De Abarca v. Holder, Jr. ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1081
RITA NELLY CONSTANZA DE ABARCA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.
Stephen M. Born on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
William C. Peachey and Lindsay Corliss, Office of Immigration
Litigation, on brief for respondent.
July 9, 2014
LIPEZ, Circuit Judge. Rita Nelly Constanza de Abarca, a
citizen of El Salvador, entered the United States without being
admitted or paroled. Detained after an Immigration and Customs
Enforcement raid at her place of employment, she subsequently filed
applications for asylum, withholding of removal, and relief under
the Convention Against Torture. An Immigration Judge denied
Constanza's applications for relief; the Board of Immigration
Appeals subsequently dismissed her appeal. Constanza now petitions
for review of the BIA's order. Applying the deferential standard
of review that we must accord to the agency's factfinding, we deny
the petition.
I.
We briefly recount the facts as alleged by petitioner and
credited by the Immigration Judge.1 Rita Nelly Constanza de Abarca
("Constanza") is a citizen of El Salvador who has three sons --
Jairo (approximately 14 years old at the time she left El
Salvador), Marlon (12), and Francisco (11). On March 23, 2006, she
entered the United States without inspection, seeking economic
opportunity that would allow her to bring her sons, left behind
with their grandparents, to the United States. As her eldest son
Jairo was getting older, he was facing increasing pressure to join
1
The Immigration Judge found petitioner to be credible and
therefore accepted her version of the facts. The Attorney General
does not challenge this credibility determination or dispute the
facts as alleged by petitioner.
-2-
one of the prominent gangs, or "maras," in El Salvador. She wanted
to remove her sons from those dangerous conditions.
On March 6, 2007, agents from United States Immigration
and Customs Enforcement raided a factory where Constanza worked.
She was arrested and detained for nine days. During her detention,
Constanza contacted her sons in El Salvador and learned that while
she had been in the United States, one of the maras (specifically
the MS-13 gang) had been aggressively recruiting Jairo. He had
resisted their efforts. As a result, the gangmembers had
threatened him and his brothers with violence.
In February 2008, Constanza applied for asylum, as well
as withholding of removal and relief under the Convention Against
Torture ("CAT"), relying on the perceived threat of violence from
the maras against her if she returned to El Salvador and her son
continued to resist joining them. That same year, after MS-13
attempted to frame Jairo for a murder, he fled to the United
States. In response, MS-13 threatened to kill Constanza's other
children if they did not reveal Jairo's whereabouts. Marlon and
Francisco stopped attending school to avoid the maras. Constanza
believes that Jairo's absence would make her the primary target of
the maras' violence if she were to return to El Salvador.
On March 7, 2011, the Immigration Judge ("IJ") held a
hearing on Constanza's case. Though the IJ determined that her
-3-
application for asylum was time-barred,2 she assumed arguendo that
Constanza timely filed her asylum application or established an
exception to the time bar, and proceeded to the merits. Constanza
was the only person to testify in support of her application,
recounting the events and circumstances described above. The IJ
found Constanza to be a credible witness, but nonetheless found her
ineligible for asylum. Specifically, the IJ concluded that the
particular social group to which she belonged ("mother[s] of []
individual[s] who resisted gang activity") was overly broad and
lacking in the requisite social visibility to be the basis for
persecution, that she had not experienced past persecution, and
that she had failed to prove a well-founded fear of future
persecution. On that basis, the IJ concluded that Constanza was
not entitled to asylum, withholding of removal, or relief under
CAT.
Constanza appealed the IJ's decision to the Board of
Immigration Appeals ("BIA"). On December 19, 2012, the BIA upheld
the IJ's decision on slightly different reasoning. The BIA first
2
Pursuant to 8 U.S.C. § 1158(a)(2)(B) an asylum applicant
must demonstrate "by clear and convincing evidence that the
application has been filed within 1 year after the date of the
[applicant's] arrival in the United States." Constanza arrived in
the United States on March 23, 2006, and did not apply for asylum
until February 12, 2008, well after the one-year deadline. The IJ
found that Constanza failed to show "extraordinary circumstances"
or "changed circumstances" that would warrant an exception to the
time bar under § 1158(a)(2)(D). This time bar did not apply to her
applications for withholding of removal and relief under CAT.
-4-
remarked that the IJ did not, as Constanza claimed, misunderstand
the social group that Constanza had invoked. Nevertheless, the
BIA, responding to its understanding of Constanza's claim, defined
the social group at issue as the "nuclear family," a narrower
social group than "mother[s] of [] individual[s] who resisted gang
activity," the group cited by the IJ. The BIA acknowledged that,
under First Circuit precedent, the nuclear family can be a social
group that is the target of persecution, Gebremichael v. INS, 10
F.3d 28, 36 (1st Cir. 1993), but nonetheless found that Constanza
failed to show causation -- namely, that she would be persecuted as
a result of her kinship. The BIA also affirmed the denial of
withholding of removal and relief under CAT, which require a higher
burden of proof. The BIA thus ordered Constanza removed to El
Salvador. This timely appeal followed.
II.
We review on appeal "the BIA's decision as well as any
portions of the IJ's opinion adopted by the BIA." Peña-Beltre v.
Holder, 622 F.3d 57, 61 (1st Cir. 2010). We examine the BIA's
legal conclusions de novo and its factual findings under the
substantial evidence standard, Soeung v. Holder, 677 F.3d 484, 487
(1st Cir. 2012), accepting the agency's factfinding unless the
evidence "would compel a reasonable factfinder to reach a contrary
conclusion," Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009).
-5-
A noncitizen seeking asylum "must establish his or her
status as a refugee." Soeung, 677 F.3d at 487. A refugee is
defined as a noncitizen who is unwilling or unable to return to her
country of origin or seek that country's protection "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)(A).
Conceding that she was not subject to past persecution, Constanza
rests her case on a fear of future persecution.
Without evidence of past persecution, Constanza is not
entitled to a presumption that she will face future persecution.
Anacassus v. Holder, 602 F.3d 14, 21 (1st Cir. 2010). She may
nonetheless "prevail on an asylum claim by proving, simpliciter, a
well-founded fear of future persecution independent of any
presumption[, which] . . . requires the alien to demonstrate that
h[er] fear of future persecution is both subjectively and
objectively reasonable." Orelien v. Gonzales, 467 F.3d 67, 71 (1st
Cir. 2006). We have said that a petitioner can meet this burden
"through an offer of 'specific proof.'" Castillo-Diaz v. Holder,
562 F.3d 23, 26 (1st Cir. 2009) (quoting Romilus v. Ashcroft, 385
F.3d 1, 6 (1st Cir. 2004)).
Constanza sought to establish "a well-founded fear of
persecution on account of . . . membership in a particular social
group." 8 U.S.C. § 1101(a)(42)(A). As noted, there was some
-6-
confusion as to the definition of the social group invoked by
Constanza, who claimed that she would be persecuted because she was
related to someone (her son) who resisted gang recruitment efforts.
This group could be defined narrowly (her specific nuclear family)
or more broadly ("mother[s] of [] individual[s] who resisted gang
activity").
For the purpose of evaluating her claimed fear of future
persecution, the IJ and BIA both correctly rejected the broadly
conceived social group based on our previous holding that a
similarly defined group was overly broad. See, e.g., Tay-Chan v.
Holder, 699 F.3d 107, 112 (1st Cir. 2012) (finding no error where
the claimed social group was "victims of gang threats and possible
extortion," and the BIA rejected "this purported 'social group' as
overly broad and having insufficient particularity to meet the
social group criterion").
As for her nuclear family claim, Constanza emphasized
that the relevant social group could simply be the "de Abarca"
family. See Gebremichael, 10 F.3d at 36 ("There can, in fact, be
no plainer example of a social group based on common, identifiable
and immutable characteristics than that of the nuclear family.").
Although the IJ did not acknowledge this argument, the BIA
addressed it, correctly emphasizing that any feared future
persecution would have to be causally related to that kinship.
-7-
As evidence of future persecution based on her family
ties, Constanza relied on the information relayed to her by her
sons about their interactions with the maras in El Salvador. MS-13
threatened violence, including death, against her sons in an
attempt first to recruit and then to locate Jairo. They also
attempted to extort money from Jairo, imploring him to have his
mother send fifty dollars from the United States. She also
testified that MS-13 tried to frame Jairo for murder, causing him
to flee and leaving her two remaining sons in such fear that they
stopped attending school. In addition to these events reported to
her by her sons, Constanza introduced more general evidence about
gang violence in El Salvador, including violent acts perpetrated
against family members.
The BIA concluded that this evidence was too speculative
to show a well-founded fear of future persecution. Despite the
reported threats and attempted extortion, Jairo himself was not
seriously harmed rising to the level of persecution. If the other
family members in El Salvador had not yet been persecuted, the
notion that Constanza herself would be persecuted upon her return
was too speculative. The BIA further concluded that a fear of harm
resulting from general conditions of violent crime does not
constitute a fear of persecution on account of membership in a
particular social group. Her testimony suggested to the BIA that
the violent reputation of the maras contributed to her fear at
-8-
least as much as the specific events recounted by her sons. Such
a generalized fear cannot be the basis for a claim of feared future
persecution. See, e.g., Vasili v. Holder, 732 F.3d 83, 91 (1st
Cir. 2013) ("General criminal activity is not evidence of a
well-founded fear of . . . persecution.").
We find no fault with the BIA's analysis. Certainly, the
evidence of future persecution based on Constanza's membership in
her nuclear family was not so strong as to "compel a reasonable
factfinder to reach a contrary conclusion" to the BIA as to the
speculative nature of her fear. Seng, 584 F.3d at 17.
Accordingly, we must deny the petition for asylum. Because
Constanza has failed to demonstrate that she is eligible for
asylum, her claims for withholding of removal and relief under CAT
also fail. See Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008)
(observing that claims for withholding and CAT protection "place a
higher burden of proof on the petitioner than a counterpart claim
for asylum" and stating that petitioner's failure to establish
eligibility for asylum similarly doomed those claims); Barsoum v.
Holder, 617 F.3d 73, 80-81 (1st Cir. 2010).
The petition is denied.
So ordered.
-9-