Bueso-Avila v. Holder, 10–2760.

• Decision Date: 01 March 2012
• Docket Number: No. 10–2760.,10–2760.
• Citation: 663 F.3d 934
• Parties: Erlin BUESO–AVILA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

663 F.3d 934

Erlin BUESO–AVILA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–2760.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 2011.Decided Nov. 29, 2011.Rehearing and Suggestion for Rehearing En Banc Denied March 1, 2012.*

Brian S. Shull (argued), Attorney, Sidley Austin LLP, Chicago, IL, for Petitioner.

OIL, William C. Peachey, Rebecca Hoffberg Phillips (argued), Mona M. Yousif, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Helen Elizabeth Dallam, Attorney, United Nations High Commissioner for Refugees, Washington, DC, for Amicus Curiae, United Nations High Commissioner for Refugees.Gregory L. Berlowitz, Attorney, Mayer Brown LLP, Chicago, IL, for Amicus Curiae, National Association of Evangelicals and Rutherford Institute.

Before MANION, ROVNER, and TINDER, Circuit Judges.

MANION, Circuit Judge.

Erlin Bueso–Avila, a citizen of Honduras, sought asylum and withholding of removal. He alleged that he had suffered persecution at the hands of the Mara Salvatrucha street gang on account of his evangelical Christian religious beliefs and his church youth group membership. The Immigration Judge and the Board of Immigration Appeals denied Bueso–Avila's application because he had failed to establish that the gang's actions were on account of his religion or social group membership. Bueso–Avila then petitioned this court for review. Because there is substantial evidence in support of the Board's decision, we must deny Bueso–Avila's petition.

I.

In May 2005, while a teenager, Bueso–Avila left Honduras and entered the United States illegally. Shortly thereafter, he was caught and the Department of Homeland Security began removal proceedings against him. He then filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge conducted a hearing on the merits of Bueso–Avila's application. At the time of the hearing, Bueso–Avila was nineteen years old. Because he was the sole witness to testify at the hearing, we summarize his testimony.

Bueso–Avila lived with his family in the city of San Pedro Sula, Honduras. Though born and raised Catholic, at the age of 15 he joined a youth group with an evangelical Christian church called La Cosecha, the largest church in Honduras. Bueso–Avila would meet with his church youth group twice a week to study and discuss the Bible. According to Bueso–Avila, evangelization and recruiting young people in the local community are essential parts of the mission of his church. He testified that before the meetings, his church group would walk around the neighborhood with their Bibles and invite other people to their meetings and away from gang life. Bueso–Avila said that “[o]ur purpose in doing this was to get young people to see the ways of God, and to start doing good things instead of smoking marijuana, robbing, and killing people like the gang members did.” Sadly, Bueso–Avila's neighborhood was plagued by the presence of the violent Mara Salvatrucha, or MS–13, street gang.¹ Bueso–Avila testified that the gang members believed that the church's proselytization was encroaching on their territory by drawing away youths who were potential gang recruits, and that this led to several threats and attacks from the gang.

He testified that his first encounter with the gang occurred after his third church group meeting. Some gang members approached and tried to recruit him to the gang. He refused the request and was able to run away from the gang members unharmed. A second encounter occurred after another church group meeting. Gang members again approached Bueso–Avila and made threatening comments, and then grabbed him and beat him. Fortunately, Bueso–Avila was able to escape after a man wielding a machete scared away the gang members. A similar attempt by the gang to recruit him occurred on another occasion, but again, Bueso–Avila escaped after a stranger approached.

Bueso–Avila also testified that other members of his church youth group were threatened by the gang's recruitment efforts. Two members of the church group were forced to join the gang after the gang threatened their families and even allegedly murdered the brother of one church group member.

Bueso–Avila's most serious encounter with the MS–13 gang was when he was traveling home from work by bus. He testified that gang members were waiting for him at the bus station. They approached him and said that he needed to join the gang. After he refused, the gang beat him severely, and left him lying on the ground. He testified that he received bruises and cuts, and almost lost consciousness. Later, a gang member told Bueso–Avila's mother that if the family talked to the police, they would be harmed. Bueso–Avila still has scars from the attack.

Following this final attack, Bueso–Avila left Honduras, traveled by foot and by train across Guatemala and Mexico, and entered the United States where he has a sister living in Florida. In May 2005, he arrived in the country, but was apprehended shortly after crossing the border.

Bueso–Avila testified that he is afraid to go back to Honduras because he believes that the MS–13 gang would still hurt him. He also does not believe that the Honduran police would be able to protect him.² Apparently, his parents and family have moved to another part of Honduras to avoid the danger, but there is no evidence in the record about whether the gang has influence in that part of the country.

Following the hearing, on October 22, 2007, the Immigration Judge issued a written opinion denying Bueso–Avila's application for asylum, withholding of removal, and protection under the Convention Against Torture. On June 30, 2009, the Board of Immigration Appeals affirmed the Immigration Judge's decision, holding that Bueso–Avila had failed to establish that the gang's harassment and attacks were on grounds protected by the Immigration and Nationality Act.

Bueso–Avila petitioned this court for relief. In a short order, we remanded the case to the Board of Immigration Appeals for reconsideration in light of two recent intervening cases which indicated that social visibility is not required to establish membership in a particular social group. See Gatimi v. Holder, 578 F.3d 611, 615–16 (7th Cir.2009), and Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir.2009). On remand, the Board issued an opinion on July 6, 2010. It first noted that the Gatimi and Ramos cases did not affect the outcome of its decision. The Board then again denied Bueso–Avila's application, ruling that he had “failed to establish past persecution on account of any ground protected under the Act.” The Board's decision rested on its finding that there was insufficient testimonial and documentary evidence establishing a nexus between the harm Bueso–Avila suffered and his religion or his membership in the evangelical Christian church youth group. Specifically, the Board found that the violent actions of the gang members instead “stemmed from the efforts of the gang members to forcibly recruit him,” and that even if the gang members had a mixed motive, Bueso–Avila had not established that his religion or membership in the youth group “was at least one central reason” for his persecution. The Board then dismissed Bueso–Avila's application for asylum, withholding of removal, and protection under the Convention Against Torture. Bueso–Avila now petitions our court for review.

II.

On appeal, Bueso–Avila challenges the Board's decision denying his application for asylum and withholding of removal; he does not challenge the denial of his application for protection under the Convention Against Torture. To establish eligibility for asylum, an alien must demonstrate that he suffered persecution or has a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13. If an applicant fails to establish eligibility for asylum, he “necessarily cannot satisfy the more stringent requirement for withholding of removal under 8 U.S.C. § 1231(b)(3).” Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir.2003).

We must affirm the Board's decision if it is supported by substantial evidence. Id. “Applying that standard, we assess whether the [Board's] determination was ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ and reverse only if the evidence compels a contrary conclusion.” Id. (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). In other words, for reversal, the evidence must be “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias–Zacarias, 502 U.S. at 483–84, 112 S.Ct. 812; see Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir.2006). Thus “we are not at liberty to overturn the Board's determination simply because we would have decided the case differently.” Jamal–Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.2005).

To show that he was persecuted by the MS–13 gang “on account of” his religion or membership in a particular social group, Bueso–Avila must put forth direct or circumstantial evidence that the gang was motivated by these factors. See Martinez–Buendia v. Holder, 616 F.3d 711, 715 (7th Cir.2010); see also Elias–Zacarias, 502 U.S. at 483, 112 S.Ct. 812 (“[S]ince the statute makes motive critical, he must provide some evidence of it, direct or circumstantial.”). But it is not necessary that the persecutor be motivated primarily on account of one of the grounds in the Act; “an individual may qualify for asylum if his or her persecutors have more than one motive as long as one of the motives is specified in the Immigration and Nationality Act.” Ndonyi v. Mukasey, 541 F.3d 702, 710 (7th...