Yober Rafael Turcios-Avila v. U.S. Atty. General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 19, 2010
No. 09-12157 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________

Agency No. A098-914-420

YOBER RAFAEL TURCIOS-AVILA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(January 19, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
 Yober Rafael Turcios-Avila, a native and citizen of Honduras, has filed a

petition for review from the Board of Immigration Appeals’s (“BIA”) and the

Immigration Judge’s (“IJ”) decisions denying him withholding of removal under

the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231 (“INA”).

Turcios-Avila argues that the BIA and the IJ erred in determining that he was not a

member of a particular social group within the meaning of the INA and, as a result,

that he did not demonstrate that he was persecuted or would be subject to future

persecution based on a protected ground. For the reasons set forth below, we deny

the petition.

I.

Turcios-Avila arrived in the United States at Laredo, Texas, on April 14,

2005. On this same day, the Department of Homeland Security (“DHS”) served

Turcios-Avila with a notice to appear (“NTA”), charging him with removability

under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the

United States who had not been admitted or paroled. In September 2006,

Turcios-Avila appeared before an IJ and conceded removability.

In April 2007, Turcios-Avila filed an application for asylum, withholding of

removal, and relief under the Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”). He conceded that he

was filing his application outside the one-year limitations period for asylum
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claims. In his application, Turcios-Avila alleged that he had suffered past

persecution and feared future persecution based on his membership in a particular

social group. He explained that he had been harassed by a violent gang, the

“Maras,” because they wanted him to join their gang. Turcios-Avila further

explained that he did not want to join their gang because he did not wish to commit

violent and anti-social acts. He supported his application with a personal

statement.

Before Turcios-Avila’s removal hearing, the parties submitted various

documents into the record. These exhibits included a 2006 report issued by the

U.S. Department of State entitled: “Youth Gang Organizations in Honduras.”

According to this report, 41% of the Honduran population was under the age of 15.

Criminal gangs were a serious and pervasive problem in Honduras, and the Maras

was one of the most prevalent gangs. The gangs targeted adolescents between the

ages of 13 and 20 for recruitment, and increasingly targeted children as young as

eight or nine years old. The report noted that, while the gangs could exert “strong

recruiting pressure,” membership in a gang was “overwhelmingly voluntary.”

Outside of prison, forced recruitment was rare. While gangs occasionally

threatened or assaulted those who refused to join them, it was unlikely that a gang

would search outside of their usual zone of activity for an individual who refused

to join them.
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 The exhibits also included Turcios-Avila’s affidavit, as well as an undated

letter addressed to Turcios-Avila from his mother. In this letter, Turcios-Avila’s

mother stated that two of the Maras had recently visited her home and told her that

they wanted to kill Turcios-Avila.

In May 2008, Turcios-Avila, represented by counsel, appeared at a removal

hearing before the IJ. At this hearing, Turcios-Avila testified that, as a teenager, he

had experienced harassment by the Maras in his hometown, Mantel. As he was

walking to school one day, a group of approximately 25-30 Maras approached him

and demanded that he join their group. This occurred an additional seven or eight

times during 2000. The Maras almost always approached Turcios-Avila as he

walked to school, and he always refused to join their group. In the middle of that

school year, the Maras again approached Turcos-Avila as he was walking to school

with two friends. The Maras told them that they had “[run] out of options” and had

to join their group. After Turcios-Avila and his friends refused, several of the

Maras beat one of Turcios-Avila’s friends. Turcios-Avila was punched in the

stomach. As a result of this incident, Turcios-Avila did not return to school for the

remainder of the school year, and did not leave home except to attend church with

large groups of people.

Turcios-Avila did not again experience significant harassment by the Maras

until 2004. In 2004, the Maras threatened to kill him, and took items from him
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such as money and his school uniform shirt. Turcios-Avila took these threats

seriously because he knew that the Maras had robbed one of his neighbors and

raped the neighbor’s daughter. Turcios-Avila encountered the Maras four

additional times in 2004, and moved to Juticalpa in early 2005 because he feared

that his life was in danger in Mantel.

Turcios-Avila had another encounter with the Maras in Juticalpa. As he was

walking home from school with two friends in March 2005, a group of Maras

approached them and demanded that they join the gang. The Maras beat them, and

hit Turcios-Avila with a steel pipe, which scarred him. The Maras also hit one of

Turcios-Avila’s friends on the head with the steel pipe, causing him to sustain an

open head wound. As a result of this incident, Turcios-Avila decided to flee to the

United States. Turcios-Avila further testified that, since he left Honduras, his 17-

year-old brother no longer left his home due to his fear of the Maras. Turcios-

Avila believed that, if he were to return to Honduras, the Maras would find him

and kill him because he would not join them.

On cross-examination, Turcios-Avila explained that, after he arrived in the

United States, the Maras had twice approached his mother at her home. They

asked her where Turcios-Avila was, and, when his mother refused to give them this

information, they threatened to kill her and Turcios-Avila.

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 The IJ rendered an oral decision denying relief. In her decision, the IJ found

that Turcios-Avila’s asylum claim was untimely because he failed to file his

application within one year of his arrival in the United States. Addressing his

withholding of removal claim, the IJ found that Turcios-Avila did not establish that

he had been harassed based on membership in a particular social group. The IJ

found that a social group must be “narrowly defined,” and defined a social group

for purposes of the INA as “a voluntary association . . . . [based on] an innate

characteristic that is so fundamental to the identities or consciences of its members

that its members either cannot or should not be required to change it.” Applying

these principles, the IJ determined that an individual’s resistance to cooperating

with a gang does not make that person a member of a social group for purposes of

the INA. Thus, the IJ found that, even if Turcios-Avila were credible, there was no

nexus between any past persecution Turcios-Avila may have suffered and a

protected ground under the INA. Finally, the IJ also denied his claim for CAT

relief, finding that the record did not indicate that Turcios-Avila was in danger of

suffering harm at the hands of the Honduran government.

Turcios-Avila appealed to the BIA, arguing, among other things, that the IJ

erred in determining that he did not establish a nexus between past persecution and

a protected ground under the INA. The BIA affirmed the IJ’s decision, agreeing

with the IJ that Turcios-Avila failed to establish by clear and convincing evidence
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that he filed his asylum application within one year of his arrival in the United

States. The BIA found that, even if Turcios-Avila were credible, he failed to

demonstrate past persecution based on a protected ground. The BIA also agreed

with the IJ that Turcios-Avila’s refusal to join a gang did not establish that he

belonged to a particular social group within the meaning of the INA. The BIA

reasoned that the group of young men sought for gang recruitment was: (1) not

defined with sufficient particularity to delineate its membership; (2) not socially

visible; and (3) not marked by an “immutable characteristic,” such as “sex, color,

or kinship ties.” The BIA also found that, to the extent Turcios-Avila feared

returning to generally dangerous conditions in Honduras, his fear of civil unrest

that affected the country as a whole did not entitle him to withholding of removal.

Finally, the BIA agreed that the record did not indicate that Turcios-Avila would

likely be tortured by, or with the acquiescence of, the Honduran government.

Thus, the BIA also denied CAT relief.

III.

Where the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al-Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA expressly adopts the

IJ’s reasoning, we review both the BIA’s and the IJ’s decisions. Id. Here, the BIA

did not expressly adopt any part of the IJ’s decision, but it affirmed the IJ’s
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decision and agreed with much of her reasoning in its own opinion. As a result, to

the extent that the BIA agreed with the IJ’s reasoning, we review both the BIA’s

and the IJ’s decisions.1 See Al-Najjar, 257 F.3d at 1284. To the extent that the

BIA’s and the IJ’s decisions were based on a legal determination, our review is de

novo. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254 (11th Cir. 2006).

Under the INA, an alien shall not be removed to a country if his life or

freedom would be threatened in such country on account of race, religion,

nationality, membership in a particular social group, or political opinion. INA §

241(b)(3), 8 U.S.C. § 1231(b)(3). In order to prevail on a claim that he is eligible

for withholding of removal, a petitioner must present “specific, detailed facts” that

demonstrate that he has good reason to fear that he will be persecuted based on a

protected ground. Ruiz, 440 F.3d at 1257-58 (quotation omitted). An alien must

demonstrate a nexus between past or future persecution and a protected activity by

showing that the protected ground, “at least in part,” motivated his past persecution

or would motivate future persecution. Rodriguez-Morales v. U.S. Att’y Gen., 488

F.3d 884, 890 (11th Cir. 2007) (holding that an alien must demonstrate a nexus

1
In his petition, Turcios-Avila does not discuss the BIA’s and the IJ’s denial of his
claims for asylum and CAT relief. Accordingly, he has abandoned any argument regarding these
issues, and we do not discuss them here. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (noting that the petitioner abandoned an argument by failing to raise it in her
initial brief).

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between her persecution and a protected ground); Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1375 (11th Cir. 2006) (holding that the alien’s persecution must, at least in

part, be based on a protected ground). To demonstrate the required nexus, the

petitioner must present specific facts that show a well-founded fear that because of

a statutory factor, he will be singled out for persecution, or that he “is a member of,

or is identified with, a group that is subjected to a pattern or practice of

persecution.” Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir.2008). An

asylum applicant may not show merely that he is a member of a particular social

group, but must show that he was persecuted because of his membership in that

social group. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 816, 117

L.Ed.2d 38 (1992).

Because Congress has not defined what constitutes a particular social group

under the INA, we defer to the BIA’s definition of this term as long as it is not

arbitrary, capricious, or clearly contrary to law. Castillo-Arias v. U.S. Att’y Gen.,

446 F.3d 1190, 1196 (11th Cir. 2006); see also 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). The BIA has defined a particular social group as one that shares a

“common, immutable characteristic that is fundamental to its members’ individual

identities or consciences,” and we have held that this definition is reasonable.

Castillo-Arias, 446 F.3d at 1195-96 (quotation and alterations omitted). Examples
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of a “common, immutable characteristic,” include sex, color, kinship ties, or, in

certain circumstances, “a shared past experience such as former military leadership

or land ownership.” Id. at 1193. The common characteristic must be something

other than the risk of persecution. See id.

In addition, we have held that, “[E]vidence that either is consistent with acts

of private violence or the petitioner’s failure to cooperate with guerrillas, or that

merely shows that a person has been the victim of criminal activity, does not

constitute evidence of persecution based on a statutorily protected ground.” Ruiz,

440 F.3d at 1258.

Here, the BIA and the IJ did not err in finding that Turcios-Avila was not a

member of a “particular social group” within the meaning of the INA. Young

Honduran men who refuse to join gangs constitute only an inchoate group that

lacks an immutable characteristic that is fundamental to its members’ individual

identities or consciences. Notably, it appears that this group would share only the

risk of persecution, as young men who oppose gang membership could come from

a wide variety of backgrounds and hold a wide variety of beliefs, and could oppose

gang membership for different reasons. Moreover, it appears that Turcios-Avila’s

proposed group would present problems with numerosity. In addition, Turcios-

Avila’s claim, at its heart, appears to be a claim that he fears acts of private

violence if he were returned to Honduras. Such a claim does not warrant
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withholding of removal. Because Turcios-Avila did not demonstrate that he was a

member of a particular social group, he also failed to demonstrate that he likely

would be subjected to persecution based on a protected ground if he were returned

to Honduras. Accordingly, the BIA and the IJ did not err in denying his claim for

withholding of removal, and we deny the petition.

Conclusion

Based upon our review of the record and the parties’ briefs, we deny the

petition.

PETITION DENIED.

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