Diego Ordonez-Rojop v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15694
Non-Argument Calendar
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Agency No. A205-345-300
DIEGO ORDONEZ-ROJOP,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 17, 2016)
Before ED CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Diego Ordonez-Rojop seeks review of the Board of Immigration Appeals’
final order, which affirmed the Immigration Judge’s denial of his application for
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asylum, withholding of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Ordonez-Rojop contends that he established that he suffered past persecution due
to his service in the Guatemalan National Army. He also argues that he has
established a well-founded fear of persecution.
I.
Ordonez-Rojop served in the Guatemalan National Army for nearly three
years beginning in 1983. After his discharge, he and several other men were
selected by the government in 1993 to recruit young men from his community and
train them to defend the community against guerilla forces. At his hearing before
the IJ, Ordonez-Rojop testified that the Guatemalan government provided weapons
for him and his young recruits, but did not pay the recruits. Ordonez-Rojop
continued to recruit and train young men in his community until 1996.
In 1996 the Guatemalan government signed peace accords with the
Guatemalan National Revolutionary Unity. Ordonez-Rojop testified that, after the
peace accords were signed, his former recruits tried to kill him. He testified that
they beat him several times with metal and wooden objects, leaving him with scars
on his chest, face, and left arm. Ordonez-Rojop also testified that he reported the
assaults to the authorities in Guatemala, but they refused to do anything because
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they were afraid of the guerillas, with whom his former recruits were somehow
affiliated.
The IJ found that Ordonez-Rojop’s testimony about why his former recruits
turned on him was unclear. At one point, he testified that the recruits were angry
because they had not been paid for their service and believed he had received a lot
of money from the government. At another point he testified that they were angry
because there was “no justice” following the 1996 accords. And at a third point
Ordonez-Rojop asserted that he was targeted because the recruits’ parents received
food and money from the guerillas, believed he was being paid by the government,
and “brainwashed” the former recruits against him.
Between 1996 and 2002 Ordonez-Rojop worked along the coast because he
was afraid he would be killed if he returned to his community. According to him,
he returned home every few months to visit his wife, but never stayed because he
feared for his life. Ordonez-Rojop stated that a group of forty men, made up of his
former recruits, followed him around Guatemala during this time.
Ordonez-Rojop eventually fled Guatemala and entered the United States
sometime in February 2003 without being admitted or paroled after inspection by
an immigration officer. He asserts that he is afraid to return to Guatemala, because
— although his family has remained in his former community and has not been
harmed — civilians in his community have told his family members that “if he
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comes, he is ours.” Ordonez-Rojop says that several of his former recruits have
become police officers in Guatemala, and he is afraid that they will find him if he
returns.
On June 29, 2012, the Department of Homeland Security charged Ordonez-
Rojop with removability under the Immigration and Nationality Act. Before the IJ,
he conceded removability and sought asylum, withholding of removal, and CAT
relief. The IJ denied his application. Ordodez-Rojop appealed to the BIA, which
dismissed his appeal. He then filed this petition for review.
II.
Before considering the merits of Ordonez-Rojop’s petition, we must assess
our subject-matter jurisdiction. We determine de novo our subject matter
jurisdiction. Amaya–Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th
Cir. 2006).
“We lack jurisdiction to review final orders in immigration cases unless ‘the
alien has exhausted all administrative remedies available to the alien as of right.’”
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (quoting 8
U.S.C. § 1252(d)(1)). “A petitioner fails to exhaust her administrative remedies
with respect to a particular claim when [he] does not raise that claim before the
BIA.” Id. Moreover, a petitioner’s failure to assert a claim in his notice of appeal
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or brief to the BIA deprives this Court of jurisdiction even if the BIA considered
that claim sua sponte. Amaya-Artunduaga, 463 F.3d at 1250–51.
Ordonez-Rojop failed to raise both his asylum and CAT claims before the
BIA. In order to have raised a claim before the BIA, a petitioner must have
“previously argued the ‘core issue now on appeal’ before the BIA.” Indrawati, 779
F.3d at 1297. “Unadorned, conclusory statements” will not do. Id. Other than
conclusory statements in his brief to the BIA and notice of appeal that he was
appealing the IJ’s decision denying his application for asylum, withholding of
removal, and protection under CAT, Ordonez-Rojop made no mention of either his
asylum or CAT claim. His entire brief to the BIA dealt with his eligibility for
withholding of removal. Indeed, the conclusion to that brief asks only that “the
order of the Immigration Judge denying Respondent’s application for Withholding
of Removal be reversed.” As a result, this Court lacks jurisdiction to consider
whether the BIA erred when it upheld the IJ’s denial of asylum and CAT relief,
and Ordonez-Rojop’s petition must be dismissed as to those claims.
Ordonez-Rojop did properly raise his withholding of removal claim before
the BIA. His brief to the BIA explained in detail why he believes the IJ erred in
denying his application on that issue. We therefore have jurisdiction to review the
BIA’s decision concerning withholding of removal.
III.
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“An alien is entitled to withholding of removal under the [Immigration and
Nationality Act] if he can show his life or freedom would be threatened on account
of his race, religion, nationality, membership in a particular social group, or
political opinion.” Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860–61 (11th Cir.
2007). “An alien bears the burden of demonstrating that he more-likely-than-not
would be persecuted or tortured upon his return to the country in question.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
“The alien can meet his burden by showing either (1) past persecution in his
country based on a protected ground, in which case a rebuttable presumption is
created that his life or freedom would be threatened if he returned to his country; or
(2) a future threat to his life or freedom on a protected ground in his country.”
Delgado, 487 F.3d at 861 (quotation marks omitted). An alien need not show that
the persecution he fears or has experienced will be or was solely motivated by his
race, religion, nationality, membership in a particular social group, or political
opinion. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). But he
must show that the past or future persecution “was [or will be], at least in part,
motivated by” his “race, religion, nationality, membership in a particular social
group, or political opinion.” Id. (quotation marks omitted).
Ordonez-Rojop contends that he met his burden because Guatemalans with
prior service in the Guatemalan National Army constitute a particular social group
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and the evidence he presented showed that he had been persecuted in the past on
account of his prior army service and would be persecuted because of that service
if he returned to Guatemala. The BIA agreed with the IJ that Ordonez-Rojop had
failed to show that any past persecution had been motivated by his service in the
Guatemalan National Army. It concluded that he had failed to demonstrate that he
was likely to be persecuted on account of a protected ground in the future for the
same reason.1
“Where the BIA issues a decision, we review that decision, except to the
extent that it expressly adopts the IJ’s opinion.” Chen v. U.S. Att’y. Gen., 463
F.3d 1228, 1230 (11th Cir. 2006) (per curiam). “Insofar as the BIA adopts the IJ’s
reasoning, we review the IJ’s decision as well.” Id. To the extent that the BIA
adopted some of the IJ’s findings and reasoning in this case, we review both
decisions.
Whether Ordonez-Rojop’s persecutors were or are likely to be motivated to
persecute him because of his prior army service is a question of fact.2 “We review
1 The BIA also concluded that the threats against Ordonez-Rojop that were conveyed to
him through his family while he was absent from Guatemala were not enough to demonstrate a
likelihood of future persecution. But even if the threats were enough to demonstrate a likelihood
of future persecution, Ordonez-Rojop would have to show that that persecution would be on
account of a protected ground. As we will explain, substantial evidence supports the BIA’s
finding that he failed to make that showing.
2 Because we conclude that substantial evidence supports the BIA’s conclusion that
Ordonez-Rojop has failed to show a nexus between his past persecution or any future persecution
he fears and his prior army service, we need not — and therefore do not — decide whether we
would affirm the IJ’s finding that former members of the Guatemalan National Army amount to
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the BIA’s factual determinations under the substantial evidence test.” Min Yong
Huang v. Holder, 774 F.3d 1342, 1344 (11th Cir. 2014). “Under this test, we must
affirm the BIA’s decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (quotation marks
omitted). “To reverse the [BIA’s] fact findings, [this Court] must find that the
record not only supports reversal, but compels it.” Rodriguez-Morales v. U.S.
Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (quotation marks omitted).
There is substantial evidence in the record to support the BIA’s conclusion
that Ordonez-Rojop has not been and likely will not be targeted on account of his
prior military service. For example, Ordonez-Rojop testified at his hearing before
the IJ that his recruits turned against him and became angry because they believed
that, although they had not been paid for defending the community from guerrillas,
the government had paid Ordonez-Rojop a lot of money that he did not distribute.
That suggests that the reason Ordonez-Rojop was attacked and might be again if he
returns to Guatemala is that the former recruits and their families feel he cheated
them, not because Ordonez-Rojop served in the Guatemalan National Army.
It is true that Ordonez-Rojop also testified that the members of his
community, including his former recruits and their parents, were angry because
a “particular social group” under 8 U.S.C. § 1231(b)(3)(A). We assume for the purposes of this
opinion that the IJ’s finding on that point was correct.
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there was “no justice” as a result of the 1996 peace accords. There would be no
reason for them to take their anger over the accords out on Ordonez-Rojop unless
they associated him with the government in some way. A factfinder could infer
that Ordonez-Rojop’s persecutors based that association on his prior military
service. But a factfinder could also have inferred that Ordonez-Rojop’s
persecutors associated him with the government because of his work recruiting and
training young men in his community, which occurred after his military service
had ended.3 Because we are required to “view the record evidence in the light
most favorable to the [BIA’s] decision and draw all reasonable inferences in favor
of that decision,” Tan, 446 F.3d at 1374, we must infer they associated Ordonez-
Rojop with the government for that reason. Viewed in that light, Ordonez-Rojop’s
testimony that members of his community attacked him because they felt there was
“no justice” after the peace accords could support the BIA’s finding that any
persecution he has or might experience would not be based on his prior army
service.
3 In his brief to this Court, Ordonez-Rojop suggests in passing that his membership in this
“Civil Patrol” after he left the army could be the basis for his persecution, indicating that we
should consider whether the “Civil Patrol” (or perhaps the group of former recruiters for the
“Civil Patrol”) is a particular social group and whether he is eligible for withholding on the basis
of that protected ground. Because he did not raise this argument before the BIA, it is
unexhausted and we have no jurisdiction to consider it. Jeune v. U.S. Att’y Gen., 810 F.3d 792,
800, 802–03 (11th Cir. 2016) (“A petitioner has not exhausted a claim unless he has both raised
the ‘core issue’ before the BIA and also set out any discrete arguments he relies on in support of
that claim.”) (citations omitted).
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Likewise, Ordonez-Rojop’s testimony that the recruits’ parents brainwashed
their children against him because the parents were “infiltrated with” the guerillas,
being paid by the guerillas on the side, and thought Ordonez-Rojop was being paid
by the government can be viewed two ways. The recruits’ parents might have
thought he was being paid by the government because he used to serve in the
Guatemalan National Army. Or they could have thought the government was
paying Ordonez-Rojop because he was in charge of recruiting and training young
villagers to defend the village. Again, we are required to “draw all reasonable
inferences in favor” of the BIA’s conclusion, id. at 1374, and viewed in that light
this evidence supports the BIA’s finding that they were not motivated by Ordonez-
Rojop’s prior military service.
Finally, the fact that Ordonez-Rojop’s family in Guatemala have been told
“if he comes, he is ours” does not shed any light on why Ordonez-Rojop is being
threatened. An applicant for withholding of removal must do more than
demonstrate that he faces future persecution for some undefined reason. He must
show that he faces future persecution on account of “his race, religion, nationality,
membership in a particular social group, or political opinion.” Delgado, 487 F.3d
at 860–61.
Because substantial evidence supports the findings of the BIA that Ordonez-
Rojop has not been targeted in the past because of his prior military service and is
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not likely to be targeted on that basis in the future, we must deny his petition for
review of the denial of his application for withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART
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