               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0571n.06

                                         No. 18-3102

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                            Nov 13, 2018
RODERICO MATIAS-CIFUENTES,                            )
                                                                        DEBORAH S. HUNT, Clerk
                                                      )
       Petitioner,                                    )
                                                      )   ON PETITION FOR REVIEW
v.                                                    )   FROM THE UNITED STATES
                                                      )   BOARD OF IMMIGRATION
MATTHEW G. WHITAKER, Acting                           )   APPEALS
Attorney General,                                     )
                                                      )
       Respondent.                                    )
                                                      )


       BEFORE: BATCHELDER, COOK, and KETHLEDGE, Circuit Judges.

       PER CURIAM. Roderico Matias-Cifuentes petitions this court for review of an order of

the Board of Immigration Appeals (BIA) dismissing his appeal from the denial of his applications

for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

As set forth below, we DENY Matias-Cifuentes’s petition for review.

       Matias-Cifuentes, a native and citizen of Guatemala, entered the United States without

inspection, allegedly when he was eleven years old. In October 2010, when Matias-Cifuentes was

eighteen years old, the Department of Homeland Security (DHS) served him with a notice to

appear in removal proceedings, charging him with removability as an alien present in the United

States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Matias-Cifuentes

appeared before an immigration judge (IJ) and conceded removability. Matias-Cifuentes applied

for asylum, withholding of removal, and CAT protection, claiming that he feared that gang

members would torture or kill him if he returned to Guatemala because he had refused the gang’s
No. 18-3102, Matias-Cifuentes v. Whitaker

order to kill a man. In July 2012, the IJ granted the parties’ joint motion to administratively close

the proceedings. In December 2016, after Matias-Cifuentes was arrested for operating a vehicle

under the influence (OVI), the DHS filed a motion to recalendar the proceedings, which the IJ

granted.

       At the merits hearing, Matias-Cifuentes clarified that he sought relief based on his

membership in a particular social group—his family.             Matias-Cifuentes also moved to

administratively close the proceedings on various grounds; the IJ denied his oral motions.

       In support of his applications for relief, Matias-Cifuentes testified that MS-13 members

killed his uncle Fecundo and his good friend Hugo for refusing to join the gang. Matias-Cifuentes

further testified that, at the age of eleven, he was playing soccer with friends when MS-13 members

approached them. Matias-Cifuentes ran, but the gang members caught him. According to Matias-

Cifuentes, the gang members told him to join the gang and, when he refused, beat him and burned

him with a car lighter. Matias-Cifuentes then agreed to join the gang and was taken to the gang’s

leader, who gave him a gun and ordered him to kill someone as part of the initiation process.

Matias-Cifuentes and an older gang member went to the address given to them by the gang’s

leader, but when Matias-Cifuentes saw the target with a child, he refused to kill the man and ran

away to his uncle Alfonso’s house. Matias-Cifuentes called his mother in the United States, and

she arranged for a smuggler to bring him to the United States. After Matias-Cifuentes’s departure,

his uncle Alfonso told him that gang members had come to the house looking for him. His uncle

Alfonso died a couple weeks later; Matias-Cifuentes speculated that gang members killed his

uncle, but admitted that he did not know how his uncle died. Matias-Cifuentes also testified that

his older brother was deported from the United States and went missing after he returned to

Guatemala. Matias-Cifuentes asserted that, if he returns to Guatemala, gang members could kill

him or he could end up missing like his brother.

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       The IJ subsequently denied Matias-Cifuentes’s applications for asylum, withholding of

removal, and CAT protection and ordered his removal to Guatemala. The IJ found that Matias-

Cifuentes had failed to demonstrate extraordinary circumstances to excuse his failure to file his

asylum application within one year of his arrival in the United States. The IJ also found that

Matias-Cifuentes was not a credible witness based on his demeanor, internal inconsistencies in his

testimony, and inconsistencies between his testimony and the record evidence. According to the

IJ, this adverse credibility determination was fatal to Matias-Cifuentes’s claims for relief. The IJ

went on to determine, in the alternative, that Matias-Cifuentes had failed to demonstrate that gang

members targeted him because of his family name and that he had therefore failed to meet his

burden for asylum and withholding of removal. With respect to CAT protection, the IJ found that

Matias-Cifuentes had failed to show that he is more likely than not to be tortured if removed to

Guatemala.

       Matias-Cifuentes filed an appeal, which the BIA dismissed. First, the BIA rejected Matias-

Cifuentes’s argument that the IJ erred by recalendaring the proceedings after administrative

closure. Next, assuming arguendo that Matias-Cifuentes had timely filed his asylum application

and had presented credible testimony in support of his applications for relief, the BIA affirmed the

IJ’s determination that he had failed to establish a valid claim for asylum or withholding of removal

because he had not demonstrated a nexus between his membership in a particular social group—

his family—and the harm that he experienced and fears.           The BIA also affirmed the IJ’s

determination that Matias-Cifuentes had failed to establish eligibility for CAT protection. Finally,

the BIA rejected Matias-Cifuentes’s argument that his right to due process was violated, noting

that he was provided a full and fair hearing.

       This timely petition for review followed. Matias-Cifuentes raises the following arguments:

(1) the agency’s adverse credibility determination failed to account for his young age at the time

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of persecution; (2) the agency erred in declining to administratively close the removal proceedings

because the DHS’s reopening of the proceedings was not based on fact and law; (3) the agency

erred in declining to administratively close the removal proceedings because he entered the United

States as a minor and, in the alternative, refusing to hold that his asylum application was timely

filed; (4) the agency erred in declining to administratively close the removal proceedings because

he is married to a United States citizen; and (5) the agency failed to recognize the gang’s targeted

violence against him and his family as a central claim for asylum.

       “Where, as here, the BIA issues its own decision rather than summarily affirming the IJ,

the BIA decision is reviewed as the final agency decision, but the IJ’s decision is also reviewed to

the extent that the BIA adopted it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014). Because

the BIA assumed arguendo that Matias-Cifuentes had timely filed his asylum application and had

presented credible testimony, his arguments about the timeliness of his asylum application and the

IJ’s adverse credibility determination lack any consequence.

       We review the agency’s denial of Matias-Cifuentes’s motions to administratively close the

removal proceedings for abuse of discretion, “disturbing the BIA’s decision only if the refusal to

administratively close the case ‘was made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis such as invidious discrimination.’”

Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007) (quoting Abu-Khaliel v. Gonzales,

436 F.3d 627, 634 (6th Cir. 2006)). Matias-Cifuentes first argued that the DHS improperly moved

to recalendar the removal proceedings because an OVI conviction is not a basis for removal.

Matias-Cifuentes’s OVI conviction is not the basis for his removal; as he conceded, he is

removable as an alien present in the United States without being admitted or paroled in violation

of 8 U.S.C. § 1182(a)(6)(A)(i). The order administratively closing the proceedings allowed the

proceedings to “be recalendared at any time upon either party’s motion.” The DHS moved to

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recalendar the proceedings after Matias-Cifuentes’s arrest, and the IJ properly granted the DHS’s

unopposed motion. Matias-Cifuentes also sought administrative closure on the basis that he was

an unaccompanied minor when he entered the United States. As the DHS pointed out, Matias-

Cifuentes was never designated as an unaccompanied minor, and he was over the age of eighteen

when he was served with the notice to appear and filed his asylum application. See Harmon,

758 F.3d at 734-35. Finally, Matias-Cifuentes moved for administrative closure on the basis of

his recent marriage to a United States citizen, but acknowledged that an I-130 petition for alien

relative had not been filed. Based on the administrative record, we can discern no abuse of

discretion in the BIA’s decision to uphold the denial of Matias-Cifuentes’s motions for

administrative closure.

       We review the agency’s factual findings, including the determination that the alien failed

to establish eligibility for asylum, for substantial evidence, Ramaj v. Gonzales, 466 F.3d 520, 527

(6th Cir. 2006), reversing only if “any reasonable adjudicator would be compelled to conclude to

the contrary,” 8 U.S.C. § 1252(b)(4)(B). “An alien who seeks asylum must establish that [he]

meets the definition of a ‘refugee,’ which means a person who is unable or unwilling to return to

[his] home country because of past persecution or a ‘well-founded fear’ of future persecution ‘on

account of race, religion, nationality, membership in a particular social group, or political

opinion.’” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010) (quoting 8 U.S.C. §

1101(a)(42)). In support of his asylum claim, Matias-Cifuentes asserted that he suffered past

persecution and has a well-founded fear of future persecution in Guatemala on account of his

membership in a particular social group—his family. The BIA assumed for argument’s sake that

Matias-Cifuentes’s family constituted a particular social group under the Immigration and

Nationality Act, see Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009), but agreed with

the IJ that Matias-Cifuentes had failed to establish that he was targeted by the MS-13 “on account

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of” his family. Matias-Cifuentes conceded at the merits hearing that his family name has no

particular significance to the MS-13. As the BIA observed, the record reflected that the gang

members targeted Matias-Cifuentes and his friends as potential recruits. “[F]orced recruitment

alone does not establish the nexus of persecution ‘on account of’ a protected statutory ground.”

Zaldana Menijar v. Lynch, 812 F.3d 491, 500 (6th Cir. 2015). Substantial evidence supports the

BIA’s conclusion that Matias-Cifuentes had failed to establish a nexus between his familial status

and any harm.

       Because Matias-Cifuentes failed to establish his eligibility for asylum, he necessarily failed

to “satisfy the more onerous burden for withholding of removal.” Kukalo v. Holder, 744 F.3d 395,

402 (6th Cir. 2011) (quoting Kaba v. Mukasey, 546 F.3d 741, 751 (6th Cir. 2008)). Matias-

Cifuentes has also forfeited his claim for CAT protection by failing to raise that claim on appeal.

See Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).

       For these reasons, we DENY Matias-Cifuentes’s petition for review.




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