USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-11852 Non-Argument Calendar ________________________ Agency No. A208-134-160 ALEXANDER GUTIERREZ-JOSE, JUAN GUTIERREZ-GUTIERREZ, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 15, 2021) USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 2 of 13 Before JORDAN, LAGOA, and BRASHER Circuit Judges. PER CURIAM: Juan Gutierrez-Gutierrez seeks review of a final order of the Board of Immigration Appeals affirming an immigration judge’s denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The IJ concluded that Mr. Gutierrez’s application for asylum should be denied due to the failure to establish past persecution on account of a statutorily protected ground and the failure to establish a well-founded fear of future prosecution based on that protected ground. The BIA affirmed without opinion. On appeal Mr. Gutierrez argues the IJ erred by holding that his proposed group—business owners who are threatened—was ineligible for protection and that there was an insufficient nexus between his social group and any persecution he suffered. The government argues that we should affirm the BIA’s decision because its denial was supported by substantial evidence. For reasons explained below, we conclude that Mr. Gutierrez administratively exhausted his claims, but that substantial evidence supports the IJ’s conclusions. We therefore deny the petition. I. 2 USCA11 Case: 20-11852 Date Filed: 09/15/2021 Page: 3 of 13 Mr. Gutierrez, a citizen of Guatemala, left his country on June 10, 2015, and entered the United States two weeks later. Mr. Gutierrez was issued a Notice to Appear by the Department of Homeland Security. The DHS charged that he was removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being admitted or paroled. In June of 2016, Mr. Gutierrez, on behalf of himself and his son Alexander, filed an application for asylum and withholding of removal based on his membership in a particular social group and for relief under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 8 C.F.R. § 1208.16(c). Mr. Gutierrez stated in his application that he was threatened by gang members because he reported them to the police after they stole from his small business. He feared the gangs would kill or torture him and his family due to the police report, his son’s refusal to join the gang, and the police’s refusal to help and frequent work with the gangs. Along with his application for asylum, Mr. Gutierrez submitted a letter further detailing the robbery and ensuing events. Specifically, the letter detailed how some people stole from his business, he notified the police, and the police arrested the individuals. The police, however, released the suspects, and in retaliation they again robbed and vandalized his store and threatened his son …
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