v.
U.S. Attorney General
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11504
Non-Argument Calendar
________________________
Agency No. A205-415-314
JUANA YESSENIA JUAN FRANCISCO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 28, 2019)
2
Before TJOFLAT, WILLIAM PRYOR and GRANT, Circuit Judges.
PER CURIAM:
Juana Yessenia Juan Francisco seeks review of the Board of Immigration Appeal’s (“BIA”) order reversing the Immigration Judge’s (“IJ”) decision granting her application for asylum and withholding of removal. She now petitions this Court for review, and we affirm the BIA’s reversal of the IJ’s decision.
Juan Francisco makes two arguments on appeal. First, she argues that the BIA “abused its authority by reviewing de novo the IJ’s factual findings . . . instead of applying the proper clear error standard.” Second, she argues that the harm she suffered in Guatemala was on account of her membership in a particular social group.[1] We address these arguments in turn.
I.
The BIA must review the factual findings of the IJ for clear error. 8 C.F.R. § 1003.1(d)(3); Zhou Hua Zhu v. U.S. Attorney Gen., 703 F.3d 1303, 1314 (11th Cir. 2013). Under clear error review, the “BIA must find that, on balance, the weight of the evidence so strongly militates against the IJ’s finding that the BIA ‘is left with the definite and firm conviction that a mistake has been committed.’”
[*2][*3]Zhou Hua Zhu, 703 F.3d at 1315 (citation omitted). “A factfinding may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.” Id. (citation omitted).
Juan Francisco argues that the BIA failed to “articulate a factual basis that could support [its] conclusion,” and instead “focused the basis for its reversal on the IJ’s supposed reliance on Matter of A-R-C-G-.” It’s true that the BIA criticized the IJ’s supposed reliance on Matter of A-R-C-G-. 2 It is also true, as Juan Francisco argues, that the IJ did not in fact rely on Matter of A-R-C-G-. That said, it’s unclear why the IJ brought up Matter of A-R-C-G- in the first place.[3] Whatever the reason, the BIA’s reversal of the IJ wasn’t based on the IJ’s supposed reliance on Matter of A-R-C-G-. Rather, the BIA concluded that there was no record evidence to support the IJ’s finding of a nexus between Juan Francisco’s harm and a protected ground. Whether that conclusion was correct is a question we answer below. But as for the standard, the BIA reviewed for clear error.
2 26 I. & N. Dec. 388 (B.I.A. 2014).
[*4]II.
The Attorney General or the Secretary of the Department of Homeland Security has discretion to grant asylum to an alien who meets the Immigration and Nationality Act’s definition of “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). The asylum applicant has the burden of proving “refugee” status. Id. § 1158(b)(1)(B)(i). To satisfy this burden, the alien must show (1) past persecution on account of a statutorily protected ground or (2) a well-founded fear that the statutorily protected ground will cause future persecution. 8 C.F.R. § 208.13(b).
To show a nexus between the persecution and a protected ground, the applicant must prove that one of the protected grounds “was or will be at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). The nexus requirement is not satisfied when the applicant merely shows that he or she was subjected to acts of private violence or criminal activity. See Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam) (citation omitted).
[*5]The BIA reversed the IJ’s finding that Juan Francisco demonstrated a nexus between her alleged persecution and her membership in “one of the enumerated bases.”4 Reviewing for clear error, the BIA concluded that there was no record evidence supporting the IJ’s conclusion. Our independent review of the record yields the same conclusion: though the harm Juan Francisco suffered was admittedly awful, it does not appear that she suffered it on account of her race or membership in a social group. The IJ’s conclusion to the contrary was clearly erroneous.
Juan Francisco testified at the IJ hearing that she was raped by a bus driver. When asked by the IJ whether she knew why the bus driver raped her, she said “I don’t know now. What happened was I was the last person to stay on the bus.” When asked by government counsel why the bus driver raped her, Juan Francisco answered again, “I don’t know. I don’t know the reason why he harmed me that way.” Later in the hearing, Juan Francisco’s counsel even admitted that “the [bus driver’s] crime does not fall under one of the five enumerated grounds of asylum.” Far from “overrid[ing] or disregard[ing] evidence in the record” or relying “simply on its own interpretation of the facts,” Matter of A-B-, 27 I. & N. Dec. 316, 341
[*6](A.G. 2018) (citation omitted), the BIA carefully reviewed the record and found that no evidence supported the IJ’s decision.
III.
The BIA reviewed the IJ’s decision for clear error. It concluded that the IJ erred by finding that Juan Francisco was persecuted based on her race or membership in a specific social group. The BIA was correct, so we accordingly affirm its decision and deny Juan Francisco’s asylum petition. [5]
PETITION DENIED.