             Case: 16-10859   Date Filed: 12/06/2016   Page: 1 of 7


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-10859
                           Non-Argument Calendar
                         ________________________

                          Agency No. A205-344-593

DAVID MORALES RODRIGUEZ,
a.k.a. David Morales,

                                                                        Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                          ________________________

                              (December 6, 2016)

Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.

PER CURIAM:

      David Morales Rodriguez applied for withholding of removal under 8

U.S.C. § 1231(b)(3)(A) and the United Nations Convention Against Torture,
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contending that he was at risk of being tortured or killed at the hands of the Zetas,

a drug cartel in his native country of Mexico. The Immigration Judge found that

Morales had not shown that he faced or faces past or future persecution or torture,

and the Bureau of Immigration Appeals dismissed his appeal. Morales now

petitions for review of the BIA’s decision.

                                              I.

       The Department of Homeland Security charged Morales as removable under

8 U.S.C. § 1182(a)(6)(A)(i). He conceded his removability but applied for

withholding of removal based on membership in a particular group and sought

CAT relief.1 His application did not state what social group he was a member of,

but it indicated that he would be targeted because the Zetas knew he had been

making money by working in the United States.

       At the hearing on his application Morales stated that he left Mexico because

of threats from the Zetas, although his wife and five daughters remained behind.

He also described three crimes committed by Zeta members against his family in

the last decade. First, a drug addict and Zeta member named Umberto Solano

broke into his house. Morales’ neighbors called the police and Solano was arrested

before he could harm Morales’ family. Morales testified that he did not know how


       1
         Because he had entered the United States more than one year before he filed his
application, Morales conceded that he was not eligible for asylum under the Immigration and
Nationality Act.
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long Solano had been jailed on account of that incident. Second, the Zetas

kidnapped Morales’ brother’s niece, and the family had to pay a ransom. The

family did not contact the police in connection with the kidnapping because the

Zetas had threatened them. Third, Morales’ son-in-law, also a member of the

Zetas, accosted two of Morales’ daughters (including the son-in-law’s wife). He

“tussl[ed] with [their] books, pull[ed] their hair[ ], and twist[ed] [their] arm[s].”

The local prosecutor’s office investigated the battery, interviewing both women.

According to Morales, the prosecutor recommended against pressing charges

because the son-in-law might want revenge if he were put in jail.

      The IJ denied withholding of removal based on membership in a particular

social group and also denied CAT relief. As an initial matter, he found Morales’

testimony credible. But he noted that Morales’ family continued living in Mexico

“unencumbered,” and that the police had intervened when Solano broke into his

home. As a result, there was no indication in the record that “the Mexican

government is unwilling or unable to provide assistance to the family.” The IJ also

found that there was no evidence that Morales would be subjected to torture upon

returning to Mexico, precluding CAT relief.

      The BIA dismissed Morales’ appeal, finding that a generally high level of

criminal activity “does not constitute evidence of persecution based on a statutorily

protected ground.” In addition, it agreed with the IJ that the police’s reaction to the

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crimes committed against Morales’ family showed that the Mexican government

was not “unwilling or unable to protect [Morales].” The BIA also found that

Morales had failed to show that he was more likely than not to be tortured by or

with the acquiescence of a Mexican public official, so he was ineligible for CAT

relief.

                                           II.

          Morales contends that the BIA erred by declining to withhold removal or

grant him CAT relief. “When the BIA issues a decision, we review only that

decision, except to the extent the BIA expressly adopts the IJ’s decision.” Lopez v.

U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). We review the BIA’s

factual findings for “substantial evidence.” Kazemzadeh v. U.S. Att’y Gen., 577

F.3d 1341, 1350–51 (11th Cir. 2009). Under that “highly deferential” standard, we

must affirm the decision “if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Id. at 1351. By contrast,

we may only reverse the BIA’s findings if “the record not only supports reversal,

but compels it.” Id.

          Regarding his request for withholding of removal based on membership in a

particular social group, Morales argues on appeal that he is a member of the social

group of “victims of a crime whom the police/government fail[ ] to protect as it is

their duty.” But Morales did not raise that argument before the IJ. He did check

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the box on his initial application that he was seeking withholding of removal based

on membership in a particular social group, but he never expressly stated what

group he was referring to. Instead, he stated in his application and in his testimony

that the Zetas would target him “to obtain any money I may have” from his years

of working in the United States. That has nothing to do with the “victims of

crime” social group to which he now claims he belongs. Because Morales failed to

raise the “victims of crime” argument before the IJ, we lack jurisdiction to review

it. See Dormescar v. U.S. Att’y Gen., 690 F.3d 1258, 1269 n.11 (11th Cir. 2012);

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006)

(citing 8 U.S.C. § 1252(d)(1)). We therefore dismiss that portion of Morales’

petition for review.

      As for his request for CAT relief, Morales argues that the Mexican

government knew about the Zetas’ threats and “refused to step in and give aid to

[him].” “In making out a claim under CAT, ‘[t]he burden of proof is on the

applicant . . . to establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.’” Najjar v. Ashcroft, 257

F.3d 1262, 1303 (11th Cir. 2001) (quoting 8 C.F.R. § 208.16(c)(2)). For an act to

rise to the level of torture, it must involve the infliction of “severe pain or

suffering.” 8 C.F.R. § 208.18(a)(1). Furthermore, an applicant is not eligible for

CAT relief unless he faces torture “with the consent or acquiescence of a public

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official or other person acting in an official capacity.” Id. “Acquiescence,” in

turn, “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.” Id. § 208.18(a)(7).

      Morales asserts that he reported the Zetas’ criminal acts against his family

and the Mexican government did nothing, so the government has “acquiesced” to

acts of torture and would do so again were he to return to Mexico. According to

Morales’ testimony, he alerted Mexican authorities to two crimes against his

family: Solano’s break-in and Morales’ son-in-law’s battery of two of his

daughters. Neither incident falls within the CAT’s definition of torture. First,

Solano was arrested and incarcerated after breaking into Morales’ house; there is

no evidence of “torture” or “acquiescence.” Second, Morales’ son-in-law’s

“tussling” with Morales’ daughters does not rise to the level of “severe pain or

suffering” that the CAT requires, and the fact that the family accepted the

prosecutor’s recommendation not to press charges does not show the government’s

acquiescence to acts of torture.

      Morales points to nothing in the record beyond those past incidents of

supposed “torture” that shows that he is more likely than not to face actual torture

with the acquiescence of a public official upon his return to Mexico. Accordingly,




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substantial evidence supports the BIA’s conclusion that he is not eligible for CAT

relief.

          PETITION DISMISSED IN PART AND DENIED IN PART.




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