When asked why the gang tried to extort
money from his father, Nolasco-Garcia stated that his father
worked “as a church treasury [sic].” The government followed up
asking whether the gang wanted Nolasco-Garcia’s father to steal
the church’s money, and Nolasco-Garcia said “perhaps, yes.”
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22-12567 Opinion of the Court 9
The IJ issued an oral decision denying Nolasco-Garcia’s
application for asylum, withholding of removal, and CAT relief.
After finding Nolasco-Garcia credible, the IJ explained that in order
to be entitled to relief, Nolasco-Garcia had to show that his claims
of past persecution or well-founded fear of future persecution were
on account of, as relevant here, his membership in a particular
social group. The IJ then explained that Nolasco-Garcia identified
four social groups to which he belonged, including “that of
immediate family of Gaspar Nolasco-Garcia.” The IJ explained that
the BIA had indicated in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017),
that familial relationships could be a cognizable social group.
However, the IJ explained that, even assuming that being the
immediate family of Nolasco-Garcia’s father constituted a
cognizable social group, Nolasco-Garcia failed to demonstrate “any
type of animus against his family.” In other words, he did not show
that the reason why he was targeted by the gang was because he
was a member of his family. Rather, the evidence merely showed
that the family was the victim of, and Nolasco-Garcia fears,
“generalized crime of violence created by the gangs in his country,”
which is insufficient for asylum or withholding of removal. In
support of the determination, the IJ noted that the 2011 attack on
Nolasco-Garcia did not have anything to do with Nolasco-Garcia’s
familial ties as evidenced by the fact that it occurred prior to his
father returning to Guatemala and was for the purpose of gang
recruitment. Similarly, the gang tried to burn down the family’s
house because Nolasco-Garcia’s father refused to pay an extortion
demand, which had nothing to do with familial ties. Accordingly,
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10 Opinion of the Court 22-12567
the IJ determined that the requisite nexus between the past
persecution or fear of future persecution by the gang and Nolasco-
Garcia’s membership in his family was missing. Therefore, the IJ
denied Nolasco-Garcia’s asylum request. Furthermore, the IJ
explained that because Nolasco-Garcia could not meet his burden
of establishing asylum his claim for withholding of removal based
on the same facts necessarily failed.
Nolasco-Garcia appealed the IJ’s decision to the BIA. As
relevant here, he argued that the IJ erred in determining that there
was no nexus between the past persecution or fear of future
persecution and Nolasco-Garcia’s social group of the immediate
family of his father.
The BIA dismissed Nolasco-Garcia’s appeal, finding in
relevant part that there was “no clear error in the [IJ’s] fact-finding
underlying [the] determination that [Nolasco-Garcia] [had] not
demonstrate[d] a nexus between the harm suffered and feared and
his . . . membership in any cognizable particular social group.” The
BIA agreed with the IJ’s conclusion that Nolasco-Garcia “was a
victim of crime and violence at the hands of gang members,” but
that “the evidence did not [show] that he was or would be targeted
or harmed on account of any protected ground, . . . including his
status as his father’s immediate family member.” Accordingly, the
BIA concluded that Nolasco-Garcia failed to meet his burden of
establishing his eligibility for asylum or withholding of removal,
and dismissed his appeal. Nolasco-Garcia now petitions this Court
for review of the BIA’s decision.
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22-12567 Opinion of the Court 11
II. Discussion
Nolasco-Garcia argues that substantial evidence does not
support the BIA’s conclusion that no nexus existed between the
past persecution he suffered or the future persecution he fears and
his particular social group of the immediate family of his father. He
asserts that the gang targeted his father because of his father’s
involvement with the church in their village and that his family was
then targeted because of their familial relationship with his father.
The government, in turn, argues that we should dismiss the
petition because Nolasco-Garcia failed to exhaust his claim that his
father was targeted for religious reasons, and, therefore, we lack
jurisdiction to review the claim. Alternatively, the government
asserts that we should deny the petition because substantial
evidence supports the agency’s determination.
We review the BIA’s decision as the final agency decision,
and we review the IJ’s decision as well to the extent that the BIA
expressly adopts or agrees with it. Gonzalez v. U.S. Att’y Gen., 820
F.3d 399, 403 (11th Cir. 2016); see also Ayala v. U.S. Att’y Gen., 605
F.3d 941, 948 (11th Cir. 2010) (explaining that when the BIA
explicitly agrees with the findings of the IJ, we will review the
decisions of both the BIA and the IJ as to those issues).
We review “factual determinations under the substantial
evidence test.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th
Cir. 2016). Under the substantial evidence test, “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.”
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12 Opinion of the Court 22-12567
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir.
2007) (quotation omitted). The agency’s decision will be affirmed
“if it is ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Id. (quotations
omitted). We cannot “reweigh the evidence from scratch” and will
reverse findings of fact “only when the record compels a reversal.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (quotations
omitted). In other words, the BIA’s decision “can be reversed only
if the evidence presented by [Nolasco-Garcia] was such that a
reasonable factfinder would have to conclude that [a nexus]
existed.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Rivera v.
U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007) (“In sum, findings
of fact made by administrative agencies, such as the BIA, may be
reversed by this Court only when the record compels a reversal;
the mere fact that the record may support a contrary conclusion is
not enough to justify a reversal of the administrative findings.”
(alteration adopted) (quotation omitted)).
A petitioner seeking asylum must present specific, credible
evidence that establishes either (1) that he was persecuted in the
past “on account of race, religion, nationality, membership in a
particular social group, or political opinion,” or (2) that he has a
“well founded fear” of persecution in the future “on account of”
any of those enumerated grounds. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232
(11th Cir. 2007). To qualify for withholding of removal, the
petitioner must demonstrate that, if removed to his country, his
“life or freedom would be threatened in that country because of
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22-12567 Opinion of the Court 13
[his] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3). The petitioner
must show that it is “more likely than not” that “he will be
persecuted or tortured upon returning to his country.” Carrizo v.
U.S. Att’y Gen., 652 F.3d 1326, 1331 (11th Cir. 2011) (quotation
marks omitted). Generally, if an alien is unable to meet the
standard of proof for asylum, he will be precluded from qualifying
for withholding of removal. Id.
Both asylum and withholding of removal require the
petitioner to show a nexus between the alleged persecution and a
protected status, i.e., “that race, religion, nationality, membership
in a particular social group, or political opinion was or will be at
least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i) (emphasis added). To show a nexus, the
petitioner must “present specific, detailed facts showing a good
reason to fear that he . . . will be singled out for persecution on
account of” the statutorily protected ground. Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation and emphasis
omitted). “In other words, the protected ground cannot play a
minor role in the [petitioner’s] past mistreatment or fears of future
mistreatment. That is, it cannot be incidental, tangential,
superficial, or subordinate to another reason for harm.” Sanchez-
Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir. 2021)
(quotation omitted).
When confronted with persecution claims based on the
status of one’s family,
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14 Opinion of the Court 22-12567
we distinguish persecution of a family as a means to
an unrelated end from persecution based on animus
against a family per se. Where a gang targets a family
only as a means to another end, the gang is not acting
because of who the family is; the identity of the
family is only incidentally relevant.
Id. at 1287 (internal citation omitted). Importantly, evidence that
the harm experienced or treatment complained of “is consistent
with general criminal activity does not help [a petitioner] with the
nexus requirement.” Id. at 1288.
As an initial matter, we must address the government’s
argument that we lack jurisdiction over Nolasco-Garcia’s petition
because he failed to raise the discrete argument that his father was
targeted for religious reasons before the BIA or the IJ. We review
whether we have subject matter jurisdiction de novo. Blanc v. U.S.
Att’y Gen., 996 F.3d 1274, 1277 (11th Cir. 2021). Under 8 U.S.C.
§ 1252(d)(1), we “may review a final order of removal only if . . .
the alien has exhausted all administrative remedies available to the
alien as of right. . . .” The Supreme Court recently clarified that the
administrative exhaustion provision is not jurisdictional and is
merely a claims-processing rule. Santos-Zacaria v. Garland, 143 S.
Ct. 1103, 1112 (2023). “Unlike jurisdictional rules, mandatory
claim-processing rules may be forfeited if the party asserting the
rule waits too long to raise the point.” Manrique v. United States,
581 U.S. 116, 121 (2017) (quotations omitted). “If a party properly
raises them, however, they are unalterable.” Id. (alteration
adopted) (quotation omitted). Thus, because the Attorney General
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22-12567 Opinion of the Court 15
raised the statutory claims-processing rule of exhaustion in
response to Nolasco-Garcia’s petition, we must enforce it if the
claim is in fact unexhausted. See id.
“A petitioner has not exhausted a claim unless he has both
raised the core issue before the BIA, and also set out any discrete
arguments he relies on in support of that claim.” Jeune v. U.S. Att’y
Gen., 810 F.3d 792, 800 (11th Cir. 2016) (internal citation omitted)
(quotations omitted). As we have explained,
[u]nadorned, conclusory statements do not satisfy
this requirement, and the petitioner must do more
than make a passing reference to the issue. While
exhaustion does not require a petitioner to use precise
legal terminology or provide well-developed
arguments to support his claim, it does require that
the petitioner provide information sufficient to
enable the BIA to review and correct any errors
below. These requirements further the purpose of
exhaustion: to give the agency a full opportunity to
consider the petitioner’s claim and to compile a
record that will be adequate for future judicial review.
Id. (internal citations omitted) (quotations omitted); see also Morales
v. U.S. Att’y Gen., 33 F.4th 1303, 1307 (11th Cir. 2022) (“[T]he
petitioner must raise both the core issue and set out any discrete
arguments he relies on in support of that claim before the BIA.”);
Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1048 n.4 (11th Cir. 2009)
(dismissing as unexhausted petitioner’s specific argument that the
IJ had engaged in speculation when discrediting his testimony
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where the petitioner had contested only that the adverse-credibility
finding was not supported by substantial evidence before the BIA).
Here, Nolasco-Garcia admits in his brief that he never raised
before the BIA the discrete argument that the reason the gang
targeted his father was because of his father’s involvement with the
church, and that the purpose was to “stop[] his father’s religious
activities.” Nevertheless, he argues that the “connection [was]
clear” from his parents’ statements. But the fact that his parents
may have mentioned a connection with the church in their
affidavits is not sufficient to have exhausted this discrete argument.
Morales, 33 F.4th at 1309 (explaining that to exhaust an issue the
petitioner “must not just merely raise the issue; he must argue it”).
Thus, the government is correct that this discrete argument is
unexhausted, such that we are precluded from reviewing it. See 8
U.S.C. § 1252(d)(1). Accordingly, to the extent that Nolasco-Garcia
seeks to raise a new, unexhausted discrete argument on appeal,
that part of his petition is dismissed.
Setting aside the unexhausted argument, substantial
evidence supports the finding of the Board concerning a lack of
nexus.5 To be clear, Nolasco-Garcia’s asylum and withholding of
removal claim is based on his membership in a particular social
5 “Because the Board considered only the nexus requirement, we review only
whether substantial evidence supports its finding that [Nolasco-Garcia] did not
satisfy that requirement.” Sanchez-Castro, 998 F.3d at 1286. Accordingly, “[w]e
do not consider whether [Nolasco-Garcia’s] experience rises to the level of
persecution, whether [he] has a well-founded fear of future persecution, or
whether [his] family unit qualifies as a particular social group.” Id.
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group, which he identified as the immediate family of his father.
Thus, for purposes of establishing a nexus, he needed to show that
his family’s status was a central reason for the harms experienced
or feared. But the record here does not compel a finding that any
persecution that Nolasco-Garcia suffered or that he fears he will
suffer if returned to Guatemala is on account of the status of his
family. Rather, substantial evidence supports the conclusion that
the harms experienced and feared are unrelated to the status of his
family and are simply general criminal activity. For instance, the
gang first attacked Nolasco-Garcia in 2011, prior to his parents’
return to Guatemala, and it is clear that the purpose of the attack
was to rob him and try and recruit him for the gang. In other
words, the 2011 attack did not occur because of his family’s status.
Similarly, when the gang tried to burn down his family’s house, it
was not because of who his family was, but rather because his
father did not pay the gang’s extortion demands. As we explained
previously, “[w]here a gang targets a family only as a means to
another end, the gang is not acting because of who the family is;
the identity of the family is only incidentally relevant.” Sanchez-
Castro, 998 F.3d at 1287. And even accepting his assertion on appeal
that the gang targeted his family because of his father’s
involvement with the church, that purported motivation—to get
his father to stop helping with the church and thus cease interfering
with gang recruitment—is unrelated to the identity of the family.
In other words, the gang was not acting because of who the family
is, but rather as a means to another end. Id. Nothing in the record
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indicates that the gang harbors any animus against the Nolasco-
Garcia family per se.
Accordingly, nothing in the record compels the conclusion
that Nolasco-Garcia’s family was a central reason for any
persecution that he suffered or fears suffering. Consequently, we
agree with the Board that he is ineligible for asylum and
withholding of removal based on his membership in the particular
social group of the immediate family of his father, and we deny his
petition for review.
PETITION DISMISSED IN PART AND DENIED IN
PART.
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