Fernando Edgardo Mena Burgos v. U.S. Attorney General
676 F. App'x 850
| 11th Cir. | 2017Background
- Mena, a Salvadoran national proceeding pro se, sought asylum and withholding of removal, alleging past persecution and a fear of future persecution by the Mara Salvatrucha (MS) gang.
- He claimed two proposed particular social groups: (1) Salvadoran youth who reject gang recruitment, and (2) members of his mother’s family who refuse to pay extortion.
- Mena testified MS approached him about four times in one week, threatened to kill him at least once, shoved him, and extorted money from his family though no physical injury occurred to him or family members.
- The IJ denied relief, finding no past persecution and that the asserted groups were not cognizable particular social groups motivating the harm; the BIA affirmed, adopting the IJ’s reasoning.
- The Eleventh Circuit reviewed legal questions de novo and factual findings for substantial evidence, and affirmed the BIA/IJ ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mena suffered past persecution | Mena: threats, shoving, and extortion attempts by MS constitute past persecution | Government: incidents were threats/harassment without serious injury; thus not persecution | Held: No past persecution; threats/isolated harassment insufficient |
| Whether proposed groups qualify as particular social groups | Mena: (1) youth who reject gang recruitment; (2) family members refusing extortion are protected groups | Government: groups lack required particularity/social visibility and are not distinct from general public | Held: Neither proposed group qualifies as a particular social group under the INA |
| Whether future harm would be on account of a protected ground | Mena: MS would target him because of membership in those groups or because family receives U.S. money | Government: targeting is based on individualized criminal motives, not protected characteristic | Held: Record does not show one central reason tied to a protected ground; fear is of private criminal activity |
| Whether withholding of removal is available if asylum fails | Mena: seeks withholding relying on same facts as asylum | Government: withholding requires showing asylum standard matters; failure on asylum defeats withholding | Held: Withholding denied because asylum was not established |
Key Cases Cited
- I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) (applicant must show persecutors’ motives; evidence of motive required)
- Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir. 2005) (persecution is an “extreme concept”; threats and isolated incidents may be insufficient)
- Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006) (particular social group requires immutable/fundamental common characteristic)
- Sanchez v. U.S. Att’y Gen., 392 F.3d 434 (11th Cir. 2004) (refusal to cooperate with criminals is not persecution on account of protected ground)
- Mejia v. U.S. Att’y Gen., 498 F.3d 1253 (11th Cir. 2007) (asylum requires past persecution or well-founded fear of persecution)
- Forgue v. U.S. Att’y Gen., 401 F.3d 1282 (11th Cir. 2005) (if asylum fails on merits, withholding of removal necessarily fails)