           Case: 12-15446   Date Filed: 07/18/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15446
                        Non-Argument Calendar
                      ________________________

                        Agency No. A087-390-698



JOSE OSMIN CASTILLO SANCHEZ,

                     Petitioner,

versus

US ATTORNEY GENERAL,

                     Respondent.

                      ________________________

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

                              (July 18, 2013)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Jose Osmin Castillo Sanchez, a native and citizen of El Salvador, petitions

for review of the Board of Immigration Appeals’ (BIA) decision affirming the

Immigration Judge’s (IJ) denial of his: (1) application for asylum under the

Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a); (2)

withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); and (3) relief

under the United Nations Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). After a

thorough review of the parties’ briefs, we dismiss Castillo Sanchez’s petition.

                               I. BACKGROUND

      Castillo Sanchez entered the United States without inspection near Los

Indios, Texas, on March 27, 2008. In August 2009, Castillo Sanchez was served

with a notice to appear, charging that he was removable under 8 U.S.C.

§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted

or paroled. Castillo Sanchez requested asylum, withholding of removal, and

protection under CAT. The application for asylum was based on Castillo

Sanchez’s contention that he had been persecuted by the Mara 18 gang on account

of his imputed anti-gang political opinion or his membership in a particular social

group—in his case, young males who are actively recruited by gangs because they

have no father or other protective male in the home. He testified at his hearing

before the IJ that he had been attacked on several occasions by gang members, who


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demanded money from him every time. Although the IJ found Castillo Sanchez

credible, the IJ ultimately denied his application and found him removable to El

Salvador. The BIA, without adopting the IJ’s reasoning, affirmed. The BIA found

that while Castillo Sanchez might have been persecuted by the gang, his

persecution did not satisfy the INA’s requirement that one of five protected

grounds form a “central reason” for the persecution. See 8 U.S.C.

§ 1158(b)(1)(B)(i). This petition followed.

       In his petition, Castillo Sanchez only challenges the BIA’s decision

regarding his application for asylum. 1 Castillo Sanchez also contends that the IJ

violated his due process rights when the IJ refused to let Castillo Sanchez’s expert

witness testify by phone. We turn first to whether the BIA erred when it affirmed

the IJ’s denial of Castillo Sanchez’s application for asylum.

                                      II. ANALYSIS

A. Application for Asylum

       We review the BIA’s legal determinations de novo and its factual findings

for substantial evidence, “a highly deferential standard.” Ayala v. U.S. Att’y Gen.,

605 F.3d 941, 948 (11th Cir. 2010). We may reverse a factual finding only when

doing so is compelled by the record, see id., and we must view the evidence in the


       1
          Because he does not challenge the denials of withholding of removal and CAT relief in
his brief, those issues have been abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005) (per curiam).
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light most favorable to the agency’s decision. Seck v. U.S. Att’y Gen., 663 F.3d

1356, 1364 (11th Cir. 2011).

      The Secretary of Homeland Security and the Attorney General have the

discretion to grant an alien asylum if the alien establishes that he is a “refugee.” 8

U.S.C. § 1158(b)(1)(A). A refugee is a person who has been persecuted or has a

well-founded fear of persecution on account of one of five protected grounds:

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

opinion.” 8 U.S.C § 1101(a)(42)(A). In 2005, the REAL ID Act of 2005

§ 101(a)(3), 8 U.S.C. § 1158(b)(1)(B)(i), clarified the INA to require that a

protected ground be “at least one central reason for persecuting the applicant.”

(emphasis added). The BIA has interpreted the phrase “central reason” to mean

that the protected ground “cannot be incidental, tangential, superficial, or

subordinate to another reason for harm.” In re J-B-N- & S-M-, 24 I. & N. Dec.

208, 214 (BIA 2007). Because this is a “reasonable interpretation” of the REAL

ID Act, we owe it Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984) (“[A] court

may not substitute its own construction of a statutory provision for a reasonable

interpretation made by the administrator of an agency.”).

      The BIA in this case determined that, even assuming Castillo Sanchez

belonged to a particular social group or had an anti-gang political opinion, the


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evidence indicated that the gang targeted him primarily to obtain money or recruit

him for membership. Therefore, none of the central reasons for his alleged

persecution were protected grounds.

      We conclude that substantial evidence supports the BIA’s conclusion that

Castillo Sanchez was targeted by the gang for recruitment and extortionate

purposes, and not because of his membership in a particular social group. For

example, the evidence showed that in at least one incident, the gang let Castillo

Sanchez go without further incident after he gave them money. Castillo Sanchez

only submitted conclusory statements that the gang members targeted him because

he was in a fatherless household. Moreover, Castillo Sanchez presented no

evidence, other than speculation, to indicate that the gang members even knew that

he lived in a home without a father or a male figure. Even assuming that the gang

members did know this, Castillo Sanchez admitted that neither of his two siblings

experienced any problems with the gang, even though they would presumably fall

within the same particular social group.

      Similarly, substantial evidence supports the BIA’s finding that Castillo

Sanchez’s political opinion was not a central reason for his persecution. As stated

earlier, Castillo Sanchez’s evidence indicated that the gang always asked him for

money, and whether the members attacked him depended on whether he paid them.

In other words, although Castillo Sanchez might have had a politically motivated


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opposition to the gang, he simply did not present enough evidence to demonstrate

that it was a central reason for any harm that he suffered. Therefore, we cannot say

that the BIA’s decision was not supported by substantial evidence. We now turn to

Castillo Sanchez’s due process argument.

B. Due Process

      We review constitutional challenges de novo. Lapaix v. U.S. Att’y Gen., 605

F.3d 1138, 1143 (11th Cir. 2010) (per curiam). Aliens in removal proceedings are

entitled to due process of law under the Fifth Amendment. Frech v. U.S. Att’y

Gen., 491 F.3d 1277, 1281 (11th Cir. 2007). “Due process requires that aliens be

given notice and an opportunity to be heard in their removal proceedings.” Tang v.

U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (internal quotation marks

omitted). For Castillo Sanchez to succeed on his due process challenge, he must

demonstrate that the IJ’s decision to disallow his expert from testifying

telephonically caused him substantial prejudice. Lapaix, 605 F.3d at 1143.

Substantial prejudice requires the applicant to demonstrate that, in the absence of

the alleged error, the outcome of the proceeding would have been different. Id.

      Whether to permit telephonic testimony is a purely discretionary matter left

to the IJ. See 8 C.F.R. § 1003.25(c). “[T]he failure to receive relief that is purely

discretionary in nature does not amount to a deprivation of a liberty interest.”

Tang, 578 F.3d at 1275 (internal quotation marks omitted). Therefore, Castillo


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Sanchez cannot establish a due process violation based on the IJ’s decision not to

permit the telephonic testimony. Moreover, even if the IJ had permitted the

telephonic testimony, Castillo Sanchez cannot demonstrate substantial prejudice

because the IJ had already received and examined the affidavit from Castillo

Sanchez’s expert. Although Castillo Sanchez argues that the affidavit was not

exhaustive, the expert’s testimony would have only reinforced two points: first,

that Castillo Sanchez belonged to a particular social group; and second, that the

gang members were part of Mara 18. Yet neither of these points would have

established that a protected ground was a “central reason” for Castillo Sanchez’s

persecution. See 8 U.S.C. § 1158(b)(1)(B)(i). Therefore, we conclude that the IJ

did not violate Castillo Sanchez’s due process rights.

      For the foregoing reasons, we dismiss Castillo Sanchez’s petition.

      PETITION DISMISSED.




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