Pineda-Teruel v. Garland

16 F.4th 1216

Jose Edin PINEDA-TERUEL, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

No. 20-3516

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2021

Decided October 27, 2021

Benjamin Crouse, Attorney, Chadwick & Crouse LLC, Milwaukee, WI, for Petitioner.

Matthew A. Spurlock, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Easterbrook, Rovner, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Jose Edin Pineda-Teruel illegally entered the United States in 2007. He was removed to Honduras in 2017. In 2019, he again attempted to enter the United States but was apprehended at the border. Facing enforcement of the prior removal order, Pineda-Teruel filed an application seeking withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture, claiming that he was the target of an extortion scheme in Honduras and risked death if he returned. Both an immigration judge and the Board of Immigration Appeals found that Pineda-Teruel failed to establish eligibility for withholding of removal under the Immigration and Nationality Act or protection under the Convention Against Torture. We find no error and therefore deny Pineda-Teruel's application.

I

Pineda-Teruel is a citizen and native of Honduras, where he owns a coffee farm. He first entered the United States in 2007 and was removed to Honduras ten years later, on June 14, 2017, pursuant to an order of removal. He subsequently reentered the United States in May 2019 and was apprehended at the border. Pineda-Teruel applied for withholding of removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16 – 1208.18.

On November 27, 2019, Pineda-Teruel appeared pro se before an immigration judge (IJ) for a hearing to determine the merits of his application. Pineda-Teruel testified that he began to experience problems in Honduras upon his return to the country in June 2017. He did not testify about any targeted threats in Honduras prior to his return from the United States.

Pineda-Teruel testified that in August 2017 three men affiliated with the mafia but acting as police officers (dressed in police uniforms and driving a police vehicle) robbed him and demanded future monthly payments because he had just returned from the United States. He testified that because of his stay in the United States the mafia believed that he had money: "What they said was, you just came back to [sic] the United States, so you have a little bit of money. So, you have to give it to us or else we'll kill you. They think you have money." Admin R. 114–15. Prior to his testimony before the IJ, Pineda-Teruel told an Immigration and Naturalization Service Asylum Officer the same thing: "They do this with everyone that comes from the US they think we have money that's why they're doing it because they think I have money because I came from the [U]nited [S]tates." Admin R. 170. Pineda-Teruel did not attribute the mafia's demands to his ownership of a coffee farm in any way.

Pineda-Teruel further testified that after August 2017 the mafia contacted him four to five times seeking unpaid extortion fees and later came to his coffee farm looking for him. Pineda-Teruel was not at the farm, but the mafia killed his two cousins who were working at the farm. According to Pineda-Teruel, he is positive that his cousins’ killers now reside in the United States.¹

Sometime later, Pineda-Teruel moved to an apartment a few hours away from his farm. He was afraid to go outside the apartment, fearing that the mafia would somehow find him. He lived there until he saw two unknown, armed men looking for him outside the apartment complex in April 2019. Though he experienced no harm or interaction with these individuals, Pineda-Teruel said that, at that point, he feared for his life and decided to reenter the United States.

The IJ denied Pineda-Teruel's application. With respect to withholding of removal under the INA, the IJ found that Pineda-Teruel failed to establish past persecution and failed to establish likelihood of future persecution if he were to relocate within Honduras. The IJ also found that there was no nexus between Pineda-Teruel's fear of harm—which was due to the mafia's belief that he had money from his time in the United States—and any claimed status as a member of a statutorily protected social group, a required element for a successful withholding of removal claim under the INA. On the CAT claim, the IJ found that Pineda-Teruel's fears were too speculative to constitute a substantial risk of torture. Additionally, the IJ found that Pineda-Teruel had not shown that he could not reasonably relocate in Honduras to avoid future harm.

Pineda-Teruel appealed to the Board of Immigration Appeals (BIA), now represented by counsel, arguing that his status as a landowner could provide the required nexus between his fear of harm and a statutorily protected ground. The BIA dismissed Pineda-Teruel's appeal, concluding that his landowner nexus argument was waived since it had not been made before the IJ, and agreed with the IJ that Pineda-Teruel otherwise failed to establish fear of harm on account of a statutorily protected ground, so he was ineligible for withholding of removal under the INA. The BIA also agreed with the IJ that Pineda-Teruel's past experiences in Honduras did not rise to the level of past persecution or torture, and that he had not established a clear probability of torture in the future given that he had successfully relocated within Honduras.

Pineda-Teruel timely filed this petition for review.

II

Pineda-Teruel asserts that the IJ erred by failing to develop the record regarding his status as a landowner, which he argues will make him eligible for withholding of removal under the INA. He also asserts that the agency overlooked key evidence in finding that his experiences did not rise to the level of torture or constitute a substantial risk of future torture, and that with this evidence, he has established that it is more likely than not that he will be tortured if he is returned to Honduras. We address each argument in turn, reviewing the IJ's decision as supplemented by the BIA. Kaharudin v. Gonzales , 500 F.3d 619, 622 (7th Cir. 2007) (where the BIA "adopts the decision of the IJ and supplements that decision with its own reasoning, our review is of the IJ's decision as supplemented").

A

To be eligible for withholding of removal under the INA, an applicant must establish that he has suffered past persecution or that there is a clear probability of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Tsegmed v. Sessions , 859 F.3d 480, 484 (7th Cir. 2017) (citing 8 U.S.C. § 1231(b)(3)(A) ); 8 C.F.R. § 1208.16(b). According to Pineda-Teruel, being a landowner establishes his status as a member of a protected social group and thus provides the nexus required between a statutorily protected ground and his alleged past persecution and risk of future persecution. But, Pineda-Teruel asserts, articulating a social group claim is a "nuanced and complicated legal art" which is difficult for pro se litigants to navigate on their own. Petitioner-Appellant's Br. at 33. Therefore, Pineda-Teruel says, the IJ had a duty to develop the record on his status as a landowner in order to explore the nexus necessary to support his withholding of removal claim.²

To correct this alleged error, Pineda-Teruel asks us to remand so he can develop the record on his status as a landowner. In doing so, he argues for a new rule in this circuit that would broaden the duty on immigration judges in the case of pro se applicants. The Fourth Circuit has recognized such a rule, requiring IJs to develop the record on the complex elements of a legal claim that the applicant asserts but fails to adequately articulate, including "a broad and robust duty to help pro se asylum seekers articulate their particular social groups." Quintero v. Garland , 998 F.3d 612, 633 (4th Cir. 2021) (reasoning that "immigration judges have a duty to explore for, probe into, and elicit all facts relevant to the applicant's claim and potential social groups").

But we need not make any new rules here, because Pineda-Teruel never even suggested that his harm (or risk of harm) was related to his...