Joaquin Garcia Garcia v. U.S. Attorney General , 619 F. App'x 883 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14782
Non-Argument Calendar
________________________
Agency No. A200-952-758
JOAQUIN GARCIA GARCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 29, 2015)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
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Joaquin Garcia Garcia, through counsel, petitions for review of the Board of
Immigration Appeals’s (“BIA”) dismissal of his appeal from the Immigration
Judge’s (“IJ”) denial of his application for withholding of removal under the
Immigration and Nationality Act (“INA”). On appeal, Garcia contends that he
demonstrated statutory eligibility for withholding of removal based on his fear of
future persecution because of his membership in a particular social group. After
review, we deny Garcia’s petition for review.
I. BACKGROUND
In 2004, Garcia, a native and citizen of Mexico, entered the United States
without inspection. In 2012, the Department of Homeland Security issued Garcia a
notice to appear charging him with removability under INA § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being
admitted or paroled, and INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I),
for being present without valid entry documents. Garcia does not challenge his
removability.
A. Application for Withholding of Removal
On August 22, 2013, Garcia filed an application for withholding of removal
under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).1 Garcia indicated that he sought
1
Garcia also unsuccessfully filed applications for asylum and relief under the United
Nations Convention Against Torture (“CAT”). In his brief to this Court, however, Garcia does
not challenge the denial of asylum and CAT relief. Therefore, we do not address these claims.
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withholding of removal because of his fear of future persecution based on his
membership in a particular social group, but he did not identify the particular
social group to which he allegedly belonged. In his application and attached
personal statement, Garcia stated that he feared returning to Mexico because of the
country’s high rates of violence, kidnappings, and corruption.
B. Evidence Before the IJ
At a hearing before the IJ, Garcia testified that he was afraid of being
kidnapped, assaulted, robbed, or killed in Mexico because of his “perceived
wealth” in returning from the United States. Garcia claimed that there were
“people,” both in “farm areas” and “big cities,” “constantly checking . . . who’s
coming in and out [of Mexico]” to identify targets for kidnapping or robbing.
Garcia believed that he would not be able to seek protection against such “people”
from law enforcement because of government corruption.
Garcia further testified that he personally knew an individual, Rulen
Vialouis, who was kidnapped in Mexico in 2004 or 2005 for money. Garcia
opined, based on information he received from family living in Mexico and news
reports, that there had been a rise in gangs since he left Mexico.
See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009) (deeming abandoned
petitioner’s CAT claim to which petitioner’s brief made only a “passing reference”).
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Garcia conceded, however, that neither he nor any member of his family had
ever been harmed while living in Mexico. At the time of his application, Garcia’s
parents and two of his ten siblings still lived in Mexico. Garcia’s parents remained
in the same family home where Garcia grew up in his home city of Yuriria,
Guanajuato. Garcia estimated that his home city was 50 percent safer than “other
areas in Mexico.” Garcia admitted that he originally came to the United States for
work and not for protection and that there was nothing distinguishing him from any
other person returning to Mexico from the United States.
Before the IJ, Garcia also submitted U.S. Department of State reports
concerning country conditions in Mexico, including a 2012 travel warning, a 2012
Human Rights Report, and a 2013 Crime and Safety Report, as well as news
articles reporting on law enforcement corruption.
Generally, the reports and articles stated that crime and violence, often in
connection with drug-trafficking organizations, were widespread in Mexico but
varied greatly by location. The 2012 travel warning noted that “[t]he number of
kidnappings and disappearances throughout Mexico [was] of particular concern”
and that members of both local and expatriate communities had been victims of
kidnapping. Kidnapping remained a serious and underreported problem for
persons of all socioeconomic levels, although the travel warning encouraged
visitors to avoid displaying evidence of wealth.
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The reports and articles further indicated that corruption, human rights
abuses, and participation in criminal activity were rampant among police forces.
Police at both the state and local level sometimes provided protection for, or acted
directly on behalf of, organized crime and drug traffickers.
C. IJ’s Decision
On January 14, 2014, the IJ denied Garcia’s application for withholding of
removal. The IJ found that Garcia’s general concern with escalating violence in
Mexico did not establish past persecution or a probability of future persecution
based on a protected ground.
The IJ granted Garcia’s request for voluntary departure, stated that the
voluntary departure order was valid for 60 days, and set a minimum bond of $500
with an alternative order of removal to Mexico.
D. Appeal to the BIA
Garcia appealed to the BIA, arguing that he satisfied the burden for
withholding of removal by showing that he would more likely than not be the
victim of violence at the hands of “criminal elements” if returned to Mexico.
Garcia suggested that he belonged to a particular social group—“Mexican
citizen[s] who had been living in the United States”—and contended that this
group was the target of escalating violence in Mexico.
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On September 22, 2014, the BIA dismissed Garcia’s appeal. As to Garcia’s
withholding of removal claim, the BIA concluded that Garcia failed to show a
nexus between a likelihood of future persecution and a protected ground under the
INA. The BIA reasoned that while Garcia “fear[ed] crimes perpetrated by
unknown persons,” this Court “has held that evidence consistent with private
violence . . . does not constitute evidence of persecution upon a statutorily
protected ground.” The BIA rejected Garcia’s attempt to fit his “circumstances
into [a] particular social group category,” noting that “ordinary crime does not
constitute a basis for persecution.” 2
II. DISCUSSION
To qualify for withholding of removal under the INA, an applicant must
show that, if returned to his country, his “life or freedom would be threatened in
that country because of [his] race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A);
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). Where, as here, the
2
Although the BIA dismissed Garcia’s appeal, it issued a limited remand to the IJ to
provide the requisite advisements for voluntary departure because it was unclear from the record
whether the IJ had adequately provided Garcia these advisements. Despite the limited remand,
the BIA’s order constitutes a final order of removal, such that we have jurisdiction over Garcia’s
petition for review. See Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 1156-57 (11th Cir. 2003).
In addition, to the extent that the government contends that we should dismiss Garcia’s petition
for review for prudential reasons, we DENY the government’s motion to dismiss. That motion
raises certain issues that this Court has not yet expressly decided, and we need not decide these
issues here because Garcia’s petition for review is meritless in any event.
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applicant fails to show past persecution, he must demonstrate that it is more likely
than not that he will be persecuted on account of a protected ground if removed to
his country. See Tan, 446 F.3d at 1375.3
The applicant must present specific, detailed facts showing a good reason to
fear that he will be singled out for persecution on account of a protected ground,
and he must establish a nexus between the persecution he fears and the protected
ground. See Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013);
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004). We will not
reverse a finding that an applicant failed to demonstrate a nexus between the
alleged persecution and a protected ground unless the evidence compels a
conclusion that the applicant has been or will be persecuted “because of” the
protected ground. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th
Cir. 2007).
Here, the BIA concluded that Garcia failed to demonstrate a nexus because
his fear of “ordinary crime” or “private violence” by “unknown persons” did not
amount to evidence of persecution based on a statutorily protected ground. We
cannot say that the record compels a different conclusion. Garcia’s evidence
established at most that crime, including kidnapping for ransom, is widespread in
3
We review only the decision of the BIA where the BIA did not expressly adopt the IJ’s
decision. Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir. 2009). We review
conclusions of law de novo and factual determinations under the substantial-evidence test. Id.
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Mexico and that people within both the expatriate and local communities, and at all
socioeconomic levels, may be targeted by gangs and drug-trafficking organizations
for kidnapping. As a matter of law, such evidence of high levels of general
criminal activity within a country alone is insufficient to “constitute evidence of
persecution based on a statutorily protected ground.” See Ruiz v. U.S. Atty. Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006) (holding that “evidence that . . . is consistent
with acts of private violence . . . 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”); Rodriguez, 735 F.3d at 1310-11 (explaining that the
petitioner “failed to establish a nexus between his membership in a particular
social group and the harm he feared in Mexico” where the “record reflect[ed]
[only] that the members of his family were killed or kidnapped due to their failure
to cooperate with the drug traffickers or were the victims of criminal activity”).
Accordingly, we deny Garcia’s petition for review.
PETITION DENIED.
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