In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1047
RENE A. LOPEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A208‐149‐697
____________________
ARGUED JUNE 2, 2017 — DECIDED JUNE 13, 2017
____________________
Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.
FLAUM, Circuit Judge. Rene Alonzo Lopez, a.k.a. Luis
Fuentes Alonso, petitions for review of the denial of his appli‐
cation for withholding of removal. We dismiss the petition for
lack of jurisdiction.
2 No. 17‐1047
I. Background
Lopez is a native and citizen of El Salvador who first en‐
tered the United States without inspection in or around 1996.
In 1997, he was convicted of felony possession of marijuana in
violation of North Carolina General Statute § 90‐95(d)(4).
In 2015, the Department of Homeland Security com‐
menced removal proceedings against Lopez, and filed a No‐
tice to Appear with the immigration court charging that he
was removable on two grounds: (1) as an alien present in the
United States without being admitted or paroled, see 8 U.S.C.
§ 1182(a)(6)(A)(i); and (2) as an alien convicted of a controlled
substance law, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). Lopez admit‐
ted the allegations in the Notice to Appear; and, after the im‐
migration judge sustained the removal charges, Lopez filed
an application for asylum and withholding of removal.
Lopez testified before the immigration judge that in 2007,
Lopez and his cousin decided to form an agricultural business
making feed for livestock in El Salvador. Lopez sent money
from the United States as an investment and in order to rent
space. He returned to El Salvador in 2011 or 2012 to expand
the business to another location in a different village. Lopez
stated that approximately three months after the new branch
opened, he received a cell phone from a child, and the local
leader of the Mara Salvatrucha (“MS‐13”) gang called to “start
charging rent.” (Apparently the area in which the new branch
was located was gang‐controlled.) The gang leader told
Lopez, “[Y]ou already know what happens to people who
don’t pay.” Lopez understood this to mean that the gang
would kill, injure, or kidnap someone if Lopez didn’t pay the
“rent.”
No. 17‐1047 3
Lopez initially complied with the gang’s demands, depos‐
iting thirty dollars per week into a specified bank account; but
after a month or a month and a half, he had to close the busi‐
ness. He explained to the immigration judge that once people
learn that a gang controls a business, the business suffers rep‐
utational harm and loses standing in the community. Lopez
then returned to the United States. Approximately six months
later, Lopez sent money to his nephew, who was being pres‐
sured in El Salvador to join a gang, to help him travel to the
United States.
MS‐13 has never harmed Lopez’s family in El Salvador.
Additionally, Lopez explained that he had not applied for asy‐
lum earlier because he had not known that he could.
A. Immigration judge’s decision
On May 19, 2016, the immigration judge denied Lopez’s
application for asylum and withholding of removal. Lopez
had not filed his asylum application within one year of his last
entry in 2012, as is required under 8 U.S.C. § 1158(a)(2)(B); and
the immigration judge found that Lopez’s lack of knowledge
about the asylum application process did not constitute
changed or extraordinary circumstances excusing his failure
to timely file. Lopez was thus statutorily ineligible for asylum.
In denying withholding of removal, the immigration
judge found that Lopez’s fear of persecution by MS‐13 was
“[n]either objectively reasonable [n]or on account of any of
the statutorily enumerated grounds,” as the record did not
support the conclusion that any future mistreatment by MS‐
13 would be on account of Lopez’s race, religion, nationality,
political opinion, or social group membership. The immigra‐
tion judge observed that neither “(1) individuals who oppose
4 No. 17‐1047
gang and other criminal activities due to their personal (e.g.,
religious and/or moral) beliefs,” nor “(2) individuals who
have lived in the United States for many years and who are
perceived by drug cartels, criminal organizations, and gangs
to have money upon their return” comprised sufficiently par‐
ticular groups to be cognizable social groups for purposes of
withholding of removal. The immigration judge also found
“no evidence that gang members would be concerned with
any characteristic of their victims other than their wealth.”
B. Board of Immigration Appeals’s decision
On June 16, 2016, Lopez appealed the immigration judge’s
denial of withholding of removal to the Board of Immigration
Appeals (“Board”), claiming that MS‐13 would target Lopez
based on its perception of him as a “wealthy business owner
who failed to comply with [the gang’s] demands for rent,” and
submitting that the government of El Salvador is unable to
control the MS‐13 gang or protect its victims. He requested
that the Board either grant him withholding of removal or re‐
mand his case so that he could introduce additional evidence.
On December 8, 2016, the Board dismissed Lopez’s appeal,
agreeing with the immigration judge that Lopez had not es‐
tablished that it was more likely than not that his life or free‐
dom would be threatened based on a protected ground. The
Board explained in relevant part that, “[a]lthough wealth can
form a basis of a particular social group if it is combined with
other ‘distinguishing markers,’ no evidence was presented
that the gang members in this case would be concerned with
any character[istic] other than wealth.” The Board added that
a “general fear of crime, extortion, or violence,” and Lopez’s
actions in helping his nephew escape El Salvador, likewise
were not bases for withholding of removal, and rejected
No. 17‐1047 5
Lopez’s claim that the Salvadoran government is unable or
unwilling to control MS‐13. Finally, the Board denied Lopez’s
request for remand to present additional evidence, explaining
that he “did not submit any evidence, specify the evidence
that would be presented, or explain why the new evidence
could have been presented in the proceedings before the Im‐
migration Judge.”
This petition followed.
II. Discussion
Because Lopez was found removable based on his con‐
trolled‐substance conviction and did not challenge this find‐
ing before the Board or this Court, the criminal alien bar of
8 U.S.C. § 1252(a)(2)(C) applies. See, e.g., Gutierrez v. Lynch, 834
F.3d 800, 804 (7th Cir. 2016); Aguilar‐Mejia v. Holder, 616 F.3d
699, 703 (7th Cir. 2010) (“Congress has stripped courts of ap‐
peals of their jurisdiction to review most issues related to re‐
moval orders for aliens convicted of certain crimes, including
controlled‐substance offenses ….”) (citations omitted). Alt‐
hough we thus generally lack jurisdiction to review Lopez’s
final order of removal, we retain jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) to review (de novo) questions of law and con‐
stitutional claims. See, e.g., Isunza v. Lynch, 809 F.3d 971, 973
(7th Cir. 2016); Antia‐Perea v. Holder, 768 F.3d 647, 658–59 (7th
Cir. 2014) (citation omitted). We likewise review de novo
questions concerning our jurisdiction. E.g., Delgado v. Holder,
674 F.3d 759, 765 (7th Cir. 2012) (citation omitted).
Withholding of removal requires the petitioner to estab‐
lish that it is more likely than not that he would be persecuted
in the country of removal “because of [his] race, religion, na‐
tionality, membership in a particular social group, or political
6 No. 17‐1047
opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Sarhan v. Holder, 658
F.3d 649, 653 (7th Cir. 2011) (citation omitted). The inquiry fo‐
cuses on “whether the danger flows from an ongoing violent
struggle affecting the population in a relatively undifferenti‐
ated way or if danger exists on account of a protected ground.”
Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005)
(quoting Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir. 2003)).
Lopez raises two legal challenges on appeal: (1) that individ‐
uals perceived to be wealthy business owners, or former
members of that group who failed to comply with extortion
demands, are both cognizable and particular social groups
under existing precedent; and (2) that he established, and the
Board failed to consider, that the Salvadoran government is
unable or unwilling to control MS‐13.1
The government responds, however, that neither of these
arguments invokes our jurisdiction because Lopez has not
challenged the Board’s dispositive holding on nexus—that is,
that Lopez failed to establish a likelihood of persecution in El
Salvador based on membership in a protected group. 8 U.S.C.
§ 1231(b)(3)(A); see also Rivera v Lynch, 845 F.3d 864, 866 (7th
Cir. 2017); Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012).
Thus, the government reasons, even assuming Lopez could
1 As to the second issue, Lopez alternatively argues that even if the
Board did consider this evidence, this Court should revisit our conclusion
that 8 U.S.C. § 1252(a)(2)(D)’s preservation of jurisdiction does not extend
to such issues of mixed law and fact. See Adame v. Holder, 777 F.3d 390, 391
(7th Cir. 2015) (Hamilton, J., concurring in denial of petition for rehearing
en banc). We decline to do so, since, as the following analysis makes clear,
there would be “no reasonable prospect of changing the outcome of [the]
petition for judicial review.” Id.
No. 17‐1047 7
prevail on either or both of his arguments, the agency’s denial
of withholding of removal would still stand.
Lopez claims that the government is misreading the immi‐
gration judge’s and Board’s decisions,2 which, according to
him, focused on the requisite particularity of a social group,
and not on nexus per se. The government relies on: (1) the
Board’s statement that, “[a]lthough wealth can form a basis of
a particular social group if it is combined with other ‘distin‐
guishing markers,’ no evidence was presented that the gang
members in this case would be concerned with any charac‐
ter[istic] other than wealth”; and (2) the immigration judge’s
finding that, “[i]n this case, … the danger to the respondent
of robbery or extortion by gangs or other criminal elements is
shared by all members of [Salvadoran] society who have or
are perceived to have wealth, and there is no evidence that the
risk faced by the respondent is distinct because of the time he
lived in the United States.” While it’s true that both statements
come from the agency’s analyses with respect to social groups,
crucially, they both center on wealth—and only wealth—as
the pertinent marker linked to persecution by MS‐13. And as
“wealth, standing alone, is not an immutable characteristic
[and thus may not be the primary characteristic of a cogniza‐
ble group],” Dominguez‐Pulido v. Lynch, 821 F.3d 837, 845 (7th
Cir. 2016) (citing Tapiero, 423 F.3d at 672), both the immigra‐
tion judge and Board did make dispositive, no‐nexus find‐
ings.
2 Where the Board both adopts and supplements the immigration
judge’s decision, both orders are subject to review by this Court. E.g.,
Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014) (citations omitted).
8 No. 17‐1047
Lopez alternatively argues that, to the extent the Board ad‐
dressed the nexus element, the Board failed to consider evi‐
dence, raising an issue of reviewable legal error. He claims
that because he experienced extortion and threats from MS‐13
as a consequence of his business ownership, a conclusion of
no nexus “ignores [his own] credible testimony.” His argu‐
ment misses the point. It’s true that the immigration judge
found Lopez generally credible, and observed that “there is
some support” for Lopez’s fears of MS‐13 given the gang’s
proclivity toward violence. However, both the immigration
judge and Board concluded that it wasn’t Lopez’s business
ownership, or his non‐compliance with the gang’s demands,
that mattered for purposes of the withholding analysis. It was
simply his (perceived) wealth. See generally In re V‐T‐S‐, 21 I.
& N. Dec. 792, 792 (BIA 1997) (holding that an applicant’s
wealth, in the absence of evidence to suggest other motiva‐
tions, will not support a finding of persecution within the
meaning of the Immigration and Nationality Act). Lopez thus
failed to establish that his life or freedom would be threatened
based on a protected ground.
“For [§ 1252(a)(2)(D)] review to be permissible, … the legal
conclusion must make a difference, as otherwise the court
would be rendering an advisory opinion.” Jankovic v. Lynch,
811 F.3d 265, 266 (7th Cir. 2016). As the agency’s (no‐)nexus
finding is dispositive of the decision on withholding of re‐
moval, we need not and do not consider either of Lopez’s ar‐
guments as to his proposed social groups or the ability or will‐
ingness of the Salvadoran government to control MS‐13. See
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
courts and agencies are not required to make findings on is‐
sues the decision of which is unnecessary to the results they
reach.”) (citations omitted); Lozano‐Zuniga v. Lynch, 832 F.3d
No. 17‐1047 9
822, 828 (7th Cir. 2016) (finding it unnecessary to determine
whether a given group was cognizable under the Immigration
and Nationality Act given the immigration court’s finding
that petitioner “failed to establish that there is a clear proba‐
bility that he would be subject to future danger because of his
membership in this group”).
III. Conclusion
For the foregoing reasons, the petition for review of the
Board’s decision is DISMISSED for lack of jurisdiction.
Rene Lopez v. Jefferson B. Sessions III
Combined Opinion