Oliver Adonay Tovar-Cortez v. U.S. Attorney Gen. , 352 F. App'x 344 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11190 ELEVENTH CIRCUIT
NOVEMBER 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A099-481-853
OLIVER ADONAY TOVAR-CORTEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 9, 2009)
Before BARKETT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Oliver Adonay Tovar-Cortez, through counsel, petitions for review of the
final order of the Board of Immigration Appeals (“BIA”) affirming the
immigration judge’s (“IJ”) denial of his claims for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), INA §§ 208,
241(b)(3)(A), 8 U.S.C. §§ 1158, 1231(b)(3)(A), 8 C.F.R. § 208.16, and for relief
under the United Nations Convention Against Torture (“CAT”), 8 C.F.R.
§ 208.16(c). On petition for review, Tovar-Cortez argues that the BIA erred in
finding that he was not eligible for asylum or withholding of removal because he
did not show past persecution or a fear of future persecution on account of a
protected ground, specifically, his political opinion.
I. BACKGROUND
Tovar-Cortez, a native and citizen of El Salvador, who entered the United
States in December 2005 without being admitted or paroled, was issued a notice to
appear by the Department of Homeland Security, and Tovar-Cortez was found
removable by an IJ at his removal hearing. In September 2007, Tovar-Cortez filed
an application seeking asylum and withholding of removal based on persecution on
account of his political opinion and membership in a particular social group. He
also applied for CAT relief. In support of his application, Tovar-Cortez alleged
that in 2004, members of a gang known as the Mara 18 (“the Maras”) tried to force
him to join the gang. When he refused and instead reported them to the police,
they threatened to kill him. Tovar-Cortez feared that the Maras would kill him
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because they killed other young people who refused to join their gang. At the
asylum hearing, Tovar-Cortez argued that the Maras had a political agenda of
anarchy, and he was targeted by them because of his opposition to that agenda,
which he demonstrated by refusing to join them and by filing a police report. The
bulk of Tovar-Cortez’s testimony and supporting documents centered around the
Maras’ political agenda, and the government responded that the Maras are a
criminal gang, rather than a political organization.
The IJ found that Tovar-Cortez failed to establish that he suffered past
persecution or had a well-founded fear of future persecution on the basis of an
enumerated ground. In particular, although the IJ found Tovar-Cortez to be
credible, she concluded that the alleged persecution was not on account of Tovar-
Cortez’s political opinion or membership in a particular social group. The IJ
concluded that the Maras tried to recruit Tovar-Cortez because they wanted him to
participate in criminal, rather than political activity. The IJ found that filing a
police report did not constitute political action against the Maras. As to Tovar-
Cortez’s claim of persecution based on his membership in a social group, the IJ
determined that Tovar-Cortez did not provide any evidence showing that the Maras
harm young men who refuse to join them. As to the CAT claim, the IJ found that
Tovar-Cortez presented no evidence that he would be tortured by, or with the
acquiescence of, the Salvadoran government. To the contrary, the Salvadoran
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government was trying to fight the Maras. Thus, the IJ denied Tovar-Cortez’s
claims for asylum, withholding of removal, and CAT relief.
On appeal to the BIA, Tovar-Cortez argued that the IJ erred by failing to
find that he was eligible for asylum or withholding of removal because he had been
persecuted based on his political opinion.1 Tovar-Cortez argued that the IJ erred
by finding that the Maras were not a political organization. The BIA affirmed the
IJ’s decision, finding that Tovar-Cortez failed to establish a nexus between the
alleged persecution and a protected ground. The BIA agreed with the IJ that any
fear of future persecution was based on Tovar-Cortez’s refusal to join a criminal
gang, which did not amount to expression of a political opinion or lead to the
imputation of a political opinion. We agree with the decisions and reasoning of the
IJ and BIA, and accordingly deny the petition.
II. STANDARD OF REVIEW
We only review the BIA’s decision, except to the extent that it adopts the
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Tovar-Cortez did not appeal to the BIA the decision of the IJ denying asylum and
withholding of removal because he had not been persecuted based on his membership in a
particular social group. He also did not appeal to the BIA his denial of CAT relief. If a party
fails to raise an issue before the BIA, we do not have jurisdiction to consider that issue, even if
the BIA considered the issue sua sponte. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250–51 (11th Cir. 2006) (per curiam). In order to properly raise an issue before the BIA, the
party must mention the issue in his brief and discuss its merits or the basis for the IJ’s decision.
See Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006). Therefore, we do not have
jurisdiction to review whether Tovar-Cortez was persecuted because of his membership in a
particular social group or the denial of CAT relief on appeal because Tovar-Cortez did not
address those issues in his brief to the BIA.
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IJ’s decision. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006) (per
curiam). To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s
decision also. Id. Here, the BIA issued a written opinion, in which it agreed with
the reasoning of the IJ. Therefore, we review the BIA’s opinion, and the IJ’s
opinion only to the extent that the BIA adopted the IJ’s reasoning.
We review the IJ’s and the BIA’s factual determinations under the
substantial evidence test and will affirm if the decision “is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quoting
Forgue v. U.S Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)) (internal
quotation omitted). We review the record evidence in the light most favorable to
the BIA’s decision. Forgue, 401 F.3d at 1286 (citing Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc)). Moreover, we may not overturn the
BIA’s findings of fact unless the record compels it. Id. at 1287 (citing D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004)).
III. DISCUSSION
To be eligible for asylum, an alien must prove refugee status. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). The applicant satisfies this burden
by showing, with specific and credible evidence, either (1) past persecution on
account of race, religion, nationality, membership in a particular social group, or
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political opinion; or (2) a well-founded fear of persecution on account of one of the
above-listed factors. 8 C.F.R. § 208.13(a), (b); Mejia, 498 F.3d at 1256. An alien
seeking withholding of removal must show that it is more likely than not that he
will be persecuted or tortured upon being returned to his country. Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam) (citing Fahim
v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)). This standard is more
stringent than the standard for asylum. Id. Accordingly, an alien who fails to
establish eligibility for asylum generally cannot satisfy the higher burden for
withholding of removal. Id. at 1232–33.
To establish eligibility for asylum or withholding of removal, an alien must
establish a nexus between a statutorily protected ground and the persecution. See
id. at 1230–31. Here, the statutorily protected ground Tovar-Cortez seeks to
establish is political opinion. See 8 C.F.R. § 208.13(b). An alien can meet this
burden by presenting specific, detailed facts demonstrating a good reason to fear
that he will be singled out for persecution on account of such ground. Sepulveda,
401 F.3d at 1231 (citing Al Najjar, 257 F.3d at 1287). Under the REAL ID Act of
2005, which applies to all applications for asylum or withholding of removal filed
after May 11, 2005, an applicant must demonstrate that one of the protected
grounds was or will be “at least one central reason” for the persecution. INA
§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). Tovar-Cortez filed his application
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for asylum in 2007, so the REAL ID Act of 2005 applies. To warrant a reversal of
a finding that an alien failed to demonstrate a sufficient nexus between the alleged
persecution and the alien’s political opinion, “we must be compelled to find that
the alien will be persecuted ‘because of’ his political opinion.” Rodriguez Morales
v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (per curiam) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816 (1992)).
An alien who alleges persecution on account of his political opinion must
establish that he was persecuted because of his own actual or imputed political
opinion, not because of the persecutor’s political motives. Elias-Zacarias, 502
U.S. at 482; see also Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437–38 (11th Cir.
2004) (per curiam). Here, Tovar-Cortez presented ample evidence that the Maras
threatened him based on their political motives, but there is no evidence that the
Maras targeted Tovar-Cortez based on his individual or imputed political opinion
or motive. Moreover, “evidence that either is consistent with acts of private
violence or the petitioner’s failure to cooperate with guerillas, or that merely shows
that a person has been the victim of criminal activity, does not constitute evidence
of persecution based on a statutorily protected ground.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam) (citing Sanchez, 392 F.3d at
438). The Supreme Court and this Court have held that persecution because of
refusal to cooperate with or join a guerilla group alone is insufficient to satisfy the
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nexus requirement. See Elias-Zacarias, 502 U.S. at 481–82 (refusal to join
guerilla forces); Rodriguez Morales, 488 F.3d at 890–91 (refusal to provide
services to guerillas); Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821–22 (11th Cir.
2007) (refusal to pay guerillas’ war tax); Sanchez, 392 F.3d at 438 (refusal to meet
and cooperate with guerillas).
In Elias-Zacarias, the Supreme Court rejected the Ninth Circuit’s holding
that resistance to attempted conscription by guerillas sufficed to show a political
opinion. 502 U.S. at 481. The Supreme Court reasoned that the victim’s resistance
to recruitment was based on his fear of retaliation from the government, and not his
own or imputed political motives. Id. at 482. Moreover, the guerillas’s interest in
filling their ranks “to carry on their war against the government and pursue their
political goals” was irrelevant to the victim’s political opinion. Id. Here, the IJ
found that there was no nexus between the alleged persecution or fear of future
persecution and Tovar-Cortez’s political opinion. Upon review of the record and
consideration of the parties’ briefs, we conclude that they do not compel a finding
to the contrary.
Guided by Elias-Zacarias, we reject Tovar-Cortez’s arguments that refusing
to join the Maras and reporting the Maras’ threats to the police constituted political
action. Tovar-Cortez did not present any evidence that the Maras attempted to
recruit him because of his political opinion, and it is irrelevant whether the Maras
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furthered its political objectives by attempting to recruit and threatening Tovar-
Cortez. Therefore, substantial evidence supports the BIA’s determination that
Tovar-Cortez was threatened based on his refusal to join a criminal gang, rather
than on the basis of any political opinion that he held. Accordingly, Tovar-Cortez
was not entitled to asylum or withholding of removal.
PETITION DENIED.
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