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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15446
Non-Argument Calendar
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Agency No. A087-390-698
JOSE OSMIN CASTILLO SANCHEZ,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(July 18, 2013)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
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Jose Osmin Castillo Sanchez, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (BIA) decision affirming the
Immigration Judge’s (IJ) denial of his: (1) application for asylum under the
Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a); (2)
withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); and (3) relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). After a
thorough review of the parties’ briefs, we dismiss Castillo Sanchez’s petition.
I. BACKGROUND
Castillo Sanchez entered the United States without inspection near Los
Indios, Texas, on March 27, 2008. In August 2009, Castillo Sanchez was served
with a notice to appear, charging that he was removable under 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled. Castillo Sanchez requested asylum, withholding of removal, and
protection under CAT. The application for asylum was based on Castillo
Sanchez’s contention that he had been persecuted by the Mara 18 gang on account
of his imputed anti-gang political opinion or his membership in a particular social
group—in his case, young males who are actively recruited by gangs because they
have no father or other protective male in the home. He testified at his hearing
before the IJ that he had been attacked on several occasions by gang members, who
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demanded money from him every time. Although the IJ found Castillo Sanchez
credible, the IJ ultimately denied his application and found him removable to El
Salvador. The BIA, without adopting the IJ’s reasoning, affirmed. The BIA found
that while Castillo Sanchez might have been persecuted by the gang, his
persecution did not satisfy the INA’s requirement that one of five protected
grounds form a “central reason” for the persecution. See 8 U.S.C.
§ 1158(b)(1)(B)(i). This petition followed.
In his petition, Castillo Sanchez only challenges the BIA’s decision
regarding his application for asylum. 1 Castillo Sanchez also contends that the IJ
violated his due process rights when the IJ refused to let Castillo Sanchez’s expert
witness testify by phone. We turn first to whether the BIA erred when it affirmed
the IJ’s denial of Castillo Sanchez’s application for asylum.
II. ANALYSIS
A. Application for Asylum
We review the BIA’s legal determinations de novo and its factual findings
for substantial evidence, “a highly deferential standard.” Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010). We may reverse a factual finding only when
doing so is compelled by the record, see id., and we must view the evidence in the
1
Because he does not challenge the denials of withholding of removal and CAT relief in
his brief, those issues have been abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005) (per curiam).
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light most favorable to the agency’s decision. Seck v. U.S. Att’y Gen., 663 F.3d
1356, 1364 (11th Cir. 2011).
The Secretary of Homeland Security and the Attorney General have the
discretion to grant an alien asylum if the alien establishes that he is a “refugee.” 8
U.S.C. § 1158(b)(1)(A). A refugee is a person who has been persecuted or has a
well-founded fear of persecution on account of one of five protected grounds:
“race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C § 1101(a)(42)(A). In 2005, the REAL ID Act of 2005
§ 101(a)(3), 8 U.S.C. § 1158(b)(1)(B)(i), clarified the INA to require that a
protected ground be “at least one central reason for persecuting the applicant.”
(emphasis added). The BIA has interpreted the phrase “central reason” to mean
that the protected ground “cannot be incidental, tangential, superficial, or
subordinate to another reason for harm.” In re J-B-N- & S-M-, 24 I. & N. Dec.
208, 214 (BIA 2007). Because this is a “reasonable interpretation” of the REAL
ID Act, we owe it Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984) (“[A] court
may not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.”).
The BIA in this case determined that, even assuming Castillo Sanchez
belonged to a particular social group or had an anti-gang political opinion, the
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evidence indicated that the gang targeted him primarily to obtain money or recruit
him for membership. Therefore, none of the central reasons for his alleged
persecution were protected grounds.
We conclude that substantial evidence supports the BIA’s conclusion that
Castillo Sanchez was targeted by the gang for recruitment and extortionate
purposes, and not because of his membership in a particular social group. For
example, the evidence showed that in at least one incident, the gang let Castillo
Sanchez go without further incident after he gave them money. Castillo Sanchez
only submitted conclusory statements that the gang members targeted him because
he was in a fatherless household. Moreover, Castillo Sanchez presented no
evidence, other than speculation, to indicate that the gang members even knew that
he lived in a home without a father or a male figure. Even assuming that the gang
members did know this, Castillo Sanchez admitted that neither of his two siblings
experienced any problems with the gang, even though they would presumably fall
within the same particular social group.
Similarly, substantial evidence supports the BIA’s finding that Castillo
Sanchez’s political opinion was not a central reason for his persecution. As stated
earlier, Castillo Sanchez’s evidence indicated that the gang always asked him for
money, and whether the members attacked him depended on whether he paid them.
In other words, although Castillo Sanchez might have had a politically motivated
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opposition to the gang, he simply did not present enough evidence to demonstrate
that it was a central reason for any harm that he suffered. Therefore, we cannot say
that the BIA’s decision was not supported by substantial evidence. We now turn to
Castillo Sanchez’s due process argument.
B. Due Process
We review constitutional challenges de novo. Lapaix v. U.S. Att’y Gen., 605
F.3d 1138, 1143 (11th Cir. 2010) (per curiam). Aliens in removal proceedings are
entitled to due process of law under the Fifth Amendment. Frech v. U.S. Att’y
Gen., 491 F.3d 1277, 1281 (11th Cir. 2007). “Due process requires that aliens be
given notice and an opportunity to be heard in their removal proceedings.” Tang v.
U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (internal quotation marks
omitted). For Castillo Sanchez to succeed on his due process challenge, he must
demonstrate that the IJ’s decision to disallow his expert from testifying
telephonically caused him substantial prejudice. Lapaix, 605 F.3d at 1143.
Substantial prejudice requires the applicant to demonstrate that, in the absence of
the alleged error, the outcome of the proceeding would have been different. Id.
Whether to permit telephonic testimony is a purely discretionary matter left
to the IJ. See 8 C.F.R. § 1003.25(c). “[T]he failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a liberty interest.”
Tang, 578 F.3d at 1275 (internal quotation marks omitted). Therefore, Castillo
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Sanchez cannot establish a due process violation based on the IJ’s decision not to
permit the telephonic testimony. Moreover, even if the IJ had permitted the
telephonic testimony, Castillo Sanchez cannot demonstrate substantial prejudice
because the IJ had already received and examined the affidavit from Castillo
Sanchez’s expert. Although Castillo Sanchez argues that the affidavit was not
exhaustive, the expert’s testimony would have only reinforced two points: first,
that Castillo Sanchez belonged to a particular social group; and second, that the
gang members were part of Mara 18. Yet neither of these points would have
established that a protected ground was a “central reason” for Castillo Sanchez’s
persecution. See 8 U.S.C. § 1158(b)(1)(B)(i). Therefore, we conclude that the IJ
did not violate Castillo Sanchez’s due process rights.
For the foregoing reasons, we dismiss Castillo Sanchez’s petition.
PETITION DISMISSED.
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