Ismael Lozano-Zuniga is a native and citizen of Mexico. He arrived in the United States in April 2002, when he was fourteen years old, but was not admitted or paroled by an immigration officer. Lozano-Zuniga came to the attention of the Department of Homeland Security (Department) after an arrest and conviction for driving under the influence, and on September 17, 2010, the Department issued a notice to appear, eharging Lozano-Zuniga with removability pursuant to INA § 212(a)(6)(A)®, 8 U.S.C. § 1182(a)(6)(A)®, for having entered the country without being admitted or paroled.
I.
At the initial hearing in front of the immigration judge, Lozano-Zuniga conceded the charge of removability, but filed an application for withholding of removal and protection under the Convention Against Torture (CAT).
At his March 2012 hearing, Zuniga testified that he came to the United States from Rio Grande, Zacatecas, Mexico in 2004 with his mother and sister to join his father and two older brothers. He also testified that prior to leaving Mexico, his mother received a telephone call asking for information about family members in the United States, in which the caller implied that he wanted money and would kidnap Lozano-Zuniga or his sister in order to get ransom money from relatives living in the United States. His mother did not report the incident to the police. She did not come to court to testify about the phone call or submit an affidavit. When asked about this by the immigration judge, Lozano-Zuniga responded that his mother is in this country illegally and feared coming to the immigration court. He noted that he thought the letter he submitted from a member of the Seventh Day Adventist church in Mexico, stating that members were subject to physical and verbal abuse, would suffice in lieu of her testimony.
Lozano-Zuniga also testified that he fears that if he should return to Mexico, he would be targeted as a young Mexican male returning from the United States and forced to work for the Mexican gang, the
While living in Mexico, Lozano-Zuniga testified, people criticized his Seventh Day Adventist religion and he believed the situation was getting much worse. According to his testimony, approximately two years before his hearing, a couple of members of the Seventh Day Adventist church had been killed. When asked by the immigration judge who killed them, he said “the only group localized in our area there is the group of the Zetas. So in my opinion, they are the ones responsible.” (R. 130).
Lozano-Zuniga has graduated from high school in the United States and is taking college courses in medicine. He continues his practice as a Seventh Day Adventist.
On November 21, 2013, in a thorough opinion, the Immigration Judge found Lo-zano-Zuniga to be generally credible, but found that he did not establish a clear probability that he would face persecution or torture upon his removal to Mexico. Lozano-Zuniga appealed to the Board of Immigration Appeals (Board) who confirmed the decision of the immigration judge. Lozano-Zuniga filed a timely petition for review.
II.
“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that décision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.”
Cece v. Holder,
A.
We begin with a review of the immigration court’s and Board’s decisions on withholding of removal. A request for withholding of removal seeks relief under the Immigration and Nationality Act, “which prohibits the removal of a person to a country where his ‘life or freedom would be threatened ... because of [his] race, religion, nationality, membership in a particular social group, or political opinion.’” 8 U.S.C. § 1231(b)(3)(A);
Duarte-Salagosa v. Holder,
Ordinarily a court begins by looking to see if a petitioner has demonstrated that he has suffered from past persecution.
Zeqiri v. Mukasey,
Consequently, we look to see if the immigration judge and Board properly determined that Lozano-Zuniga failed to meet his burden of demonstrating a clear probability of future persecution “because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Lozano-Zuniga makes two claims in his petition. First that he would be subject to persecution as a young man recently removed from the United States with family members still in the United States (who thus might be perceived to have a source of money).
See
Decision of the Board at 2 (R. 3). Second, that he would be persecuted as a practicing Seventh Day Adventist in a country in which such practitioners are in a small minority. Lozano-Zuniga describes this latter category in his briefs as a “social group.”
See
Petitioner’s brief at 5; Petitioner’s reply brief at 1. It is not. It is a religion. And indeed these distinctions have been blurred in the proceedings below. Although it does not matter in terms of the burdens or tests the immigration courts or this court applies^ it does matter in regards to one threshold issue. When a petitioner claims that he has been persecuted based on his membership in a social group, the adjudicating court must determine first whether the group constitutes a social group under the Immigration and Nationality Act, and second whether there is a nexus between the persecution and the membership in the social group.
Cece,
We begin then with Lozano-Zuniga’s claim that there is a clear probability that his life or freedom would be threatened in the future upon his return to Mexico because of his membership in the
We need not determine whether the social group of men returning from the United States who may be perceived to have access to money (or similar group) is a cognizable one under the Act, however, because the immigration court correctly determined that Lozano-Zuniga failed to establish that there is a clear probability that he would be subject to future danger because of his membership in this group. As the immigration court noted, he did not present any specific facts showing that he would be singled out for persecution, and presented only generalized claims of unrest in Mexico. Decision of the Immigration Judge at 12-13, (R. 79-80). Lozano-Zuniga references anecdotal evidence about abductions of young men and gang recruitment, but fails to submit evidence of a clear probability that he would be abducted. The United States' cannot protect aliens from generalized unrest in their homelands.
Zeqiri,
For the same reasons, we conclude that the immigration judge properly found that Lozano-Zuniga had not established that it was more likely than not that he would face persecution based on his religion if he returns to Mexico. 1 Before the immigration judge, his evidence about persecution of Seventh Day Adventists was limited to his testimony that he had witnessed people making fun of Seventh Day Adventists and that the Zetas had killed a couple who were Seventh Day Adventists. When asked by the immigration judge who killed them, Lozano-Zuniga said “the only group localized in our area there is the group of the Zetas. So in my opinion, they are the ones responsible.” (R. 130). He also submitted a letter from a member of the Seventh Day Adventist church in his home region who claimed that members of the church have been verbally and physically abused. (R. 251-52). Once again we need not analyze any past persecution as Lozano-Zuniga has rightfully declined to challenge such a finding, and indeed he has not demonstrated any past persecution against himself personally based on his religion. Petitioner’s reply brief at 1.
Nor has he established any specific detailed facts that he personally would be singled out for persecution should he return, as opposed to demonstrating a generalized disfavoring or even harassment of Seventh Day Adventists.
See Salim,
B.
The burden for CAT protection is no less stringent than that for withholding of removal; the applicant must show “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
Sarhan v. Holder,
‘Torture’ is defined as the intentional infliction of ‘severe pain or suffering’ for the purpose of coercion, punishment, or discrimination 8 C.F.R. §§ 1208.16(c)(2), 208.18(a)(1). Torture does not include ‘lesser forms of cruel, inhuman or degrading treatment or punishment,’ id. § 208.18(a)(2), or suffering inherent to ‘lawful sanctions’ imposed for violating the law, id. § 208.18(a)(3).
Borousky v. Holder,
The Board found insufficient evidence to conclude that it was more likely than not that Lozano-Zuniga would be tortured with the government’s acquiescence if he returned .to Mexico, and we cannot say that the record compels a contrary result. We need not address the issue of social group again, because unlike the remedy of withholding of removal, relief under the CAT is not conditioned on proof that the alien has been persecuted because of one of the five grounds listed in the INA-
Sarhan,
The immigration judge concluded that Lozano-Zuniga had not established that it was more likely than not that he would be tortured in Mexico. Lozano-Zuniga’s evidence, all of which the immigration judge considered, was paltry at best: he had the past telephone call to his mother, the murder of two Seventh Day Adventists by an unknown assailant, and the general danger caused by the Zetas in Mexico, along with the fact that some law enforcement officers were corrupt and helping the Zetas. Lozano-Zuniga, however, had never been personally threatened or harmed.
Just as is the case with withholding of removal, evidence about generalized violence or danger within a country is not sufficient to make a claim that it is more likely than not that a petitioner would be tortured upon return to his home country.
The immigration judge did not ignore the evidence of the gang problems in Mexico. To the contrary, she referenced Loza-no-Zuniga’s evidence from articles and news reports about killings and prison breaks and government official corruption. Nevertheless, she concluded that there was “scant evidence that would indicate such attacks happen with the necessary frequency or rise to the level of torture so as to qualify the respondent for relief.” Decision of the Immigration Judge at 16, (R. 83).
And as for his claim that he would be tortured based on his religious beliefs, the only evidence Lozano-Zuniga had for this proposition was a claim that a couple from his church had been killed and a letter from someone in his church that members had been verbally and physically abused. Discrimination and taunts by private citizens are not torture. Rashiah, 388 F.3d at 1132. Lozano-Zuniga has presented no evidence that he would be individually targeted or of the requisite amount of government action or collusion, and, as the immigration judge concluded, Lozano-Zuniga “has not provided enough details to determine if these experiences are even relevant to his claim.” Decision of the Immigration Judge at 16, (R. 83).
Both the immigration judge and the Board found that Lozano-Zuniga failed to present sufficient evidence that it was more likely than not that he would be tortured at the hands of, or with the acquiescence of, a government official. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”
Lopez v. Lynch,
The record does not compel a conclusion that Lozano-Zuniga proved eligibility for withholding of removal or protection under CAT. Consequently, the petition for review is DENIED.
Notes
. It is true, as Lozano-Zuniga argues, that the BIA only barely addressed his argument about his religion. The decision of the BIA, however, supplants that of the immigration judge. "[W]e review the IJ's decision wherever the Board has not supplanted it with its own rationale; where the Board has spoken, we review its opinion.”
Sarhan v. Holder,