# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued November 18, 2020 Decided May 21, 2021

Before

DIANE S. SYKES, Chief Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 20-1267

SANTOS W. REYES-CIFUENTES,

Petitioner

,

v

.

MERRICK B. GARLAND, Attorney General of the United States, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals.

No. A216-376-513

O R D E R

Santos Reyes-Cifuentes, a Guatemalan native, petitions for relief from removal on the ground that local gang members ex torted money from him because he managed a restaurant. He applied for asylum and deferred removal under the Convention Against Torture (“CAT”). An immigration judg e (“IJ”) found that his purported social group (restaurant managers) did not motivate the gang to extort him—money did—and in any case, the treatment he suffered was no t persecution, so she denied asylum relief. The IJ further ruled that Reyes-Cifuentes did not qualify for protection under CAT NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 20-1267 Page 2

because the gang had not tortured him and wa s not likely to do so in the future. ReyesCifuentes argues that the IJ used the wrong legal standard in assessing persecution on his asylum claim. But we do not need to reach the question of persecution because Reyes-Cifuentes’s asylum claim fails for anot her reason: the gang did not persecute him based on his proposed social group. We therefore deny the petition for review.

I. Background

Reyes-Cifuentes entered the United St ates in 2017 and promptly applied for asylum, withholding of removal, and protec tion under CAT. At his removal hearing before an IJ, he testified that he manage d a restaurant in Guatemala and his troubles began when a gang mistook him for a wealthy restaurant owner, demanded money
from him, and threatened to kill him and his son if he failed to pay. He knew of others

in the restaurant business who had been mu rdered after they did not pay similar demands. Initially he complied and paid the equivalent of $130 every two weeks. On Mother’s Day he celebrated with his mother instead of paying the gang. The next day as two police officers looked on, three gang me mbers punched, kicked, and beat him with bottles for three to five minutes, leaving wounds that required medical attention. He continued to pay and was not physically ha rmed again. But a few months later, the gang demanded much more—approximately $4,600. He could not pay in full, so he paid what he could and fled to the United States. His family remained in Guatemala and they have received threats from the gang, so they have moved around to avoid harm. Reyes-Cifuentes fears that he will face future harm if he returns to Guatemala because the gang would find him.

The IJ denied Reyes-Cifuentes’s application for asylum. She noted that he had not alleged which protected characteristic caus ed his persecution but that his testimony suggested it was the social group of restau rant managers. She doubted that this was a valid social group within the meaning of the statute. But in any case, he had not shown

that the “intent” of his assailants was to “overcome his status as a manager of a restaurant” rather than simply to “enric h themselves.” The money demands persisted even after he was no longer a restaurant ma nager. The IJ further found that the beating

and death threat were “not sufficient to amount to” past persecution, and ReyesCifuentes did not have an “objectively reasonable” fear of future persecution.

The IJ also denied Reyes-Cifuentes’ s remaining claims. His request for withholding of removal (not at issue here) wa s denied because the standard for relief is more demanding than for asylum, so it t oo had not been met. And his CAT claim wasNo. 20-1267 Page 3

denied because his past treatment was not torture and he furnished no other evidence of likely future torture.

The Board of Immigration Appeals dism issed his administrative appeal. The Board found no clear error in the IJ’s finding that the gang members had been motivated by money and agreed with the finding that the beat ing Reyes-Cifuentes suffered was not persecution under as ylum law or torture under CAT.

II. Discussion

Because the Board agreed with the IJ’s decisions, adopting the judge’s reasoning and supplementing it with the Board’s own review, we review both decisions. Escobedo Marquez v. Barr, 965 F.3d 561, 565 (7th Cir. 2020). “We review legal determinations de

novo and findings of fact for substantial evidence.” Plaza-Ramirez v. Sessions, 908 F.3d 282, 285 (7th Cir. 2018). Reyes-Cifuentes argues that the IJ and the Board legally erred in deciding three matters: (1) whether the ha rm he faced was persecution for asylum purposes; (2) whether, again for asylum purp oses, that harm occurred because of a protected characteristic; and (3) whether he had been tortured for purposes of CAT relief. We start with whether Reyes-Cifu entes faced persecution on account of a protected characteristic because that questi on alone can and does resolve the asylum

claim.

Reyes-Cifuentes must lose if substantia l evidence supports the finding that he did not face violence “on account of” a protected characteristic—in his case, a social

group. See 8 U.S.C. § 1101(a)(42). Reyes-Cifuente s maintains that he belongs to the “social group” of restaurant managers. A prot ected social group bears a characteristic “that the members of the group either canno t change, or should not be required to change because it is fundamental to thei r individual identities or consciences.” Tapiero de Orejuela v. Gonzales , 423 F.3d 666, 672 (7th Cir. 2005) (quoting Lwin v. INS , 144 F.3d 505, 512 (7th Cir. 1998)). As the IJ noted, Reyes- Cifuentes left his social group because he is no longer a restaurant manager and he di d not testify that his membership in this group was fundamental to his identity. So the premise of his social-group argument lacks an evidentiary foundation.

Reyes-Cifuentes’s petition for review also fails for a more fundamental reason: the IJ permissibly found that he was not targeted in the past because he was a restaurant manager but instead was attacked because the gang wanted his money. The

record contains substantial evidence th at money, not restaurant-manager status,No. 20-1267 Page 4

motivated his attackers because according to Reyes-Cifuentes, their demands for money persisted after he was no longer a restau rant manager. And one’s connection to wealth is not, by itself, membership in a so cial group covered by our asylum laws. See Tapiero de Orejuela, 423 F.3d at 672 (citing In re V-T-S -, 21 I. & N. Dec. 792, 799 (1997)).

Reyes-Cifuentes notes that the IJ stated that the gang did not intend to “overcome” his status as a restaurant manager. It is true, as Reyes-Cifuentes points out, that an asylum applicant is no longer requ ired to show that a persecutor sought to “overcome” his protected characteristic—that is an old formulation of an obsolete

standard. See Stanojkova v. Holder , 645 F.3d 943, 949 (7th Cir. 2011). But the IJ’s use of this language is harmless. In the preceding senten ce, the IJ used the correct standard. There, she found that Reyes-Cifuentes had

not established that he was actually targeted for harm on account of his being a manager of a restaurant, but rather was being targeted for harm because gang members and police offi cers were trying to unlawfully enrich themselves ... by targeting pe ople that they believed to have money and resources to pay their extortion.

The IJ thus determined that money was the motive, and that finding alone, for which there is sufficient evidence, defeats the claim of past persecution.

Without a showing that he was persecuted in the past because of his membership in a social group, Reyes-Cifuentes had to fur nish evidence that he will be subjected to future persecution on this basis. Sirbu v. Holder , 718 F.3d 655, 660 (7th Cir. 2013). But he did not testify that he would resume his wo rk as a restaurant manager, so his claim of future persecution fails for lack of proof.

Reyes-Cifuentes also challenges the Bo ard’s conclusion that he did not suffer torture, a requirement for CAT relief. But in his brief to this court, he relies primarily on Stanojkova

, which deals solely with persecution under asylum law, not torture under CAT. Because he has not developed an argum ent for relief under CAT, we accept the findings of the IJ and the Board of I mmigration Appeals in denying CAT relief.

The petition for review is therefore DENIED.