USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12223
Non-Argument Calendar
________________________
Agency No. A206-623-066
DONELDO MENOCAL-VARGAS, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 22, 2021)
Before MARTIN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Doneldo Menocal-Vargas petitions for review of the decision of the Board
of Immigration Appeals. The Board dismissed Menocal-Vargas’s appeal of the
immigration judge’s decision, which denied his applications for asylum,
USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 2 of 7
withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. After
careful review, we deny the petition, as Menocal-Vargas has not shown he is
eligible for relief.
I
In 2014, Menocal-Vargas, a native and citizen of Honduras, entered the
United States. He was charged with being removable under the Immigration and
Nationality Act (“INA”) for entering the United States without being admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Menocal-Vargas applied for asylum and
withholding of removal under the INA and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). 1 In his applications, he said he faced persecution by the
gang Maras Salvatrucha (“MS”) because he told young men and children not to
join gangs, because MS believed he worked for the army to fight gangs, and
because MS threatened to kill his family unless his son joined MS.
The immigration judge (“IJ”) held a hearing on Menocal-Vargas’s claims.
Menocal-Vargas testified that three members of MS visited his home once in
January 2014. The MS members visited Menocal-Vargas because he was trying to
1
Menocal-Vargas’s wife and two children also went through the immigration
proceedings, and Menocal-Vargas’s applications make their claims derivative of his claims. We
address the facts as they relate to Menocal-Vargas in this opinion.
2
USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 3 of 7
dissuade young men from joining gangs through a church program. After seeing
certain military diplomas on his wall, the MS members thought he was an
undercover police officer trying to go after gangs. The MS members also
threatened Menocal-Vargas, telling him that they would kill his family unless his
son joined MS. Menocal-Vargas provided two theories of eligibility for relief.
First, he said he was in a social group “made up of former members of the military
who are actively speaking against gang affiliation.” Second, he said his opposition
to gangs is a protected political opinion.
The IJ denied Menocal-Vargas’s applications for asylum, withholding of
removal, and CAT relief. The IJ found there had been no past persecution in this
case. It separately found that Menocal-Vargas failed to show he has been or will
be persecuted based on membership in a protected particular social group or
political opinion. Because Menocal-Vargas failed to meet the burden for asylum,
the IJ found he likewise failed to meet the higher burden for withholding of
removal. Finally, the IJ did not grant CAT relief because there was no indication
that Menocal-Vargas would be tortured if he were to return to Honduras.
The Board of Immigration Appeals (“BIA”) dismissed Menocal-Vargas’s
appeal. Like the IJ, the BIA determined that Menocal-Vargas did not show past
persecution or that he was or would be persecuted on the basis of membership in a
protected particular social group or political opinion. Although the BIA noted that
3
USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 4 of 7
Menocal-Vargas said MS has and will harm him on account of an imputed political
opinion, the BIA declined to address this argument because it found that Menocal-
Vargas raised it for the first time on appeal. Menocal-Vargas now petitions this
Court to review the BIA’s decision regarding his application for asylum. 2
II
In a petition for review of a BIA decision, we review de novo the BIA’s
conclusions of law and review its factual determinations to decide whether they are
supported by substantial evidence. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403
(11th Cir. 2016) (per curiam). To be eligible for asylum, an applicant must
establish either past persecution or fear of future persecution based on “race,
religion, nationality, membership in a particular social group, or political opinion.”
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231–32 (11th Cir. 2007);
see 8 U.S.C. § 1101(a)(42)(A). Persecution is an “extreme concept” that requires
“more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam)
(quotation marks omitted). Menocal-Vargas says his claims of persecution are
based on two protected grounds: his membership in a particular social group and
his political opinion. We address each in turn and conclude that Menocal-Vargas
2
Menocal-Vargas does not raise the denials of his applications for withholding of
removal and CAT relief in this Court, so we do not address them.
4
USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 5 of 7
has failed to show persecution based on either protected ground. He is therefore
ineligible for asylum. See Sanchez Jimenez, 492 F.3d at 1231–32.
We begin with Menocal-Vargas’s assertion that he faces persecution based
on his membership in a particular social group. In order for a group to qualify as a
“particular social group” under the INA, the group (1) cannot be “too numerous or
inchoate,” and (2) must have “a common, immutable characteristic” that cannot or
should not change because it is fundamental to the members’ individual identities
or consciences. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir.
2013) (per curiam) (quotation marks omitted). Menocal-Vargas says he is part of a
group of “former members of the military actively speaking against gang
affiliation.” This Court has deferred to a BIA decision finding that a group of
people who “renounced their . . . membership” in a specific gang was not
sufficiently particular. Gonzales, 820 F.3d at 404–05 (citing In re W-G-R-, 26 I. &
N. Dec. 208, 221 (BIA 2014)). In keeping with this precedent, a group of people
“actively speaking against gang affiliation” is also not sufficiently specific to
constitute a particular social group.
We now consider Menocal-Vargas’s assertion that he faces persecution
based on his opposition to gangs. He characterizes his opposition as a protected
political opinion. While opposition to nongovernmental groups like gangs can
amount to a protected political opinion, the asylum applicant must show that the
5
USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 6 of 7
persecution was because of that political opinion. See Sanchez v. U.S. Att’y Gen.,
392 F.3d 434, 437–38 (11th Cir. 2004) (per curiam). In other words, it is “not
enough to show that [the applicant] was or will be persecuted or tortured due to [a]
refusal to cooperate” with the gangs. Id. at 438. In addition to the asylum
applicant’s actual political opinion, when a persecutor falsely attributes an opinion
to the asylum applicant and then persecutes him based on that mistaken belief, the
asylum applicant can show persecution based on that “imputed political opinion.”
Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001), overruled on other
grounds by Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir. 2020) (en banc).
Menocal-Vargas says he faced and fears persecution as evidenced by the MS
members visiting his home on account of his efforts to prevent young men from
joining gangs. However, regardless of whether Menocal-Vargas’s conduct
amounted to a political opinion, the record does not show he was ever personally
threatened or otherwise persecuted during that visit for his opinion. This single
visit by MS did not amount to persecution. To be sure, the record does show that
the MS members threatened to kill Menocal-Vargas and his family unless his son
joined MS. And while that might show Menocal-Vargas was or will be persecuted,
it does not show persecution because of his political opinion. At most, it shows
persecution due to Menocal-Vargas’s refusal to cooperate with MS, and this is not
protected. Finally, Menocal-Vargas says he was or will be persecuted based on the
6
USCA11 Case: 20-12223 Date Filed: 03/22/2021 Page: 7 of 7
MS members’ belief that he was working either in the army or as a police officer to
fight gangs. The BIA declined to address this imputed political opinion argument
because it found that he raised it for the first time before the BIA. Menocal-Vargas
does not challenge this determination by the BIA before us, so he has abandoned
that challenge. See Sepulveda, 401 F.3d at 1228 n.2. We therefore cannot
consider Menocal-Vargas’s imputed political opinion argument.
PETITION DENIED.
7