Efrain Camacho-Villa v. Loretta E. Lynch , 661 F. App'x 354 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0543n.06
No. 14-3379 FILED
Sep 20, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EFRAIN CAMACHO-VILLA )
)
Petitioner, )
)
ON PETITION FOR REVIEW
v. )
FROM THE UNITED STATES
)
BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney General, )
APPEALS
)
Respondent. )
)
)
BEFORE: SILER, GIBBONS, and COOK, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Efrain Camacho-Villa, a Mexican citizen,
seeks review of the Board of Immigration Appeals’ (BIA) denial of his application for asylum
and withholding of removal. The BIA affirmed the Immigration Judge’s (IJ) determination that
Camacho-Villa has not shown he belongs to a social group cognizable under the Immigration
and Nationality Act (INA). Because Mexicans returning from the United States who are
perceived to have money do not constitute a particular social group, we deny Camacho-Villa’s
petition for review.
I.
Efrain Camacho-Villa is a native and citizen of Mexico. He entered the United States on
July 8, 2003 on a tourist visa and overstayed this six-month visa after his wife became pregnant
in October 2003. He has not left the United States since his entry.
No. 14-3379, Camacho-Villa v. Lynch
On May 18, 2010, the Department of Homeland Security (DHS) issued Camacho-Villa a
Notice to Appear on the basis that he had remained in the United States longer than permitted
under his tourist visa, which rendered him removable under 8 U.S.C. § 1227(a)(1)(B). On
October 13, 2010, Camacho-Villa appeared unrepresented before an immigration judge, admitted
the charges in the Notice to Appear, and conceded he was removable. He appeared with counsel
on March 2, 2011 and filed an application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT).
At a hearing before the IJ on June 5, 2012 Camacho-Villa testified that he became aware
of problems in Mexico in 2007 or 2008 after his son was born. Camacho-Villa testified that he
heard that things were getting worse there in 2009 and stayed the same in 2010. The basis of his
understanding of these problems was the news, his family, and friends. Camacho-Villa also
testified regarding experiences of his family members. In 2009, a group of men came to his
cousin’s house and stole his car. In April 2012, three cousins were kidnapped and then killed,
and in May 2012, his nephew was also killed. Camacho-Villa stated that he is afraid of returning
to Mexico because of the level of crime and because people think those returning from the
United States to Mexico have money. Camacho-Villa stated he does not think he is different
from anyone else who lives in Mexico but is afraid of the general crime there.
In an oral decision delivered the day of the hearing, the IJ denied Camacho-Villa’s
application for asylum, withholding of removal, and relief under CAT. The judge found that,
while Camacho-Villa was credible, he did not submit his asylum application within one year of
his entry into the United States nor did he submit the application within six months of when a
change in circumstance occurred (i.e., when he became afraid of returning to Mexico in 2007 or
2008). The judge further found that even if the application had been timely, Camacho-Villa
-2-
No. 14-3379, Camacho-Villa v. Lynch
testified that he only feared routine criminal violence in Mexico; there was no connection
between his fear of harm and a protected ground. Thus, because Camacho-Villa’s fear did not
relate to a protected ground, the IJ denied his application for asylum and withholding of removal
while granting his request for voluntary departure.
Before the BIA, Camacho-Villa argued that he filed his asylum application within a
reasonable period of time after he learned of the violence against his family members, a change
in circumstances. He also asserted that he established a well-founded fear of future persecution
based on his membership in a particular social group: Mexicans returning to Mexico from the
United States who are perceived to have money.
The BIA dismissed Camacho-Villa’s appeal. It held that even if Camacho-Villa’s
application were timely, he failed to establish that he has a well-founded fear of persecution
based on a statutorily protected ground. The particular social group Camacho-Villa claimed to
belong to is not cognizable because it is too loosely defined and would include a large percentage
of Mexican society. As a result, Camacho-Villa did not show a nexus between the harm he
feared upon returning to Mexico and a statutorily protected ground. Camacho-Villa then
petitioned this Court for review of the BIA’s decision.
II.
Camacho-Villa argues that his case should be remanded for (1) him to reformulate his
particular social group in light of new case law and (2) the immigration judge to conduct further
fact-finding regarding the timeliness of his asylum application in light of Mandebvu v. Holder,
755 F.3d 417, 425–28 (6th Cir. 2014). Thus, Camacho-Villa, as the government argues, has
likely waived any challenge to the merits of the BIA’s decision. See Ahlers v. Schebil, 188 F.3d
365, 374 (6th Cir. 1999) (holding that claims not addressed in a party’s appellate briefs are
-3-
No. 14-3379, Camacho-Villa v. Lynch
waived). Even if this argument were not waived, however, Camacho-Villa cannot establish that
he is a member of a particular social group cognizable under the INA; his asylum application
thus fails on the merits. Because consideration of new case law, even assuming Camacho-Villa’s
application were timely, would not alter the fact that he cannot show a nexus between the harm
he fears in Mexico and one of the INA’s five protected grounds, we deny Camacho-Villa’s
petition for review.
A.
Aliens at risk of persecution upon return to their home countries have available three
primary forms of relief, two of which are relevant here since Camacho-Villa has waived relief
under CAT: withholding of removal under the INA, 8 U.S.C. § 1231(b)(3), and asylum under
8 U.S.C. § 1158. To qualify for asylum, a petitioner must meet the definition of refugee under
8 U.S.C. § 1101(a)(42)(A), which refers to a person “who is unable or unwilling to return to” his
or her home country “because of persecution or a well-founded fear of persecution” based on one
of the five protected grounds of “race, religion, nationality, membership in a particular social
group, or political opinion.” To qualify for withholding of removal, a petitioner “must show that
it is more likely than not that he would be subject to persecution on the basis of one of these five
grounds were he removed from this country.” Shkulaku-Purballori v. Mukasey, 514 F.3d 499,
503 (6th Cir. 2007) (citation and internal quotation marks omitted).
Camacho-Villa argued before the BIA that he has a well-founded fear of persecution
based on his membership in a particular social group: Mexicans who return to Mexico from the
United States and are perceived to have money. But we have held that such a group is not
cognizable under the INA as a particular social group. Sanchez-Robles v. Lynch, 808 F.3d 688,
692 (6th Cir. 2015). Moreover, Camacho-Villa’s fear of generalized violence and crime does not
-4-
No. 14-3379, Camacho-Villa v. Lynch
support his asylum claim. See Santana v. Lynch, 627 F. App’x 447, 450 (6th Cir. 2015) (denying
petition for review where petitioner’s testimony “focused not on how members of her proposed
group are persecuted, but rather generally on how ‘the criminal situation in Mexico is
uncontrollable’ and the ‘crime is very advanced’”). Thus, as the BIA found, Camacho-Villa
cannot show a nexus between the harm he fears upon his return to Mexico and one of the five
protected grounds of the INA, and his application for asylum and withholding of removal is
without merit.
B.
Because Camacho-Villa has not established a connection between his fear of future harm
in Mexico and one of the statutorily protected grounds, he does not qualify for asylum or
withholding of removal. And because our precedent directs that his proposed social group is not
cognizable under the INA, remand to determine whether his application was timely or to allow
him to change his argument regarding his social group membership would not impact the BIA’s
decision. See Karimijanaki v. Holder, 579 F.3d 710, 721 (6th Cir. 2009) (“[A] remand is not
required where such a gesture would be futile.”). Camacho-Villa testified before the IJ that he
does not believe he is different from anyone else in Mexico and fears the crime that affects
everyone there. Regardless of how he might frame this argument or whether he made it in a
timely application, it does not qualify him for asylum or withholding of removal, making remand
futile.
III.
For the foregoing reasons, we deny Camacho-Villa’s petition for review.
-5-