Yelson Armand Rodriguez v. U.S. Attorney General

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13108

Non-Argument Calendar

____________________

YELSON ARMAND RODRIGUEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A206-801-904

____________________

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2 Opinion of the Court 21-13108

Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Yelson Rodriguez, a Honduran national proceeding with

counsel, seeks review of the Board of Immigration Appeals’ (BIA)

final order affirming the Immigration Judge’s (IJ) denial of his ap-

plication for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture and Other Cruel, In-

human or Degrading Treatment or Punishment (CAT). He argues

that the BIA erred by affirming the IJ’s determination that his pro-

posed particular social group (PSG) lacked immutability and that

substantial evidence does not support the determination that he

failed to establish a nexus between that group and his asserted per-

secution. Consequently, he contends that the BIA erred by affirm-

ing the IJ’s determination that he failed to establish eligibility for

asylum. Next, he asserts that substantial evidence does not support

the BIA’s determination that he failed to establish eligibility for

withholding of removal. Finally, he argues that the BIA erred by

affirming the IJ’s denial of CAT relief. After careful review, we

deny Rodriguez’s petition for review in part and dismiss his peti-

tion in part.

I. BACKGROUND

Rodriguez is a citizen of Honduras. The Department of

Homeland Security served him with a Notice to Appear, charging

that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) for

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21-13108 Opinion of the Court 3

entering the United States as an undocumented immigrant without

being admitted or paroled. Rodriguez conceded removability as

charged.

Rodriguez applied for asylum, withholding of removal, and

CAT relief. He asserted that strangers killed his brother in the

butcher shop he owned. Afterwards, he stated, he and his family

received death threats, and he was told that the strangers would

kill him if he did not leave. He contended that police in Honduras

were corrupt and did not offer any protection to citizens, and that

he feared that he could be killed like his brother.

Rodriguez submitted exhibits in support of his application.

An article stated that his brother had been killed at the butcher shop

he owned by two unknown people and quoted an acquaintance as

stating that the crime could have been perpetrated due to a feud or

personal envy. In a written statement, Rodriguez asserted that he

witnessed the death of his brother and had to abandon his job due

to criminals sending him death threats and looking for him because

he was a witness and the brother of the deceased. His aunt stated

in a sworn declaration that her and Rodriguez’s family had been

persecuted since they owned a prosperous butcher shop and that

men threatened to murder the family members who worked at the

shop, resulting in the death of her son. His uncle stated in a sworn

declaration that their family was being persecuted due to envy.

Additionally, Rodriguez submitted the 2013, 2016, and 2017

Honduras Human Rights Reports, which indicated that some po-

lice officers participated in organized crime, and that organized

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4 Opinion of the Court 21-13108

criminal groups committed violent crimes, murder, and torture

against the business community. And a State Department travel

warning stated that crime and violence were critically high in Hon-

duras and criminals operated with impunity throughout the coun-

try. Among other evidence, Rodriguez also submitted invoices,

birth and death certificates for his brother and cousin, an article

stating that his cousin had been shot, and several other affidavits

stating that he had left Honduras due to death threats.

Rodriguez testified during the merits hearing, expounding

on the death of his brother and cousin, the threats he and his family

continued to receive following their deaths, the harassment that

the mother of Rodriguez’s children experienced after he fled to the

United States, and his beliefs as to why he and his family had been

targeted. Specifically, Rodriguez testified that the men had harmed

his family because he and his brother ran a profitable butcher shop.

He believed that his family members were harmed or threatened

because they were successful businesspeople. Rodriguez argued

that he belonged to a PSG consisting of members of the Rodriguez

family that worked at the butcher shop. He further contended that

the lack of protection from the police was akin to acquiescence.

The IJ denied Rodriguez’s application in an oral decision and

made the following findings. The IJ determined that almost all of

Rodriguez’s testimony was credible, but that he did not show past

persecution or an objectively reasonable fear of future persecution.

Rodriguez’s proposed PSG was lacking in social distinction and par-

ticularity and was not immutable because his family members

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21-13108 Opinion of the Court 5

were not forced to be butchers. Rodriguez also did not meet his

burden of demonstrating that his family was a central reason for

the harm; instead, the harm appeared to result from the success of

the business, envy, anger, or a personal dispute. The IJ further

found that Rodriguez did not contact the police and did not estab-

lish that they were unwilling or unable to protect him, Rodriguez’s

case involved private criminal activity, and Rodriguez did not es-

tablish that he could not relocate. Accordingly, because he was un-

able to show eligibility for asylum, Rodriguez was not eligible for

withholding of removal. Nor did Rodriguez establish that the Hon-

duran government would torture him or acquiesce in his torture in

order to establish his eligibility for CAT relief.

Rodriguez appealed the denial of his application to the BIA.

On appeal, Rodriguez argued that he qualified as a refugee because

he credibly testified and submitted evidence establishing that he

suffered past persecution by the men who killed his brother and

cousin because he was a member of his family who worked at the

butcher shop and he had a well-founded fear of future persecution.

He contended that he had established a valid PSG. Concerning

CAT relief, Rodriguez provided law on CAT claims and stated that

the issues on appeal included whether the IJ erred in concluding

that he failed to meet the requirements for CAT relief. He did not,

however, provide any argument supporting his claim for CAT re-

lief.

In dismissing Rodriguez’s appeal, the BIA did not explicitly

adopt the IJ’s reasoning, and instead made the following

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6 Opinion of the Court 21-13108

determinations. Rodriguez had not established eligibility for asy-

lum. His PSG lacked immutability and, even if he had asserted a

valid PSG, he failed to establish that his membership in the group

was a central reason for his persecution. The IJ did not clearly err

by determining that his attackers were motivated by the success of

his business and envy, anger, or a personal dispute. Further, the

acts Rodriguez asserted were consistent with acts of private vio-

lence and merely showed that he was a victim of crime. And be-

cause he did not meet the standard for asylum, he was not entitled

to withholding of removal. Rodriguez had not demonstrated that

he would more likely than not be tortured upon removal to Hon-

duras, and there was insufficient evidence that his persecutors

acted with the requisite degree of state support or acquiescence.

Rodriguez timely appealed the BIA’s decision.

II. STANDARDS OF REVIEW

We solely review the BIA’s decision unless the BIA expressly

adopts the IJ’s decision or relies upon its reasoning, in which case

we review the adopted or relied-upon portions of the IJ’s opinion

and any part of the BIA decision where the BIA rendered its own

opinion. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.

2009). In deciding whether to uphold a BIA opinion, we are limited

to the grounds upon which it relied. See NLRB v. U.S. Postal Serv.,

526 F.3d 729, 732 n.2 (11th Cir. 2008) (per curiam).

We review legal conclusions, including whether a proposed

group constitutes a particular social group, de novo and factual

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21-13108 Opinion of the Court 7

findings for substantial evidence. Perez-Zenteno v. U.S. Att’y

Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Under the substantial

evidence standard, we view the evidence in the light most favora-

ble to the agency’s decision, draw all reasonable inferences in favor

of that decision, and must affirm the BIA’s decision unless the evi-

dence compels a contrary finding. Id.

III. DISCUSSION

A. Substantial Evidence Supports the Finding that Rodriguez

Failed to Satisfy the Nexus Requirement for Asylum and With-

holding of Removal

The Attorney General may grant asylum to a non-citizen

who meets the Immigration and Nationality Act’s definition of a

refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is (1)

outside the country of his nationality, (2) unable and unwilling to

return to that country, and (3) unable and unwilling to avail himself

of its protection (4) because of persecution or a well-founded fear

of persecution on account of his membership in a PSG. Id. §

1101(a)(42)(A). To qualify as a PSG, a group must (1) be defined

with particularity, (2) be socially distinct, and (3) share a common,

immutable characteristic that either cannot change or should not

be required to change because it is fundamental to the group mem-

bers’ identities. Perez-Zenteno, 913 F.3d at 1308–09.

Importantly, the standards for both asylum and withholding

of removal “contain a causal element known as the nexus require-

ment.” Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286

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8 Opinion of the Court 21-13108

(11th Cir. 2021). To satisfy this requirement, “[a]n applicant must

establish that a protected ground ‘was or will be at least one central

reason for persecuting the applicant.’” Id. A central reason is one

that “is ‘essential’ to the motivation of the persecutor.” Id. “In

other words, the [PSG] cannot play a minor role in the [applicant’s]

past mistreatment or fears of future mistreatment. That is, it can-

not be incidental, tangential, superficial, or subordinate to another

reason for harm.” Id. (internal quotation mark omitted). Evidence

that merely shows that a person has been the victim of crime or

private violence does not establish persecution based on a statuto-

rily protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258

(11th Cir. 2006) (per curiam).

Here, assuming for the sake of argument that Rodriguez as-

serted a valid PSG of Rodriguez family members who work at the

butcher shop, substantial evidence supports the BIA’s determina-

tion that Rodriguez failed to show a nexus between that PSG and

his persecution. The evidence presented by Rodriguez supports

the BIA’s conclusion that the harm Rodriguez suffered was due to

the success of his business and envy, anger, or a personal dispute,

and that he had merely been a victim of crime or private violence.

For example, Rodriguez’s aunt submitted a sworn statement in

which she claimed that their family was targeted because of their

successful business, and Rodriguez’s uncle’s statement reflected his

belief that those who harmed the family were motivated by envy.

Substantial evidence in the form of testimony and other evidence

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21-13108 Opinion of the Court 9

thus supports the finding that the Rodriguez family suffered harm

because they owned and operated a successful business.

We analyzed the nexus requirement in relation to a family-

based PSG in Sanchez-Castro v. United States Attorney General,

998 F.3d at 1283–84. There, an El Salvador native petitioned for

review of the denial of her asylum claim, in which she asserted that

gang members targeted her family based on the assumption that

her father’s work in the United States made her family wealthy. Id.

at 1283. We held that substantial evidence supported the finding

that she did not meet the nexus requirement because the gang tar-

geted her family in order to obtain funds, not because of any ani-

mus against her family. Id. at 1283, 1285–87. In doing so, we dis-

tinguished persecution of a family because of membership in the

family from persecution of a family for some other, tangential rea-

son: “[W]e distinguish persecution of a family as a means to an un-

related end from persecution based on animus against a family per

se. Where a gang targets a family only as a means to an end, the

gang is not acting because of who that family is; the identity of the

family is only incidentally relevant.” Id. at 1287 (internal citation

omitted).

As in Sanchez-Castro, the record here does not compel a

finding that any persecution Rodriguez has suffered or fears is “be-

cause of” his familial ties. Substantial evidence therefore supports

the BIA’s no-nexus determination. And, because this no-nexus

finding is dispositive of both of his asylum and withholding of re-

moval claims, we agree with the BIA that Rodriguez is ineligible

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10 Opinion of the Court 21-13108

for either form of relief. See id. at 1286 (“[A]n applicant who is

ineligible for asylum is necessarily ineligible for withholding of re-

moval.”).

B. Rodriguez Failed to Exhaust His Claim for CAT Relief

We review questions of our subject matter jurisdiction de

novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016).

If a petitioner fails to assert an issue before the BIA by not raising

the core issue or the discrete arguments he advances on appeal, he

has failed to exhaust his administrative remedies, and we lack juris-

diction to review the unexhausted issue even if the BIA addressed

the question sua sponte. Id. at 800; Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006) (per curiam).

While a petitioner need not use precise legal terminology, conclu-

sory statements or mere passing references do not satisfy this re-

quirement. Jeune, 810 F.3d at 800. We are obligated to sua sponte

raise our lack of jurisdiction. See Univ. of S. Ala. v. Am. Tobacco

Co., 168 F.3d 405, 410 (11th Cir. 1999).

Here, while Rodriguez stated the applicable law for CAT re-

lief, he did not put forth any arguments as to why he should be

entitled to such relief and thus failed to exhaust his CAT relief ar-

gument below. See Jeune, 810 F.3d at 800 (“[T]o exhaust a claim

before the BIA, it is not enough that the petitioner has merely iden-

tified an issue to that body.”). We therefore dismiss Rodriguez’s

petition solely as to this issue.

DENIED IN PART; DISMISSED IN PART.