NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 17-2577

____________

FABRICIO NUNEZ MANJARREZ,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

____________________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA No. A 201-112-559)

Immigration Judge: Steven A. Morley

____________________________________________

Submitted Under Third Circuit L.A.R. 34.1(a)

On January 23, 2018

Before: GREENAWAY, JR., KRAUSE, Circuit Judges,

and JONES, District Judge.

*

(Opinion filed: February 15, 2018)

___________

OPINION†

 

* The Honorable John E. Jones, III, United States District Judge for the Middle 

District of Pennsylvania, sitting by designation.

† This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
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___________

JONES, District Judge.

Fabricio Nunez-Manjarrez appeals the Board of Immigration Appeals’ (“BIA”) 

affirmance of Immigration’s decision denying him withholding of removal, and relief 

under the Convention Against Torture (“CAT”). On appeal, Mr. Nunez-Manjarrez did not 

specifically challenge the Immigration Judge’s finding that he had not timely filed his 

application for asylum. The BIA affirmed the remainder of the Immigration Judge’s 

order, finding that Mr. Nunez-Manjarrez had not sufficiently shown past persecution or 

that he would suffer any future persecution because of certain statutorily protected 

grounds, and that Mr. Nunez-Manjarrez did not meet his burden of showing that torture 

would be more likely than not to occur if he were removed. We will affirm.

I. Background

Mr. Nunez-Manjarrez is a Mexican native and citizen who entered the United 

States without inspection on August 22, 2005. His entire family lives in La Barca, a town 

in Jalisco, Mexico. His father and grandfather own land in La Barca and, according to 

Mr. Nunez-Manjarrez, had been extorted by local gangs because of their success in 

growing crops and raising livestock. Two other members of Mr. Nunez-Manjarrez’s 

family suffered ill fates while Mr. Nunez-Manjarrez was in the United States. The first 

family member, a cousin on his father’s side, mysteriously disappeared after leaving a job 

interview, and the second family member, on his mother’s side, was killed. Although 

Mr. Nunez-Manjarrez does not know who committed these acts, he believes a criminal 

gang known as the “Zetas” was responsible. Id. Mr. Nunez-Manjarrez himself, however, 
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was never harmed while in Mexico. He also did not point to any other instances of harm 

coming to his immediate or extended family, which features up to twenty cousins, twenty

uncles, and grandparents. 

Removal proceedings commenced against Mr. Nunez-Manjarrez on August 12, 

2011. On August 31, 2011, Mr. Nunez-Manjarrez appeared before the York Immigration 

Court and requested time to submit an application of asylum, which he did on October 

19, 2011, along with an application for withholding of removal and relief under CAT. 

Proceedings continued in the Philadelphia Immigration Court on July 1, 2013, where Mr. 

Nunez-Manjarrez conceded that his asylum application was untimely. Mr. NunezManjarrez also stated at that time that he would be requesting voluntary departure as 

alternative relief. After an individual hearing on November 14, 2016, the Immigration 

Judge found that Mr. Nunez-Manjarrez’s application for asylum was time barred and that 

he had not met his burden with respect to withholding from removal and relief under 

CAT. On timely appeal, the BIA affirmed the Immigration Judge’s ruling on June 21, 

2017. 

II. Jurisdiction and Standard of Review

The BIA had jurisdiction over Mr. Nunez-Manjarrez’s appeal pursuant to 8 C.F.R. 

§ 1003.1(b)(3). We have jurisdiction to review final orders of the BIA pursuant to 8 

U.S.C. § 1252(a)(1).

Although Mr. Nunez-Manjarrez has appealed the BIA’s decision, “we also review

the decision of the Immigration Judge, to the extent that the BIA adopted or deferred to 

the IJ’s analysis.” Ying Chen v. Att’y Gen., 676 F.3d 112, 114 (3d Cir. 2011) (citing 
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Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005)). To factual findings, we apply a 

deferential standard, accepting findings unless “‘a reasonable adjudicator would be 

compelled to arrive at a contrary conclusion.’” Camara v. Att’y Gen., 580 F.3d 196, 201 

(3d Cir. 2009) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir. 2005)). We 

review legal conclusions de novo, “‘but will afford Chevron deference to the BIA’s 

reasonable interpretations of statutes which it is charged with administering.’” Toussaint 

v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006) (quoting Kamara v. Att’y Gen., 420 F.3d 

202, 211 (3d Cir. 2005)).

III. Discussion

Mr. Nunez-Manjarrez sought withholding from removal pursuant to the 

Immigration and Nationality Act, which permits such withholding where “the alien’s life 

or freedom would be threatened in that country because of the alien’s race, religion, 

nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 

1231(b)(3)(A). Mr. Nunez-Manjarrez bore the burden of showing either past persecution 

on one of these grounds or, in the absence of past persecution, that he was more likely 

than not to suffer future persecution on one of these protected grounds. See 8 C.F.R. § 

1208.16(b). Mr. Nunez-Manjarrez conceded that he has not experienced past persecution. 

With respect to future persecution, the Immigration Judge found that Mr. NunezManjarrez’s family constituted a “particular social group” of which he was a part.

However, as aforestated, the Immigration Judge found, and the BIA affirmed, that Mr. 

Nunez-Manjarrez failed to show that he was more likely than not to suffer future 

persecution on account of his membership in that particular social group. 
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To this end, the Immigration Judge found that Mr. Nunez-Manjarrez could offer 

no evidence that the two members of his family who had been harmed were victims of 

targeted gang violence. The Immigration Judge also noted that all of Mr. NunezManjarrez’s family continues to live in the same town without incident. Although they 

have occasionally been extorted by local gangs, they were able to stop paying those 

gangs without violent repercussions. Both the Immigration Judge and the BIA imply that 

Mr. Nunez-Manjarrez is motivated more by the general violence in Mexico than by fear 

of being specifically targeted. We have held, however, that “‘generally harsh conditions 

shared by many other persons do not amount to persecution.’” Al-Fara v. Gonzales, 404 

F.3d 733, 740 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)).

Thus, on the issue of withholding from removal, we find no error in the rulings of the 

BIA and Immigration Judge.

Mr. Nunez-Manjarrez also sought relief under CAT. To merit relief under CAT, 

Mr. Nunez-Manjarrez needed to show he was more likely than not to be tortured if 

removed to Mexico. 8 C.F.R. § 208.16(c)(2). We have stated that:

For an act to constitute torture under the [CAT] and the implementing 

regulations, it must be: (1) an act causing severe physical or mental pain or 

suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose; 

(4) by or at the instigation of or with the consent or acquiescence of a 

public official who has custody or physical control of the victim; and (5) 

not arising from lawful sanctions.

Kamara, 420 F.3d at 213 (alteration in the original) (quoting Auguste v. Ridge, 395 F.3d 

123, 151 (3d Cir. 2005)). The fourth element can also be satisfied where public officials 

show “willful blindness” to torture committed by other, third parties. Silva-Rengifo v. 
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Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007). The Immigration Judge found that Mr. NunezManjarrez offered no evidence to support this fourth element, thus failing to show he was 

more likely than not to be tortured upon his return to Mexico. The BIA largely adopted 

the Immigration Judge’s decision in affirming, and we agree, as well. Mr. NunezManjarrez argued generally about the rival drug gangs that controlled the area but could 

not show that the Mexican government was willfully blind to the danger or that he was 

more likely than not to be tortured by one or more of the gangs. As a result, Mr. NunezManjarrez simply did not meet his burden with respect to the fourth element.

IV. Conclusion

For the foregoing reasons, we will affirm the determination of the Board of 

Immigration Appeals.