Villalta-Martinez v. Sessions , 882 F.3d 20 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1201
ROSA MARIA VILLALTA-MARTINEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Stahl, and Barron
Circuit Judges.
Kevin MacMurray and MacMurray & Associates, on brief for
petitioner.
Jeffrey R. Meyer, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, Stephen J. Flynn,
Assistant Director, on brief for respondent.
February 7, 2018
STAHL, Circuit Judge. Petitioner Rosa Maria Villalta-
Martinez ("Villalta-Martinez") seeks our review of an order of the
Board of Immigration Appeals ("BIA") denying her applications for
asylum, withholding of removal, and protection under the
Convention Against Torture Act ("CAT"). After careful
consideration, we deny the petition for review.
I. Facts & Prior Proceedings
We recite here the relevant factual background. On May
8, 2015, Villalta-Martinez, a citizen of El Salvador, illegally
entered the United States. On May 9, 2015, she was apprehended by
Border Patrol Agents, charged under 8 U.S.C. § 1182(a)(6)(A)(i),
and released on her own recognizance. Villalta-Martinez admitted
to her removability, and thereafter, filed applications for
asylum, withholding of removal, and protection under the CAT,
claiming she was persecuted, and faced future persecution, at the
hands of Salvadorian gang members, on account of her family
membership.1
1Villalta-Martinez originally argued that she was persecuted
on account of two statutorily protected grounds, (1) her immediate
family membership and (2) people born into lower classes in El
Salvador who are able to attain a professional education. Both
grounds were rejected by the BIA. In her petition for review,
Villalta-Martinez's only challenge is to the BIA's decision with
respect to her claimed family membership; therefore, we need not
address the merits of Villalta-Martinez's alternative ground for
protection.
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Villalta-Martinez was the only witness to testify in
support of her applications before the Immigration Judge ("IJ").
She provided the following information: From 2012-2015, while in
El Salvador, she was in a relationship with Ever Eliseo Garcia-
Linares ("Garcia"). She became pregnant with Garcia's child and,
although she moved into an apartment with Garcia, the couple never
married.
Garcia owned a chain of stores in El Salvador. The
Marasalvatrucha gang demanded money from Garcia on a weekly basis.
Due to these extortion demands, Garcia left El Salvador with the
intent to move to Canada; however, he was apprehended in the United
States for illegal reentry, having previously been deported.2
During her relationship with Garcia, Villalta-Martinez
worked in one of his stores. She testified that after Garcia left
El Salvador, on at least five separate occasions, gang members
came to the store that she worked at, put a gun to her head, and
demanded money. As a result, Villalta-Martinez moved to another
store to work,3 in hopes of avoiding trouble with the gang, but
the same thing happened. She testified that the gang members came
to that store and demanded $2,000. A gang member told her that if
2 Since his illegal reentry into the United States, Garcia
has been in federal custody.
3 Although the testimony is not entirely clear, it appears
that Villalta-Martinez transferred to another store that was also
associated with Garcia.
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she did not pay, he would pull the unborn child from her womb, cut
her, and rape her.
After receiving this threat, Villalta-Martinez obtained
$3,000 from an aunt, who also resided in El Salvador, in order to
travel to the United States. Villalta-Martinez testified that
"she was afraid to return to El Salvador because gang members would
take reprisals because she did not comply with their demands for
money."
The IJ credited Villalta-Martinez's testimony as true.
Nonetheless, the IJ found that Villalta-Martinez: (1) failed to
establish that she suffered persecution in El Salvador; and (2)
failed to establish that she was persecuted on account of her
family membership with Garcia. The IJ explained that "the evidence
was not that [Villalta-Martinez] was targeted because of Mr.
Garcia, but that she was targeted by gangs and each and every time
because they wanted money. The respondent has not established
that one of the reasons she was targeted was because of her
relationship with Mr. Garcia."
The BIA affirmed the IJ's denial and reasoning. The BIA
explained:
[E]ven if [Villalta-Martinez] is considered to be in a
familial relationship with a man with whom she was in a
romantic relationship and with whom she had a child, the
respondent has not established a nexus between her past
and future fear of harm by gang members and her familial
relationship to the man. The record reflects that the
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respondent was the victim of extortion and that she
continues to fear future criminal activity.
Because Villalta-Martinez could not meet her burden for asylum,
the BIA determined that "she has also not satisfied the higher
standard of a clear probability of persecution" as required for
the withholding of removal.
II. Discussion
In order to qualify for asylum, an applicant must
demonstrate that she has experienced past persecution or has a
well-founded fear of future persecution on account of her "race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1101(a)(42)(A). The standard for
withholding of removal is even higher; the applicant must show
that it is more likely than not that she would be subject to
persecution on account of an enumerated ground if she were
repatriated. See id. § 1231(b)(3); Mayorga–Vidal v. Holder, 675
F.3d 9, 13 (1st Cir. 2012).
We first consider whether Villalta-Martinez has
established a well-founded fear of persecution based on one of the
five statutorily recognized categories. 8 U.S.C.
§ 1101(a)(42)(A). In her petition for review, Villalta-Martinez's
argues that the BIA erred in concluding that there was no evidence
establishing a nexus between her past persecution and her proposed
social group, her family membership. Villalta-Martinez explains
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that "[a]lthough money was part of the reasons why gangs targeted
her, the main reason was her familial relationship."
Whether an applicant has met his or her burden for
proving eligibility is a question of fact, reviewed under the
substantial evidence standard. See Hincapie v. Gonzales, 494 F.3d
213, 218 (1st Cir. 2007) ("[W]hether persecution is on account of
one of the five statutorily protected grounds is fact-specific";
therefore, "we review the BIA's answer to that question through
the prism of the substantial evidence rule."). "We uphold the
BIA's findings if they are supported by reasonable, substantial,
and probative evidence on the record considered as a whole, and
will reverse only if any reasonable adjudicator would be compelled
to conclude to the contrary." Ratnasingam v. Holder, 556 F.3d 10,
13 (1st Cir. 2009) (internal quotations and citations omitted).
"When the BIA adopts and affirms the IJ's ruling but also examines
some of the IJ's conclusions, this Court reviews both the BIA's
and IJ's opinions." Perlera-Sola v. Holder, 699 F.3d 572, 576
(1st Cir. 2012).
"[S]howing a linkage to one of the five statutorily
protected grounds is 'critical' to a successful asylum claim."
Hincapie, 494 F.3d at 218 (quoting I.N.S. v. Elias-Zacarias, 502
U.S. 478, 483 (1992)). In order to sufficiently demonstrate
persecution on account of a protected ground, the petitioner "must
provide sufficient evidence to forge an actual connection between
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the harm [suffered] and some statutorily protected ground," beyond
a "reasonable possibility of a nexus." Id.
In describing the gang's extortion tactics before the
IJ, Villalta-Martinez testified that "[t]here were times that we
were able to close the doors on time, but at the end they would be
outside waiting for us and they would take us, take all our
belongings." On cross-examination, she explained that the gang
members would follow her and "the rest of the employee[s]." "They
were demanding money from the store and then they demanded directly
money from me." When asked if she was targeted for working at the
store, she responded "[f]or that reason, and also because I was
the partner of the owner of the store."
We agree with the finding of the BIA that there is
"insufficient evidence in the record to demonstrate that the gang
members were or would be motivated to harm [Villalta-Martinez] for
any other reason than to extort money from her," and we cannot
find, viewing the record as a whole, that a reasonable adjudicator
would be compelled to conclude to the contrary. Villalta-Martinez
consistently testified in the plural, explaining that both she and
her fellow employees were targeted by gang members. Such testimony
likely indicates that gang members were targeting all the employees
in the store in order to extort money. The threats, albeit
terrifying, do not satisfy the statutory requirements for asylum.
See Escobar v. Holder, 698 F.3d 36, 38 (1st Cir. 2012) (internal
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citations omitted) ("Evidence of widespread violence . . .
affecting all citizens is not enough to establish persecution on
a protected ground."). Further, Villalta-Martinez failed to
demonstrate whether any of the gang members who threatened her had
any knowledge of her relationship with Garcia. See id. at 38
(finding that petitioner failed to provide a connection between
family and protected classification where "nothing indicate[d]
that the guerrillas specifically targeted [petitioner's] father").
The dissent suggests that remand is appropriate because
"neither the BIA nor the IJ . . . addressed (or even mentioned)
the significant countervailing evidence in the record that
suggests that Villalta-Martinez was targeted -- at least in part
-- due to her familial ties to the father of her child." The
dissent argues that the IJ and the BIA failed to consider Villalta-
Martinez's testimony that the gangs targeted her "because she was
the partner of the owner of the store[.]". Relying on Aldana-
Ramos v. Holder, 757 F.3d 9, 18 (1st Cir. 2014), the dissent
explains that asylum is proper in mixed-motive cases, "so long as
one of the statutorily protected grounds is 'at least one central
reason' for persecution."
In Aldana-Ramos, the IJ and the BIA erred by stating
that the persecution at issue was due to wealth, and therefore
could not be attributed to familial relation. Id. The BIA thus
failed to consider the possibility of a mixed-motive case. No
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such error occurred here. The IJ explained that Villalta-Martinez
"has not established that one of the reasons she was targeted was
because of her relationship with Mr. Garcia." (emphasis added).
The IJ and thus the BIA explicitly acknowledged the possibility of
a mixed-motive case, but, based on the evidence presented, made a
fact-specific determination that Villalta-Martinez had not shown
that the persecution was motivated by a family relationship.
The dissent also ascertains that, in light of the
"countervailing evidence" as to the nexus requirement, remand is
necessary so that the BIA can make additional factual findings.
Relying on Aldana-Ramos, the dissent explains that petitioner "put
forth credible testimony that creates at least an inference of a
'nexus' between the harm that she suffered and her ties to a person
whom she claims is a family member." In Aldana-Ramos, a wealthy
family was continually singled out and "followed by members of
[the persecuting] gang in unmarked cars" even after they had
exhausted their financial resources. Id. As such, the finding
that they were targeted because of their wealth, as opposed to
their family membership was problematic being that "[n]either the
BIA nor the IJ ever addressed this argument." Id. The dissent
believes that because Villalta-Martinez presented evidence that
she did not have any money when she was persecuted; her lack of
money allows an inference that she was persecuted on account of
her family relationship; and the IJ and the BIA failed to address
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that argument. However, Villalta-Martinez did not testify that
her coworkers, from whom money was also sought, had money or were
wealthy. Furthermore, in Aldana-Ramos, the petitioners testified
as to why wealth was not a factor that led to their persecution,
which created a basis by which to infer that family membership was
at least one of the contributing factors for persecution. Here,
however, petitioner's testimony did not create the same dichotomy
provided by the petitioners in Aldana-Ramos. Villalta-Martinez
testified that in addition to targeting her, the gang members were
indiscriminately following and threatening all store employees,
supporting the BIA's conclusion that the gang members were seeking
money without regard for Villalta-Martinez's familial relation.
"To reverse the BIA['s] finding we must find that the evidence not
only supports [a contrary] conclusion, but compels it." (quoting
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)(alterations
in original)).4 We seek to distinguish this case from Aldana-
Ramos, not to make our own findings, as the dissent argues, but
4 We acknowledge that the decision by the BIA mistakenly
identified Villalta-Martinez as a citizen of Mexico, even though
she is from El Salvador. However, at numerous points in its
decision, the BIA correctly identified "[t]he respondent, [as] a
native and citizen of El Salvador." This error does not warrant
remand as it does not demonstrate that the decision by the BIA was
either arbitrary or capricious. See Caldero-Guzman v. Holder, 577
F.3d 345, 348 (1st Cir. 2009).
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instead to show that under the deferential standard imposed, we
see a variety of bases by which to support the BIA and IJ's
determinations.
This case is further distinguished from Aldana-Ramos
because the evidence in that case was far more compelling than the
evidence here. Multiple family members in Aldana-Ramos testified
that their family was targeted for persecution even after their
financial resources were exhausted. Id. at 18. In contrast, the
only evidence that Villalta-Martinez offered to support her
position that she was persecuted because of her family relationship
is her own speculation. See Giraldo-Pabon v. Lynch, 840 F.3d 21,
25 (1st Cir. 2016) (finding that substantial evidence supported
the conclusion that the nexus requirement for asylum was not met
where the petitioner "cite[d] little in the way of nexus evidence
other than . . . her own belief that another cousin was stabbed
because of other family members' involvement in narco-
trafficking"); Guerra-Marchorro v. Holder, 760 F.3d 126, 128-29
(1st Cir. 2014) (holding that substantial evidence supported the
conclusion that the nexus requirement was not met where the
petitioner "presented 'no evidence other than his own speculation'
to forge the statutorily required 'link,'" even though the
petitioner's testimony had been found credible (quoting Khalil v.
Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003))).
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Because we find that Villalta-Martinez failed to
establish that any harm she suffered was caused by her relationship
with Garcia, we need not address whether the BIA erred in
determining that the harm she experienced did not rise to the level
of persecution. However, one would think that a gang member's
specific threat of raping a pregnant women and killing her unborn
child if she failed to meet the demands of the gang within 48
hours, after having been threatened at gun point on at least five
separate occasions by the same gang, would be the type of harm the
Court should consider severe enough to rise to the level of
persecution.
The dissent spends much time discussing the issue of
whether Villalta-Martinez satisfied her burden of showing that the
threats she received from the gang could be attributed to inaction
by the government of El Salvador. However, she failed to develop
her government inaction argument before this Court beyond a vague
reference in her brief, without citation to case law or analysis.
See Valdez v. Lynch, 813 F.3d 407, 411 n.1 (holding that an
argument is waived where the petitioner "throws in a couple
references" to it, but "fails to develop" it). Because government
action or inaction is a necessary component of persecution, see
Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005), Villalta-
Martinez's failure to develop that issue before this Court is, on
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its own, sufficient to sustain the BIA and IJ on this point and to
deny her petition for review.
Finally, we note that in making its decision, the BIA
explained that "even if the respondent is considered to be in a
familial relationship with a man with whom she was in a romantic
relationship and with whom she had a child, the respondent has not
established a nexus between her past and future fear of harm by
gang members and her familial relationship to the man." (emphasis
added). While it is well established that the nuclear family
constitutes a recognizable social group, neither the BIA nor the
IJ found that the petitioner is in fact part of a nuclear family
with Garcia. Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir.
1993). Petitioner testified that she was in a relationship with
Garcia from 2012 until 2015 when he left El Salvador. Garcia paid
rent for petitioner for a period of time and once petitioner became
pregnant, she moved into Garcia's home. However, during the
pregnancy, Garcia fled El Salvador and petitioner has neither seen
nor spoken with him since and Garcia was not listed on the child's
birth certificate as the child's father. While we are not in a
position to make a finding on this particular issue, we mention
these facts solely to demonstrate some of the various obstacles
petitioner would face on the remand the dissent seeks.
Petitioner's failure to establish a nexus between her persecution
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and her protected class, and her waiver as to government inaction,
are the bases by which we deny her petition for review.
Because Villalta-Martinez cannot satisfy her claim for
asylum, we also affirm the BIA's decision denying her claim for
withholding of removal. See Escobar, 698 F.3d at 39 ("Statutory
withholding of removal under INA § 241(b)(3), 8 U.S.C. §
1231(b)(3), requires an even greater likelihood of persecution
than asylum."). Lastly, Villalta-Martinez provides no basis by
which the Court should reverse the BIA's decision denying her
protection under the CAT, as she failed to argue the point beyond
an introductory paragraph in her brief. See Sok v. Mukasey, 526
F.3d 48, 52 (1st Cir. 2008) (finding that petitioner waived her
CAT claim appeal when she only referenced the claim in an
"introductory assertion").
III. Conclusion
For these reasons, we deny the petition for review and
affirm the decision of the BIA upholding the IJ's denial of
Villalta-Martinez's application for asylum, withholding of
removal, and protection under the CAT.
-Concurring and Dissenting Opinion Follows-
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BARRON, Circuit Judge, concurring in part and dissenting
in part. I join the majority in rejecting Rosa Maria Villalta-
Martinez's challenge to the denial of her claim under the
Convention Against Torture. See 8 C.F.R. § 1208.16. I cannot,
however, join the majority's decision to uphold the Board of
Immigration Appeals' (BIA) determination that her asylum
application must be rejected, too.
The main question on which our review of the BIA's asylum
ruling turns is a relatively narrow one. After all, the majority
agrees, as do I, that the threats that Villalta-Martinez received
from a notorious gang in her home country of El Salvador were
serious enough to rise to the level of persecution. Thus, the key
point of dispute concerns whether we may sustain the BIA's
determination that Villalta-Martinez failed to establish the
connection between those threats and her claimed familial ties to
the father of her child that she was required to establish in order
to satisfy what is known as the "nexus" requirement. See Ivanov
v. Holder, 736 F.3d 5, 12 (1st Cir. 2013). For, if the BIA's
determination regarding the "nexus" requirement may be sustained,
then Villalta-Martinez's petition for review must be denied, even
if there is merit to her separate challenge to the determination
below that she failed to establish that her home country's
government was unwilling or unable to address the threat that the
gang posed to her.
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We are, of course, obliged to sustain the BIA's ruling
on the "nexus" issue if it is supported by "substantial evidence."
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). But, we
may do so only on the basis of "the record considered as a whole."
Id. (internal quotation marks omitted). And here, notwithstanding
the majority's contrary conclusion, see Maj. Op. at 7, I do not
see how we can.
As I will explain, neither the BIA nor the Immigration
Judge (IJ), whose findings the BIA adopted, addressed (or even
mentioned) the potentially significant countervailing evidence in
the record that suggests that Villalta-Martinez was targeted -- at
least in part -- due to her familial ties to the father of her
child (a child who was born in the United States and is thus a
citizen of this country). Accordingly, consistent with the
teaching of Securities & Exchange Commission v. Chenery Corp., 332
U.S. 194, 197 (1947), and the course that we followed in Aldana-
Ramos v. Holder, 757 F.3d 9, 18 (1st Cir. 2014), I would vacate
the BIA's ruling as to Villalta-Martinez's asylum claim and remand
for further proceedings.5 And that is because, as I will also
5 I note that the BIA's decision at a key point states that
Villalta-Martinez "has not established past persecution or a well-
founded fear of persecution in Mexico on account of an enumerated
ground," notwithstanding that she claimed to have suffered
persecution only in her home country, El Salvador. This error, to
me, does not suggest that it is sensible to make the generous
assumption that the BIA must have carefully considered the
countervailing evidence of the gang's motivation for the threats,
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explain, once the "nexus" ruling is set aside, there is no other
ground on which we may uphold the BIA's affirmance of the IJ's
ruling denying her asylum petition.6
I.
With respect to the "nexus" issue, I start by reviewing
the key evidence that the IJ and the BIA failed to address, which
consists of the testimony that Villalta-Martinez gave at her asylum
proceeding and which the IJ found to be credible. I then explain
why, under our precedent, the IJ's and the BIA's failure to address
this evidence precludes us from sustaining the agency's "nexus"
ruling.
A.
Villalta-Martinez explained in her testimony that, while
she was living in El Salvador but before she was first threatened
by the gang, she worked at a store owned by Ever Eliseo Garcia
Linares (Garcia), with whom she lived at the time and who is the
father of her child. She further testified that Garcia owned a
number of stores in El Salvador and that he was paying protection
even though the BIA does not reference that evidence in its
decision at all.
6 Of course, the BIA did not rule that the family that she
claims to have established with her boyfriend qualifies as a family
for purposes of constituting a protected "social group." Instead,
the BIA, like the IJ, simply assumed that she had established such
a family with him. I thus do not address that issue, as it is not
presented by the petition for review and thus supplies no basis
for sustaining the only BIA ruling at issue.
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money to a particular gang, the Marasalvatrucha, so that his stores
would not be robbed.
Villalta-Martinez explained that, after Garcia fled El
Salvador to avoid having to pay off the gang, members of that same
gang began to threaten her at the store, even though she had never
been personally threatened by members of that gang before. And
Villalta-Martinez went on to describe how she eventually moved to
a different one of Garcia's stores in order to escape the gang but
that the threats from members of that gang did not stop. Rather,
she recounted, members of the gang that Garcia had been paying
off, and that had threatened her at the first store after he had
left the country, simply followed her to that new store and
threatened her there.
Villalta-Martinez also testified that each time the gang
members came into this second store while she was working there,
they "demande[ed] money from the store and then they demanded
directly money from me." Villalta-Martinez added that the gang
targeted her at that store because she "was the partner of the
owner of the store[.]" In fact, she went on to note that she could
not have been targeted by the gang members at this store because
she had money, as she testified that she had none.
To be sure, Villalta-Martinez did testify that she was
not the only store employee whom the gang members threatened. But
that acknowledgement hardly suffices to demonstrate that the gang
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members did not target her "on account of" her ties to Garcia.
Even if the gang members were clearly interested in acquiring money
from those they threatened at the stores, we have long recognized
that "asylum is still proper in mixed-motive cases even where one
motive would not be the basis for asylum, so long as one of the
statutorily protected grounds is 'at least one central reason' for
the persecution." Aldana-Ramos, 757 F.3d at 18 (quoting 8 U.S.C.
§ 1158(b)(1)(B)(i)) (emphasis added). Thus, notwithstanding this
aspect of Villalta-Martinez's testimony, the gang members may have
been partly motivated to target Villalta-Martinez because of her
ties to Garcia as his "partner" despite the fact that they also
may have wanted money from the store or its employees.
Significantly, the government in cross-examining
Villalta-Martinez never challenged her contention that the gang
members threatened her, at least in part, because of her
relationship with Garcia and not solely in order to obtain money
either from her or from the store. That is perhaps because, the
record indicates, the government failed to realize that she
intended to argue, based on her testimony as to her living
arrangement with Garcia and her child with him, that she was part
of a family with Garcia for the purposes of establishing her
membership in a "social group."
In fact, after Villalta-Martinez completed her
testimony, the government initially argued that the IJ should deny
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the asylum claim on the ground that "girlfriends of shop owners in
El Salvador" did not constitute a cognizable "social group" under
the asylum statute, thereby rendering the "nexus" issue beside the
point insofar as the government's "social group" argument had
merit. The government made no argument at that point in the asylum
proceedings that the gang members' threats were not partly
motivated by, as Villalta-Martinez had testified, the fact that
she was Garcia's "partner."
The government shifted course, however, after Villalta-
Martinez's counsel clarified that the petitioner's asserted
"social group" was the family that Villalta-Martinez claimed to
have established with Garcia. The government at that point argued
for the first time that Villalta-Martinez's testimony was
insufficient to demonstrate the required "nexus" between the
threats that she received and her ties to Garcia.
By then, though, the government had done nothing to
undermine the portions of Villalta-Martinez's testimony in which
she had asserted, credibly, that the gang had not only threatened
her at the first store where she had been working but also had
gone on to follow her to the second of Garcia's stores. Nor had
the government done anything as of that point to undermine her
testimony that the gang members directly targeted her there because
she was Garcia's "partner." Nor, finally, had the government done
anything by that point to undermine Villalta-Martinez's contention
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in her testimony that she had no money of her own at the time that
she was so targeted.
Thus, as the case comes to us, the record contains
uncontradicted, credible testimony from Villalta-Martinez that
would appear to give rise to an inference that the gang's threats
were motivated at least to some extent by her claimed familial
ties to Garcia. Nevertheless, in finding that Villalta-Martinez
had failed to meet her burden to satisfy the "nexus" requirement,
neither the IJ nor the BIA discussed (or even referenced) any of
the portions of her testimony that I have just described.
The IJ simply concluded summarily and categorically that
"the evidence was not that [Villalta-Martinez] was targeted
because of Mr. Garcia, but that she was targeted by gangs each and
every time because they wanted money." (Emphasis added.) The BIA
similarly stated in conclusory and categorical fashion that there
"is insufficient evidence in the record to demonstrate that the
gang members were or would be motivated to harm the response [sic]
for any other reason than to extort money from her." (Emphasis
added.) And, in doing so, the BIA claimed to be adopting the
opinion (and thus the findings) of the IJ.
B.
The key question, then, is whether these rulings on the
"nexus" issue may be sustained despite the BIA's and IJ's failure
even to mention -- let alone to explain away -- the evidence that
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Villalta-Martinez offered that potentially would support her main
argument as to why the record showed that there was a "nexus"
between the gang members' threats and her membership in a
statutorily protected "social group." And the answer to that
question, as I will explain, is that, in light of our decision in
Aldana-Ramos, these "nexus" rulings may not be sustained.
In Aldana-Ramos, the petitioners premised their asylum
claims on the ground that the harm that they had suffered at the
hands of a gang in Guatemala was "on account of" of their ties to
their father and thus their membership in a protected "social
group." Id. at 13-14. They contended that this group was their
nuclear family. Id. at 13. The BIA rejected that contention.
Id. at 18.
The petitioners contended on appeal in Aldana-Ramos that
the BIA erred in two ways in so ruling. The petitioners argued
that the BIA had wrongly concluded that, even if they showed that
their familial ties to their father were "at least one central
reason" why they were targeted by the gang, those ties could not
satisfy the "nexus" requirement because the petitioners had not
shown that their father had been targeted by the gang based on a
statutorily protected ground. See id. at 18. The petitioners
also argued that the BIA's ruling that wealth alone explained their
targeting by the gang "was unsupported by the record," given that
the petitioners had credibly testified that they had "exhausted
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all of their own and their family's financial resources in trying
to raise the money to ransom their father [from the gang]," but
continued to be "followed by [gang] members . . . even after their
father's funeral." Id. And, to back up that contention, the
petitioners pointed to their testimony that "unmarked cars"
followed them after their father's funeral, although we did not
say in Aldana-Ramos that the petitioners had claimed in their
testimony that the petitioners knew who precisely was in those
cars, that the persons in the cars said anything to indicate why
they were following the petitioners, or that the persons in the
cars knew that the petitioners had exhausted all of their financial
resources. Id. at 13.
We then ruled for the petitioners on both of their
asserted grounds for overturning the BIA's "nexus" ruling. Id. at
19. We explained that the BIA had erred by failing to consider
the possibility that the "nexus" requirement could have been
satisfied by a showing that the gang members were partly motivated
to target the petitioners due to their familial ties to their
father, even if the petitioners' wealth also played a role in their
being targeted by the gang and even if their father had not himself
been targeted for any reason other than his wealth. Id. We also
separately explained that the BIA's "nexus" finding that the
petitioners' wealth alone explained the targeting could not be
sustained, even under the deferential substantial evidence
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standard. Id. And we did so because we explained that the BIA
had overlooked the critical evidence regarding the unmarked cars
and the petitioners' having exhausted their financial resources
paying for their father's ransom, given that this evidence sufficed
to create an inference of family-based targeting that the BIA was
obliged to address. Id. at 18-19.
In light of Aldana-Ramos's separate substantial evidence
holding, I see no justification for reaching a different conclusion
with respect to whether substantial evidence supports the BIA's
"nexus" ruling in this case. Here, too, the asylum seeker has put
forth credible testimony that creates at least an inference of a
"nexus" between the harm that she suffered and her ties to a person
whom she claims is a family member. Here, too, that evidence takes
the form of the asylum seeker's credible testimony that she was
followed by the gang that menaced her even after she took steps to
protect herself from it and that the gang members sought her out
in particular because of her ties to the person she claims to be
a family member. Here, too, the asylum seeker contends that these
threats were directed at her by the gang even though she had no
money to hand over to the gang. And yet, here, too, the BIA (like
the IJ) failed to address or even mention that evidence of family-
status-based targeting in concluding that the evidence showed that
the asylum seeker had not been harmed "on account of" her familial
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ties and that instead she had been targeted solely for financial
reasons.
In concluding that, despite the seeming similarities
between Aldana-Ramos and this case, Aldana-Ramos is not
controlling, the majority offers two grounds for drawing a
distinction. But I am not persuaded by either one.
First, the majority rightly points out that in Aldana-
Ramos, unlike in this case, the BIA refused to acknowledge the
possibility that the "nexus" requirement may be satisfied by
showing that the perpetrators of threats had mixed motives, only
one of which was to target the asylum-seekers on account of their
membership in a statutorily protected group (namely, the nuclear
family that they shared with their father). Id. at 18; Maj. Op.
9. But, as noted above, Aldana-Ramos also ruled, wholly apart
from that legal error, that the BIA's "nexus" ruling that wealth
alone explained the petitioners' targeting could not be sustained
because that ruling was not supported by substantial evidence.
Id. And Aldana-Ramos came to that separate conclusion about
whether substantial evidence supported the "nexus" ruling
precisely because the BIA at no point addressed the portions of
the petitioners' testimony concerning the men in the unmarked cars
and the petitioners' own lack of financial resources that gave
rise to an inference that the petitioners were targeted by the
gang due to their familial ties to their father. Id. Thus,
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Aldana-Ramos's recognition that the BIA made a legal error
concerning whether motives may be mixed does nothing to diminish
the relevance to the case before us of Aldana-Ramos's independent
ruling rejecting the BIA's substantial evidence ruling for failing
to account for countervailing evidence of family-based targeting.
Second, the majority contends that Aldana-Ramos is
distinguishable because the evidence of family-based targeting was
much more compelling there than it is here, as Villalta-Martinez's
evidence of such targeting in the end amounts to little more than
her own speculation about the gang members' motives. Maj. Op. 9.
But, even if the evidence of family-based targeting is weaker in
this case than it was in Aldana-Ramos, the key point is that the
evidence in this case is still strong enough to "create[] an
inference" of family-based targeting that the BIA must actually
address. 757 F.3d at 18; see also id. at 14 n.2 ("Absent a holding
by the [agency] . . . or some explanation rebutting this
inference," the agency's conclusion cannot be upheld).
Villalta-Martinez credibly testified that she was
singled out by the Marasalvatrucha gang because she was Garcia's
partner. She also testified that she knew that Garcia had been
subjected to threats by that same gang while she was already
working at his store. It thus hardly requires a great inferential
leap to conclude from her credible testimony as to these points
that she had a more than conjectural basis for believing that the
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gang members who she testified targeted her knew of her ties to
Garcia when they followed her to a second of Garcia's stores and
then directly targeted her there after having targeted other store
employees.7
Moreover, whether one agrees or not with that assertion,
in upholding the BIA's ruling on the ground that Villalta-
Martinez's evidence of family-based targeting amounts merely to
her own speculation and thus does not suffice to show the required
"nexus," the majority is not relying on any finding that the BIA
or the IJ, whose findings the BIA purported to adopt, actually
made. Neither the BIA nor the IJ even mentioned the evidence of
family-based targeting on which Villalta-Martinez primarily
relied, let alone explained that such evidence was too speculative.
Nor do the "speculation" cases on which the majority
relies, see Maj. Op. 9-10, indicate that we must infer that the
BIA and the IJ rejected Villalta-Martinez's testimony that she was
7
Villalta-Martinez did not expressly state that the gang
members said anything to indicate that they knew that she was
Garcia's partner. But, we did not say in Aldana-Ramos that the
petitioners there -- who claimed that the men in the unmarked cars
were targeting them because of their relationship with their father
-- expressly stated how they knew that the men in those cars were
gang members, whether the men in those cars knew that the
petitioners were related to their father, or how they knew that
the men in those cars were following them because of their ties to
their father. See 757 F.3d at 13. Nor, for that matter, did we
say that the men in those cars knew that the petitioners had no
money to give them. Id. Nonetheless, we concluded that the
petitioners' testimony created an inference of family-based
targeting that the BIA had to address. Id.
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targeted because she was Garcia's partner on the ground that such
evidence was too speculative. None of those cases concerned
remotely comparable evidence of family-based targeting to that put
forward by Villalta-Martinez, and thus it is by no means clear
that the BIA or the IJ would have been required to find the evidence
too speculative.8
8 The three "speculation" cases that the majority relies on
are Guerra-Marchorro v. Holder, 760 F.3d 126 (1st Cir. 2014),
Giraldo-Pabon v. Lynch, 840 F.3d 21 (1st Cir. 2016), and Khalil v.
Ashcroft, 337 F.3d 50 (1st Cir. 2003). In Guerra-Marchorro,
however, we explained that the petitioner there did not "either in
his brief or in his testimony[] directly state that the gang has
targeted him . . . because of his claimed" protected status. 760
F.3d at 129. By contrast, Villalta-Martinez has directly stated
precisely that both in her testimony and in her briefing. In
Giraldo-Pabon, moreover, the petitioner's only evidence of a
"nexus" consisted of her uncle's admonition "'not to go out too
often' after a cousin's murder and her own belief that another
cousin was stabbed because of other family members' involvement in
narco-trafficking." 840 F.3d at 25. Thus, the petitioner there
offered no evidence that she had been targeted on the basis of a
protected ground (there, familial ties), while Villalta-Martinez
has done so through her testimony that indicated she knew gang
members were extorting Garcia, that they only confronted her after
Garcia fled, that they followed her to the second store and
directly approached her there, that she had no money to give them,
and that they did so because she was Garcia's partner. And,
finally, Khalil held that the BIA supportably concluded that the
asylum seeker had failed to demonstrate a "nexus" between his
alleged persecution (which took the form of the denial of building
permits and civil suits brought against him by his tenants) and
his Christian faith because he offered "no evidence other than his
own speculation" to link the permit denials to his faith and
several of those who sued him were also Christians. 337 F.3d at
55. Thus, that case, too, is not one in which there was comparable
evidence of specific targeting of the petitioner, such as Villalta-
Martinez has put forward here. In fact, I am aware of no case in
which we have sustained a BIA ruling finding no "nexus" in the
face of a petitioner's comparable evidence of protected-social-
group-based targeting when the BIA has not even mentioned that
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Finally, I note that the government, in the part of its
brief addressing the "nexus" issue, does not reference any of the
"speculation" cases on which the majority relies to sustain the
"nexus" rulings. Nor does the government even argue -- as the
majority now posits -- that the reason that Villalta-Martinez's
evidence of family-based targeting does not suffice is that it was
too speculative to be credited. Instead, the government, like the
IJ and the BIA, simply makes no reference to that evidence at all
in arguing that the "nexus" rulings must be sustained.9
As a result, it seems to me that the majority is
unavoidably upholding the "nexus" rulings on a ground of its own
making. But, that we may not do, as our job is to review the
reasoning of the agency, not to supply it. See Chenery Corp., 332
U.S. at 200. Thus, per Aldana-Ramos, I would require the BIA to
do what it has thus far failed to do -- grapple in a reasoned way
with the uncontradicted testimony that Villalta-Martinez credibly
offered in order to show that she endured the gang's threats at
least in part because she was Garcia's "partner." See Aldana-
evidence.
9 The government's only argument with respect to "nexus" does
not mention Villalta-Martinez's direct testimony that she was
followed from store to store and singled out because she was
Garcia's partner, and, instead contends conclusorily -- and
without citation to any of the "speculation" cases on which the
majority relies -- that the gang was "simply motivated by a
criminal intent to extort money" from all store employees.
- 29 -
Ramos, 757 F.3d at 18 n.7 ("[T]he government suggests that the BIA
could infer that the . . . gang subjectively believed that
petitioners still had access to more money. That approach, not
articulated by the BIA, fails because the BIA never actually drew
the inference.").
II.
In consequence of my view of the "nexus" issue, I must
now address one last issue that the majority need not reach. As
the government notes, the BIA adopted the IJ's decision, and the
IJ ruled not only that Villalta-Martinez lost on the "nexus" issue
but also that she had failed to meet her burden of showing that
the threats that she received from the gang could be attributed to
"action or inaction" by the government of El Salvador. See
Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005); 8 U.S.C.
§ 1101(a)(42). Thus, before we may vacate and remand the petition
for review, we must address the IJ's ruling on the "action or
inaction" issue.
I do not believe, however, that we may uphold the
agency's ruling on the basis of the IJ's ruling on the "action or
inaction" issue. And that is so for reasons that are similar to
those that lead me to conclude that we may not sustain the agency's
"nexus" ruling.
To show the requisite "action or inaction" by the
government of El Salvador, Villalta-Martinez put forward the
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following evidence: a report by the Organisation for Economic Co-
operation and Development (OECD) on issues affecting youth in El
Salvador and a Reuters article on the relationship between gang
violence and youth migration. This evidence may not be enough, in
the face of a contrary agency finding, to "compel" the conclusion
that she has shown the required tie between the gang's threats and
the government of El Salvador's "action or inaction." Touch v.
Holder, 568 F.3d 32, 39 (1st Cir. 2009). The IJ, however, did not
address either the report or the article in ruling against
Villalta-Martinez on this issue. Instead, the IJ's decision merely
notes that Villalta-Martinez failed to report to the authorities
in El Salvador the incidents she endured at the hands of the gang
that she now contends constituted past persecution.
We have never held, however, that asylum seekers must
have sought assistance from authorities in order for them to be
able to prove that they have suffered past persecution. To the
contrary, we have held that "the failure by a petitioner to make
. . . a report is not necessarily fatal to a petitioner's case if
the petitioner can demonstrate that reporting private abuse to
government authorities would have been futile." Morales-Morales
v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017). Thus, the ground
the IJ gave for ruling against Villalta-Martinez on this issue
cannot suffice.
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Moreover, the agency has failed to address (or even
mention) the countervailing evidence that casts doubt on the
government of El Salvador's ability to control gang activity within
its borders -- namely, the OECD report and Reuters article. And
that failure is problematic because, while neither the report nor
the article directly addresses the police's ability to prevent
gang violence, the OECD report does conclude that government anti-
gang initiatives are "ineffective[]," and the Reuters article
notes that "[e]ntire neighborhoods in El Salvador are controlled
by street gangs." Cf. Hernandez-Avalos v. Lynch, 784 F.3d 944,
953 (4th Cir. 2015) (holding that government of El Salvador was
"unwilling or unable" to control gang violence). Thus, given that
we may not sustain an agency's decision on the basis of reasons
other than those that the agency provides, Chenery Corp., 332 U.S.
at 196; see Aldana-Ramos, 757 F.3d at 18 n.7,10 the agency should
be required to reconsider this aspect of the asylum ruling, too.
10 The majority asserts that Villalta-Martinez "failed to
develop her government inaction argument" on appeal, and thus
waives it. Maj. Op. 12. But, her brief argues that she "presented
documentary evidence to support her assertions regarding gang
violence and government unresponsiveness" to the IJ and, on the
basis of that evidence, her brief contends that the IJ erred in
determining she did not "suffer past persecution." Consistent
with my conclusion that Villalta-Martinez did raise the issue in
her briefing to us, I note that the government does not contend
that Villalta-Martinez waived this issue in her petition for review
of the BIA's ruling and instead addresses the merits of the issue
by contending that Villalta-Martinez "never offered any evidence
to connect the government to any . . . harm."
- 32 -
III.
For the foregoing reasons, I respectfully dissent as to
Villalta-Martinez's asylum claim.
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