Gonzalez v. U.S. Attorney Gen.

• Decision Date: 19 April 2016
• Docket Number: No. 15–12878,15–12878
• Parties: Antonio A. GONZALEZ, a.k.a. Antonio Gonzales Jimenez, a.k.a. Antonio Jimenez, a.k.a. Antonio Gonzales, a.k.a. Antonio A. Gonzales, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

820 F.3d 399

Antonio A. GONZALEZ, a.k.a. Antonio Gonzales Jimenez, a.k.a. Antonio Jimenez, a.k.a. Antonio Gonzales, a.k.a. Antonio A. Gonzales, Petitioner

v.U.S. ATTORNEY GENERAL, Respondent.

No. 15–12878

United States Court of Appeals, Eleventh Circuit.

April 19, 2016.

Frank Krieger, Tampa, FL, for Petitioner.

Lisa Damiano, U.S. Department of Justice, OIL, Office of Immigration Litigation, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

Antonio Gonzalez seeks review of the final order of the Board of Immigration Appeals (the “BIA”) denying his application for withholding of removal under the Immigration and Nationality Act (the “INA”)¹ and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment (the “CAT”). Gonzalez argues that the BIA erred in concluding that he could be removed to Honduras because he was not a member of a “particular social group” entitled to protection under 8 U.S.C. § 1231(b)(3). He argues that former members of the Mara–18 gang from Honduras are a “particular social group.” He likewise argues that the BIA erred in concluding that he was ineligible for relief under the CAT. After careful review, we deny Gonzalez's petition.

I.

Antonio Gonzalez is a thirty-five-year-old native and citizen of Honduras. He came to the United States in 1997 when he was sixteen. On December 21, 2010, the Department of Homeland Security (“DHS”) issued Gonzalez a notice to appear, charging him as removable for being an alien in the United States without being admitted or paroled by an immigration officer, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing held before the Immigration Judge (“IJ”) in March 2011, Gonzalez admitted the allegations contained in the notice to appear and conceded that he was removable. Gonzalez was subsequently charged in state court with possession of cocaine with intent to sell and possession of drug paraphernalia. He pled guilty to the charges and was sentenced to time served. He was then served with an additional charge of removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien who committed a controlled substance violation. He conceded that charge to the IJ.

In September 2012, Gonzalez filed an application for asylum, withholding of removal, and relief under the CAT. He argued that he was likely to be tortured if he returned to Honduras based on his status as a former member of the Mara–18 gang. Gonzalez argued that this status entitled him to asylum and withholding of removal because it qualifies as a “particular social group” under 8 U.S.C. § 1158(2)(A) and 8 U.S.C. § 1231(b)(3).

In support of his application, Gonzalez submitted a memorandum asserting that he had a well-founded fear of persecution if he returned to Honduras. He, as well as friends and family, testified before the IJ and provided information about Gonzalez's background and the likely consequences of his forced return to Honduras. When Gonzalez was fourteen, he joined the Mara–18 gang. He had been working as a welder. He argues that he only joined the Mara–18 gang to get protection from a rival gang, MS–13. He was initiated into Mara–18 through a ritual beating and received a tattoo specific to the Mara–18. He remained in the gang for about two years before coming to the United States. During his time in the gang, Gonzalez testified that he committed various crimes, such as throwing “candiles” (Molotov cocktails) at houses, robbery, and gang-related fighting. He also made “chimbas,” or makeshift pistols, for gang members through his background in welding. He testified that he only committed these crimes under a sense of coercion, because disobedience would result in severe mistreatment, potentially even death.

After he was badly beaten in a fight with the rival gang, MS–13, Gonzalez decided to leave Mara–18 and come to the United States. He testified that leaving the gang is punishable by death, and the only place he would be safe was in the United States. Gonzalez argues that he could be targeted with potentially lethal violence from three different sources: his former gang, Mara–18; his former rival gang, MS–13; and Honduran law enforcement. Gonzalez submitted evidence regarding gang violence in Honduras and evidence that law enforcement officers in Honduras were suspected of extra-judicially killing perceived gang-members in “death squads.” Gonzalez argues that he will be recognized as a former Mara–18 member because of his tattoo, which he still bears, and his name, family association, and physical appearance.

The IJ issued an oral decision denying Gonzalez's petition. The IJ concluded that Gonzalez's petition for asylum was time- barred. He concluded that Gonzalez was not entitled to withholding of removal because he committed serious nonpolitical crimes in Honduras, which provides an exception to a finding of non-removability, 8 U.S.C. § 1231(b)(3)(B)(iii), and did not show that he was a member of a “particular social group” under 8 U.S.C. § 1231(b)(3). He also concluded that Gonzalez presented insufficient evidence to merit relief under the CAT.

The BIA affirmed the IJ's decision. Gonzalez explicitly declined to seek review of the IJ's determination that his application for asylum was time-barred and therefore treated the IJ's determination as final. The BIA agreed that Gonzalez did not qualify for withholding of removal because “former Mara–18 gang-members” could not be a “particular social group” under the INA. It concluded this for two reasons: first, the proposed group did not meet the “particularity requirement” for “particular social groups,” and second, membership in a criminal organization cannot be the basis for protection under the INA given the Act's humanitarian purpose. Finally, the BIA affirmed the IJ's decision that Gonzalez failed to provide sufficient evidence to qualify for relief under the CAT. This petition followed.

II.

We review the BIA's decision as the final judgment, unless the BIA expressly adopted the IJ's decision.² Kazemzadeh v. U.S. Att'y Gen., 577 F.3d 1341, 1350 (11th Cir.2009). Where the BIA agrees with the IJ's reasoning, we review the decisions of both the BIA and the IJ to the extent of the agreement. Id. Because the BIA did not expressly adopt the IJ's decision or rely on its reasoning, we will review only the BIA decision.

In a petition for review of a BIA decision, we review conclusions of law de novo and factual determinations under the substantial evidence test. Id. Whether an asserted group qualifies as a “particular social group” under the INA is a question of law. Malu v. U.S. Att'y Gen., 764 F.3d 1282, 1290 (11th Cir.2014). We do not consider issues that were not reached by the BIA. Seck v. U.S. Att'y Gen., 663 F.3d 1356, 1369 (11th Cir.2011).

A.

To qualify for withholding of removal, an applicant must establish that his “life or freedom would be threatened in [the] country [to which he would be removed] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is more likely than not that he will be persecuted on account of a protected ground if he returned to his home country. Rodriguez v. U.S. Att'y Gen., 735 F.3d 1302, 1308 (11th Cir.2013) (per curiam).

Although we review the BIA's legal conclusions de novo, our “review of the BIA's interpretation is informed by the principle of deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).” Castillo–Arias v. U.S. Att'y. Gen., 446 F.3d 1190, 1195 (11th Cir.2006) (quotation marks and citation omitted). The Supreme Court has held that the BIA's interpretation of ambiguous terms in the INA is entitled to deference under Chevron “through a process of case-by-case adjudication.” INS v. Aguirre–Aguirre,

526 U.S. 415, 425, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999) (quotation marks and citation omitted). Under Chevron, “[w]hen a court reviews an agency's construction of the statute which it administers ... [and] the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842–43, 104 S.Ct. at 2781–82. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844, 104 S.Ct. at 2782.

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. Castillo–Arias, 446 F.3d at 1196. Although we have held that a single-member, non-precedential decision issued by the BIA is not entitled to Chevron deference, single-member BIA decisions that rely on precedential BIA opinions are entitled to Chevron deference. Quinchia v. U.S. Att'y Gen., 552 F.3d 1255, 1258 (11th Cir.2008) ; see also United States v. Mead Corp., 533 U.S. 218, 226–27, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001).

In Matter of Acosta, the BIA first interpreted the phrase “particular social group” to mean “a group of persons all of whom share a common, immutable characteristic.” Matter of Acosta, 19 I. & N. Dec. 211, 212 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). In subsequent decisions, the BIA has elaborated that a particular social group must also be “defined with particularity” and “socially distinct within the society in question.” Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014). Regarding the particularly requirement, the BIA has stated that “[t]he [proposed] group...