Granada-Rubio v. Lynch , 814 F.3d 35 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1752
ELENA GRANADA-RUBIO; GERSON ELIAS MEJIA-GRANADOS;
C.M.M.G., a minor,
Petitioners,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Stahl and Lynch, Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioners.
Alexander J. Lutz, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Anthony C. Payne, Assistant Director, Office
of Immigration Litigation, on brief for respondent.
February 24, 2016
Per curiam. Elena Granada-Rubio1 and two of her sons,
Gerson Elias Mejia-Granados and "C.M.M.G.," a minor, all natives
and citizens of El Salvador, petition for review of a May 29, 2015,
order of the Board of Immigration Appeals ("BIA"). The BIA order
affirmed an Immigration Judge's ("IJ") decision to deny Granada-
Rubio's asylum application, of which her sons were derivative
beneficiaries, as well as her requests for withholding of removal
and protection under the Convention Against Torture ("CAT"). We
deny the petition.
I.
Granada-Rubio, Mejia-Granados, and C.M.M.G. illegally
entered the United States, as admitted in responses to Notices to
Appear served in December 2011. Granada-Rubio applied for asylum
for herself and her two sons, as well as withholding of removal
and protection under the CAT.2 In the application, Granada-Rubio
described receiving phone calls in October 2011, while she was
living in El Salvador, from a member of the Mara Salvatrucha ("MS-
13") gang who asked for money and "said he knew that [her] husband
was living in the United States and that if [she] did not cooperate
1 On her asylum application, her name appears as "Elena
Isabel Granados de Mejia." We refer to her as "Granada-Rubio" to
maintain consistency with the petition for review filed with this
court.
2 Granada-Rubio has a third son who was not included in
the application.
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with him he was going to kill [her] and [her] three children."
The application stated that Granada-Rubio is "afraid to return to
[her] country because [she] honestly believe[s] that [she] will be
either injured or tortured or killed by this gang and the
government will do nothing to protect [her]."
At a November 8, 2013, hearing before an IJ, Granada-
Rubio testified to the following events.3 On October 25, 2011,
someone who identified himself as being from the MS-13 gang called
Granada-Rubio at her house, said that he knew her husband and her
children, and said that he knew her husband was in the United
States. The caller demanded $500 a month "as rent" and threatened
to kill her or her children if she did not comply. Granada-Rubio
said that she could not give him that amount of money. The caller
replied by asking if she loves her children and said that if she
did not comply she "knew what was going to happen to them." The
caller also said that if Granada-Rubio told the police, "things
would get even worse." Granada-Rubio did not call the police
"because sometimes the police are even part of the same thing . . .
[and] [s]ometimes they will report things that have been said to
them because they're also afraid." Granada-Rubio disconnected her
3 Granada-Rubio's case was consolidated with those of her
two sons; they are included on her I-589 Application for Asylum
and for Withholding of Removal as "Asylum Derivative[s]." The
sons remained outside the hearing room during the November 8, 2013,
hearing.
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phone, but the caller called again after she reconnected it. On
November 10, 2011, Granada-Rubio left El Salvador with her children
for the United States because "she was afraid for [her] life."
She believes that if she returns to El Salvador, members of the
MS-13 gang will torture or target her.
The IJ issued an oral decision denying Granada-Rubio's
application for relief and ordering her and her sons removed to El
Salvador. The IJ concluded that Granada-Rubio had failed to
establish past persecution based on a protected ground and that
Granada-Rubio's "fear of victimization by gang members for
economic reasons will not support a claim of persecution as members
of a particular social group because there is nothing to
differentiate members of such a group from other persons in the
general populace who have been or might become victims of crime."
The IJ also explained that Granada-Rubio fails to qualify for CAT
protection "because the record does not establish a clear
likelihood that a public official in El Salvador would likely
acquiesce in or exhibit willful blindness toward any torture
inflicted by gang members that the respondent fears."
The BIA affirmed the IJ's determinations and dismissed
Granada-Rubio's appeal on May 29, 2015. This petition for review
followed. We discuss the BIA's reasoning below.
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II.
"Where the BIA affirms the IJ's ruling but adds its own
discussion, we review both decisions." Panoto v. Holder, 770 F.3d
43, 46 (1st Cir. 2014). "We will uphold a decision so long as it
is 'supported by reasonable, substantial, and probative evidence
on the record considered as a whole.'" Id. (quoting Thapaliya v.
Holder, 750 F.3d 56, 59 (1st Cir. 2014)). "That the record
supports a conclusion contrary to that reached by the BIA is not
enough to warrant upsetting the BIA's view of the matter; for that
to occur, the record must compel the contrary conclusion." Lopez
de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007). We
review questions of law de novo. Ziu v. Gonzales, 412 F.3d 202,
204 (1st Cir. 2005) (per curiam).
A. Asylum and Withholding of Removal
To qualify for asylum, an alien must establish, inter
alia, that she is unwilling or unable to return to her home 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." 8 U.S.C. § 1101(a)(42); see
8 U.S.C. § 1158(b)(1). The BIA agreed with the IJ's conclusions
that (a) Granada-Rubio did not establish persecution, and (b)
Granada-Rubio did not establish that she was part of "a particular
social group for asylum purposes." Either of these conclusions
would be sufficient to support a denial of Granada-Rubio's asylum
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application. See 8 U.S.C. § 1101(a)(42). Assuming, arguendo,
that Granada-Rubio established that she has faced or will face
persecution, the IJ and the BIA were warranted in finding that
Granada-Rubio has not been persecuted based on her membership in
a legally cognizable particular social group.
"To prove persecution on account of membership in a
particular social group, an alien must show at a bare minimum that
she is a member of a legally cognizable social group." Mendez-
Barrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010). "[A]n
applicant seeking asylum or withholding of removal '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. 227, 237 (BIA 2014)).
Granada-Rubio, as lead respondent, argued to the BIA
that "the MS-13 is targeting her because they know that she is
married to a man who is living and working in the United States
and therefore, has the capacity to pay the $500 monthly. [Granada-
Rubio] is a target because she is a member of a particular
group . . . ." Granada-Rubio4 argues to us that she is "a member
4 Here and going forward, we use "Granada-Rubio" to refer
to Granada-Rubio, Mejia-Granados, and C.M.M.G., unless specified
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of a particular social group of women with children whose
husband[s] live and work in the U.S. and it is known to society as
a whole that the husbands live in the U.S." To the extent the
social group proposed now was not proposed to the BIA, it is
unexhausted. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.
2004) ("[T]heories not advanced before the BIA may not be surfaced
for the first time in a petition for judicial review of the BIA's
final order.").
Addressing the extent of Granada-Rubio's claim that is
exhausted, the BIA supportably found that she has not presented
evidence that such a proposed group is socially distinct. See
Matter of M-E-V-G-, 26 I. & N. Dec. at 238 ("[T]he 'social
distinction' requirement considers whether those with a common
immutable characteristic are set apart, or distinct, from other
persons within the society in some significant way. In other
words, if the common immutable characteristic were known, those
with the characteristic in the society in question would be
meaningfully distinguished from those who do not have it."); Matter
of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014) ("To have the
'social distinction' necessary to establish a particular social
otherwise, as all three have petitioned for review. The government
maintains that Granada-Rubio's sons are derivative beneficiaries
of only her asylum claim, not of her withholding of removal and
CAT protection claims. Because we deny the petition, we need not
reach this question.
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group, there must be evidence showing that society in general
perceives, considers, or recognizes persons sharing the particular
characteristic to be a group.").
Indeed, court precedent supports the BIA's conclusion.
See Beltrand-Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012)
(rejecting petitioner's "argument that he would likely be subject
to persecution because he may be deemed wealthy because of his
status as a returning expatriate from the United States," and
explaining that "we have rejected proposed social groups 'based
solely on perceived wealth, even if signaling an increased
vulnerability to crime,' . . . regardless of why one is perceived
as wealthy" (quoting Garcia–Callejas v. Holder, 666 F.3d 828, 830
(1st Cir. 2012) (per curiam))); Sicaju-Diaz v. Holder, 663 F.3d 1,
4 (1st Cir. 2011) ("[A] class of persons identified partly based
on comparative wealth could be the subject of persecution on the
basis of that status. . . . But being part of a landowning class
is quite different than happening to be wealthy or perceived to be
wealthy because of owning a large house, belonging to a well known
family or 'returning to Guatemala after a lengthy residence in the
United States.'").
Because Granada-Rubio does not qualify for asylum, she
also does not qualify for withholding of removal. See Ang v.
Gonzales, 430 F.3d 50, 58 (1st Cir. 2005); Makhoul, 387 F.3d at 82("A claim for withholding of deportation demands that the alien
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carry a more stringent burden of proof than does an asylum
claim. . . . Thus, if an alien cannot establish asylum eligibility,
his claim for withholding of deportation fails a fortiori." (citing
8 U.S.C. § 1231(b)(3)(A))).
B. Protection Under the CAT
Granada-Rubio's claim for protection under the CAT fails
as well. The IJ and the BIA noted, with support in the record,
that Granada-Rubio has not shown that she will be subject to
torture through the acquiescence or willful blindness of a public
official. See Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir.
2014) ("A petitioner seeking CAT protection must show 'it is more
likely than not' that he would be subject to torture 'by or with
the acquiescence of a government official.'" (quoting Nako v.
Holder, 611 F.3d 45, 50 (1st Cir. 2010))); 8 C.F.R. § 1208.18(a)(1)
(explaining that under the CAT, "[t]orture is defined as any act
by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . when such pain or
suffering is 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").
Neither Granada-Rubio's testimony, that "sometimes the
police are even part of the same thing . . . . Sometimes they
will report things that have been said to them because they're
also afraid. . . . Sometimes they just don't help you," nor the
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country report she submitted is sufficient to support a claim of
government acquiescence. The country report she submitted
includes that there have been complaints of torture and "cruel,
inhumane, or degrading treatment or punishment perpetrated by
public officials," and that the government of El Salvador has not
effectively implemented the criminal penalties for public
corruption. However, this report does not compel the conclusion
that Granada-Rubio will have "pain or suffering . . . 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. § 1208.18(a)(1); see also Makieh v. Holder, 572 F.3d 37,
44 (1st Cir. 2009) (evaluating a claim for CAT protection and
explaining that "the administrative record does not . . . support
a conclusion contrary to that reached by the agency, much less
compel a contrary conclusion").5
The petition for review is denied.
5 Granada-Rubio also argues that "[e]quity, fairness, and
the spirit behind our immigration laws call this Honorable Court
to grant [Granada-Rubio] asylum." However, Congress has specified
that there are only certain conditions under which the Secretary
of Homeland Security or the Attorney General can grant asylum.
See 8 U.S.C. § 1158(b).
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