Case: 19-12448   Date Filed: 05/21/2020   Page: 1 of 8



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12448
                        Non-Argument Calendar
                      ________________________

                       Agency No. A206-860-739



ANTONIO AVILA GUTIERREZ,

                                                                      Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                             (May 21, 2020)



Before LAGOA, EDMONDSON, and HULL, Circuit Judges.
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PER CURIAM:



       Antonio Gutierrez (“Petitioner”), a native and citizen of Mexico, petitions

for review of the order by the Board of Immigration Appeals (“BIA”) affirming the

decision of the Immigration Judge (“IJ”). The IJ’s decision denied Petitioner’s

applications for withholding of removal and for relief under the Convention

Against Torture, 8 C.F.R. § 208.16 (“CAT”). * No reversible error has been shown;

we deny the petition.

       We review only the decision of the BIA, except to the extent the BIA adopts

expressly the IJ’s decision. Al Najjar v. Ashcroft, 

, 1284 (11th Cir.

2001). Because the BIA agreed expressly with the IJ’s reasoning in this case, we

review both the IJ’s and the BIA’s decisions. See

de novo the BIA’s legal conclusions.

fact

determinations under the “highly deferential substantial evidence test” whereby we

“must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Adefemi v. Ashcroft,

, 1026-27 (11th Cir. 2004) (en banc). We “view the record evidence

in the light most favorable to the agency’s decision and draw all reasonable


*
 The IJ also denied Petitioner’s application for asylum. Petitioner raises no challenge to the
denial of this form of relief on appeal; we will not address that claim. See Sepulveda v. U.S.
Att’y Gen., 

, 1228 n.2 (11th Cir. 2005).
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inferences in favor of that decision.”

To reverse a fact finding, we

must conclude “that the record not only supports reversal, but compels it.”

Mendoza v. United States Att’y Gen., 

, 1287 (11th Cir. 2003).

      To obtain withholding of removal, an alien must establish that his “life or

freedom would be threatened in that country because of the alien’s race, religion,

nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is

‘more likely than not’ [he] will be persecuted or tortured upon being returned to

[his] country.” Tan v. United States Att’y Gen., 

, 1375 (11th Cir.

2006). To satisfy this burden, the alien must demonstrate either past persecution

based on a protected ground or that he will more-likely-than-not suffer future

persecution on account of a protected ground. Seck v. United States Att’y Gen.,

, 1365 (11th Cir. 2011).

      To establish eligibility for CAT relief, an alien must show “that it is more

likely than not that he or she would be tortured if removed to the proposed country

of removal.” Reyes-Sanchez v. United States Att’y Gen., 

, 1242

(11th Cir. 2004). The alien must also show that the torture would be inflicted by or

with the acquiescence of the removal country’s government.

that the public official, prior to the activity constituting torture, have




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awareness of such activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.”

      Petitioner first entered the United States in 1992, after which he returned to

Mexico two or three times; Petitioner last entered the United States in 2009.

Petitioner says he came to the United States because of the “delinquency” in

Mexico and says he witnessed assaults, deaths, rapes, and kidnappings committed

by a criminal cartel known as “Los Zetas.”

      In October 2008, Petitioner was attacked by Los Zetas while Petitioner was

on his way home from work, having just been paid for the week. Petitioner

described his attackers as three men who were heavily armed with lethal weapons.

The attackers demanded Petitioner pay them 30,000 pesos. When Petitioner told

the attackers that he did not have that kind of money and also refused to hand over

the money in his wallet, the attackers beat Petitioner. Petitioner suffered a wound

near his eye, cuts to his face, and other injuries causing him to vomit blood. The

attackers then stole Petitioner’s wallet, watch, cell phone, and wedding ring.

      Petitioner was later kidnapped while trying to leave Mexico and to return to

the United States. Petitioner was held hostage for about one month until

Petitioner’s family paid a ransom of 10,000 pesos. During that time, Petitioner

says he was only permitted to eat sometimes. Petitioner says his brother was also

beaten for money in 2010.


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      In his applications for relief, Petitioner sought withholding of removal based

on his membership in a proposed particular social group: “Mexican male[s] that

have lived in the United States for over ten years and will be a target of the

international criminal organizations that operate in their home country because

they are presumed to have money and are in danger of being extorted, kidnapped,

tortured and/or even murdered.” Petitioner also sought protection under CAT

based on his fear that he would be tortured by Los Zetas -- with the acquiescence

of the Mexican government -- upon his return to Mexico.

      The IJ denied Petitioner’s applications for relief. The IJ first determined that

Petitioner failed to establish a factual basis for his claims because his testimony

was lacking in detail and uncorroborated by other evidence. As a separate and

independent reason for denying withholding of removal, the IJ also determined that

Petitioner had failed to demonstrate a causal connection between his past

mistreatment or feared future mistreatment and a protected ground. About CAT

relief, the IJ also concluded that Petitioner presented no evidence that he would be

tortured by, or with the acquiescence of, the Mexican government. The BIA

agreed with the IJ’s reasoning.

      An applicant’s testimony -- without corroboration -- may be sufficient to

satisfy his burden of proof if the testimony is credible, persuasive, and refers to

specific facts sufficient to establish his claim. See 8 U.S.C. §§ 1158(b)(1)(B)(ii);


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1231(b)(3)(C). If, however, the IJ determines that corroborating evidence is

necessary, the applicant must provide that evidence unless he can show that he

“does not have the evidence and cannot reasonably obtain [it].” 8 U.S.C. §

1158(b)(1)(B)(ii).

      Substantial evidence supports the IJ’s and the BIA’s determinations that

Petitioner failed to provide sufficiently detailed, consistent, and corroborated

testimony to establish a factual basis for his claims for withholding of removal and

CAT relief. Petitioner’s allegations and testimony about past mistreatment --

including the October 2008 attack by Los Zetas, Petitioner’s kidnapping, and the

attack on Petitioner’s brother -- lacked specific details. For example, although

Petitioner testified that he was kidnapped and held hostage for about one month, he

provided no details about the kidnapping itself, about the identity of his

kidnappers, or about the location where he was held.

      In the light of Petitioner’s testimony that his family paid a ransom following

Petitioner’s kidnapping and that Petitioner’s brother was also attacked, the IJ and

the BIA determined reasonably that corroborating evidence was necessary.

Petitioner, however, provided no witness testimony or affidavits supporting his

claims. Nor has Petitioner shown that such evidence was unavailable or otherwise

explained his failure to produce such evidence.




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      Substantial evidence also supports the IJ’s and the BIA’s second

independent ground for denying withholding of removal: that Petitioner failed to

demonstrate that he suffered past mistreatment or was likely to suffer future

mistreatment on account of a protected ground. Petitioner’s testimony evidences

that he was targeted by Los Zetas and by his kidnappers chiefly for financial gain.

In a similar way, Petitioner’s proposed particular social group demonstrates

Petitioner’s belief that he was (and will be) targeted by criminal organizations

based on a perception that Petitioner has money. We have said, however, that

evidence -- like the evidence presented by Petitioner in this case -- that “is

consistent with acts of private violence or . . . that merely shows that a person has

been the victim of criminal activity, does not constitute evidence of persecution

based on a statutorily protected ground.” See Ruiz v. United States Att’y Gen.,

, 1258 (11th Cir. 2006).

      About Petitioner’s application for CAT relief, substantial evidence supports

the IJ’s and the BIA’s determination that Petitioner failed to show that it was more

likely than not that, upon return to Mexico, Petitioner would be tortured by, or with

the acquiescence of, the Mexican government. Petitioner makes no assertion that

he suffered harm or fears harm inflicted directly by a government official.

Although Petitioner presented some evidence of police corruption within Mexico,

nothing evidences that the Mexican police had prior specific knowledge of the


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October 2008 attack or of Petitioner’s kidnapping but refused to intervene. Nor

did Petitioner provide evidence that he reported these attacks to the Mexican police

or that the police took no action.

      The IJ’s and the BIA’s decision that Petitioner was unentitled to withholding

of removal or to CAT relief is supported by reasonable, substantial, and probative

evidence. Nothing on this record compels us to reverse that decision.

      PETITION DENIED.




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