Eber Salgado-Gutierrez v. Loretta Lynch

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-1534

EBER SALGADO GUTIERREZ,

Petitioner,

v.

LORETTA E. LYNCH,

Attorney General

of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A205-154-421

____________________

ARGUED AUGUST 9, 2016 — DECIDED AUGUST 24, 2016

____________________

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Eber Salgado Gutierrez, a

40-year-old citizen of Mexico, was ordered removed from

the United States for being unlawfully present in the country

and for having been convicted of a drug crime. He petitions

for review of an order of the Board of Immigration Appeals

upholding the immigration judge’s denial of withholding of

2 No. 16-1534

removal (based on social-group membership) and relief

under the Convention Against Torture. We have jurisdiction

to review only two of his arguments: (1) his claim that the

agency improperly rejected his proposed social group, and

(2) his claim that the agency misapplied the legal standard

under the CAT. Because these arguments are without merit,

we dismiss in part and deny in part Salgado’s petition for

review.

I. Background

Salgado unlawfully entered the United States in 1996 and

lived in this country continuously for the next 20 years. In

2001 he met his current girlfriend, Mariela Rico Cuervas,

also a Mexican citizen without lawful status in the United

States. They have two children, a daughter born in 2001 and

a son born in 2003—both U.S. citizens.

In 2005 Salgado was convicted in Wisconsin of pos-

sessing cocaine. See WIS. STAT. § 961.41(3g)(c). The Depart-

ment of Homeland Security got wind of the drug conviction

eight years later, in mid-2013, when Salgado was arrested for

driving under the influence. The agency detained him in

early 2014 and issued a Notice to Appear charging him with

removability for having been convicted of a con-

trolled-substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and

for being present in the United States unlawfully,

id. § 1182(a)(6)(A)(i). Salgado admitted through his attorney

that he was removable on both grounds and sought no relief

from removal; the IJ ordered him removed to Mexico, but

the Board of Immigration Appeals later remanded the case

so that the immigration court could address Salgado’s claim

that his lawyer had provided ineffective assistance by ne-

glecting to seek relief from removal. On remand the IJ

No. 16-1534 3

concluded that Salgado had been prejudiced by his first

lawyer’s ineffective assistance and permitted him to apply

for relief.

Salgado applied for both statutory withholding of re-

moval, see id. § 1231(b)(3)(A), and withholding under the

Convention Against Torture, see 8 C.F.R. §§ 1208.16(c),

1208.18. 1 He argued that he has a well-founded fear of

persecution on account of his membership in two social

groups: (1) “Mexican nationals whose family members have

suffered persecution at the hands of the Zetas and other

drug cartels in Veracruz” and (2) “Mexican nationals who

have lived in the U.S. for many years and who, upon being

removed to Mexico, are perceived as having money.”

(Salgado also sought withholding of removal based on

political opinion but has abandoned that argument.)

Salgado and his girlfriend testified at the removal hear-

ing about why he feared returning to Mexico, and the

IJ found them largely credible. They provided the following

account: Before moving to the United States, Salgado lived

with his parents in Tres Valles, a town in the Mexican state

of Veracruz, and worked at the butcher shops owned by his

father. The family closed the shops sometime after Salgado

went to the United States because the Zetas, a Mexican drug

cartel, extorted them and pressured all local businesses to

sell drugs on the gang’s behalf.

1 Salgado also applied for asylum, but the IJ concluded (and the Board

agreed) that his asylum application was untimely because he did not file it

within a year of entering the United States and no changed or extraordi-

nary circumstances excused the late filing. See 8 U.S.C. § 1158(a)(2)(B), (D);

8 C.F.R. § 1208.4(a)(2), (4), (5). Salgado has not pursued his asylum claim,

so we do not discuss it further.

4 No. 16-1534

Salgado testified that three of his family members had

been harmed by Mexican drug traffickers. In 1995, shortly

before Salgado left Mexico, his cousin was killed by a local

drug gang, purportedly for having witnessed a murder by

members of the gang. Ten years later, when Salgado’s

half-brother was visiting Tres Valles from the United States,

Zetas tried to kidnap him while he was walking down the

street. The kidnapping was foiled when the brother resisted

and witnesses called for help, but the Zetas beat him up

before fleeing. Finally, one of Salgado’s nephews was kid-

napped in Tres Valles in 2014 and found alive three days

later, having been left for dead. Salgado attributed the

kidnapping to the Zetas.

Salgado said that he feared he would be kidnapped or

even killed by the Zetas if he returned to Mexico. He testi-

fied that the Zetas identify people who have returned from

the United States and target them for kidnapping. Three of

Salgado’s siblings still live in Tres Valles, and he maintained

that they, too, would be endangered if he returned. Salgado

also has two sisters who live elsewhere in Mexico—one in

Mexico City, the other in the state of Oaxaca—but he stated

that the Zetas would target him even if he relocated to those

areas. Salgado insisted that he would not be safe anywhere in

Mexico and that the Mexican authorities could not protect

him from the Zetas.

In support of his claims for relief, Salgado also submitted

documentary evidence, including (among other things)

letters from family members and friends stating that he

would be targeted by drug gangs in Mexico, especially if he

returned to Tres Valles; newspaper articles describing the

criminal activities of the Zetas (including murders of jour-

No. 16-1534 5

nalists and other citizens) in Tres Valles and the rest of

Veracruz; and country-conditions reports chronicling vio-

lence by drug cartels across Mexico.

In a comprehensive 18-page opinion, the IJ concluded

that Salgado was ineligible for both statutory withholding of

removal and withholding under the CAT. The IJ began by

finding that Salgado had not established past persecution.

The IJ then determined that Salgado’s proposed social

group—“Mexican nationals who have lived for a long time

in the United States and will be perceived as wealthy indi-

viduals by the Zetas upon return to Mexico”—was not

cognizable because “wealth alone is not an immutable

characteristic.” Even if this social group were cognizable, the

IJ continued, Salgado did not have a well-founded fear of

persecution because the country-conditions documents “do

not show that drug cartels or organized criminal groups in

Mexico have specifically targeted Mexican citizens returning

from the United States because of their perceived wealth.”

Likewise, the IJ stated, there was no evidence that the

Zetas would target Salgado because of his family ties. The IJ

acknowledged that there was pervasive violence by drug

cartels in Mexico and that Salgado had a subjective fear that

the Zetas would harm him. But the “general civil strife” in

Mexico did not constitute persecution, the IJ reasoned, and

moreover, Salgado’s “fear of future persecution [was] specu-

lative and based on conjecture.”

The IJ added that even if Salgado had established that he

would face persecution on account of a protected status, he

nonetheless was ineligible for withholding because he had

not met his burden of establishing that he could not reason-

ably relocate to another part of Mexico to avoid persecution.

6 No. 16-1534

Finally, the IJ concluded that Salgado was ineligible for CAT

relief because his fear of being harmed by the Zetas with the

acquiescence of government officials was only speculative.

The Board upheld the IJ’s decision, echoing much of the

IJ’s reasoning and concluding that the IJ’s findings were not

clearly erroneous. The Board added that to the extent that

Salgado feared persecution “on account of having lived in

the United States for many years,” he was ineligible for

withholding because “deportees are too broad and diverse”

to qualify as a particular social group. The Board also agreed

with the IJ’s denial of Salgado’s claim for CAT relief. The

Board acknowledged our recent holdings that the proper

inquiry in CAT cases is whether the alien faces a substantial

risk of torture if removed, see Rodriguez-Molinero v. Lynch,

808 F.3d 1134, 1135–36 (7th Cir. 2015), and that the govern-

ment-acquiescence standard is satisfied by showing that a

local, state, or federal public official would acquiesce in

torture or that the government is unsuccessfully trying to

prevent torture by police officers working for drug gangs, id.

at 1139; Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1184–85

(7th Cir. 2015). But those decisions did not help Salgado, the

Board reasoned, because unlike the petitioners in those

cases, Salgado had “not been tortured, harmed, threatened,

or even inquired after by gang members.” Moreover, the

Board noted that the “random incidents of violence against

family members which happened years apart” were uncon-

nected to Salgado, so the IJ did not clearly err by finding that

the threat of harm to him was speculative.

Salgado petitioned for review and moved for a stay of

removal. A motions panel denied the stay, and Salgado was

removed to Mexico in early May 2016. At the time of his

No. 16-1534 7

removal, he had been detained by the Department of Home-

land Security for a little over two years.

II. Analysis

We begin our analysis by noting that we lack jurisdiction

to consider several of Salgado’s arguments because 8 U.S.C.

§ 1252(a)(2)(C) generally bars judicial review of final orders

of removal for aliens who, like Salgado, are removable under

§ 1182(a)(2) for having been convicted of a con-

trolled-substance offense. 2 See Isunza v. Lynch, 809 F.3d 971,

973 (7th Cir. 2016); Guevara v. Gonzales, 472 F.3d 972, 974

(7th Cir. 2007). Although we retain jurisdiction to review

questions of law and constitutional claims, see 8 U.S.C.

§ 1252(a)(2)(D); Isunza, 809 F.3d at 973, most of Salgado’s

arguments do not meet this standard. Salgado argues that

the Board erred in finding (1) that his fear of future persecu-

tion was not well-founded; (2) that he could reasonably

relocate within Mexico; and (3) that he does not face a

substantial risk of being tortured by or with the acquiescence

of government officials in Mexico. These are not questions of

law; Salgado simply disagrees with the weight that the

agency assigned to particular evidence. See Kiorkis v. Holder,

634 F.3d 924, 929 (7th Cir. 2011); Chavez-Vasquez v. Mukasey,

2 Salgado was ineligible to apply for deferral of removal under the

CAT—the denial of which we would retain jurisdiction to review, see

Moral-Salazar v. Holder, 708 F.3d 957, 962 (7th Cir. 2013); Wanjiru v. Holder,

705 F.3d 258, 263–65 (7th Cir. 2013)—because that form of relief is

available only to certain persons who, unlike Salgado, are barred from

withholding due to a conviction for a particularly serious crime and

other crimes not relevant here, see 8 C.F.R. §§ 1208.17(a), 1208.16(d)(2) &

(3).

8 No. 16-1534

548 F.3d 1115, 1119 (7th Cir. 2008); Adebowale v. Mukasey,

546 F.3d 893, 896 (7th Cir. 2008).

Salgado attempts to get around the jurisdictional bar by

recasting his objections to the agency’s factual findings as

legal errors. He asserts, for instance, that the Board “ig-

nored” and “did not fully consider” the evidence, see Jawad

v. Holder, 686 F.3d 400, 403–04 (7th Cir. 2012) (recognizing

that a claim that the agency ignored evidence is a claim of

legal error). We reject this attempt to manufacture a legal

issue because the record reveals that the IJ thoroughly

considered Salgado’s evidence before concluding that he

was ineligible for relief. See id. at 404; Chavez-Vasquez, 548

F.3d at 1119. And because the IJ’s discussion of the evidence

was comprehensive, Salgado’s argument that the Board did

not mention every piece of evidence misses the mark.

Where, as here, the Board agrees with the IJ but adds obser-

vations of its own, we review the IJ’s decision as supple-

mented by the Board’s opinion. See Wang v. Holder, 759 F.3d

670, 673 (7th Cir. 2014); Cordova-Soto v. Holder, 732 F.3d 789,

793 (7th Cir. 2013); Sarhan v. Holder, 658 F.3d 649, 653 (7th

Cir. 2011); Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir.

2010).

Salgado raises two arguments that we do have jurisdic-

tion to consider, but both lack merit. First, he maintains that

the Board applied the wrong legal standard when it con-

cluded that one of his proposed social groups—Mexican

nationals who have lived in the U.S. for many years and are

perceived as wealthy upon returning to Mexico—is not

cognizable. 3 Specifically, he challenges the Board’s conclu-

3Salgado has abandoned his claim that he faces persecution because he

belongs to the social group of “Mexican nationals whose family members

No. 16-1534 9

sion that to the extent he feared persecution “on account of

having lived in the United States for many years,” he was

ineligible for withholding because “deportees are too broad

and diverse” to qualify as a particular social group under the

Board’s decision in In re W-G-R-, 26 I. & N. Dec. 208 (BIA

2014). Relatedly, he contends that the Board mischaracter-

ized his proposed social group “by referring to only half of

its attributes”—namely, the attribute of having lived in the

United States but not the attribute of being perceived as

wealthy.

Salgado is correct that the Board wrongly rejected his

proposed social group simply because it is too broad and

diverse; we have “specifically rejected ‘broadness’ as a per se

bar to protected status.” N.L.A. v. Holder, 744 F.3d 425, 438

(7th Cir. 2014); see Cece v. Holder, 733 F.3d 662, 674 (7th Cir.

2013) (en banc). But this error doesn’t help Salgado because

even if his proposed social group were cognizable, he would

not be entitled to relief given the agency’s finding that he

could avoid harm by relocating to another part of Mexico.

See Kaharudin v. Gonzales, 500 F.3d 619, 624 (7th Cir. 2007);

8 C.F.R. § 1208.16(b)(2), (b)(3)(i). Because the agency’s de-

termination about relocation is a factual finding that does

not present a legal question, § 1252(a)(2)(C) bars judicial

review of the agency’s conclusion. See Jeune v. U.S. Att’y

Gen., 810 F.3d 792, 806 n.12 (11th Cir. 2016).

The other problem with Salgado’s challenge is that we

recently declined to recognize a social group nearly identical

have suffered persecution at the hands of the Zetas and other drug

cartels in Veracruz.” He does not mention this proposed social group

anywhere in his brief.

10 No. 16-1534

to the one he proffers. In Dominguez-Pulido v. Lynch, the

petitioner proposed a social group “made up of individuals

deported from the United States who have money or who

are perceived to have money, and who have family members

in the United States who could pay ransom.” 821 F.3d 837,

844–45 (7th Cir. 2016). We concluded that this group is not

cognizable for purposes of asylum and statutory withhold-

ing of removal “because its primary characteristic is wealth

or perceived wealth, specifically the ability to pay a ran-

som,” and further that the petitioner’s “attempt to narrow

his proposed group by adding the trait of ‘being deported

from the U.S.’ does not render his group cognizable.” Id.

at 845 (citing Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672

(7th Cir. 2005); In re W-R-G-, 26 I. & N. Dec. at 223).

Salgado does not attempt to distinguish

Dominguez-Pulido, nor does he argue that it was wrongly

decided and should be revisited; instead, he contends in his

reply brief that the Chenery doctrine bars the government

from relying on Dominguez-Pulido because “the agency did

not consider or rely upon it.” That argument misapprehends

Chenery, which prohibits defending an administrative deci-

sion on a new ground not set forth in the agency’s original

decision. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); see Lara

v. Lynch, 789 F.3d 800, 805–06 (7th Cir. 2015). There is no

Chenery violation here because by citing Dominguez-Pulido,

the government is not relying on a new ground but rather

providing additional legal authority to support the Board’s

conclusion that Salgado is ineligible for withholding of

removal because his proposed social group is not cognizable.

Finally, turning to the denial of his request for CAT relief,

Salgado argues that the Board failed to apply Rodri-

No. 16-1534 11

guez-Molinero v. Holder, in which we clarified that the “more

likely than not” standard articulated in many CAT opinions

“cannot be and is not taken literally” to the extent that it

suggests attaching a numerical probability to the likelihood

of torture; the proper inquiry is simply whether “there is, or

is not, a substantial risk that a given alien will be tortured if

removed from the United States.” 808 F.3d at 1135–36. He

maintains that the Board should have granted CAT relief

based on his documentary evidence about the Zetas and this

court’s statements in Rodriguez-Molinero regarding the

inability of the Mexican government to control the Zetas—

statements that he says are “binding in [his] case.”

This argument lacks merit for two reasons. First, there is

no indication that the Board misapplied the legal standard

for CAT relief. The Board set out the correct legal standard,

quoting the standard we articulated in Rodriguez-Molinero.

But the Board then distinguished Salgado’s circumstances

from those of the petitioners in Rodriguez-Molinero and

Mendoza-Sanchez v. Lynch: Unlike the petitioners in those

cases, Salgado “has not been tortured, harmed, threatened,

or even inquired after by gang members.” Instead, the Board

stated, Salgado’s evidence consisted of “random incidents of

violence against family members which happened years

apart and are unrelated and not connected in any way to the

respondent.” No step of the Board’s analysis suggests that it

misunderstood or misapplied the legal standard for obtain-

ing CAT relief. Second, our statements in Rodriguez-Molinero

about the Mexican government’s inability to control the

Zetas do not establish that the Zetas are likely to single out

Salgado for torture if he returns to Mexico. See Lenjinac v.

Holder, 780 F.3d 852, 856 (7th Cir. 2015).

12 No. 16-1534

Accordingly, Salgado’s petition for review is DISMISSED in

part and DENIED in part.

No. 16-1534 13

POSNER, Circuit Judge, concurring. I agree with the panel’s

conclusion that the petitioner is not entitled to relief because,

deported to Mexico in May of this year and residing in

Veracruz, where members of his extended family live—but

which is also where the fearsome Mexican drug gang known

as the Zetas is centered—he’s failed to make any showing

that he can’t relocate from Veracruz to some place in Mexico

in which he won’t be persecuted either by the Zetas or by

some other gang. In addition he’s failed to show that in

Veracruz or elsewhere the Zetas have targeted his family or

him. (Compare Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1183

(7th Cir. 2015) (petitioner had snitched on La Linea, another

powerful Mexican drug gang); Rodriguez-Molinero v. Lynch,

808 F.3d 1134, 1136–37 (7th Cir. 2015) (petitioner owed the

Zetas $30,000).) Members of his family have it is true had

violent, in one instance fatal, encounters with Zetas, but for

reasons that don’t appear to have been related to their family

membership or identity. The Board of Immigration Appeals

described these encounters as “random incidents of violence

against family members which happened years apart” and

were not connected to the petitioner, and the petitioner has

failed to rebut this assessment.

The petitioner might find it difficult to relocate even to a

part of Mexico where, unlike Veracruz where he currently

resides, the Zetas are as yet inactive; for wherever he

relocates in Mexico he is bound to be asked questions about

his origin, and his 20 years of living in the United States may

make him recognizable as an alien and prevent his obtaining

employment. But he doesn't argue that, and I write

separately only to address a proposition in the immigration

court’s opinion (and echoed I regret to say in opinions of this

14 No. 16-1534

court) that seems to me palpably false, though not

determinative in this case.

The proposition is that the status of being a member of a

group made up of individuals deported from the United

States who, having lived in this country for many years,

either have money or are believed to have money and have

long-established ties to this country, and who for any of

these reasons might be able to pay ransom, nevertheless

can’t be deemed members of a “social group” authorized to

obtain relief from deportation because of threats to the life or

safety of the group’s members. The ground on which the

immigration court rejected wealth as a characteristic that can

define a social group is that wealth is not an “immutable

characteristic.” “[T]he phrase ‘persecution on account of

membership in a particular social group’ [has been]

interpreted to mean ‘persecution that is directed toward an

individual who is a member of a group of persons all of

whom share a common, immutable characteristic.’” Matter of

M-E-V-G-, 26 I. & N. Dec. 227, 230–31 (BIA 2014). “The

common characteristic that defines the group must be 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 231. And

a group consisting of people whose “primary characteristic

is wealth or perceived wealth, specifically the ability to pay a

ransom” does not qualify because “wealth, standing alone, is

not an immutable characteristic of a cognizable social

group.” Dominguez-Pulido v. Lynch, 821 F.3d 837, 844–45 (7th

Cir. 2016).

That is a mistake, for a variety of reasons, one being that

wealth doesn’t stand alone in the definition of the social

group urged by the petitioner; it must be wealth available

No. 16-1534 15

for payment of a ransom. But a more serious mistake was

the invocation of “immutability” as a touchstone of

eligibility for being a member of a “social group.” Very few

characteristics of a group or individual are immutable any

more. For example, modern medical techniques enable

people to change their sex, though doubtless sex is one of the

mutable characteristics that the Board of Immigration

Appeals would concede that a person “should not be

required to change” as a condition of avoiding persecution.

But getting back to wealth, I note that wealth does not often

“stand alone” in these cases. In Tapiero de Orejuela v.

Gonzalez, 423 F.3d 666, 672 (7th Cir. 2005), we said that

Colombian cattle farmers were not defined merely by their

wealth but also by their land, their profession, and their

education. And similarly Salgado-Gutierrez is defined by his

having lived in the United States for twenty years—for

being, as a consequence, to a degree American—a fact of his

personal history that he can’t escape from.

Furthermore, having or being thought to have wealth is

in an important practical sense “immutable.” Suppose a

person facing deportation from the United States gives away

all his money and arrives in his country of origin, which in

this case is Mexico, penniless. The Zetas seize him and

demand money. He explains that he has none. Are the Zetas

likely to leave him alone? No, they’re likely to torture him,

and if unable by that route to extract any money from him

they are very likely to kill him.

Suppose finally that a deportee is the only wealthy

person from the country to which he is to be deported. He

thus is not a member of the social group to which the

petitioner in this case belongs, and suppose he’s not a

member of any other social group either. Does that mean he

16 No. 16-1534

can’t avoid deportation even if he proves that he’s certain to

be persecuted if deported? That would be ridiculous, though

it is the implication of the statute, 8 U.S.C. § 1231(b)(3)(A),

that ties deferral or cancellation of deportation to

membership in a social group, and of the BIA decisions

approvingly cited in the majority opinion in the present case.