Pedro Eliezer Garcia-Puac v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10847
Non-Argument Calendar
____________________
PEDRO ELIEZER GARCIA-PUAC,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-454-486
____________________
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2 Opinion of the Court 23-10847
Before N EWSOM, G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
Pedro Garcia-Puac petitions this Court for review of the
Board of Immigration Appeals’ (“BIA”) order adopting the immi-
gration judge’s denial of his application for asylum, withholding of
removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). Garcia-Puac argues that the immigration
judge’s finding that his testimony was credible contradicts the con-
clusion that he did not suffer past persecution. He also argues that
he met the standard for withholding of removal, and the immigra-
tion judge failed to consider relevant factors when assessing his
CAT claim. Because he is subject to 8 U.S.C. § 1158(a)(3)’s jurisdic-
tion bar, we lack jurisdiction to review Garcia-Puac’s challenge to
the BIA’s denial of his application for asylum. Furthermore, sub-
stantial evidence supports the immigration judge’s findings in
denying his withholding of removal and CAT claims. Accordingly,
we dismiss Garcia-Puac’s petition in part and deny in part.
I.
Garcia-Puac, a native and citizen of Guatemala, entered the
United States without permission or inspection in 2012. Shortly
thereafter, the Department of Homeland Security initiated re-
moval proceedings and charged Garcia-Puac with inadmissibility
as a non-citizen present without permission or parole. See 8 U.S.C.
§ 1182(a)(6)(A)(i). He appeared with counsel in immigration court
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23-10847 Opinion of the Court 3
and conceded his removability. He subsequently filed an applica-
tion for asylum, withholding of removal, and CAT relief.
At the merits hearing, Garcia-Puac testified that he is a mem-
ber of an indigenous Quiche group in Guatemala. He explained
that because of his indigenous ethnicity, he faced discrimination in
Guatemala when traveling to more urban areas. On one occasion,
police threatened him with a traffic summons if he could not pro-
vide them with a bribe. He also cited incidents when others would
harass and occasionally “grab” him if he was alone. Garcia-Puac
testified that, despite the ridicule he faced on account of his ethnic-
ity, he was never arrested or physically harmed.
Garcia-Puac testified that he feared Guatemalan criminals
would assume he garnered wealth in the United States and would
harm him or his family if he returns. When the immigration judge
asked for the foundation of that belief, Garcia-Puac responded that
there are growing problems in his country according to the news
and his parents. To support his application, he submitted the U.S.
Department of State’s Guatemalan Human Rights Reports that de-
scribed the political underrepresentation of the country’s indige-
nous communities. The reports also explained the pervasive dis-
crimination against indigenous communities who suffer from dis-
proportionate poverty.
In an oral decision, the immigration judge concluded that
Garcia-Puac was removable and ineligible for relief for three rea-
sons. First, the judge found his asylum application was untimely
because he was not exempt from the statutory one-year filing
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4 Opinion of the Court 23-10847
deadline. Even if the application was timely, the immigration judge
also decided against the merits of the claim. Although Garcia-
Puac’s testimony was credible and the Quiche people were a par-
ticular social and racial group, Garcia-Puac did not establish past
persecution or a well-founded fear of future persecution. Second,
the immigration judge found that Garcia-Puac was ineligible for
withholding of removal for the same substantive reasons that sup-
ported denial of the asylum claim on the merits. Third, the immi-
gration judge denied CAT relief because Garcia-Puac failed to es-
tablish that he was likely to be tortured or that the Guatemalan
government would consent or acquiesce to his torture. According
to these findings, the immigration judge ordered Garcia-Puac be
removed to Guatemala.
Garcia-Puac appealed, through counsel, to the BIA. He ar-
gued that the immigration judge’s findings that his testimony was
credible and that the Quiche people were a particular social group
compelled the conclusion that Garcia-Puac suffered from past per-
secution. Therefore, he argued that the immigration judge erred
by not granting asylum and withholding of removal because his
credible testimony established that he was in danger of persecution
in Guatemala. He also argued the immigration judge failed to con-
sider all relevant factors when assessing whether there were sub-
stantial reasons to believe he would face torture after his return.
The BIA adopted and affirmed the immigration judge’s de-
cision and dismissed the appeal. It stated that the immigration
judge did not clearly err and that none of Garcia-Puac’s arguments
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23-10847 Opinion of the Court 5
warranted overturning the decision. Garcia-Puac timely appealed
and presents the same arguments he offered to the BIA to this
Court.
II.
“We review our subject matter jurisdiction de novo.” Blanc
v. U.S. Att’y Gen., 996 F.3d 1274, 1277 (11th Cir. 2021). An applica-
tion for asylum generally must be filed within one year of arriving
in the United States. 8 U.S.C. § 1158(a)(2)(B). The determination of
whether an alien can apply for asylum—including whether that ap-
plication is exempt from the statutory deadline—is left exclusively
to the Attorney General. 8 U.S.C. § 1158(a)(3); Chacon-Botero v. U.S.
Att’y Gen., 427 F.3d 954, 956–57 (11th Cir. 2005). Accordingly, we
are statutorily divested of jurisdiction to review a decision on the
timeliness of an asylum application. Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003).
When the BIA expressly adopts the immigration judge’s
opinion as its own, we review the immigration judge’s decision.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009).
We must affirm the decision “if it is supported by reasonable, sub-
stantial, and probative evidence” when considering the record as a
whole. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc). We must reverse the decision only if, viewing the evidence
in the light most favorable to the decision, the record compels re-
versal, not merely supports a contrary conclusion. Id.; Hasen-Nayem
v. U.S. Att’y Gen., 55 F.4th 831, 842 (11th Cir. 2022).
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6 Opinion of the Court 23-10847
III.
Garcia-Puac challenges the immigration judge’s denial of his
(1) application for asylum, (2) withholding of removal, and (3) CAT
relief. We address each in turn.
Generally, an alien must apply for asylum within one year
after his or her arrival in the United States. See 8 U.S.C.
§ 1158(a)(2)(B). The Attorney General may elect to consider an un-
timely application if the applicant presents changed circumstances
materially affecting his or her eligibility or if extraordinary circum-
stances resulted in a delayed filing. 8 U.S.C. § 1158(a)(2)(D). Re-
gardless of the Attorney General’s decision, the statute clearly di-
vests the Court of jurisdiction to review the timeliness of an appli-
cation. See 8 U.S.C. § 1158(a)(3). The immigration judge denied
Garcia-Puac’s application because he applied more than a year after
entering the United States. Garcia-Puac does not challenge the im-
migration judge’s finding on timeliness in his petition for review.
Because we lack jurisdiction, and because he does not challenge the
factual finding, Garcia-Puac’s petition to review the denial of asy-
lum should be dismissed.
To obtain withholding of removal, Garcia-Puac bears the
burden of showing that his life or freedom would be threatened on
account of his “race, religion, nationality, membership in a partic-
ular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
Mendoza, 327 F.3d at 1287. Even if an immigration judge treats an
alien’s testimony as credible in the merits hearing, the testimony
does not automatically meet the burden of proof the statute
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23-10847 Opinion of the Court 7
requires. Garland v. Ming Dai, 141 S. Ct. 1669, 1680 (2021). When
construing what constitutes a “particular social group,” for pur-
poses of refugee status, we have held that aliens targeted by crimi-
nal groups for having been in the United States do not qualify un-
der the statute. See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301,
1307 (11th Cir. 2019).
Garcia-Puac argues that, because the immigration judge de-
termined his testimony was credible, the judge should have con-
cluded he was likely to suffer persecution in Guatemala. But Gar-
cia-Puac is incorrect that a finding of factual credibility requires an
adoption of his legal conclusions. See Ming Dai, 141 S. Ct. at 1680.
Although Garcia Puac’s testimony established previous discrimina-
tion, the record is clear that he never faced physical harm. Addi-
tionally, he did not testify that Guatemalan gangs or members of
the government targeted him on account of his ethnicity. And alt-
hough his Quiche heritage qualifies as a protected group under the
statute, being an alien returning from the United States to Guate-
mala does not. See Perez-Zenteno, 913 F.3d at 1307. Substantial evi-
dence supports the immigration judge’s finding that Garcia-Puac
did not establish a likelihood of persecution in Guatemala. Because
the record does not compel reversal, Garcia-Puac’s petition for
withholding of removal should be denied. See Hasen-Nayem, 55
F.4th at 842.
To qualify for CAT relief, an applicant must establish that “it
is more likely than not that he or she would be tortured,” with the
consent or acquiescence of a person acting in an official capacity, if
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8 Opinion of the Court 23-10847
removed. 8 U.S.C. § 208.16(c)(2); 208.18(a)(1). A government does
not acquiesce to torture when it attempts to combat violence or
corruption, even if those attempts do not succeed. See Sanchez-Cas-
tro v. U.S. Att’y Gen., 998 F.3d 1281, 1288 (11th Cir. 2021). Garcia-
Puac did not introduce evidence suggesting he is likely to be tor-
tured or that the Guatemalan government would acquiesce to such
torture. Nothing in the record before the Court suggests he is likely
to face torture if removed, and he has not directed us to any evi-
dence signifying that the Guatemalan government would acqui-
esce to his torture. Because the record does not compel reversal,
Garcia-Puac’s petition for CAT relief should be denied. See Hasen-
Nayem, 55 F.4th at 842.
IV.
PETITION DISSMISSED IN PART AND DENIED IN
PART.
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