Erlin Bueso-Avila v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2760
ERLIN BUESO-AVILA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A098-962-408
ARGUED SEPTEMBER 8, 2011—DECIDED NOVEMBER 29, 2011
Before MANION, ROVNER, and TINDER, Circuit Judges.
MANION, Circuit Judge. Erlin Bueso-Avila, a citizen of
Honduras, sought asylum and withholding of removal.
He alleged that he had suffered persecution at the hands
of the Mara Salvatrucha street gang on account of his
evangelical Christian religious beliefs and his church
youth group membership. The Immigration Judge and
the Board of Immigration Appeals denied Bueso-Avila’s

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2 No. 10-2760
application because he had failed to establish that the
gang’s actions were on account of his religion or social
group membership. Bueso-Avila then petitioned this
court for review. Because there is substantial evidence
in support of the Board’s decision, we must deny
Bueso-Avila’s petition.
I.
In May 2005, while a teenager, Bueso-Avila left Hondu-
ras and entered the United States illegally. Shortly there-
after, he was caught and the Department of Homeland
Security began removal proceedings against him. He
then filed an application for asylum, withholding of
removal, and protection under the Convention Against
Torture. The Immigration Judge conducted a hearing on
the merits of Bueso-Avila’s application. At the time of
the hearing, Bueso-Avila was nineteen years old. Because
he was the sole witness to testify at the hearing, we sum-
marize his testimony.
Bueso-Avila lived with his family in the city of San
Pedro Sula, Honduras. Though born and raised
Catholic, at the age of 15 he joined a youth group with
an evangelical Christian church called La Cosecha, the
largest church in Honduras. Bueso-Avila would meet
with his church youth group twice a week to study
and discuss the Bible. According to Bueso-Avila,
evangelization and recruiting young people in the
local community are essential parts of the mission of
his church. He testified that before the meetings, his
church group would walk around the neighborhood

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No. 10-2760 3
For more on this criminal street gang, see Luz E. Nagle, 1
Criminal Gangs in Latin America: The Next Great Threat to Regional
Security and Stability?, 14 Tex. Hisp. J.L. & Policy 7 (2008).
with their Bibles and invite other people to their
meetings and away from gang life. Bueso-Avila said that
“[o]ur purpose in doing this was to get young people to
see the ways of God, and to start doing good things
instead of smoking marijuana, robbing, and killing
people like the gang members did.” Sadly, Bueso-Avila’s
neighborhood was plagued by the presence of the
violent Mara Salvatrucha, or MS-13, street gang. Bueso-1
Avila testified that the gang members believed that
the church’s proselytization was encroaching on their
territory by drawing away youths who were potential
gang recruits, and that this led to several threats and
attacks from the gang.
He testified that his first encounter with the gang
occurred after his third church group meeting. Some
gang members approached and tried to recruit him to
the gang. He refused the request and was able to run
away from the gang members unharmed. A second
encounter occurred after another church group meeting.
Gang members again approached Bueso-Avila and
made threatening comments, and then grabbed him
and beat him. Fortunately, Bueso-Avila was able to
escape after a man wielding a machete scared away the
gang members. A similar attempt by the gang to recruit
him occurred on another occasion, but again, Bueso-Avila
escaped after a stranger approached.

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4 No. 10-2760
“[A] finding of persecution ordinarily requires a determina- 2
tion that government authorities, if they did not actually
(continued...)
Bueso-Avila also testified that other members of his
church youth group were threatened by the gang’s re-
cruitment efforts. Two members of the church group
were forced to join the gang after the gang threatened
their families and even allegedly murdered the brother
of one church group member.
Bueso-Avila’s most serious encounter with the MS-13
gang was when he was traveling home from work by
bus. He testified that gang members were waiting for
him at the bus station. They approached him and said
that he needed to join the gang. After he refused, the
gang beat him severely, and left him lying on the
ground. He testified that he received bruises and cuts,
and almost lost consciousness. Later, a gang member
told Bueso-Avila’s mother that if the family talked to
the police, they would be harmed. Bueso-Avila still
has scars from the attack.
Following this final attack, Bueso-Avila left Honduras,
traveled by foot and by train across Guatemala and
Mexico, and entered the United States where he has a
sister living in Florida. In May 2005, he arrived in the
country, but was apprehended shortly after crossing
the border.
Bueso-Avila testified that he is afraid to go back to
Honduras because he believes that the MS-13 gang
would still hurt him. He also does not believe that
the Honduran police would be able to protect him.2

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No. 10-2760 5
(...continued) 2
perpetrate or incite the persecution, condoned it or at least
demonstrated a complete helplessness to protect the vic-
tims.” Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). This
issue, however, is not before us on appeal.
Apparently, his parents and family have moved to
another part of Honduras to avoid the danger, but there
is no evidence in the record about whether the gang
has influence in that part of the country.
Following the hearing, on October 22, 2007, the Im-
migration Judge issued a written opinion denying Bueso-
Avila’s application for asylum, withholding of removal,
and protection under the Convention Against Torture.
On June 30, 2009, the Board of Immigration Appeals
affirmed the Immigration Judge’s decision, holding
that Bueso-Avila had failed to establish that the gang’s
harassment and attacks were on grounds protected by
the Immigration and Nationality Act.
Bueso-Avila petitioned this court for relief. In a short
order, we remanded the case to the Board of Immigra-
tion Appeals for reconsideration in light of two recent
intervening cases which indicated that social visibility
is not required to establish membership in a particular
social group. See Gatimi v. Holder, 578 F.3d 611, 615-16
(7th Cir. 2009), and Benitez Ramos v. Holder, 589 F.3d 426,
430 (7th Cir. 2009). On remand, the Board issued an
opinion on July 6, 2010. It first noted that the Gatimi
and Ramos cases did not affect the outcome of its deci-
sion. The Board then again denied Bueso-Avila’s applica-

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6 No. 10-2760
tion, ruling that he had “failed to establish past perse-
cution on account of any ground protected under the
Act.” The Board’s decision rested on its finding that
there was insufficient testimonial and documentary evi-
dence establishing a nexus between the harm Bueso-
Avila suffered and his religion or his membership
in the evangelical Christian church youth group. Specifi-
cally, the Board found that the violent actions of the
gang members instead “stemmed from the efforts of the
gang members to forcibly recruit him,” and that even if
the gang members had a mixed motive, Bueso-Avila had
not established that his religion or membership in the
youth group “was at least one central reason” for his
persecution. The Board then dismissed Bueso-Avila’s
application for asylum, withholding of removal, and
protection under the Convention Against Torture. Bueso-
Avila now petitions our court for review.
II.
On appeal, Bueso-Avila challenges the Board’s deci-
sion denying his application for asylum and with-
holding of removal; he does not challenge the denial of
his application for protection under the Convention
Against Torture. To establish eligibility for asylum, an
alien must demonstrate that he suffered persecution or
has a well-founded fear of persecution “on account
of race, religion, nationality, membership in a partic-
ular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1) (B)(i); 8 C.F.R.
§ 1208.13. If an applicant fails to establish eligibility for

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No. 10-2760 7
asylum, he “necessarily cannot satisfy the more
stringent requirement for withholding of removal under
8 U.S.C. § 1231(b)(3).” Ahmed v. Ashcroft, 348 F.3d 611,
615 (7th Cir. 2003).
We must affirm the Board’s decision if it is supported
by substantial evidence. Id. “Applying that standard,
we assess whether the [Board’s] determination was ‘sup-
ported by reasonable, substantial, and probative evi-
dence on the record considered as a whole,’ and reverse
only if the evidence compels a contrary conclusion.” Id.
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
In other words, for reversal, the evidence must be “so
compelling that no reasonable factfinder could fail to
find the requisite fear of persecution.” Elias-Zacarias,
502 U.S. at 483-84; see Margos v. Gonzales, 443 F.3d 593,
597 (7th Cir. 2006). Thus “we are not at liberty to
overturn the Board’s determination simply because we
would have decided the case differently.” Jamal-Daoud v.
Gonzales, 403 F.3d 918, 922 (7th Cir. 2005).
To show that he was persecuted by the MS-13 gang “on
account of” his religion or membership in a particular
social group, Bueso-Avila must put forth direct or cir-
cumstantial evidence that the gang was motivated by
these factors. See Martinez-Buendia v. Holder, 616 F.3d
711, 715 (7th Cir. 2010); see also Elias-Zacarias, 502 U.S. at
483 (“[S]ince the statute makes motive critical, he must
provide some evidence of it, direct or circumstantial.”).
But it is not necessary that the persecutor be moti-
vated primarily on account of one of the grounds
in the Act; “an individual may qualify for asylum if his

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8 No. 10-2760
The Board did not address whether an evangelical 3
Christian church youth group is “a particular social group”
for purposes of the Act, and, similarly, we need not address
this issue either.
or her persecutors have more than one motive as long
as one of the motives is specified in the Immigration
and Nationality Act.” Ndonyi v. Mukasey, 541 F.3d 702,
710 (7th Cir. 2008) (internal quotation omitted).
Bueso-Avila argues that he presented sufficient
evidence to establish that the MS-13 gang members
were motivated, at least in part, by his evangelical Chris-
tianity or his membership in the church youth group. In3
support of this position, Bueso-Avila points to the fact
that the Immigration Judge found him to be a credible
witness and that he testified to the following: that Bueso-
Avila was only threatened and injured by the gang
after he joined his church youth group; that other mem-
bers of his church youth group were also threatened
and injured by the gang and that the youth group was
eventually disbanded because of the danger; that the
gang knew he was a religious individual because he
walked around the neighborhood with his Bible before
church meetings; that the gang was unhappy with Bueso-
Avila’s proselytization and with the church’s recruit-
ment efforts; and that the gang wanted to stop the
church’s recruiting and eliminate it as a competitor.
Contrary to Bueso-Avila’s contention, the Board consid-
ered this evidence and found that it only suggested that
the gang’s actions were from its efforts to forcibly

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No. 10-2760 9
recruit young people to the gang, and did not stem
from a prohibited factor. The issue before us, then, is
whether the evidentiary record “compels the conclu-
sion” that the gang targeted Bueso-Avila, at least in part,
because of his religion or church group membership.
See Elias-Zacarias, 502 U.S. at 483. Upon review of the
record, we cannot say that we are so compelled.
The evidentiary record does not contain direct
evidence of the motivations of the MS-13 gang members.
There is no testimony that Bueso-Avila’s attackers
ever mentioned his religion or church youth group
membership, nor that they gave any indication that
they were aware of or even cared about these factors.
The fact that some of the threats against Bueso-
Avila occurred after church group meetings does not nec-
essarily mean that the gang members were reacting to
Bueso-Avila’s religious beliefs; in fact, the most
serious attack against Bueso-Avila occurred as he was
coming home from work, not from his church. In addi-
tion, Bueso-Avila’s documentary evidence presented
did not indicate that the MS-13 gang had the motive of
targeting people on the basis of religion or participation
in church youth groups. Bueso-Avila’s testimony that
the gang members knew about his religion and church
youth group membership, and that the gang members
persecuted him on account of these characteristics, is
an inference based on circumstantial evidence. Now this
is a possible and legitimate inference to make. But we
cannot say that this inference is supported by circum-
stantial evidence that is “so compelling that no rea-
sonable fact-finder could fail to find” that the MS-13

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10 No. 10-2760
gang was motivated to persecute Bueso-Avila on the
basis of his religion or group membership. Jamal-Daoud v.
Gonzales, 403 F.3d 918, 922 (7th Cir. 2005). Based on
all the evidence presented by Bueso-Avila, it is also
legitimate to infer that the gang members were either
unaware of or did not care about Bueso-Avila’s religious
beliefs and church group membership. Instead, they
may have threatened and attacked him in an attempt to
recruit him into the gang because he was one of several
local youths who were potential recruits—which is not
a protected basis under the Act. Consequently, there is
not a sufficient basis to overturn the Board’s determina-
tion.
This conclusion is consistent with case law involving
forced recruitments. In the Supreme Court case of INS
v. Elias-Zacarias, 502 U.S. 478, 479-80 (1992), the applicant
was seeking asylum on account of his political beliefs,
and alleged that he had been persecuted for refusing to
be recruited to a political organization. But the Supreme
Court held that the applicant’s refusal to agree to the
forced recruitment was insufficient by itself to show
that his persecutors acted “on account of” his political
views. Id. at 482-84.
On the other hand, in Martinez-Buendia v. Holder, 616
F.3d 711, 719 (7th Cir. 2010), we found that there
was sufficient evidence to establish that the applicant’s
persecutors were motivated by the applicant’s political
beliefs when she refused to be recruited to the political
party of her persecutors. But in that case, not only was
there documentary evidence that her persecutors saw

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No. 10-2760 11
the applicant as a political opponent, but there was evi-
dence that her persecutors recognized her refusal to
cooperate as a political stance, and, accordingly, in-
creased their violence against her because of her con-
tinued political stand against them. Id. at 717.
Similarly, in Gomes v. Gonzales, 473 F.3d 746, 754-55
(7th Cir. 2007), we found that the record established that
there was persecution on the basis of religion. In that
case, there was “a great deal of evidence” supporting
the claim that the applicant was being targeted because
of his religious beliefs, including the existence of anony-
mous callers threatening his life and demanding that
he change his religion, and the fact that his attackers
gave him an ultimatum to either renounce Christianity
or face death after they broke into his home. Id. at 754.
The facts of this case fall closer to the facts of
Elias-Zacarias than to those of Martinez-Buendia and
Gomes. Like the applicant in Elias-Zacarias, Bueso-Avila’s
persecutors were attempting to recruit him to their
ranks, but there was no additional evidence that his
persecutors knew of—or even if they did know, that they
were motivated by—Bueso-Avila’s religious beliefs or
church group membership. And unlike the applicants
in Martinez-Buendia and Gomes, Bueso-Avila did not
present any additional evidence supporting the fact
that his persecutors recognized his religious beliefs
or church group membership and targeted him because
of these factors.
In sum, because our review of the Board’s decision
is “highly deferential,” we can overturn the Board “only

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12 No. 10-2760
when the evidence compels that contrary conclusion,
and not simply because we would have decided the
case differently.” Capric v. Ashcroft, 355 F.3d 1075, 1086
(7th Cir. 2004) (internal citations and quotations omit-
ted). Here, there is insufficient evidence in the record
compelling a finding that the MS-13 gang targeted Bueso-
Avila on account of his evangelical Christian religious
beliefs or his church youth group membership. Instead,
there is substantial evidence in the record to support
the finding that the gang threatened and harmed Bueso-
Avila simply because he was a youth who refused to
join their street gang, regardless of his religious activities.
Consequently, while we recognize the terrible situation
created in Honduras by the activity of the MS-13 gang,
we must affirm the Board’s decision denying Bueso-
Avila’s application for asylum. Furthermore, because
Bueso-Avila cannot establish eligibility for asylum, he
necessarily cannot satisfy the higher standard for with-
holding of removal. See Zhou Ji Ni v. Holder, 635 F.3d
1014, 1020 (7th Cir. 2011).
III.
For these reasons, we affirm the decision of the Board
of Immigration Appeals, and deny Bueso-Avila’s
petition for review.
11-29-11

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