Perez-Zenteno v. U.S. Attorney Gen.

• Decision Date: 25 January 2019
• Docket Number: No. 17-13201,17-13201
• Citation: 913 F.3d 1301
• Parties: Maria Belen PEREZ-ZENTENO, Gerardo Melchor-Perez, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

913 F.3d 1301

Maria Belen PEREZ-ZENTENO, Gerardo Melchor-Perez, Petitioners,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 17-13201

United States Court of Appeals, Eleventh Circuit.

January 25, 2019

Pablo Cabrera, Cabrera & Associates, PA, Apopka, FL, for Petitioners.

Evan Paul Schultz, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, OIL, U.S. Department of Justice, 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, Agency No. AXXX-XX1-937

Before MARCUS, NEWSOM and EBEL,^* Circuit Judges.

MARCUS, Circuit Judge:

The central question raised in this immigration appeal is whether the Petitioners are entitled to asylum on account of being members of a "particular social group" as defined in the Immigration and Nationality Act (INA). Maria Perez-Zenteno ("Perez-Zenteno") and her son (Gerardo Melchor Perez) seek review of a Board of Immigration Appeals (BIA) decision denying their requests for asylum, withholding of removal, and humanitarian asylum. They claim entitlement to asylum because they were persecuted in Mexico on account of membership in a "particular social group," which they defined as all "Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States." The Immigration Judge (IJ) denied relief because, although Perez-Zenteno was beaten and brutally raped and her daughter kidnapped, she failed to prove that she was persecuted on account of membership in a statutorily protected group. The social group offered was neither sufficiently particular nor socially distinct. What’s more, the IJ determined Perez-Zenteno failed to establish any nexus between the persecution she suffered and the statutory grounds asserted. The BIA agreed. Because we too agree that Perez-Zenteno has failed to establish membership in a particular social group, as defined by Congress, and because no nexus has been shown, we hold that the petition must be denied.

I.

Maria Perez-Zenteno is a native and citizen of Mexico, from the village of Tzitzio in the state of Michoacán. In 2015, she applied for admission to the United States. On November 10, 2015, the Department of Homeland Security commenced removal proceedings against Perez-Zenteno and her son by filing Notices to Appear, charging them with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because they lacked valid entry documents. The Petitioners appeared before an IJ, represented by counsel. They admitted to the allegations and conceded the inadmissibility charges. However, Perez-Zenteno sought asylum, withholding of removal, and relief under the Convention Against Torture on the ground that she suffered past persecution at the hands of Mexican criminals based on her membership in a particular social group: "Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States."¹

At an evidentiary hearing conducted by the IJ, Perez-Zenteno claimed that she first came to the United States in 1995 as an eleven-year-old child after her father was killed in Mexico. She stayed for two years and returned to Mexico fearing sexual abuse at the hands of her uncle in the United States. In 2001, she returned to the United States with her husband and young son. They had three more children, all born in Florida, before Perez-Zenteno and her children returned to Mexico in 2007 because her mother became ill. The only family Perez-Zenteno specifically identified as being in the United States after she left was her husband, who continued working at a construction job in Florida.

Perez-Zenteno further testified that in April 2013, while she and her children were living in Mexico, her five-year-old daughter was kidnapped from a supermarket. The kidnappers demanded a ransom of 150,000 pesos. When Perez-Zenteno delivered the ransom, she was abducted, driven outside of town, beaten, and raped. Perez-Zenteno also was threatened, warned not to tell anyone of her attack, and released, to find her daughter returned to her sister’s home unharmed. A neighbor then offered to provide protection for 1,000 pesos per month, which Perez-Zenteno paid for approximately a year until she became suspicious that her neighbor was involved in the kidnapping plot. Perez-Zenteno eventually called the police, who discovered a kidnapped man in her neighbor’s home, and arrested the neighbor in October 2014. In March 2015, after receiving a phone call threatening her for being a "snitch," Perez-Zenteno fled along with her children to the United States.

The IJ denied the Petitioners’ application, concluding that Perez-Zenteno had failed to establish she was the victim of past persecution on account of any statutory ground for asylum, including membership in a cognizable social group. The IJ likewise concluded that Perez-Zenteno had not established a well-founded fear of future persecution on account of any statutorily protected ground, including membership in a particular social group. Although the Immigration Judge found Perez-Zenteno credible as to her rape and fear of returning to Mexico, the IJ concluded that Perez-Zenteno’s proposed social group -- "Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States" -- was not cognizable under the INA. The IJ found that although the group might be based on an immutable characteristic -- after all, one cannot change the past experience of having been in the United States or having family in the United States -- the group was defined with insufficient particularity and was not socially distinct. Consequently, the IJ denied Perez-Zenteno’s application for asylum and withholding of removal.

Perez-Zenteno appealed to the BIA. In a two-page, non-precedential decision, a single member of the BIA affirmed the IJ’s decision. The BIA agreed that Perez-Zenteno had failed to establish that she was targeted on account of membership in a particular social group. The BIA said that "even if the factors of immutability and particularity were met, the respondents did not establish that their claimed group is viewed as socially distinct within Mexican society" and that "the group is impermissibly circularly defined by the harm directed at its members." In support of its determination, the BIA cited to its opinion in Matter of A–M–E– & J–G–U–, 24 I. & N. Dec. 69 (BIA 2007), a precedential panel decision that had found that wealthy Guatemalans did not constitute a cognizable social group. The BIA also concluded that the IJ’s factual finding that Perez-Zenteno failed to establish a nexus between her persecution and a statutorily protected ground was not clearly erroneous.

Perez-Zenteno seeks review in our Court of the denial of asylum, withholding of removal, and humanitarian asylum.

II.

We review the BIA’s decision as the final judgment, unless the BIA expressly adopted the IJ’s opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). When the BIA agrees with the IJ’s reasoning, we review the decisions of both the BIA and the IJ. Id. Here, because the BIA agreed with the findings of the IJ and added its own observations, we review both. Moreover, we review all legal conclusions de novo, Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001), including whether a group proffered by an asylum applicant constitutes a particular social group under the INA, Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1286, 1290 (11th Cir. 2014).

As we have previously held, this de novo review is further informed by the principles of deference set forth 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). See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006). 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. 2778. If so, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator or agency." Id. at 844, 104 S.Ct. 2778.

We also review findings of fact under the substantial-evidence test, which requires us to "view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision." Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Accordingly, 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 omitted). "To reverse the ... fact findings, [the Court] must find that the record not only supports reversal, but compels it." Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). "That is, even if the evidence could support multiple conclusions, we must affirm the agency’s decision unless there is no reasonable basis for that decision." Adefemi, 386 F.3d at 1029.

III.

Under the Immigration and Nationality Act, the "Secretary of Homeland Security or the Attorney General may grant asylum to an alien ... if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A)." 8 U.S.C. § 1158(b)(1). The INA, in turn, defines "a refugee" as "any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is...