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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13177
Non-Argument Calendar
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Agency No. A206-775-482
NELSON RONEY FUNEZ-TURCIOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 20, 2021)
Before WILSON, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
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Nelson Roney Funez-Turcios petitions for review of a decision of the Board
of Immigration Appeals (BIA), affirming the denial of his application for asylum
and withholding of removal under the Immigration and Nationality Act (INA), and
relief under the Convention Against Torture (CAT). He argues that the BIA erred
in concluding that the group of “former public-school student[s] who refused gang
recruitment and return[] to Honduras as a member of an American family, spouse
to a U.S. Citizen and stepfather to three U.S. Citizen children” does not qualify as a
“particular social group” under the INA, and that the record compels a finding that
he would be tortured by or with the acquiescence of the Honduran government if
he were returned to Honduras. Because the BIA properly found that Funez-
Turcios’s proposed group did not qualify as a “particular social group” and
substantial evidence supports the BIA’s CAT determination, we deny the petition.
I. Background
Funez-Turcios, a native and citizen of Honduras, entered the United States
without authorization in 2014. In January 2015, he filed an application for asylum,
withholding of removal, and CAT relief, followed by an amended application in
2018. He claimed that he suffered and feared persecution on account of his
membership in a particular social group, and that he feared that he would be
tortured if he returned to Honduras.
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In his application, Funez-Turcios stated that the neighborhood where he
lived in Honduras was controlled by criminal gangs known as the Maras, and that
the Maras forced young men like him to join them, sell drugs, and “do other illegal
things.” He stated that while he was in school in Honduras in 2013, a group of
Maras would wait around the school looking for recruits, and that one day, they
threatened him. Specifically, while he was attending a school event at a local park,
the group caught him and told him he “had to join them sooner or later.” After he
refused, the group beat him and told him that he had to join the gang and that they
knew where he lived and who his family was. The next day, his parents spoke to
his school’s principal about the incident. Funez-Turcios stated that the principal
told his parents that he would call the police and get security for the school, but
that it never happened.
After the group of Maras pursued him a second time as he was leaving
school, Funez-Turcios decided to quit school and stay at home. On two occasions
thereafter, he saw members from the group riding up and down his street on
motorbikes. As a result, he decided to leave Honduras. In his application for
asylum, he stated that the Maras controlled the entire country and would find him
wherever he moved in Honduras. He wrote that he feared that if he returned to
Honduras, the Maras would beat, torture, or kill him because he decided to flee to
the United States instead of joining them. He asserted that the government could
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not protect him because the Maras controlled the neighborhoods and were stronger
than the police, and also that the police were “corrupt and sometimes protect[ed]
the Maras.”
In support of his application, Funez-Turcios submitted several country
conditions reports. The reports noted that the military had taken charge of most
aspects of public security in Honduras and had instituted a children’s training
program in an attempt to keep young people “from joining the ranks of warring
street gangs that control[led] entire sections of the country’s most violent cities,”
but that there had been cases of military police engaging in murder, torture, and
extortion. The reports also noted that national police had captured high-profile
gang members and drug traffickers, that the government had transferred high-
security detainees, including gang members, to two newer maximum-security
facilities, and that the Honduran government had dismissed more than 1,000 police
officers suspected of corruption or human rights violations—but also that the mass
firings led to the gangs hiring many of the former officers as security or trainers.
After a hearing on Funez-Turcios’s claims, an immigration judge (IJ) issued
an oral decision denying Funez-Turcios’s claims. The IJ found that
Funez-Turcios’s proposed social group of “former public school student[s] who
refused gang recruitment and return[] to Honduras as a member of an American
family, spouse to a U.S. citizen and stepfather to three U.S. citizen children” was
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not a particular social group under the INA because there was no evidence that the
group was socially distinct in Honduran society, and it was not defined with
particularity. The IJ also found that Funez-Turcios’s proposed social group was
circularly defined because it was defined in part by the risk of persecution.
Therefore, the IJ denied Funez-Turcios’s asylum and withholding of removal
claims for failure to establish a particular social group.
As to Funez-Turcios’s CAT claim, the IJ found that Funez-Turcios did not
establish that the government “would torture him or acquiesce and turn a blind eye
to his torture,” noting that evidence that the police were aware of a particular crime
but failed to apprehend the criminals was insufficient to show government
acquiescence to the criminals’ behavior.
Funez-Turcios appealed the IJ’s decision to the BIA, and the BIA ultimately
dismissed his appeal. The BIA agreed with the IJ that Funez-Turcios’s proposed
social group was not cognizable, “which [was] dispositive of his asylum
application” and his request for withholding of removal. Regarding Funez-
Turcios’s CAT claim, the BIA agreed with the IJ that Funez-Turcios failed to show
that it was more likely than not that he would be tortured by or with the consent or
acquiescence of the Honduran government upon his return to Honduras. The BIA
noted that Funez-Turcios’s generalized statements about the Honduran
government’s corruption and inability to control gang violence did not prove error
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in the IJ’s denial of his CAT claim. Funez-Turcios then petitioned for review of
the BIA’s decision.
II. Asylum & Withholding of Removal
Funez-Turcios argues that the BIA erroneously denied his application for
asylum and withholding of removal. He maintains that he established past
persecution or a well-founded fear of future persecution on account of his
membership in a particular social group.
“We review the decision of the [BIA] and the decision of the [IJ] to the
extent that the [BIA] expressly adopted the opinion of the [IJ].” Ayala v. U.S. Att’y
Gen., 605 F.3d 941, 947–48 (11th Cir. 2010) (quoting Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1350 (11th Cir. 2009)). “[W]e review conclusions of law de
novo.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
To qualify for asylum, Funez-Turcios had the burden to prove that he is a
refugee—that he is a person who is unable or unwilling to return to his or her home
country “because of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), 1158(b)(1)(B)(i). Similarly,
to qualify for withholding of removal, Funez-Turcios had the burden to show that,
if returned to Honduras, his “life or freedom would be threatened in that country
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because of [his] race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3).
Funez-Turcios based his claims for asylum and withholding of removal on
his membership in the social group of “[f]ormer public-school student[s] who
refused gang recruitment and return[] to Honduras as a member of an American
family, spouse to a U.S. Citizen and stepfather to three U.S. Citizen children.” The
BIA affirmed the IJ’s conclusion that “this group fails the particular social group
and the particularity requirements.” Funez-Turcios argues that the BIA erred in
doing so. Whether the proposed group qualifies as a “particular social group”
under the INA is a question of law reviewed de novo. Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016).
For a group to qualify as a “particular social group” under the INA: (1) “the
group’s members must have a common characteristic other than their risk of being
persecuted, and that characteristic must be immutable or fundamental to a
member’s individual conscience or identity”; (2) the group must have “sufficient
social distinction,” meaning it must “be perceived as a distinct group by society . . .
as a whole”; and (3) the “group must be defined with particularity, meaning it must
be discrete and have definable boundaries, and not be amorphous, overbroad,
diffuse, or subjective.” Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337,
1342–43 (11th Cir. 2019). A “particular social group” cannot be defined by a risk
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of persecution because such a definition would be “impermissibly circular.”
Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1309–10 (11th Cir. 2019).
The BIA did not err in concluding that Funez-Turcios’s proposed group does
not qualify as a “particular social group.” See Amezcua-Preciado, 943 F.3d at
1342–43. First, the group is impermissibly circular because it is defined in part by
its risk of persecution. See Perez-Zenteno, 913 F.3d at 1310. Part of the group’s
definition is those who “refused gang recruitment,” and Funez-Turcios’s feared
persecution is from gang members. See id. Second, the proposed group is not
socially distinct because Funez-Turcios provided no evidence that “former public
school student[s] who refused gang recruitment and return[] to Honduras as a
member of an American family, spouse to a United States citizen and step-father to
three United States citizen children” are perceived, considered, or recognized as a
distinct group by Honduran society as a whole. See id.; Amezcua-Preciado, 943
F.3d at 1342–43. Thus, Funez-Turcios’s proposed group is not cognizable, and the
BIA properly denied his claims for asylum and withholding of removal.
III. Convention Against Torture Relief
Funez-Turcios next argues that the BIA erred in denying his claim for CAT
relief. To be eligible for CAT relief, Funez-Turcios had the burden to prove that
he more likely than not would be tortured “at the instigation or with the consent or
acquiescence of a public official or other person acting in an official capacity,” if
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removed to Honduras. 1 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1); see Jean-Pierre v.
U.S. Att’y Gen., 500 F.3d 1325, 1322–23 (11th Cir. 2007). The BIA found that
Funez-Turcios failed to prove that he would be tortured “by or with the
acquiescence . . . of a public official or other person acting in an official capacity.”
We review this finding for substantial evidence. Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1236 (11th Cir. 2006).
A review of the record confirms that Funez-Turcios did not present any
evidence of conduct remotely resembling torture in the immigration proceedings.
Nevertheless, he argues that, if removed to Honduras, he would be tortured “by or
with the acquiescence” of the Honduran government because “the Honduran
government, despite its general efforts, is ultimately powerless to contain the
violence caused by the Maras and widespread corruption of law enforcement
officials, including in the judiciary.” But a government does not acquiesce in
torture if it actively, albeit unsuccessfully, tries to combat crime. Reyes-Sanchez v.
U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004). Here, although some
record evidence supports the rampant gang violence and corruption of police, the
record does not compel us to find that Funez-Turcios would more likely than not
suffer torture by the Honduran government or with its acquiescence. Honduras
1
To constitute torture, an act must be specifically intended to inflict severe physical or
mental pain or suffering. 8 C.F.R. § 208.18(a)(5).
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prohibits government torture, and the record shows that the Honduran government
is actively attempting to combat gang violence. For example, the government
instituted a program designed to keep young people from joining gangs, captured
high-profile gang members and drug traffickers, moved high-security inmates to
new maximum-security facilities, and dismissed over 1,000 police officers
suspected of corruption or human rights violations. Thus, substantial evidence
supports the BIA’s denial of Funez-Turcios’s claim for CAT relief. See
Jean-Pierre, 500 F.3d at 1324.
IV. Conclusion
For these reasons, we deny Funez-Turcios’s petition for review.
PETITION DENIED.
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