Aguilar de Guillen v. Sessions , 902 F.3d 28 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2095
IRMA YOLANDA AGUILAR-DE GUILLEN, et al.,
Petitioners,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Thompson
Circuit Judges.
Carlos E. Estrada, Ashley M. Edens, and Estrada Law Office on
brief for petitioner.
Jane T. Schaffner, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Paul Fiorino, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.
August 27, 2018
THOMPSON, Circuit Judge. Petitioner,1 Irma Yolanda
Aguilar-De Guillen, seeks judicial review of a Board of Immigration
Appeal ("BIA") opinion affirming an Immigration Judge's ("IJ")
decision denying her asylum relief, withholding of removal under
the Immigration and Nationality Act ("INA"), and protection
pursuant to the Convention Against Torture Act ("CAT") and ordering
her removed. She claims the BIA erred in affirming the IJ's
finding that: (1) she did not suffer past persecution on account
of a protected ground; (2) she did not have a well-founded fear of
future persecution; and (3) she was not entitled to protection
under CAT.2 Finding no merit to her arguments, we affirm.
A. BACKGROUND
1. Life in El Salvador3
Petitioner was born in El Salvador in 1985. In 2006,
she married Miguel Ángel and the pair had two children (who, as
minors, are co-petitioners in this case). In El Salvador, she
owned and operated a fruit and vegetable store with her husband.
On several occasions, while her husband was off working as a taxi
driver (his second job), gang members threatened to kill them
1 Aguilar-De Guillen's two minor children are co-petitioners in
this case, and we refer to the three collectively as "Petitioner."
2 Petitioner has not appealed the denial of her withholding of
removal claim pursuant to the INA.
3 These facts are elicited from Petitioner's hearing testimony,
which the IJ found credible.
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unless their business paid monthly "rent" to the respective gang.
The gang threatened to throw a grenade into her home if she refused
to pay. The gang members also informed Petitioner that they knew
where her children went to school and she interpreted this as an
additional threat. While four of the death threats were made via
hand-written notes between December 2012 and January 2013, she
also received several phone calls during that time with similar
threats. She reported these incidents to her husband, who in turn
reported them to the police. The police informed the two that
they would "look into it" and advised Petitioner to turn off her
telephone to avoid future threating calls. Once she reached out
to a private detective about these threats and he agreed to be on
the lookout at the store, the gang ceased making any threats.
While no one on Petitioner's side of the family had
suffered any gang violence, both her husband's nephew and his
brother were killed by a gang after they refused to join. In April
2013, her husband came to the United States, and in June 2014,
Petitioner followed with their two children. She traveled to the
United States through the U.S./Mexico border without inspection.4
Upon Petitioner's entry to the United States, Petitioner
was apprehended and detained. Thereafter, immigration officials
4 Since moving to the United States, she has not received any
threats, their business closed, and they sold her husband's taxi.
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filed a notice to appear alleging removability pursuant to §
212(a)(6)(A)(i) of the INA. Petitioner conceded removability and
later applied for relief in the form of asylum, withholding of
removal under the INA, and protection under CAT. Petitioner cited
the several gang death threats she had received while living in El
Salvador as the cause of her traveling to the United States and
why she sought relief from removal.
2. The IJ Hearing
A hearing was held before the IJ on her application in
March 2017, wherein Petitioner testified about her life in El
Salvador. In support of her request for relief, in addition to
her own testimony, Petitioner submitted a country condition report
highlighting the violence in El Salvador relating to gangs and the
police's ongoing struggle to manage the situation.
After the hearing, the IJ denied her application for
relief. Although the IJ found Petitioner credible, consistent,
and "extremely sympathetic," he found that she had not suffered
past persecution or held a well-founded fear of future persecution
on a protected ground as necessary to qualify for asylum relief.
As to a well-founded fear of future persecution, the IJ noted that
she had also failed to prove that any persecution was related or
connected to her membership in a protected group, "as the crimes
[she] suffered . . . appear[ed] to be widespread according to the
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country conditions." The IJ found the purpose behind the death
threats was extortion, and that Petitioner had failed to present
any evidence that would support an inference that any future
persecution would be on account of her familial relationship.5 The
IJ also found that Petitioner had failed to show government
involvement--either through its inability or unwillingness to
protect her from harm. Because Petitioner was unable to establish
asylum, she necessarily failed to meet the requirements for
withholding of removal under INA. Lastly, the IJ also denied her
CAT relief on the basis that she had not proved that she would
likely face torture at the hands of the El Salvadoran government
if she were to return. The IJ ordered Petitioner removed.
3. Appeal to BIA
Petitioner timely appealed to the BIA, which agreed with
the IJ and therefore dismissed her appeal. The BIA held that "the
record in this case [did] not indicate that the [petitioner's]
family membership, or her familial relationship to her husband,
was or will be at least one central reason for the harm she suffered
or may suffer upon her return to El Salvador"--rather, the record
demonstrated that the gang members were motivated by the desire to
5 While Petitioner had not identified for the IJ the particular
social group to which she claimed she belonged, the IJ nevertheless
interpreted her claim as one relying on her familial relationship
to her husband.
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increase their wealth through extortion. The BIA also offered two
reasons for rejecting Petitioner's new claim that she had a well-
founded fear of future persecution on account of being a member of
another particular social group: "single mothers who are living
without male protection and cannot relocate elsewhere in the
country." First, it did not find that this group was "cognizable
as a particular social group" pursuant to asylum law because it
was not defined with particularity; second, to the extent her
argument regarding future persecution related to a general fear of
gang violence, that too was not a recognizable ground for asylum.
The BIA then quickly disposed of her withholding of removal claim
before discussing her CAT claim. Like the IJ, the BIA found that
because Petitioner had not met her burden for asylum, it followed
she had not satisfied the higher standard of a clear probability
of persecution on account of a protected ground as required for
withholding of removal. As for her CAT claim, the BIA determined
that Petitioner had not established "that she is more likely than
not to be tortured in her country, by or at the instigation of or
with the consent or acquiescence . . . of a public official or
other person acting in an official capacity." An order
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subsequently followed dismissing her appeal, and she now seeks
review of that dismissal by this Court.6
B. DISCUSSION
Before us, Petitioner assigns three errors to the BIA's
decision, specifically, that it erred in affirming the IJ's finding
that: (1) she did not suffer past persecution on account of being
a member of a protected class; (2) she did not have a well-founded
fear of future persecution (irrespective of any past persecution);
and (3) she was not entitled to protection under the CAT.
1. Standard of Review
Where, as here, "the BIA adopts and affirms an IJ's
decision, we review the IJ's decision to the extent of the
adoption, and the BIA's decision as to any additional ground."
Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (internal
quotation marks, citation and brackets omitted). We review the
IJ's findings of fact relied on by the BIA in support of its
decision for substantial evidence, meaning we accept the findings
"as long as they are supported by reasonable, substantial and
6 The BIA also declined to remand this case to the IJ for
consideration of new evidence Petitioner sought to introduce: a
U.S. Department 2016 Human Rights Report and a 2017 Congressional
Research Service Report because the Petitioner offered no
explanation as to why the documents or the information contained
therein was unavailable for presentation at her hearing. But the
BIA went on to determine that the information, if considered, would
not alter the outcome. Petitioner has not appealed this ruling.
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probative evidence on the record considered as a whole." Singh v.
Holder, 750 F.3d 84, 86 (1st Cir. 2014) (internal quotation marks
and citation omitted). Only where the record compels a contrary
outcome will we reject the IJ's findings. Thapaliya v. Holder,
750 F.3d 56, 59 (1st Cir. 2014).
Moreover, a BIA conclusion regarding the definition and
scope of the statutory term "particular social group" is a purely
legal determination that we review de novo. Castañeda-Castillo v.
Holder, 638 F.3d 354, 363 (1st Cir. 2011) (citation omitted). We
do, however, give deference "to the interpretation given the term
'social group' by the BIA even if we conclude that the term is
susceptible to more than one permissible interpretation." Elien
v. Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004) (citation omitted).
2. Asylum Relief
A petitioner may be eligible for asylum if he or she can
establish persecution on account of a legally protected ground in
one of two ways: (1) past persecution or (2) a well-founded fear
of future persecution. Albathani v. INS, 318 F.3d 365, 373 (1st
Cir. 2003); 8 U.S.C. § 1158(b)(1); § 1101(a)(42)(A); 8 C.F.R. §
208.13. "[R]ace, religion, nationality, membership in a
particular social group, or political opinion" are grounds
specifically enumerated in asylum law. Olujoke v. Gonzáles, 411
F.3d 16, 21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)).
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"To show that the circumstances the applicant endured constitute
persecution for purposes of asylum relief, she must show 'a certain
level of serious harm (whether past or anticipated), a sufficient
nexus between that harm and government action or inaction, and a
causal connection to one of the statutorily protected grounds.'"
Martínez-Pérez v. Sessions, 897 F.3d 33, 39 (1st Cir. 2018)
(quoting Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir.
2012)).
If a petitioner can prove she suffered past persecution
while in her home country, a rebuttable presumption that her fear
of future persecution is well-founded is triggered.7 8 C.F.R. §
208.13(b)(1); see Harutyunyan v. Gonzales, 421 F.3d 64, 67 (1st
Cir. 2005). "Without past persecution, an asylum applicant can
still show a well-founded fear of future persecution by showing
that he or 'she genuinely fears future persecution and that her
fears are objectively reasonable.'" Martínez-Pérez, 897 F.3d at
39 (quoting Carvalho-Frois, 667 F.3d at 72) (citation omitted).
In either case, however, "[a]n inability to establish any one of
7 To rebut this presumption, the government is tasked with the
burden of demonstrating by a preponderance of the evidence that
either: (1) "[t]here has been a fundamental change in circumstances
such that the applicant no longer has a well-founded fear of
persecution in the applicant's country of nationality"; or (2)
"[t]he applicant could avoid future persecution by relocating to
another part of the applicant's country of nationality . . . and
under all the circumstances, it would be reasonable to expect the
applicant to do so." 8 C.F.R § 208.13(b)(1)(i)(A)-(B).
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the three elements of persecution will result in a denial of [the]
asylum application." Carvalho-Frois, 667 F.3d at 73.
a. Past Persecution
Petitioner challenges all three grounds by which the IJ
and the BIA rejected her claim of past persecution: severity,
nexus, and government involvement. However, because Petitioner
must establish every element of her claim to be entitled to relief,
see Carvalho-Frois, 667 F.3d at 72, we begin and end our discussion
with the nexus prong. Id. (For simplicity's sake, this Court
proceeds directly to petitioner's weakest argument.)
Petitioner maintains that she was persecuted because of
her familial relationship to her husband and the BIA erred by not
concluding that it was clearly erroneous for the IJ to find that
she did not establish past persecution on account of such grounds.8
We will assume without deciding that the harm Petitioner suffered
constituted past persecution and that her membership in her
husband's family constitutes a cognizable social group. See
Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004) (because the
8 She also claims that her status as a small business owner should
too be protected and recognized by our laws. However, as the
government correctly flags, her failure to raise this argument
before the IJ or BIA means it is not properly before us to consider.
See Ishak v. Gonzales, 422 F.3d 22, 32 (1st Cir. 2005) (This Court
"lack[s] jurisdiction to review issues not raised before the BIA.")
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issue was not dispositive, we assumed without deciding that the
group the petitioner was a member of was a political organization).
Petitioner's protected ground needs to be "at least one
central reason" for the persecution she suffered for asylum
purposes. Aldana-Ramos v. Holder, 757 F.3d 9, 18 (1st Cir. 2014)
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). "[A]sylum is still proper
in mixed-motive cases even where one motive would not be the basis
for asylum, so long as one of the statutory protected grounds is
'at least one central reason' for the persecution." Id.; accord
Villalta-Martinez v. Sessions, 882 F.3d 20, 28 (1st Cir. 2018).
In other words, "the presence of a non-protected motivation does
not render an applicant ineligible for refugee status." Aldana-
Ramos, 757 F.3d at 19. However, a petitioner's "speculation or
conjecture, unsupported by hard evidence is insufficient to
establish nexus." Ruiz-Escobar v. Sessions, 881 F.3d 252, 259 (1st
Cir. 2018) (internal quotation marks and citation omitted).
Petitioner's claim of past persecution fails because she
does not point to any evidence to support an inference that her
membership in her husband's family was at least one of the reasons
she suffered any harm, much less does she point to record evidence
compelling us to disagree with the BIA's affirmance of the IJ's
findings. See Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir.
2012) ("[W]e will reverse only if the record is such as to compel
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a reasonable factfinder to reach a contrary determination.") As
the BIA noted, the only reasonable inference to be made by the
evidence Petitioner presented at the hearing before the IJ is that
the gang members targeted Petitioner and her family to increase
their wealth through extortion. Petitioner introduced no direct
(or circumstantial) evidence that the gang's threats had anything
to do with her membership in her husband's family. See Sosa-Perez
v. Sessions, 884 F.3d 74 (The petitioner "offer[ed] no direct
evidence to support her assertion that the assailants knew that
she was a member of the family that she alleges they were
targeting, let alone that they attacked her on that basis.")
While Petitioner maintains that both the IJ and BIA
failed to properly consider "mixed motive" persecution, we
disagree. A review of both decisions quickly reveals that they
considered the possibility of her familial relationship being only
one central cause of the persecution, but both concluded Petitioner
had failed to present any evidence to support her allegation. The
IJ specifically acknowledged "that there often can be mixed motives
and that family can serve as a cognizable particular social
group."9 Meanwhile, the BIA also acknowledged that family
9 While we opt to look at some of the language of the IJ decision
as a means to quickly dispose of certain arguments made by
Petitioner, as noted, our review of the IJ decision is limited to
the portions adopted by the BIA. See Sunoto, 504 F.3d at 59-60;
Romilus, 385 F.3d at 5. Here, the only portion adopted was the
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membership can constitute a social group but that here, the
evidence showed that "gang members targeted [Petitioner] for no
other reason than to increase their wealth through extortion."
Nothing in the IJ's or BIA's decisions indicates that either the
IJ or the BIA felt that, once the IJ found the gang was motivated
by increasing its own wealth, the IJ was precluded from finding
that they also targeted Petitioner due to her familial relationship
(or, presumably, any other reason) as she maintains. We agree
with Petitioner that the gang could have had more than one motive
that would have resulted in Petitioner meeting the nexus prong,
but we also see nothing in the record to compel such conclusion.
Accordingly, Petitioner failed to meet a necessary requirement to
establish past persecution.
b. Future Persecution
Next, Petitioner argues that irrespective of her ability
to establish past persecution, she has established a well-founded
fear of future persecution if she were to return to El Salvador.
In addition to arguing she fears persecution on the basis of her
familial relationship to her husband,10 she also adds that if she
were to return to El Salvador, she would be a single mother without
IJ's credibility finding. Otherwise, our review is limited to the
BIA decision. Id.
10 For the same reasons she failed to meet the nexus requirement
to establish past persecution, she also fails to do so to prove a
well-founded fear of future persecution.
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the protection of a male figure and unable to relocate within the
country, and that this is a protected ground.
A party seeking asylum "based on 'membership in a
particular social group' must establish that the group is: (1)
composed of members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within
the society in question.'" Paiz-Morales v. Lynch, 795 F.3d 238,
244 (1st Cir. 2015) (quoting Matter of M-E-V-G-, 26 I&N Dec. 277,
237 (BIA 2014)). The BIA concluded that Petitioner failed to
establish both prongs two and three in her proposed group of
"single mothers who are living without male protection and cannot
relocate elsewhere in the country."
While Petitioner attempts to distinguish her case from
the facts and holding of Perez-Rabanales v. Sessions, 881 F.3d 61,
66 (1st Cir. 2018), wherein we found that the proposed social
grouping "Guatemalan women who try to escape systemic and severe
violence but who are unable to receive official protection" failed
to satisfy the particularity and social distinctiveness
requirements, her discussion falls short. After outlining the
facts and holding in Perez-Rabanales, she makes a boilerplate
assertion that "her social group of single mothers lacking male
protection and unable to relocate is socially distinct, easily
perceived by society, and not defined by the persecution of its
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members" without telling us exactly how that is the case.
Petitioner does not provide us with a meaningful discussion of how
her proposed group satisfies the particularity and social
distinctiveness requirements any more than the petitioner in
Perez-Rabanales. Instead, she points to two things broadly to
support her argument: (1) her "credible testimony", and (2) "the
numerous corroborating documents submitted by [her] evidencing the
pervasive and systemic violence against women, and in particular
single mothers, in El Salvador." However, Petitioner's reliance
on her testimony and corroborating documents is misplaced because
the question is whether her proposed social group generally--not
her circumstances specifically--meet the requirements of a
"particular social group" as a matter of law. See Elien, 364 F.3d
at 397.
In any event, our de novo review yields us to the same
outcome we reached in Perez-Rabanales. Even assuming the proposed
social group of "single mothers without the protection of a male
figure and unable to relocate in their country" satisfies prong
one, i.e., it is composed of members who share a common immutable
characteristic--it nevertheless fails prong two: being defined
with particularity. Like the proposed group in Perez-Rabanales,
"[t]he amorphous nature of [Petitioner's] sprawling group
precludes determinacy and renders the group insufficiently
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particular." Id. at 65. Her proffered social group is overly
broad and potentially encompasses all single mothers in El Salvador
who may find themselves unable to relocate in the country. See
id. Moreover, exactly what constitutes "without male protection"
is an "open question," and possibly a subjective determination.
See Paiz-Morales, 795 F.3d at 244-45. Accordingly, Petitioner's
attempt to qualify for asylum based on her membership in a social
group fails because she does not meet the particularity
requirement.11
c. Protection under the CAT
Lastly, Petitioner argues that, since the primary reason
her asylum application was denied was because the BIA affirmed the
IJ's finding that she did not meet the "nexus" requirement and
there is no requirement that the persecution be on the basis of a
protected ground under CAT, she should have been granted this form
of relief. She argues that the IJ did not properly consider her
claim of relief under CAT because it failed to consider the
voluminous country conditions reports she submitted depicting "the
rampant nationwide use of torture by . . . gangs."
Pursuant to Article 3 of CAT, the United States has an
obligation under international law not to "expel, return
(refouler) or extradite" a person to a country where there are
11 Given this, we need not reach prong three.
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"substantial grounds for believing that he [or she] would be in
danger of being subjected to torture." 8 C.F.R. § 208.16(c)(4).
An applicant seeking relief must show that he or she is "more
likely than not" to be tortured if removed to a particular country.
8 C.F.R. § 208.16(c)(4). The torture must be "inflicted by or at
the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity." 8 C.F.R.
§ 208.18(a)(1).
Contrary to Petitioner's assertion, the BIA did not
reject her asylum claim because of a lack of "nexus." Rather, the
BIA affirmed the IJ's finding that Petitioner had not shown that
she is more likely than not to be tortured in El Salvador. As was
the case in the past-persecution discussion, Petitioner wholly
fails to point to any record evidence that would compel us to reach
a different outcome. Instead, Petitioner takes issue with the
IJ's decision because it cites 2008 and 2012 opinions12--which
Petitioner characterizes as dated. But our review is limited to
"the reasoning provided by the [BIA]." Mejia v. Holder, 756 F.3d
64, 69 (1st Cir. 2014). The BIA noted the absence of record
evidence indicating a likelihood that a Salvadoran official would
acquiesce in any torture inflicted upon Petitioner by gang members,
12 The IJ cited to Amilcar-Orellana v. Mukasey, 551 F.3d 86, 92
(1st Cir. 2008), and Mayorga-Vidal v. Holder, 675 F.3d 9, 20 (1st
Cir. 2012), in its decision.
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and Petitioner has not articulated how the BIA got it wrong. Our
review of the record before us indicates the BIA's decision is
well supported, and it does not compel us to reach a different
outcome.
C. CONCLUSION
For the foregoing reasons, we deny the petition for
judicial review.
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