[DO NOT PUBLISH]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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