[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-13920

Non-Argument Calendar

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Agency No. A200-614-904

ALVARO VAZQUEZ-RAMIREZ, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(September 5, 2017)

Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM: 

Alvaro Vazquez-Ramirez petitions this Court for review of (1) the 

Department of Homeland Security’s (“DHS”) order reinstating an earlier order for 

his expedited removal and (2) the Immigration Judge’s (“IJ”) finding that 

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Vazquez-Ramirez did not have a reasonable fear of suffering persecution or torture 

if he were returned Mexico. After careful consideration, we deny VazquezRamirez’s petition in part and dismiss it in part.

I.

Vazquez-Ramirez, who is a Mexican citizen, entered the United States on 

January 11, 2011. He was arrested the next day. A DHS border patrol agent 

determined he was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because he 

entered the United States without a valid entry document. Three days later, DHS 

removed Vazquez-Ramirez to Mexico under an expedited order of removal dated

January 12, 2011, which had been the date of his arrest. See id. § 1225(b)(1)(A)(i). 

Over the following months, Vazquez-Ramirez entered the United States and was 

removed back to Mexico four more times. 

Then again, in August 2011, Vazquez-Ramirez entered the United States. 

He was not arrested by immigration officials until April 2015. After that arrest, 

DHS reinstated his January 12, 2011 expedited removal order under 8 U.S.C. 

§ 1231(a)(5). This time, Vazquez-Ramirez expressed a fear of returning to 

Mexico. A DHS asylum officer conducted a reasonable fear interview with 

Vazquez-Ramirez, and the asylum officer found Vazquez-Ramirez had no

reasonable fear of persecution or torture. See 8 C.F.R. § 208.31. 

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Vazquez-Ramirez requested that the asylum officer’s determination be 

reviewed by an IJ. At a hearing before an IJ, Vazquez-Ramirez explained that, in 

December 2010, he was at a party in Mexico when drug traffickers beat him 

because he intervened while they were beating his cousin. The next day, VazquezRamirez and his brother filed a police report about the beating. Vazquez-Ramirez 

told the IJ that the police in Mexico work for the drug traffickers. However, the 

police did arrest two relatives of the assailants. Vazquez-Ramirez also said that 

after those arrests, the assailants threatened him, and even tried to run him over 

with their car. Vazquez-Ramirez also told the IJ that he was once detained by 

police in Mexico because they assume that people who have tattoos are criminals. 

The IJ asked Vazquez-Ramirez about his brother, and Vazquez-Ramirez responded 

that his brother lives in a different part of Mexico now. He also said he too could 

go to a different part of Mexico “if nobody noticed that [he] was in Mexico.” 

At the end of the hearing, the IJ affirmed the asylum officer’s decision. The 

IJ explained that the people Vazquez-Ramirez feared in Mexico were likely 

motivated by the fact that he reported them to the police, and not by his race, 

religion, or politics. The IJ also said that Vazquez-Ramirez could move to a 

different part of Mexico like his brother did. Next, the IJ found that while some 

police in Mexico may be corrupt, Vazquez-Ramirez did not show that they were all 

corrupt in light of the arrests they made in connection with his beating. Last, the IJ 

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observed that police question people with tattoos because many gang members 

have tattoos. He said that such questioning may qualify as harassment, but not 

persecution. In his written order, the IJ found that Vazquez-Ramirez failed to 

show a “nexus to a protected ground” or “evidence of [government] acquiescence.” 

Vazquez-Ramirez now petitions this Court for review of the IJ’s decision.1

 

II.

In his petition, Vazquez-Ramirez argues: (1) the January 12, 2011 removal 

order violated his due process rights; (2) he should be allowed to apply for asylum; 

and (3) the IJ erred in affirming the asylum officer’s determination that VazquezRamirez did not have a reasonable fear of persecution or torture if returned to 

Mexico. We address each argument in turn.

A.

To begin, Vazquez-Ramirez argues the January 12, 2011 expedited removal 

order violated his due process rights. He says he should be allowed to collaterally 

attack the January 12, 2011 order underlying the April 2015 reinstatement of that

order now before this Court on appeal. In fact, he seeks to attack only the January 

12, 2011 order, and not the April 2015 order. However, we lack jurisdiction to 

review the January 12, 2011 order.

 

1 When an IJ affirms an asylum officer’s reasonable fear determination, the IJ’s decision 

is not appealable to the Board of Immigration Appeals. 8 C.F.R. § 208.31(g)(1). As a result, the 

reinstatement of removal order is a final order, subject to review by this Court. See JimenezMorales v. U.S. Att’y Gen., 821 F.3d 1307, 1308 (11th Cir. 2016).

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“We review de novo our own subject matter jurisdiction.” Avila v. U.S. 

Att’y Gen., 560 F.3d 1281, 1283 (11th Cir. 2009) (per curiam). In this case, the 

January 12, 2011 order was an expedited removal order under 8 U.S.C. 

§ 1225(b)(1). Judicial review of an order like this is limited to narrow 

circumstances that do not apply here. Id. §§ 1252(a)(2)(A)(1), (e)(2) & (3); see 

also Shunaula v. Holder, 732 F.3d 143, 147 (2d Cir. 2013) (joining “every other 

Circuit to have considered this matter” in holding that courts lack jurisdiction to 

review a collateral attack on an expedited removal order). As a result, we lack 

jurisdiction to consider Vazquez-Ramirez’s collateral attack on the January 11,

2011 expedited order of removal. We therefore dismiss this part of his petition.

B.

Vazquez-Ramirez next argues he should be allowed to apply for asylum. 

Our precedent forecloses this argument.

The statute that provides for reinstatement of removal orders says aliens 

subject to such an order “may not apply for any relief under this chapter.” 8 

U.S.C. § 1231(a)(5) (emphasis added). In Jimenez-Morales, this Court held that 

“relief under this chapter” includes asylum. 821 F.3d at 1310. As set out above, in 

April 2015, DHS reinstated the January 12, 2011 removal order against VazquezRamirez. As a result, § 1231(a)(5) bars Vazquez-Ramirez from applying for 

asylum. See id. His request to apply for asylum is therefore dismissed. See

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Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1258 (11th Cir. 2011) 

(“Under the prior panel precedent rule, we are bound by earlier panel holdings 

unless and until they are overruled en banc or by the Supreme Court.” (quotation 

omitted and alteration adopted)).

C.

Last, Vazquez-Ramirez challenges the IJ’s reasonable fear determination.

He says he is eligible to apply for withholding of removal under 8 U.S.C. 

§ 1231(b)(3)(A) and the Convention Against Torture, 8 C.F.R. § 208.16(c).

2

 

Vazquez-Ramirez argues the IJ erred in denying he had a reasonable fear of being 

persecuted by drug dealers because he is “a tattooed family member who was 

beaten up by drug dealers as he defended his cousin.” He also says the Mexican 

government would acquiesce in his torture because its police force would “turn[] a 

blind eye” to his persecution. 

1.

The parties dispute the standard by which this Court should review the IJ’s 

reasonable fear determination. Vazquez-Ramirez asks us to review it under the 

more stringent substantial evidence standard, while the government says it need 

only be facially legitimate and for a bona fide reason. We need not decide which 

 

2 An alien subject to a reinstatement of a removal order can be eligible for withholding of 

removal if he expresses a reasonable fear of persecution or torture in the country to which he will 

be removed. 8 C.F.R. § 241.8(e); see id. § 208.31. 

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standard of review applies, however, because under either standard the IJ’s 

decision passes muster. Under the more stringent substantial evidence standard, 

we affirm an IJ’s decision if it “is supported by reasonable, substantial, and 

probative evidence on the record considered as a whole.” Antipova v. U.S. Att’y 

Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotation omitted). This standard is 

“highly deferential,” and we will reverse only if “the evidence compels a 

reasonable fact finder to find otherwise.” Id.

2.

A petitioner can prove he is eligible for withholding of removal under 

§ 1231(b)(3)(A) through showing “his life or freedom would be threatened in his 

country of origin” because of his “race, religion, nationality, membership in a 

particular social group, or political opinion.” Rodriguez v. U.S. Att’y Gen., 735 

F.3d 1302, 1308 (11th Cir. 2013) (per curiam). A petitioner can satisfy his burden 

of proof in two ways: (1) He can show he was persecuted in the past based on a 

protected ground, which creates a rebuttable presumption “that his life or freedom 

would be threatened upon return to his country.” Id. (2) He can show “it is more 

likely than not” that he will be persecuted in the future based on a protected 

ground. Id. “The risk of persecution alone does not create a particular social 

group within the meaning of” § 1231(b)(3)(A). Castillo-Arias v. U.S. Att’y Gen., 

446 F.3d 1190, 1198 (11th Cir. 2006). Instead, a “particular social group” is 

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composed of “persons who share a common, immutable characteristic that the 

members of the group either cannot change, or should not be required to change 

because it is fundamental to their individual identities or consciences.” Rodriguez, 

735 F.3d at 1310 (quotation omitted). 

As for past persecution, Vazquez-Ramirez argues he was beaten and 

threatened by drug traffickers because he was a tattooed family member who 

defended his cousin. However, he fails to establish that he was persecuted because 

of his membership in a protected social group. The IJ found the drug traffickers 

were likely motivated to harm Vazquez-Ramirez because he reported them to the 

police. The record supports this conclusion. Vazquez-Ramirez told the IJ the drug 

traffickers were upset with him because he filed a police report, which led to 

arrests of the drug traffickers’ relatives. This does not constitute persecution on 

the basis of his membership in a particular social group. See Ruiz v. U.S. Att’y 

Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam) (“[E]vidence that either is 

consistent with acts of private violence . . . or that merely shows that a person has 

been the victim of criminal activity[] does not constitute evidence of persecution 

based on a statutorily protected ground.”). The IJ’s decision is therefore supported 

by substantial evidence.

As for future persecution, Vazquez Ramirez argues these same drug 

traffickers will continue to harass him. However, “[a]n alien cannot demonstrate”

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future persecution “if the IJ finds that the alien could avoid a future threat by 

relocating to another part of his country.” Mendoza v. U.S. Att’y Gen., 327 F.3d 

1283, 1287 (11th Cir. 2003). Here, the IJ found Vazquez-Ramirez could avoid 

possible future persecution by moving to a different part of Mexico like his brother 

did. This finding is supported by the record. Vazquez-Ramirez told the IJ his 

brother lived in a different part of Mexico, and that he could also go to a different 

part of Mexico “if nobody noticed” he was there. The record therefore does not 

compel reversal of the IJ’s ruling under 8 U.S.C. § 1231(b)(3)(A). See Antipova, 

392 F.3d at 1261.

3.

Finally, to qualify for relief under the Convention Against Torture, a 

petitioner must show “it is more likely than not that he [] would be tortured” in the 

country to which he is removed with the “acquiescence of” government authorities. 

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004)

(quotation omitted). Here, Vazquez-Ramirez says the government would turn a 

blind eye to his persecution. However, the IJ found the police did make arrests 

when he reported being beaten, which suggests they did not acquiesce in his 

alleged persecution. The record is consistent with the IJ’s finding. VazquezRamirez told the IJ that in response to his filing a police report, the police arrested 

relatives of his assailants. The IJ’s decision denying Vazquez-Ramirez relief under 

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the Convention Against Torture is therefore supported by substantial evidence. 

See id. at 1243 (holding that a police investigation that failed to result in arrests 

was not enough to show government acquiescence).

DENIED IN PART AND DISMISSED IN PART.

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