Wilmer Garcia-Ortiz v. U.S. Attorney General
21-11247
| 11th Cir. | Mar 10, 2022Background
- Honduran national Wilmer Garcia-Ortiz entered the U.S. without inspection in 2012 and later was placed in removal proceedings after a DUI conviction.
- He applied for withholding of removal and protection under the Convention Against Torture (CAT), claiming persecution and likely torture by the Mara-18 gang.
- Garcia-Ortiz proposed two particular social groups: (1) Honduran males actively recruited by international criminal organizations who refused to join, and (2) U.S. deportees.
- He testified that Mara-18 solicited him to join, he refused, and he was subsequently robbed multiple times (sometimes violently); he attributed the attacks to his refusal to join.
- The Immigration Judge found him credible but concluded the robberies were crimes of opportunity, not motivated by membership in a protected group, and denied CAT relief because there was no evidence of government acquiescence.
- The Board of Immigration Appeals affirmed; Garcia-Ortiz petitioned this Court for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia-Ortiz was persecuted "because of" membership in a particular social group (nexus) | He was targeted and robbed repeatedly because he refused to join Mara-18 | Attacks were robberies for money and opportunistic, not motivated by PSG membership | No nexus; substantial evidence supports denial of withholding |
| Whether the proposed groups qualify as a "particular social group" | "Refusal to join a gang" and "U.S. deportees" are protected groups | Deportees targeted for perceived money is not a protected ground; refusal-to-join is essentially being targeted by gang activity, not a cognizable PSG | Neither group qualifies as a PSG; denial affirmed |
| Whether Garcia-Ortiz is eligible for CAT relief (likelihood of torture and government acquiescence) | More likely than not he will be tortured or killed by Mara-18 and police will acquiesce | No evidence of torture or of public-official acquiescence; attackers acted furtively and fled | CAT relief denied for lack of proof of torture or government acquiescence |
Key Cases Cited
- Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006) (refusal-to-join-a-gang framing may fail as a cognizable social group)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (standard of review for Board decisions adopted by IJ)
- Gonzalez v. U.S. Att’y Gen., 820 F.3d 399 (11th Cir. 2016) (withholding requires persecution "because of" PSG membership)
- Sanchez-Castro v. U.S. Att'y Gen., 998 F.3d 1281 (11th Cir. 2021) (nexus requires membership to be a central reason for persecution)
- Rivera v. U.S. Att’y Gen., 487 F.3d 815 (11th Cir. 2007) (targeting for money is not a protected ground)
- Lingeswaran v. U.S. Att'y Gen., 969 F.3d 1278 (11th Cir. 2020) (CAT requires more-likely-than-not torture and public-official infliction or acquiescence)