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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11711
Non-Argument Calendar
________________________
Agency No. A216-274-390
KENNETH CRISTIAN AZURDIA-HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 4, 2020)
Before JORDAN, NEWSOM, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Kenneth Azurdia-Hernandez (“Petitioner”), a native and citizen of
Guatemala, petitions for review of the order of the Board of Immigration Appeals
(“BIA”) affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision
denied asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). Because we conclude that the BIA and the IJ failed to give
reasoned consideration to some of Petitioner’s claims, we grant the petition for
review, vacate the BIA’s decision, and remand the case to the BIA for further
consideration.
I. Background
Petitioner sought asylum and withholding of removal based on his
membership in a particular social group (“immediate family members of his
mother Orquidia Tamara Hernandez-Garcia”) and based on his religion
(Evangelical Christian). 1
1
The IJ concluded that Petitioner’s proposed family-based particular social group is cognizable
under the Immigration and Nationality Act; that issue is not before us on appeal.
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Petitioner alleged that in June 2012, he and his mother, Orquidia, were
victims of a robbery theatrically staged by a “gang/cartel” called El Cartel del
Golfo. The supposed robbers beat Petitioner and Orquidia and attempted to stab
Petitioner in the stomach. During the attack, members of the cartel arrived,
shouted Orquidia’s name, and shot at the robbers, causing the robbers to flee. The
next day, a member of the cartel came to Petitioner’s family home and returned
Petitioner’s and Orquidia’s stolen identification. Petitioner contends that the cartel
staged the robbery -- and the cartel’s rescue of Petitioner and Orquidia -- so that
Petitioner and Orquidia would be indebted to the cartel.
In early 2013, the cartel approached Orquidia -- who worked as a bank
manager -- at her place of work. In exchange for the cartel’s having saved
Orquidia and Petitioner, the cartel demanded that Orquidia launder $10,000 a day
for them. The cartel threatened to harm Orquidia or Petitioner if Orquidia refused
to cooperate. Orquidia agreed to comply with the cartel’s demands but told them
she could only process transactions up to the legal limit of $3000 per day. The
cartel told Orquidia to find a way to process more money; Orquidia refused to do
so because of her religion. The cartel told Orquidia that they trusted her because of
her religion. In November 2013, the bank terminated Orquidia’s employment --
the bank had discovered the money-laundering transactions.
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Thereafter -- in 2014 and 2015 -- the cartel demanded that Petitioner and
Orquidia continue working for the cartel in other ways. The cartel told Petitioner
and Orquidia that -- because of their religion -- the cartel trusted them not to cheat
or steal from the cartel. The cartel also wanted Petitioner to work as a bodyguard,
given his “height and body structure.” During this time, the cartel beat Petitioner
at least once and several times threatened to harm Petitioner and Orquidia if they
refused to comply. Petitioner and Orquidia agreed to work for the cartel by sorting
the cartel’s money but refused the cartel’s demands that they store weapons and
drugs in their home.
In a written decision, the IJ denied Petitioner relief. The IJ first found that
Petitioner testified credibly and that his testimony was both internally consistent
and consistent with the documentary evidence in the record. The IJ then concluded
that Petitioner was statutorily ineligible for asylum. In pertinent part,2 the IJ
determined that Petitioner failed to demonstrate (1) a nexus between his
mistreatment and a statutorily protected ground, and (2) that the Guatemalan
government was unable or unwilling to protect him. Then given the failure to
satisfy Petitioner’s burden of establishing eligibility for asylum, the IJ concluded
2
The IJ also determined that the mistreatment Petitioner suffered did not rise to the level of
persecution. Petitioner appealed this determination to the BIA. The BIA, however, made no
ruling on this issue; the BIA decided based on other dispositive grounds.
Petitioner now seeks to raise the issues of persecution and future fear in his appeal in this
Court. Because these issues were not reached by the BIA, they are not properly before us. See
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
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that Petitioner had also failed to meet the higher burden of proving eligibility for
withholding of removal. The IJ also determined that Petitioner was ineligible for
CAT relief because Petitioner had failed to show that he would be tortured by or
with the acquiescence of a public official. The BIA agreed with the IJ’s reasoning
and dismissed Petitioner’s appeal.
II. Standard of Review
We review both the BIA’s decision and the IJ’s decision in this case to the
extent the BIA adopted the IJ’s reasoning. See Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo legal determinations of
the BIA. Id. And we review fact determinations “under the highly deferential
substantial evidence test” whereby “[w]e must affirm the BIA’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-29 (11th Cir.
2004) (en banc) (quotations omitted). To reverse a fact determination, we must
conclude “that the record not only supports reversal, but compels it.” Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2005).
“To enable our review, the [BIA and the IJ] must give ‘reasoned
consideration’ to an applicant’s claims and make ‘adequate findings.’” Ali v. U.S.
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Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019) (quotations omitted) (citing Tan
v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)). We stress that although
the IJ and the BIA must consider all evidence introduced by the applicant, it need
not address specifically each claim or piece of evidence presented. Id. We must,
however, “be left with the conviction that the [agency] has heard and thought about
the case and not merely reacted.” Id. (quotations and alterations omitted).
“[T]he agency does not give reasoned consideration to a claim when it
misstates the contents of the record, fails to adequately explain its rejection of
logical conclusions, or provides justifications for its decision which are
unreasonable and which do not respond to any arguments in the record.” Jeune v.
U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016). When the BIA or IJ “has
failed to give reasoned consideration or make adequate findings, we remand for
further proceedings because we are unable to review the decision.” Mezvrishvili v.
U.S. Att’y Gen., 467 F.3d 1292, 1295 (11th Cir. 2006) (quotations and citations
omitted).
III. Discussion
An alien may obtain asylum if he is a “refugee,” that is, a person unable or
unwilling to return to his country of nationality “because of persecution or a well-
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founded fear of persecution on account of” a protected ground, including
membership in a particular social group or religion. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1). The asylum applicant bears the burden of proving statutory “refugee”
status with specific and credible evidence. Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005).
A. Causal Connection
To demonstrate persecution “on account of” a protected ground, an alien
must show that a protected ground “was or will be at least one central reason for
persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
Petitioner contends that the BIA and the IJ erred in concluding that he failed
to establish the required causal link between the mistreatment by the cartel and
Petitioner’s religion. In making that determination, the IJ said only these words:
Additionally, Respondent alleges that he was harmed because of his
religion as an Evangelical Christian. However, Respondent testified
that the gang members indicated that they trusted him and his mother
because of their religion, which indicates to the Court that the cartel
members had no intention of harming him or his mother on account of
their religious beliefs. They viewed their status as Evangelical
Christians as a positive attribute rather than as a negative attribute
which would not lead the cartel members to harm them in any way.
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The BIA agreed with the IJ’s conclusion that Petitioner failed to show that a
protected ground was a “central reason” for the alleged harm. The BIA discussed
only the IJ’s reasons for denying Petitioner’s particular social group claim and
made no express mention of Petitioner’s religion-based claim.
We conclude that the BIA and the IJ failed to give “reasoned consideration”
to and make “adequate findings” about Petitioner’s religion-based persecution
claim. The IJ’s determination (that the cartel held a positive view of Petitioner’s
religion and that the positive view made it unlikely that the cartel would harm
Petitioner) ignores and is unreasonable in the light of Petitioner’s credible
testimony that the cartel actually did physically beat Petitioner and did threaten
Petitioner and Orquidia with serious bodily harm if they refused to comply with the
cartel’s demands -- demands that Petitioner and Orquidia labor for the cartel.
Moreover (although we do not decide this issue today), we cannot rule out -- as a
matter of law -- that an asylum applicant might demonstrate religion-based
persecution based on evidence that he was targeted for forced labor or some other
oppressive treatment because the persecutor perceived some positive attribute
(honesty, diligence, or such) associated with the persecuted person’s religion that
would serve the persecutor’s goals.
On appeal to the BIA, Petitioner argued that the IJ’s decision was contrary to
Petitioner’s own testimony. Petitioner also challenged the logic of the IJ’s
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conclusion that because the cartel trusted Petitioner based on his religion, the cartel
would not harm Petitioner. That the BIA neither addressed Petitioner’s arguments
nor made express mention of Petitioner’s religion-based claim casts significant
doubt about whether the BIA heard or thought about Petitioner’s religion-based
persecution claim and the pertinent evidence.
B. Government Unable or Unwilling to Protect
As an alternative ground for denying Petitioner asylum, the IJ also
concluded that Petitioner failed to show that the Guatemalan government was
unable or unwilling to protect him. The IJ provided this explanation, which was
adopted by the BIA:
Respondent testified that his mother reported the robbery to the
police, but did not report any of the cartel’s attempts to have them
launder money. Additionally, Respondent made no attempt to report
any of the threats from the cartel, and thus has not given the
Guatemalan government the opportunity to demonstrate that they are
unable or unwilling to protect him from his feared persecution.
To prove eligibility for asylum, an applicant must demonstrate that the
alleged persecution was inflicted by a government official or by persons that the
government is unable to control. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948
(11th Cir. 2010). As noted correctly by the IJ, an applicant may establish the
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government’s inability or unwillingness to control a private actor “by presenting
evidence that he reported the persecution to local government authorities or that it
would have been useless to do so.” See id. at 950 (citing Lopez v. U.S. Att’y Gen.,
504 F.3d 1341, 1345 (11th Cir. 2007)).
Because we conclude that the BIA’s and the IJ’s findings on this issue are
inadequate, we are unable to review this alternative ground for denying Petitioner
asylum. First, in finding that Petitioner and Orquidia failed to report to the police
the cartel’s money-laundering demands, the IJ misstated the contents of the record.
The record shows that Petitioner testified that Orquidia did go to the police after
the cartel demanded that she launder money for them, but that the police refused to
help her. The IJ provided no explanation for not crediting this portion of
Petitioner’s otherwise credible testimony.
The BIA’s and IJ’s decisions also failed to address or make factual findings
about Petitioner’s contention and testimony that the police were involved with the
cartel and, thus, that it would have been useless to report the cartel’s ongoing
threats to the police. “Although the failure to report persecution to local
government authorities generally is fatal to an asylum claim, . . . it would be
excused where the petitioner convincingly demonstrates that those authorities
would have been unable or unwilling to protect [him], and for that reason [he]
could not rely on them.” Lopez, 504 F.3d at 1345. Given Petitioner’s testimony
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about police corruption, that Petitioner took no steps to seek protection from the
police -- by itself -- might not be enough to defeat his claim for asylum. See id.
(remanding for further consideration where the BIA concluded only that petitioner
had failed to seek protection from law enforcement and failed to address
petitioner’s claim that those authorities were unable or unwilling to protect her).
For these reasons, we conclude that the BIA and the IJ failed to give
reasoned consideration to all the evidence and claims presented by Petitioner and
failed to make adequate findings. We are thus unable to review meaningfully the
agency’s denial of Petitioner’s application for relief. Accordingly, we grant the
petition for review, vacate the BIA’s decision, and remand the case for further
proceedings.
PETITION GRANTED; VACATED AND REMANDED.
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