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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13840
Non-Argument Calendar
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Agency No. A205-128-846
ABEL SANTIAGO-JIMENEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(May 6, 2016)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Abel Santiago-Jimenez petitions for review of a Board of Immigration
Appeals (BIA) order denying his application for withholding of removal. The BIA
ruled that Santiago-Jimenez was not eligible for withholding of removal because
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his fear of being harmed by gangs in Mexico was not based on his “race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). Santiago-Jimenez argued that these gangs would target
him on the basis of his being a hard-working person and a freshly returned
expatriate. Because Santiago-Jimenez has not proved that either of these
characteristics count as “membership in a particular social group,” we deny his
petition.
I.
Santiago-Jimenez is a citizen of Mexico. On August 14, 2012, the
Department of Homeland Security charged that Santiago-Jimenez entered the
United States without inspection in 2006. Santiago-Jimenez conceded he was
removable for that reason but applied for withholding of removal, as well as for
relief based on the United Nations Convention Against Torture (CAT). His
application alleged that gang members in Mexico had threatened to kill him if he
did not join them.
At a hearing before an immigration judge, Santiago-Jimenez elaborated on
the extreme violence carried out by these gangs. He explained that he came to the
United States to “run[] away” from the gangs. He admitted that no gang members
ever threatened him or his family directly, though gangs targeted his neighbors.
The gangs “couldn’t stand it” that his neighbors were working people, so gang
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members “would come to their home at night and rob them,” killing “whoever put
up resistance.” Santiago-Jimenez named two neighbors who were killed this way.
He also testified that the gangs targeted people who returned to Mexico from the
United States because the gangs thought they had money.
The immigration judge denied Santiago-Jimenez’s application. She
concluded that Santiago-Jimenez’s fear, while “certainly understandable,” was
based on “the general violence and strife in his country.” She explained that this
was not a fear based on that Santiago-Jimenez’s race, religion, nationality,
membership in a particular social group, or political opinion. She also found that
Santiago-Jimenez was not entitled to CAT relief because he “did not testify that he
feared the government of Mexico” and because he presented no evidence to
establish that the government would target him for torture.
The BIA affirmed that decision. The BIA ruled that Santiago-Jimenez had
not shown that either hard-working people or people returning from the United
States were “a cognizable particular social group within Mexican society.” The
BIA also ruled that Santiago-Jimenez’s argument that the gangs specifically
targeted these groups was not supported by evidence showing that this was the
“motivation of the gang members.” Instead, the BIA said, the “gangs have
directed harm against anyone and everyone in furtherance of their criminal
enterprises conducted for their own pecuniary gain.” The BIA ordered Santiago-
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Jimenez removed from the United States.
II.
The Immigration and Nationality Act (INA) provides that “the Attorney
General may not remove an alien to a country if the Attorney General decides that
the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A). Congress has not defined what
constitutes a “particular social group.” But this Court has said that the term “refers
to persons who share a common, immutable characteristic ‘that the members of the
group either cannot change, or should not be required to change because it is
fundamental to their individual identities or consciences.’” Rodriguez v. U.S.
Atty. Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (per curiam) (quoting Castillo-
Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006)). To meet the
statute’s definition, a group also needs “social visibility,” meaning the group’s
characteristics must be “highly visible and recognizable by others in the country.”
Castillo-Arias, 446 F.3d at 1194 (quotation omitted). Beyond that, a group can’t
be “too numerous or inchoate,” and it shouldn’t be defined so broadly that it is “a
catch-all for all groups who might claim persecution.” Id. at 1197–98.
Castillo-Arias upheld the BIA’s determination that a group defined as
“noncriminal informants” working against a drug cartel in Colombia was not
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“particular” enough, in part because there was “no evidence that the cartel would
treat [these informants] any differently from any other person the cartel perceived
to have interfered with its activities.” Id. at 1198. Also, “virtually the entire
population of Colombia is a potential subject of persecution by the cartel,” and
“risk of persecution alone does not create a particular social group within the
meaning of the INA.” Id. Similarly, Rodriguez upheld the BIA’s determination
that “members of a family targeted by a drug-trafficking organization” were not a
particular enough social group because “the defining attribute of” this group “is its
persecution” by criminals. 735 F.3d at 1310.
III.
When the BIA decides that someone is statutorily ineligible for withholding
of removal, we review that decision under the “substantial evidence test.” Seck v.
U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). For findings of fact, this
test 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.” Id.
(quotation omitted). For legal questions (such as whether a particular group is
covered by the language of the INA), our review is de novo. See Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009).
Substantial evidence supports the BIA’s decision here. First, the record does
not establish that criminal gangs in Mexico specifically target either hard-working
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people or expatriates returning from the United States. The documentary evidence
in the record instead shows that the gangs choose their victims based on wealth and
vulnerability, and that gang violence is motivated primarily by a desire to maintain
power and impunity. Second, Santiago-Jimenez presented no evidence that either
people returning from the United States or hard-working people who are making
economic progress are distinct enough to be “highly visible and recognizable by
others” in Mexican society. Castillo-Arias, 446 F.3d at 1194. Also, the latter
group is defined with characteristics that are neither “immutable” nor
“fundamental to its members’ individual identities or consciences.” Id. at 1196
(quotation omitted).
PETITION DENIED.
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