Fredi Eliseo Cux-Lopez v. U.S. Attorney General

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 1 of 10

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10528

Non-Argument Calendar

____________________

FREDI ELISEO CUX-LOPEZ,

FLORIDALMA CUX-LOPEZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A206-894-341

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 2 of 10

2 Opinion of the Court 23-10528

____________________

Before ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges.

PER CURIAM:

Guatemalan citizens, Floridalma Cux-Lopez and her son

Fredi Cux-Lopez (collectively “Petitioners”) seek review of the

Board of Immigration Appeals’ (“BIA”) final order affirming the

Immigration Judge’s (“IJ”) denial of their applications for asylum,

withholding of removal, and relief under the United Nations Con-

vention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”). On appeal, Petitioners argue

that the BIA erred by determining that they were ineligible for asy-

lum, withholding of removal, and CAT relief. After reviewing the

record and the applicable law, we affirm.

I. Denial of Asylum & Withholding of Removal

We review only the decision of the BIA, except to the extent

that the BIA expressly adopts or explicitly agrees with the IJ’s deci-

sion. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).

We do not consider issues that the BIA did not reach. Id.

We review de novo the BIA’s legal conclusions, such as

whether a petitioner’s claimed social group qualifies as a particular

social group under the INA. Perez-Zenteno v. U.S. Att’y Gen., 913

F.3d 1301, 1306 (11th Cir. 2019). Our review is informed by Chev-

ron 1 deference, meaning that if a statute that the agency administers

1 Chevron, U.S.A., Inc. v Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 3 of 10

23-10528 Opinion of the Court 3

is silent or ambiguous, we determine whether the agency’s inter-

pretation is permissible and if so, defer to that interpretation. Id.

Because the INA does not clearly define the phrase “particular so-

cial group,” we have deferred to the BIA’s interpretation as set

forth in its unpublished, three-member decisions. Id. at 1307; see

also Gonzalez, 820 F.3d at 404 (“We have previously held that the

BIA’s interpretation of the phrase ‘particular social group’ in 8

U.S.C. § 1231(b)(3)(A) is entitled to Chevron deference because the

INA does not define the phrase and it is ambiguous.”).

The noncitizen bears the burden of establishing that she is

entitled to asylum, which requires the noncitizen to establish, with

specific and credible evidence, that: (1) she suffered past persecu-

tion on account of a statutorily protected ground; or (2) she has a

well-founded fear that she will be persecuted on account of a stat-

utorily protected ground. Id.; 8 C.F.R. § 1208.13(a), (b). The stat-

utorily protected grounds include, among other things, member-

ship in a particular social group. 8 U.S.C. § 1158(b)(1)(B)(i).

To qualify as a particular social group under the INA, the

group must be composed of members who “share a common, im-

mutable characteristic” that the group members either cannot

change, or should not be forced to change, “because it is fundamen-

tal to their individual identities or consciences.” Perez-Zenteno, 913

F.3d at 1309-10 (internal quotation marks and citation omitted).

The “particular social group also must be defined with particular-

ity,” meaning the group has discrete, definable boundaries, and is

not vague or amorphous. Id. at 1310 (internal quotation marks and

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 4 of 10

4 Opinion of the Court 23-10528

citation omitted). Moreover, the group should be seen within the

given society as a “sufficiently distinct group.” Id. (internal quota-

tion marks and citation omitted). Importantly, the particular social

group cannot be circularly defined by the persecution of its mem-

bers, meaning the particular social group’s defining attribute can-

not be its risk of persecution stemming from being targeted by

gangs. Id. at 1309-10 (holding that the BIA reasonably determined

that the noncitizen’s proposed social group of “Mexican citizens

targeted by criminal groups because they have been in the United

States and have families in the United States” was impermissibly

circular) (underline in original); see also Amezcua-Preciado v. U.S.

Att’y Gen., 943 F.3d 1337, 1344-45 (11th Cir. 2019) (holding that the

BIA reasonably determined that the noncitizen’s proposed social

group of “women in Mexico who cannot leave domestic relation-

ships” was impermissibly circular); Rodriguez v. U.S. Att’y Gen., 735

F.3d 1302, 1310 (11th Cir. 2013) (holding that the BIA did not err in

finding incognizable a noncitizen’s proposed social group of “mem-

bers of a family targeted by a drug-trafficking organization because

a family member sought criminal justice against a member of the

drug-trafficking organization” because the social group was imper-

missibly defined by the risk of persecution).

Additionally, the petitioner must establish a nexus between

the feared persecution and a statutorily protected ground by

demonstrating that one of the protected grounds was or will be at

least one central reason for persecuting her. 8 U.S.C.

§ 1158(b)(1)(B)(i). Evidence “consistent with acts of private vio-

lence or the petitioner’s failure to cooperate with guerillas,” or

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 5 of 10

23-10528 Opinion of the Court 5

evidence merely showing the petitioner “has been a victim of crim-

inal activity,” is insufficient to support a finding that the noncitizen

faced persecution based on a statutorily protected ground. Ruiz v.

U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006).

A noncitizen is eligible for withholding of removal if she

shows that, upon return to her country, she will be persecuted in

that country because of a protected ground, such as her member-

ship in a particular social group. 8 U.S.C. § 1231(b)(3). The stand-

ard for withholding of removal is more stringent than that for asy-

lum, meaning if the petitioner fails to meet the standard of proof

for asylum, she necessarily cannot meet the standard for withhold-

ing of removal. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,

891 (11th Cir. 2007).

Before the BIA and IJ, Cux-Lopez framed her proposed par-

ticular social group as “Guatemalan mothers fleeing personal gang

persecution and that of their young student children.” Fredi

framed his proposed particular social group as “young Guatemalan

male students who are targeted by gang members for repeated re-

jection of gang recruitment to protect themselves and their family

members.” At the hearing before the IJ, Petitioners presented evi-

dence that they suffered from and feared gang violence. Fredi

stated that when he was about 10 years old, he began experiencing

repeated pressure to join gangs that chased, attacked, threatened,

and harassed him. He indicated that some of those gang encoun-

ters resulted in him getting bruised, but his mother acknowledged

that he never received any medical attention for those injuries.

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 6 of 10

6 Opinion of the Court 23-10528

Petitioners also witnessed the murder of their pastor, and Cux-

Lopez was grabbed by one of the assailants and had her phone sto-

len so that she could not report the crime. Given these experiences,

Petitioners feared leaving their home, and Fredi quit attending

school due to this fear. Cux-Lopez further stated that she has fam-

ily living in Guatemala City, about a four to five-hour drive from

her hometown. However, her reluctance to relocate within Gua-

temala was not based on fear, but instead because she has no

money and her siblings told her she could not move there.

After considering Petitioners’ testimony and the other evi-

dence introduced, including reports regarding Guatemala’s human

rights conditions, the IJ denied the Petitioners’ applications for asy-

lum and withholding of removal, which the Petitioners appealed

to the BIA. The BIA, in a single-member decision relying on prec-

edent from this Court and the BIA, affirmed the IJ’s decision, con-

cluding that Petitioners failed to sufficiently establish their mem-

bership in a particular social group due to the circular nature of

their proposed social group and the lack of a nexus between their

claimed persecution and their proposed social group.

We affirm the BIA’s decision. 2 As to asylum, Petitioners did

not meet their burden of proof under the INA. Petitioners’ basis

for asylum was that they are members of a particular social group

and face a risk of persecution due to that status—specifically, as

2 On appeal, Petitioners also argue that they demonstrated past persecution.

Because the BIA did not reach that issue, Petitioners’ argument is not properly

before the Court. Gonzalez, 820 F.3d at 403.

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 7 of 10

23-10528 Opinion of the Court 7

“Guatemalan mothers fleeing personal gang persecution and that

of their young student children” and “young Guatemalan male stu-

dents who are targeted by gang members for repeated rejection of

gang recruitment to protect themselves and their family mem-

bers.” However, the definition of their “particular social groups”

is circular in that the risk of persecution defines the very risk they

fear. Cux-Lopez’s proposed social group’s defining attribute is the

risk of persecution stemming from being a mother with a young

student child fleeing gang persecution, which is the definition of an

impermissibly circular social group. Perez-Zenteno, 913 F.3d at 1310.

Fredi’s proposed social group suffers the same fate, for his proposed

social group’s defining attribute is the fact that he has been targeted

by gang members. Rodriguez, 735 F.3d at 1310 (holding that “family

[members] targeted by a drug-trafficking organization” was an im-

permissibly circular social group) (emphasis added). Thus, the pro-

posed groups were not legally cognizable, and because they as-

serted no other protected ground, they could not establish the req-

uisite nexus between the claimed persecution and a protected

ground. 8 U.S.C. § 1158(b)(1)(B)(i). Moreover, Petitioners’ fear of

gang-related violence directed towards them, while obviously

troubling, does not establish a widespread fear of violence against

every Guatemalan mother or young student. The same, as a mat-

ter of statutory interpretation and application, is true for Fredi who

defined his proposed social group as all “young Guatemalan male

students” targeted by gangs. Ruiz, 440 F.3d at 1258. As such, the

BIA did not err in affirming the IJ’s denial of Petitioners’ application

for asylum. Likewise, because Petitioners are not eligible for

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 8 of 10

8 Opinion of the Court 23-10528

asylum, they necessarily cannot establish their eligibility for with-

holding of removal, and the BIA did not err in affirming the IJ’s

denial of such relief. Rodriguez Morales, 488 F.3d at 891.

II. Denial of CAT Relief

We review the BIA’s factual findings for substantial evi-

dence, wherein we “view the record evidence in the light most fa-

vorable to the agency’s decision and draw all reasonable inferences

in favor of that decision.” Perez-Zenteno, 913 F.3d at 1306 (internal

quotation marks omitted) (quoting Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004) (en banc)). Under this standard of re-

view, “we must affirm the BIA’s decision if it is supported by rea-

sonable, substantial, and probative evidence” in consideration of

the entire record. Id. (internal quotation marks omitted) (quoting

Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)).

To be eligible for CAT relief, the noncitizen must meet a

higher burden of proof than for asylum eligibility and show that

she will more likely than not be tortured if she returned to the des-

ignated country of removal. Lingeswaran v. U.S. Att’y Gen., 969 F.3d

1278, 1293 (11th Cir. 2020) (quoting 8 C.F.R. § 1208.16(c)(2)). All

relevant evidence must be considered, including the applicant’s

ability to relocate and information regarding conditions within the

country. 8 C.F.R. § 1208.16(c)(3). “Torture” is defined as an inten-

tionally inflicted “extreme form of cruel and inhuman treatment”

that includes “severe pain or suffering” which can be either mental

or physical. 8 C.F.R. § 208.18(a)(1), (2).

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 9 of 10

23-10528 Opinion of the Court 9

Importantly, CAT only protects noncitizens from torture

that is being inflicted, instigated, or acquiesced to by a public offi-

cial or another individual acting in his or her official capacity. Lin-

geswaran, 969 F.3d at 1293. For a public official to acquiesce to the

torture, the public official must have awareness of the activity be-

fore it occurs and be aware of his or her responsibility to intervene

to prevent the activity. Id. A government does not acquiesce to

torture when it “actively, albeit not entirely successfully, combats

the alleged torture.” Lingeswaran, 969 F.3d at 1294 (internal quota-

tion marks omitted) (quoting Reyes-Sanchez v. U.S. Att’y Gen., 369

F.3d 1239, 1243 (11th Cir. 2004)).

Before the IJ, Petitioners only presented evidence of criminal

gang activity by private actors they directly experienced or wit-

nessed. Although their evidence showed that crime rates were

high in Guatemala, the record does not demonstrate that the Gua-

temalan government inflicted, instigated, or acquiesced to any ac-

tivities that constitute torture under CAT. Although perhaps woe-

fully inadequate and thus far unsuccessful, Petitioners’ evidence

nevertheless did show some modest efforts on the part of the Gua-

temalan government to curb the violence. Additionally, Petition-

ers never reported the incidents of violence they personally experi-

enced to Guatemalan officials. Based on this evidence, the IJ denied

Petitioners’ application for CAT relief, and the BIA affirmed the de-

nial.

Here, the record, taken as a whole, does not support a find-

ing that Petitioners would more likely than not be tortured with

USCA11 Case: 23-10528 Document: 18-1 Date Filed: 11/03/2023 Page: 10 of 10

10 Opinion of the Court 23-10528

the acquiescence of the Guatemalan government upon their re-

turn. 8 C.F.R. § 1208.16(c)(2), (3); Perez-Zenteno, 913 F.3d at 1306;

Lingeswaran, 969 F.3d at 1293-94. While Petitioners may under-

standably be afraid of continued violence in Guatemala, their rea-

sonable fears unfortunately do not satisfy the heightened standard

to be eligible for CAT relief.

PETITION DENIED.