Yunior Lopez-Pineda v. U.S. Attorney General , 702 F. App'x 839 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12031
Non-Argument Calendar
________________________
Agency No. A205-375-768
YUNIOR LOPEZ-PINEDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 13, 2017)
Before ED CARNES, Chief Judge, MARCUS and JILL PRYOR, Circuit Judges.
PER CURIAM:
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In June 2012 the Department of Homeland Security charged Yunior Lopez-
Pineda, a citizen of Guatemala, with being removable under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an immigrant who, at the time of his application for
admission, was not in possession of a valid entry or travel document. Through
counsel, Lopez-Pineda filed an application for withholding of removal and for
protection under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment.1 In November 2014 an
Immigration Judge denied his applications for relief and ordered him removed to
Guatemala. The Board of Immigration Appeals affirmed the IJ’s order and denied
Lopez-Pineda’s motion to remand. Lopez-Pineda now petitions for review of the
BIA’s decision.
I.
Lopez-Pineda contends that the BIA’s conclusion that he was not eligible for
withholding of removal was not supported by substantial evidence. He argues that
the BIA failed to consider that he is subject to persecution because he belongs to a
“particular social group” comprised of young “indigenous business entrepreneurs.”
“In a petition for review of a BIA decision, we review conclusions of law
de novo and factual determinations under the substantial evidence test.” Gonzalez
v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under the highly
1
Because he filed his application more than one year after arriving in the United States,
Lopez-Pineda conceded that he was not eligible for asylum. See 8 C.F.R. § 208.4(a).
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deferential substantial evidence test, “we view the record evidence in the light most
favorable to the [BIA’s] decision and draw all reasonable inferences in favor of
that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en
banc). We must affirm the BIA’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (quotation marks
omitted); see Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)
(“To reverse the [BIA’s] fact findings, we must find that the record not only
supports reversal, but compels it.”). In this case, “we review only the BIA’s
decision because the BIA did not expressly adopt the IJ’s opinion or reasoning.”
Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
To qualify for withholding of removal, a petitioner must establish that his
“life or freedom would be threatened” in his country because of his “race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A); see Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308
(11th Cir. 2013) (“The applicant must demonstrate that he would more likely than
not be persecuted upon being returned to his country of origin.”). A petitioner may
satisfy his burden of proof by showing either “(1) past persecution in his country
based on a protected ground, in which case a rebuttable presumption is created that
his life or freedom would be threatened if he returned to his country; or (2) a future
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threat to his life or freedom on a protected ground in his country.” Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (quotation marks omitted).
Persecution is an “extreme concept” that “requires more than a few isolated
incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty.” Shi v. U.S.
Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013). In determining whether an
alien has suffered past persecution, the factfinder must consider the cumulative
effect of the alleged acts. Delgado, 487 F.3d at 861. The statute governing
withholding of removal protects “not only against persecution by government
forces, but also against persecution by non-governmental groups that the
government cannot control.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th
Cir. 2006). However, evidence that is consistent with acts of private violence or
shows that the petitioner has been the victim of criminal activity does not, on its
own, constitute evidence of persecution based on a statutorily protected ground.
Id. at 1258.
Even assuming that a “particular social group” of indigenous entrepreneurs
exists and Lopez-Pineda falls within that group, the record does not compel the
conclusion that he suffered past persecution based on a protected ground.
Mendoza, 327 F.3d at 1287. The evidence shows that three or four gang members
approached Lopez-Pineda on five different occasions and demanded money from
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him. They never physically attacked him or used any weapons against him, but he
could see that they had knives. He gave them money the first two times but had no
money to give them when they approached him the other three times. After the
last encounter, the gang members threatened to kill him if he didn’t pay them
within 24 hours. Lopez-Pineda fled Guatemala three weeks later. The gang
members did not harass or attack his family before or after he fled the country.
The gang members’ actions, considered cumulatively, do not amount to
persecution based on a protected ground. According to Lopez-Pineda’s own
testimony, the gang members confronted him because they knew he ran a
successful business and had a significant amount of money on him so that he could
buy repair parts — not because he was a member of an indigenous entrepreneur
group. Evidence that one is a victim of criminal activity is not evidence of
persecution based on a statutorily protected ground. Ruiz, 440 F.3d at 1258. The
BIA considered whether Lopez-Pineda was a member of a “particular social
group” and concluded that, even if he were, the evidence showed “the central
reason the criminal street gang targeted [him] was due to its criminal intent to
extort him of the money he earned from his business repairing and installing
electronics.” As a result, although the evidence shows that gang members held up
Lopez-Pineda, substantial evidence supports the BIA’s determination that he had
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not suffered past persecution based on protected ground. See Rodriguez, 735 F.3d
at 1308.
Because Lopez-Pineda did not show past persecution, it was still his burden
to show “a future threat to his life or freedom on a protected ground in his
country.” Delgado, 487 F.3d at 861. An applicant who has not shown past
persecution “cannot demonstrate that his or her life or freedom would be
threatened if the [IJ] finds that the applicant could avoid a future threat to his or her
life or freedom by relocating to another part of the proposed country of removal
and, under all the circumstances, it would be reasonable to expect the applicant to
do so.” 8 C.F.R. § 208.16(b)(2). It is the petitioner’s burden to show “that it
would not be reasonable for him . . . to relocate” within the particular country. Id.
§ 208.16(b)(3)(i).
Substantial evidence supports the BIA’s determination that Lopez-Pineda
could relocate within Guatemala to avoid any potential future threat to his life or
freedom. The record shows that Lopez-Pineda completed his bachelor’s degree in
electronic engineering and electricity, was an honor roll student, and successfully
owned and operated an electronic repair workshop out of his home. He is young,
healthy, educated, and hardworking. See id. § 208.16(b)(3) (listing factors to
consider in determining the reasonableness of relocations).
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Although Lopez-Pineda submitted articles suggesting that discrimination
against indigenous people exists across Guatemala, that evidence is not enough to
show a “future threat to his life or freedom” because he is an indigenous
entrepreneur. Lopez-Pineda never identified the ethnicities of the gang members
who accosted him or provided evidence that his status as an indigenous
entrepreneur played a role in the gang members’ motivation. Instead, the evidence
showed that they targeted him because he had money, and there is no evidence
suggesting that he would face a future threat to his life or freedom in other parts of
Guatemala from those or other gang members. As a result, Lopez-Pineda did not
demonstrate that he more likely than not would be persecuted on a protected
ground if forced to return to Guatemala. Mendoza, 327 F.3d at 1287. Substantial
evidence supports the BIA’s denial of withholding of removal.
II.
Lopez-Pineda also contends that that the BIA abused its discretion in
denying his motion to remand because he provided new evidence that was material
and would likely change the outcome of his case.
“[I]f a motion to remand seeks to introduce evidence that has not previously
been presented, it is generally treated as a motion to reopen . . . .” Najjar v.
Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001). We review for abuse of discretion
the denial of a motion to reopen. Zhang, 572 F.3d at 1319. “The moving party
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bears a heavy burden,” and our review is limited to determining whether the BIA
exercised its discretion “in an arbitrary or capricious manner.” Id.
A motion to reopen must state the “new facts that will be proven at a hearing
to be held if the motion is granted and shall be supported by affidavits or other
evidentiary material.” 8 C.F.R. § 1003.2(c)(1). “A motion to reopen proceedings
shall not be granted unless it appears to the [BIA] that evidence sought to be
offered is material and was not available and could not have been discovered or
presented at the former hearing.” Id. The alien must show that the “new evidence
offered would likely change the result in the case.” Ali v. U.S. Att’y Gen., 443
F.3d 804, 813 (11th Cir. 2006) (quotation marks omitted).
As the movant, Lopez-Pineda bore the “heavy burden” of proving that the
BIA abused its discretion in denying his motion to reopen. Lopez-Pineda points to
a report and four articles that he submitted to the BIA documenting the history of
the“[p]ersecution of indigenous people in Guatemala.” Except for one article, all
of the documents predate the IJ’s decision, and Lopez-Pineda does not explain how
that evidence “was not available and could not have been discovered or presented
at the former hearing.” See 8 C.F.R. § 1003.2(c)(1). The article dated after the
IJ’s decision discusses the arrest of an indigenous activist who “was denouncing
human rights violations” and “defending the natural resources of [indigenous]
communities.” But Lopez-Pineda fails to connect that arrest to the likelihood that
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he would be persecuted if he returns to Guatemala. Because Lopez-Pineda did not
offer any new evidence “likely [to] change the result in [his] case,” Ali, 443 F.3d at
813, the BIA did not abuse its discretion in denying his motion to reopen.2
PETITION DENIED.
2
In his brief to this Court, Lopez-Pineda made only passing references to the denial of
his claim for protection under the CAT. As a result, he has abandoned that claim, and we do not
consider it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014)
(“[A]n appellant abandons a claim when he either makes only passing references to it or raises it
in a perfunctory manner without supporting arguments and authority.”).
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