Vega-Ayala v. Lynch , 833 F.3d 34 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2114
YESENIA DEL CARMEN VEGA-AYALA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
Colin J. Tucker, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
August 10, 2016
LYNCH, Circuit Judge. Yesenia del Carmen Vega-Ayala
petitions for review of the Board of Immigration Appeals' ("BIA")
affirmance of an immigration judge's ("IJ") denial of her
application for asylum and withholding of removal. Vega-Ayala
argued that she had suffered past persecution in El Salvador and
that she had a well-founded fear of future persecution on account
of her membership in a particular social group. She defined that
group as "Salvadoran women in intimate relationships with partners
who view them as property." The BIA held that Vega-Ayala failed
to establish that her proposed social group shares immutable
characteristics and has social distinction, and found her
ineligible for asylum or withholding of removal. She now argues
that a reasonable factfinder would be compelled to find she had
proven that she is entitled to relief. We deny her petition.
I.
Vega-Ayala is a native and citizen of El Salvador. On
March 10, 2010, she entered the United States at or near Naco,
Arizona without admission or inspection and was detained by
Department of Homeland Security ("DHS") officials. After an
interview on April 7, 2010, a DHS asylum officer determined that
Vega-Ayala had a credible fear of persecution in El Salvador. See
8 C.F.R. § 208.30(d). On April 13, 2010, DHS served Vega-Ayala
with a Notice to Appear, which charged her with removability
pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). See 8 C.F.R.
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§§ 208.30(f), 1003.14(a). An IJ issued an order of release on May
6, 2010, and Vega-Ayala has since lived with her sister in Chelsea,
Massachusetts.
In her written pleadings, filed on December 1, 2011,
Vega-Ayala conceded removability and indicated her intent to seek
asylum, withholding of removal, and protection under the
Convention Against Torture ("CAT"). On February 26, 2013, Vega-
Ayala and counsel appeared before an IJ in Boston, Massachusetts
(after a transfer of venue from El Paso, Texas). At this hearing
for her application for relief, Vega-Ayala testified as follows:
In 2007, she met Juan Hernandez in El Salvador at a
university and carried on a relationship with him for approximately
eighteen months. The two never lived together during their
relationship and saw each other approximately twice a week. She
never visited his home, and he never prevented her from studying
at the university.
Hernandez grew violent as the relationship progressed.
Both in public and private, he spoke "offensive" words to her and
would grab her in such a way as to "cause black and blue marks . . .
on [her] arms." In the spring of 2008, Hernandez took Vega-Ayala
to a hotel and raped her. She did not tell her family members
about the incident because she was ashamed. Nor did she notify
the police because she believed that the Salvadoran police "don't
really do anything with domestic violence." Vega-Ayala became
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pregnant as a result of the rape and gave birth to a daughter on
January 14, 2009. Hernandez initially refused to recognize the
daughter as his child.
For the last year of their relationship, Hernandez was
incarcerated on an unrelated kidnapping charge. There is no record
evidence that Vega-Ayala visited him in jail, but she did ask him
for financial assistance. In February 2009, Hernandez purchased
a house in Vega-Ayala's name, and she and her daughter lived there
for approximately one year between 2009 and 2010. A man, whom
Vega-Ayala believed to be Hernandez's brother, came by the house
once or twice a week.
She testified that Hernandez would call and threaten her
from jail every day. She said she continued to take his calls and
reside at the house he purchased because she was ashamed of having
his child out of wedlock and because she was afraid that he would
hurt her or her family members. When Vega-Ayala left El Salvador
in 2010, Hernandez was still incarcerated.
Vega-Ayala further testified that Hernandez, after being
released from jail, threatened her mother. He also contacted Vega-
Ayala in the United States at some point in 2012, when she last
heard from him. She was afraid to return to El Salvador because
she believed that Hernandez would kidnap her and demand money from
her siblings who reside in the United States. She left El Salvador
alone and put her daughter in the care of her mother. She is
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unmarried and continues to live with her sister in Chelsea,
Massachusetts. Her daughter remains in El Salvador with her
mother. She admitted to telling immigration authorities, when she
was initially detained in March 2010, that she had come to the
United States to work and that she had no fear of returning to El
Salvador. Based on this testimony, Vega-Ayala asserted that she
was entitled to relief.
II.
On February 26, 2013, the IJ denied Vega-Ayala's
application for asylum, withholding of removal, and CAT
protection. The IJ concluded that, for four reasons, Vega-Ayala
failed to prove her eligibility for asylum. First, her purported
social group was not defined with immutability. Namely, Vega-
Ayala failed to show that she was unable to leave her relationship
with Hernandez, without which the IJ could not find that she was
"in a particular social group that she could not change or should
not have been required to change as a matter of conscience."
Second, Vega-Ayala's proposed group lacked the social distinction
required to qualify as a particular social group, as she failed to
show that Salvadoran society perceives her proposed group to be a
distinct one. Third, Vega-Ayala did not prove that Hernandez
abused her "on account of" her membership in a particular social
group. Finally, Vega-Ayala presented no evidence that the
Salvadoran government was unable or unwilling to control
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Hernandez's conduct, and thus failed to meet the statutory
definition of persecution. Acknowledging that there was domestic
violence in El Salvador and that the country's laws against it
were not well enforced, the IJ pointed out that nonetheless
Hernandez had been prosecuted and incarcerated for a different
criminal offense. The IJ also denied Vega-Ayala's request for
withholding of removal and CAT protection.
The BIA agreed with the IJ's decision and dismissed Vega-
Ayala's appeal. The BIA found that her proposed group lacked the
social distinction required under the Immigration and Nationality
Act ("INA") because she had not shown that its members "are
considered and treated as a distinct group within [] Salvadoran
society." See 8 U.S.C. § 1101(a)(42); Matter of M-E-V-G-, 26 I.
& N. Dec. 227, 240 (BIA 2014). Likewise, the BIA held that Vega-
Ayala failed to show immutability, as she did not demonstrate an
inability to leave Hernandez.
The BIA next found that even had Vega-Ayala proposed a
particular social group cognizable for asylum, she failed to prove
that her membership in that group was "at least one central reason"
that Hernandez would threaten or harm her. See 8 U.S.C.
§ 1158(b)(1)(B)(i). Affirming the IJ's determination that when
Hernandez threatened Vega-Ayala, it was "for money," the BIA noted
that financial motives are "not connected to a statutorily
protected ground for refugee purposes" under this circuit's case
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law. See, e.g., Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219
(1st Cir. 2007). Lastly, the agency agreed with the IJ that Vega-
Ayala failed to show the Salvadoran government's inability or
unwillingness to protect her from Hernandez's mistreatment.
Because Vega-Ayala never reported Hernandez's violence to the
police, she gave the authorities no opportunity to protect her.
Further, the evidence of Hernandez's incarceration demonstrated
that he, in fact, was "not above the law." The BIA affirmed the
IJ's determination that Vega-Ayala was not eligible for asylum or
withholding of removal.
This petition for review followed.1
III.
"Judicial oversight in immigration cases typically
focuses on the final decision of the BIA." Alvizures-Gomes v.
Lynch, No. 15-2181, 2016 WL 3923837, at *1 (1st Cir. July 21,
2016). Where the BIA adopts portions of the IJ's opinion, we
review those portions as part of the BIA's final decision.
Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004).
We review the agency's legal conclusions de novo, but
"with some deference to the agency's expertise in interpreting
both the statutes that govern its operations and its own
implementing regulations." Alvizures-Gomes, 2016 WL 3923837, at
1 Vega-Ayala does not challenge the denial of CAT
protection in this petition.
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*1 (quoting Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015)).
By contrast, factual findings are reviewed under the "highly
deferential" substantial evidence standard, under which we uphold
the BIA's findings "so long as they are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Here,
Vega-Ayala raises no issue of law and challenges merely the
agency's assessment of the facts.
In an asylum case, the applicant bears the burden of
establishing that she is a "refugee" as defined by the INA. Villa-
Londono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010). Specifically,
the applicant must demonstrate that she is unable or unwilling 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)(A). Where, as here, an applicant
seeks asylum based on membership in a particular social group, she
must establish that the proposed 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 M-E-V-G-, 26 I. & N. Dec. at 237). Substantial
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evidence supports the BIA's finding that Vega-Ayala failed to show
either immutability or social distinction.
An immutable characteristic is one that "members of the
group either cannot change, or should not be required to change
because it is fundamental to their individual identities or
consciences." Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir.
2012) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA
1985)).
We bypass the government's argument that Vega-Ayala has
waived the immutability issue because Vega-Ayala's immutability
claim fails in any event. Being in an intimate relationship with
a partner who views you as property is not an immutable
characteristic. The BIA recognized in a recent decision that
"married women in Guatemala who are unable to leave their
relationship" may share an immutable trait, where specific facts
demonstrated a woman's inability to leave her abusive marriage.
Matter of A-R-C-G-, 26 I. & N. Dec. 388, 392–95 (BIA 2014). The
asylum applicant in A-R-C-G- "suffered repugnant abuse by her
husband." Id. at 389. After marrying at age seventeen and having
her first child, she endured weekly beatings. Id. Her husband
broke her nose, burned her breast with paint thinner, and raped
her. Id. Although she contacted the police numerous times, they
refused to "interfere in a marital relationship." Id. When she
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escaped to her father's house or to Guatemala City, the husband
found her every time and forced her to return. Id.
Vega-Ayala's facts are a far cry from the circumstances
in A-R-C-G-. Vega-Ayala could have left Hernandez. She never
lived with him. She saw him only twice a week and continued to
attend a university. She chose to live in a home that he purchased
in her name while he was in jail. Their relationship spanned only
eighteen months, and he was incarcerated for twelve of those
months. The BIA supportably concluded that Vega-Ayala failed to
articulate a requisite immutable trait common to her proposed
social group.
Nor did Vega-Ayala prove that her proposed group has
social distinction. This requirement considers whether members of
a particular group "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." Granada-Rubio v.
Lynch, 814 F.3d 35, 39 (1st Cir. 2016) (quoting M-E-V-G-, 26 I. &
N. Dec. at 238).
There was no evidence that Salvadoran society regards
her proposed group as distinct. Vega-Ayala's general reference to
the prevalence of domestic violence in El Salvador does little to
explain how "Salvadoran women in intimate relationships with
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partners who view them as property" are meaningfully distinguished
from others within Salvadoran society.
On these grounds alone, we deny the petition for review
for the asylum issue.2 Denial of the petition as to withholding
of removal necessarily follows. See Orelien v. Gonzales, 467 F.3d
67, 73 (1st Cir. 2006).
The petition for review is denied.
2 Vega-Ayala misrepresents the record when she argues that
both the BIA and IJ "concluded that [she] was subject to past
persecution." The IJ merely "assume[d] for the sake of this
decision that [Vega-Ayala] suffered past persecution at the hands
of Juan Hernandez." Nowhere in the BIA's or IJ's opinion, however,
was there a finding of persecution. To the contrary, both
expressly found that she did not suffer persecution as defined by
the INA, as she failed to prove that the Salvadoran government was
unable or unwilling to control Hernandez's conduct. Needless to
say, without a finding of past persecution, the BIA was under no
obligation to presume that Vega-Ayala faced a threat of future
persecution. See 8 C.F.R. § 1208.13(b)(1).
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