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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11247
Non-Argument Calendar
____________________
WILMER GARCIA-ORTIZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-933-641
____________________
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2 Opinion of the Court 21-11247
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Wilmer Garcia-Ortiz petitions for review of the decision of
the Board of Immigration Appeals denying his application for
withholding of removal. But proving neither that membership in
a particular social group caused him to suffer persecution nor that
he will likely experience government-condoned torture if
deported, Garcia-Ortiz fails to satisfy the prerequisites for
withholding. We therefore deny his petition.
I.
Honduran national Garcia-Ortiz left his home country and
entered the United States without inspection in 2012. A few years
later he was arrested and convicted for driving under the influence,
and soon afterwards the Department of Homeland Security
initiated removal proceedings against him. Garcia-Ortiz conceded
that the government had authority to remove him under 8 U.S.C.
§§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I), but he also filed an
application for withholding of removal.
To justify his request, Garcia-Ortiz asserted that he had been
and would be persecuted in Honduras because he belonged to two
particular social groups—“Honduran male[s] who have been
actively recruited by the international criminal organizations that
operate in his home country and who have refused to join” and
“U.S. Deportees.” See 8 U.S.C. § 1231(b)(3)(A). He also asked for
protection under the United Nations Convention Against Torture,
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21-11247 Opinion of the Court 3
claiming that he would probably be “tortured and murdered” by
the criminal gang Mara-18—and that the police would acquiesce
because they would be unable to stop it.
In his application and at his hearing before the immigration
judge, Garcia-Ortiz described several instances from his life in
Honduras when he had been robbed. In early 2010, Garcia-Ortiz
had moved from rural Langue to the capital of Honduras,
Tegucigalpa, and had started working for his girlfriend’s father
Larios, an auto parts distributor. Within his first few months there,
he was solicited by members of the Mara-18 gang; he refused their
recruitment offer, and they told him he would “regret” that choice.
Over the next two years, Garcia-Ortiz was robbed by masked men
five times and twice sustained severe injuries. After the first
robbery, Larios warned him “to be very careful because it was very
common for people to be robbed by the members of the criminal
organization MARA-18.” The second time, Garcia-Ortiz was
robbed as he was leaving a bank, where he had just cashed a large
check. Outside the bank, three armed men accosted him,
demanded the money, and then ran. On the third occasion, he was
robbed right after making a business delivery for Larios, and on the
last two occasions he was robbed while walking with his girlfriend
and daughter. Garcia-Ortiz attributed these attacks to his refusal
to join the Mara-18 gang.
The IJ concluded that Garcia-Ortiz did not qualify for
withholding and denied his application. While she found him to
be credible and accepted that he was “the victim of various
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4 Opinion of the Court 21-11247
robberies,” she concluded that Garcia-Ortiz failed to show that
these attacks were due to his membership in a protected social
group—the “nexus” required by the statute. The IJ also explained
that “the refusal to join a gang” does not initiate a person into “a
particular social group.” And because Garcia-Ortiz had described
no “problems with any of the authorities or the police or any public
officials,” the IJ concluded that CAT relief was not appropriate
either.
The Board adopted and affirmed the IJ’s decision. It decided
that neither of Garcia-Ortiz’s proposed groups qualified under the
withholding statute, citing to Castillo-Arias v. U.S. Att’y Gen., 446
F.3d 1190, 1198 (11th Cir. 2006) (concluding that no social group
exists when at the core the unifying trait of “noncriminal
informants” was merely “persecution by the cartel”). And
emphasizing how Garcia-Ortiz only speculated that he would face
torture and that the government would not stop it, the Board
concluded that he was not eligible for CAT relief either.
Garcia-Ortiz petitions for review.
II.
We review the Board’s decision and—because the Board
expressly adopted it—the IJ’s decision. See Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). For petitions like
this one, we review questions of law de novo and questions of fact
for substantial evidence. Id. We will not disturb findings of fact as
long as they are “supported by reasonable, substantial, and
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21-11247 Opinion of the Court 5
probative evidence on the record considered as a whole,” which
means we only reverse a finding of fact if the record “compels” it.
Id. at 1351 (quotations omitted).
III.
To be eligible for withholding of removal, Garcia-Ortiz
must prove that his “life or freedom would be threatened” in
Honduras “because of” his “membership in a particular social
group.” See 8 U.S.C. § 1231(b)(3)(A); Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016). If his membership was at most
“incidental, tangential, superficial, or subordinate to another
reason” for the harm he suffered, then he cannot establish that it
caused the persecution—the “nexus” required by the statute.
Sanchez-Castro v. U.S. Att'y Gen., 998 F.3d 1281, 1286 (11th Cir.
2021) (quotation omitted). For there to be a nexus, the
membership must have been a “central reason” for the persecution
he faced. Id. (quotation omitted).
According to Garcia-Ortiz, the Board should have concluded
that those who refuse to join a gang are a social group and that he
was attacked and robbed on multiple occasions because he
belonged to that group. But the facts suggest that the masked men
were primarily interested in his money and belongings, not him.
After the first robbery, Larios warned him to be more careful
because such robberies by the Mara-18 gang were common. And
on several of the occasions, Garcia-Ortiz was not harmed—the
men simply stole his belongings and fled. Twice he was an obvious
target for theft—after cashing a check at a bank, and after
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completing a business delivery. So, at most, Garcia-Ortiz’s identity
was only tangentially related to these crimes of opportunity. See
Sanchez-Castro, 998 F.3d at 1286–87. The record therefore does
not compel us to reverse the Board’s conclusion that Garcia-Ortiz
failed to prove a nexus between his persecution and membership
in a protected social group.
Even if he had proved the nexus, neither group Garcia-Ortiz
proposes qualifies as “a particular social group” under
§ 1231(b)(3)(A). He admits that deportees are targeted because
they are perceived as having money, and that is not a protected
ground. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir.
2007). As for the other, the defining attribute of persons who refuse
to join Mara-18 is not so much a watershed moment of refusal as it
is their being targeted by the gang generally. See Castillo-Arias, 446
F.3d at 1198. And the record shows that Mara-18 poses this threat
indiscriminately to most of the population. As unfortunate as that
may be, the social group provision is not a “‘catch all’ for all persons
alleging persecution.” Id. Garcia-Ortiz thus fails to prove he
belongs to a qualifying group.
Garcia-Ortiz also claims that he qualifies for CAT relief
because he “will be killed or kidnapped” by Mara-18 if deported.
To qualify he must show both “that it is more likely than not” that
he will be tortured and that it will be “inflicted by” or at the
“acquiescence of” a public official. 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1); Lingeswaran v. U.S. Att'y Gen., 969 F.3d 1278, 1293
(11th Cir. 2020). But Garcia-Ortiz gave no evidence of torture or
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evidence that a government official would condone it. To the
contrary, he showed that his attackers could not operate with
impunity—they hid in alleys, wore masks, and fled after they
attacked. The record thus does not compel us to reverse the
Board’s finding that Garcia-Ortiz failed to qualify for CAT relief.
We therefore DENY the petition.