August 9, 2016
for Review of an Order of the Board of Immigration Appeals.
Bauer, Posner, and Sykes, Circuit Judges.
Salgado Gutierrez, a 40-year-old citizen of Mexico, was
ordered removed from the United States for being unlawfully
present in the country and for having been convicted of a
drug crime. He petitions for review of an order of the Board
of Immigration Appeals upholding the immigration judge's
denial of withholding of removal (based on social-group
membership) and relief under the Convention Against Torture.
We have jurisdiction to review only two of his arguments: (1)
his claim that the agency improperly rejected his proposed
social group, and (2) his claim that the agency misapplied
the legal standard under the CAT. Because these arguments are
without merit, we dismiss in part and deny in part
Salgado's petition for review.
unlawfully entered the United States in 1996 and lived in
this country continuously for the next 20 years. In 2001 he
met his current girlfriend, Mariela Rico Cuervas, also a
Mexican citizen without lawful status in the United States.
They have two children, a daughter born in 2001 and a son
born in 2003-both U.S. citizens.
Salgado was convicted in Wisconsin of possessing cocaine.
See Wis. Stat. § 961.41(3g)(c). The Department
of Homeland Security got wind of the drug conviction eight
years later, in mid-2013, when Salgado was arrested for
driving under the influence. The agency detained him in early
2014 and issued a Notice to Appear charging him with
removability for having been convicted of a
con-trolled-substance offense, 8 U.S.C. §
1182(a)(2)(A)(i)(II), and for being present in the United
States unlawfully, id. § 1182(a)(6)(A)(i).
Salgado admitted through his attorney that he was removable
on both grounds and sought no relief from removal; the IJ
ordered him removed to Mexico, but the Board of Immigration
Appeals later remanded the case so that the immigration court
could address Salgado's claim that his lawyer had
provided ineffective assistance by neglecting to seek relief
from removal. On remand the IJ concluded that Salgado had
been prejudiced by his first lawyer's ineffective
assistance and permitted him to apply for relief.
applied for both statutory withholding of removal, see
id. § 1231(b)(3)(A), and withholding under the
Convention Against Torture, see 8 C.F.R.
§§ 1208.16(c), 1208.18. He argued that he has a
well-founded fear of persecution on account of his membership
in two social groups: (1) "Mexican nationals whose
family members have suffered persecution at the hands of the
Zetas and other drug cartels in Veracruz" and (2)
"Mexican nationals who have lived in the U.S. for many
years and who, upon being removed to Mexico, are perceived as
having money." (Salgado also sought withholding of
removal based on political opinion but has abandoned that
and his girlfriend testified at the removal hearing about why
he feared returning to Mexico, and the IJ found them largely
credible. They provided the following account: Before moving
to the United States, Salgado lived with his parents in Tres
Valles, a town in the Mexican state of Veracruz, and worked
at the butcher shops owned by his father. The family closed
the shops sometime after Salgado went to the United States
because the Zetas, a Mexican drug cartel, extorted them and
pressured all local businesses to sell drugs on the
testified that three of his family members had been harmed by
Mexican drug traffickers. In 1995, shortly before Salgado
left Mexico, his cousin was killed by a local drug gang,
purportedly for having witnessed a murder by members of the
gang. Ten years later, when Salgado's half-brother was
visiting Tres Valles from the United States, Zetas tried to
kidnap him while he was walking down the street. The
kidnapping was foiled when the brother resisted and witnesses
called for help, but the Zetas beat him up before fleeing.
Finally, one of Salgado's nephews was kidnapped in Tres
Valles in 2014 and found alive three days later, having been
left for dead. Salgado attributed the kidnapping to the
said that he feared he would be kidnapped or even killed by
the Zetas if he returned to Mexico. He testified that the
Zetas identify people who have returned from the United
States and target them for kidnapping. Three of Salgado's
siblings still live in Tres Valles, and he maintained that
they, too, would be endangered if he returned. Salgado also
has two sisters who live elsewhere in Mexico -one in Mexico
City, the other in the state of Oaxaca-but he stated that the
Zetas would target him even if he relocated to those areas.
Salgado insisted that he would not be safe anywhere
in Mexico and that the Mexican authorities could not protect
him from the Zetas.
support of his claims for relief, Salgado also submitted
documentary evidence, including (among other things) letters
from family members and friends stating that he would be
targeted by drug gangs in Mexico, especially if he returned
to Tres Valles; newspaper articles describing the criminal
activities of the Zetas (including murders of journalists and
other citizens) in Tres Valles and the rest of Veracruz; and
country-conditions reports chronicling violence by drug
cartels across Mexico.
comprehensive 18-page opinion, the IJ concluded that Salgado
was ineligible for both statutory withholding of removal and
withholding under the CAT. The IJ began by finding that
Salgado had not established past persecution. The IJ then
determined that Salgado's proposed social group
-"Mexican nationals who have lived for a long time in
the United States and will be perceived as wealthy
individuals by the Zetas upon return to Mexico"-was not
cognizable because "wealth alone is not an immutable
characteristic." Even if this social group were
cognizable, the IJ continued, Salgado did not have a
well-founded fear of persecution because the
country-conditions documents "do not show that drug
cartels or organized criminal groups in Mexico have
specifically targeted Mexican citizens returning from the
United States because of their perceived wealth."
the IJ stated, there was no evidence that the Zetas would
target Salgado because of his family ties. The IJ
acknowledged that there was pervasive violence by drug
cartels in Mexico and that Salgado had a subjective
fear that the Zetas would harm him. But the "general
civil strife" in Mexico did not constitute persecution,
the IJ reasoned, and moreover, ...