Rodriguez v. U.S. Attorney Gen.

• Decision Date: 19 November 2013
• Docket Number: No. 12–14387.,12–14387.
• Citation: 735 F.3d 1302
• Parties: Jose Cendejas RODRIGUEZ, a.k.a. Jose Aguilar Rodriguez, a.k.a. Jose Zendejas Rodriguez, a.k.a. Jose Cendejas, a.k.a. Jose Rodriguez, a.k.a. Jose Ascencion Aguilar–Rodriguez, a.k.a. Jose Zendjos–Rodriguez, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

735 F.3d 1302

Jose Cendejas RODRIGUEZ, a.k.a. Jose Aguilar Rodriguez, a.k.a. Jose Zendejas Rodriguez, a.k.a. Jose Cendejas, a.k.a. Jose Rodriguez, a.k.a. Jose Ascencion Aguilar–Rodriguez, a.k.a. Jose Zendjos–Rodriguez, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 12–14387.

United States Court of Appeals, Eleventh Circuit.

Nov. 19, 2013.

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

Timothy Hayes, David V. Bernal, David McConnell, Krystal Samuels, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, Howard W. Marbury, Jr., District Counsel's Office Usice, Miami, FL, Jeffrey Moore, Ice Field Office Director Krome SPC, Miami, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A078–257–907.

Before HULL and HILL, Circuit Judges, and MOTZ,^* District Judge.

PER CURIAM:

Jose Ascencion Cendejas Rodriguez, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals's (“BIA”) decision, affirming the Immigration Judge's (“IJ”) denial of his application for withholding of removal. After careful review, and with the benefit of oral argument, we deny the petition.

I. BACKGROUND

A. Reinstatement of the Prior Order of Removal

In 2008, Cendejas Rodriguez illegally reentered the United States for at least the third time. He had illegally entered the United States in 1996 and 2001. He also had once been removed, pursuant to a removal order entered on July 15, 2000. Following his 2008 illegal entry, the Department of Homeland Security reinstated the 2000 removal order, pursuant to Immigration and Nationality Act (“INA”) § 241(a)(5), 8 U.S.C. § 1231(a)(5).

Because of the 2008 reinstatement of his 2000 removal order following his 2008 illegal reentry, Cendejas Rodriguez concedes that he was ineligible for and could not apply for asylum. See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5); Fernandez–Vargas v. Gonzales, 548 U.S. 30, 34–35 & n. 4, 126 S.Ct. 2422, 2426 & n. 4, 165 L.Ed.2d 323 (2006) (providing that, although an alien may not seek asylum following the reinstatement of a prior removal order, he may still seek withholding of removal). Thus, this appeal involves only Cendejas Rodriguez's application for withholding of removal.

B. Withholding of Removal

At some point between 2008 and 2011, Cendejas Rodriguez was located and an asylum officer interviewed Cendejas Rodriguez and determined that he had a reasonable fear of persecution. Thus, in January 2012, the asylum officer referred Cendejas Rodriguez to an IJ for withholding-of-removal proceedings, pursuant to 8 C.F.R. § 208.31(e). In February 2012, Cendejas Rodriguez also filed an application for withholding of removal based on his membership in a particular social group.¹

We review Cendejas Rodriguez's application, evidence submitted in support of his application, and his testimony at his withholding-of-removal hearing: Cendejas Rodriguez's family owned a ranch, consisting of 40 square miles of farmland in the state of Michoacán de Ocampo, Mexico. However, Cendejas Rodriguez did not personally own any of the land. The family had previously used the land to grow sugar cane, mangos, and tomatoes and to raise cattle. The land was fertile and produced large quantities of fruit.

As a child, Cendejas Rodriguez helped his father work the farmland. When Cendejas Rodriguez was eight or nine, men attempted to enter Cendejas Rodriguez's family's home at night. The men ran away after Cendejas Rodriguez's grandfather fired two shots. Cendejas Rodriguez later learned that the people who entered his home were associated with the Toledos, a Mexican family involved in drug-trafficking.

In 1993, Erasto Toledo (“Erasto”) asked Cendejas Rodriguez's father to grow illegal drugs for Erasto on the Cendejas Rodriguez family's farmland and to then transport the drugs to the United States. Cendejas Rodriguez's father refused, producing tension between the Cendejas Rodriguez and Toledo families.

In 1996, Cendejas Rodriguez's father told him that he believed his family was in danger, and thus, he sent the family to the United States. Cendejas Rodriguez's father remained in Mexico. On November 20, 1996, Erasto and his son, Israel, murdered Cendejas Rodriguez's father. Cendejas Rodriguez was in the United States at the time of his father's death and did not return to Mexico until 2000.

After the murder, Israel fled to the United States. A detective hired by Cendejas Rodriguez's grandmother found Israel, and Israel was extradited to Mexico. Mexican officials jailed Israel, but did not prosecute him and eventually released him. In addition, the Mexican police arrested Erasto, but immediately released him without prosecuting him. The Toledo family developed “a vendetta” against Cendejas Rodriguez and his family because of Erasto's and Israel's arrests and Israel's extradition.

In 2000, Cendejas Rodriguez returned to Mexico, and he discovered that the ranch was “destroyed.” He saw his mother, who stayed by herself. Associates of the Toledo family told Cendejas Rodriguez that Erasto was looking for his family. The associates asked Cendejas Rodriguez if he had returned to Mexico for vengeance. In his testimony before the IJ, Cendejas Rodriguez did not state what his reply was to them. Cendejas Rodriguez remained in Mexico for 15 days. He returned to the United States in 2001.

In 2008, Cendejas Rodriguez returned to Mexico to see his mother and the farmland and he discovered “that people were using” the farmland. His mother warned Cendejas Rodriguez to not remain in Mexico for long. Thus, Cendejas Rodriguez remained in Mexico for only 15 days. Cendejas Rodriguez returned to the United States that same year and has not returned to Mexico since. There is no indication of any threats or harm to his mother who has remained in Mexico.

In August 2011, Cendejas Rodriguez's uncle, Aquilino Cendejas, was kidnapped and tortured by three armed associates of the Toledo family. After Cendejas Rodriguez's family paid part of a negotiated ransom amount, the kidnappers released the uncle. If the ransom had not been paid, the kidnappers would have killed Cendejas Rodriguez's uncle.

Alejandro Rodriguez Garcia, Cendejas Rodriguez's cousin, had witnessed Cendejas Rodriguez's father's murder. Rodriguez Garcia had testified against Erasto in connection with his arrest warrant for the murder of Cendejas Rodriguez's father. In 2011, Rodriguez Garcia was killed and left underneath his own vehicle to make his death appear to be an accident.

In 2012, Cendejas Rodriguez believed that the Toledo family was currently using Cendejas Rodriguez's family's land to grow marijuana. If Cendejas Rodriguez returned to Mexico, he feared the Toledo family due to: (1) his opposition to the Toledos' confiscation and use of Cendejas Rodriguez's family's farmland for production of illegal drugs; (2) Cendejas Rodriguez's family's involvement in Erasto's and Israel's arrests; and (3) Cendejas Rodriguez's family's not having paid the whole ransom amount after the uncle's kidnapping. Cendejas Rodriguez testified that, if he returned to Mexico, he wanted to do farm work. However, he did not want to return to his family's land because of his fear.

After receiving threats from drug traffickers, most of Cendejas Rodriguez's family members fled to the United States, and at least three of his family members are now U.S. citizens. The Toledo family targeted other families in Mexico whose land the Toledo family wanted.

C. Post–Hearing Brief

In a post-hearing brief, Cendejas Rodriguez argued that he was eligible for withholding of removal based on his persecution on account of his membership in two particular social groups. He defined his particular social groups as:

(1) Mexican farmers in the State of Michoacán, owning ... farmland suitable for producing high yields of illegal drug crops (cannabis), who are subject to Drug Trafficking Organizations' (DTOs') extortion tactics on account of their ownership of said farmland and unwillingness to collaborate with the DTOs by refusing to grow and produce illegal drug crops or participate in illegal drug trafficking

(2) Family members of a family who has pursued Mexican law enforcement authority to prosecute associates of a Mexican DTO for the murder or assassination of a family member[.]

D. Decisions of the IJ and the BIA

The IJ credited Cendejas Rodriguez's hearing testimony, but denied withholding-of-removal relief. First, the IJ determined that Cendejas Rodriguez failed to present evidence of past persecution because he was never harmed, and he had lived in the United States for most of his life.

Second, the IJ determined that Cendejas Rodriguez failed to show a clear probability of future persecution on account of his membership in a particular social group. The IJ found that Cendejas Rodriguez had not established that he was a former landowner or the current owner of the farmland seized by the Toledo family. The IJ observed that, under this Court's precedent, neither of Cendejas Rodriguez's proposed social groups constituted a protected social group under the INA. Further, Cendejas Rodriguez had not shown that the Toledo family would target him “on account of” his proposed social groups. Cendejas Rodriguez appealed the IJ's decision to the BIA.

The BIA dismissed Cendejas Rodriguez's appeal. The BIA determined that the IJ correctly found insufficient evidence to support Cendejas Rodriguez's claim that he was persecuted. The BIA first explained that Cendejas Rodriguez did not show that any harm or mistreatment he described rose to the level of persecution. Although his father and cousin were murdered and his uncle was kidnapped, Cendejas Rodriguez did not claim to have been physically harmed himself. The BIA concluded that, under the circumstances, harm to Cendejas Rodriguez's family members did not constitute persecution of the...