Lemus-Aguilar v. Garland ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1799
PATRICIA MARILY LEMUS-AGUILAR,
Petitioner,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Kayatta and Gelpí, Circuit Judges.
Kristian Robson Meyer, with whom Kevin P. MacMurray and
MacMurry & Associates were on brief, for petitioner.
Tatiana G. Pino, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, and Greg D. Mack, Senior
Litigation Counsel, Office of Immigration Litigation, were on
brief, for respondent.
August 12, 2024
KAYATTA, Circuit Judge. Patricia Marily Lemus-Aguilar
petitions for review of a Board of Immigration Appeals ("BIA")
final order of removal. The BIA affirmed an Immigration Judge's
("IJ") decision that denied Lemus-Aguilar's request for asylum and
ordered her removed to El Salvador. Seeing no error in the
agency's underlying conclusion that Lemus-Aguilar failed to
establish a nexus between the harm that befell her and any
protected ground for asylum, we must deny the petition. Our
reasoning follows.
I.
Lemus-Aguilar, a native and citizen of El Salvador,
entered the United States near Hidalgo, Texas without inspection
or valid entry documents on February 21, 2016. Later that year,
the Department of Homeland Security ("DHS") filed a Notice to
Appear with the Immigration Court to begin removal proceedings
against her. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). On March 3,
2017, Lemus-Aguilar filed an application for asylum.1 She
otherwise conceded removability as charged.
In her pre-hearing memorandum, Lemus-Aguilar indicated
that she sought asylum based on the persecution she suffered and
would continue to suffer on account of -- as relevant here -- her
1 Lemus-Aguilar also sought withholding of removal and
protection under the regulations implementing the Convention
against Torture ("CAT"). However, she does not petition for review
of the IJ or BIA's dismissal of those claims.
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membership in the particular social group of "single, Salvadoran
mother[s] with no familial protection." She later submitted
supporting documents, including her own declaration, a declaration
from a female neighbor in El Salvador who was also targeted for
extortion by gang members, and a 2017 U.S. Department of State
Human Rights Report on El Salvador. She also submitted
declarations from various experts on conditions in El Salvador.
Those reports described common types of gang violence, including
extortion of single women. The reports also described the
prevalence of patriarchal cultural norms that often leave women
dependent on the men in their households and victims of
gender-based violence.
On October 15, 2019, Lemus-Aguilar testified before the
IJ at her merits hearing. She testified that she fled El Salvador
with her daughter on February 10, 2016, due to "threats by the
gangs." She stated that she and her daughter had lived in a town
called La Palma, in a home near a field and wooded area where she
would observe MS-13 gang members conducting drug deals. A few
weeks before she left the country, gang members approached
Lemus-Aguilar's house. As Lemus-Aguilar testified, "they wanted
[her] to sell drugs, because [she] lived close to the field" and
had observed their activities there. According to Lemus-Aguilar,
a gang member told her he "had been watching [them]" and therefore
knew that hurting her daughter "would be the way to hurt [her] the
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most." The gang gave Lemus-Aguilar two days to decide if she would
help them sell drugs -- otherwise they would "harm [her] daughter
in front of [her]."
When asked why the gang would harm her daughter,
Lemus-Aguilar stated it was because her daughter "was the only
thing [she] had, the most valuable thing [she] had." She also
testified that she believed the gang threatened them because she
and her daughter lived alone together and were "vulnerable" to the
gang.
Lemus-Aguilar stated that after those two days passed,
she told the gang members that she refused to help them. She
testified that she then fled -- in fear of the gang's
reprisals -- to her father's house in a town some forty minutes
away, where she and her daughter hid out for two weeks before
leaving for the United States. She also noted that the gangs
separately threatened to extort her female neighbor who continues
to live in La Palma with her family.
On October 15, 2019, the IJ denied Lemus-Aguilar's
asylum claim. The IJ found Lemus-Aguilar credible and genuinely
afraid of returning to El Salvador. The IJ also found that the
threats Lemus-Aguilar and her daughter received rose to the level
of past persecution. However, the IJ found that Lemus-Aguilar
failed to show that any past persecution (or well-founded fear of
future persecution) was on account of a statutorily protected
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ground. That is, the IJ determined that the gang members were
motivated to target Lemus-Aguilar "because she refused to comply
with their criminal scheme for her to participate and assist in
their apparent efforts at drug trafficking and drug distribution."
It noted that this court has rejected "resist[ing] gang
recruitment" as a protected ground for asylum. See, e.g.,
Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010)
(rejecting a proposed particular social group of "young women
recruited by gang members who resist such recruitment"). Thus,
the IJ found itself "[un]able to connect [Lemus-Aguilar's] claimed
fear to a protected ground."
In so finding, the IJ noted Lemus-Aguilar's argument
that she was targeted on account of being a "single, Salvadoran
[mother] with no familial protection." However, the IJ found that
this was not "one central reason" she was targeted. Rather, she
was targeted because of her home's proximity to an area where the
gang conducted drug deals, and because of her knowledge of those
activities. Additionally, the IJ found that Lemus-Aguilar's
proposed particular social group was not legally cognizable
because it was insufficiently particular. The IJ found that
Lemus-Aguilar's proposed group "preclude[d] determinacy" because
the definition of "familial protection" was unclear, as the record
showed that Lemus-Aguilar herself was able to seek help from her
father when fleeing La Palma. Consequently, given Lemus-Aguilar's
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failure to put forward a cognizable particular social group, and
the lack of evidence that she was targeted on grounds of membership
in that group, the IJ concluded that Lemus-Aguilar's asylum claim
failed.
The BIA affirmed. First, the BIA agreed with the IJ
that Lemus-Aguilar's proposed particular social group was
insufficiently particular. It noted that while "mother" and
"Salvadoran" may have clear definitions, "no familial protection"
is a "subjective term without a clear meaning." The BIA also
agreed that it was not clear whether Lemus-Aguilar indeed had "no
familial protection." As such, the BIA found that her proposed
particular social group lacked the "requisite well-defined
boundaries" to be cognizable. Second, the BIA agreed with the IJ
that Lemus-Aguilar failed to establish that membership in her
proposed social group was a "central reason" for her claimed
persecution. To that end, the BIA found that it was unclear to
what extent, if any, the individual gang members were even aware
that Lemus-Aguilar had no familial protection. Therefore, the
IJ's conclusion that the gang instead targeted Lemus-Aguilar for
purely extortionary reasons was not clearly erroneous.
Lemus-Aguilar now petitions this court for review. She
asserts two points of error. First, she argues that the BIA erred
in affirming the IJ's determination that her proposed particular
social group is not legally cognizable. Second, she argues that
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the BIA also erred in affirming the IJ's finding that she failed
to establish a nexus between that proposed group and the
persecution she suffered or fears she will suffer.
II.
When the BIA adopts and affirms an IJ's decision while
adding its own gloss, we review both decisions together.
Varela-Chavarria v. Garland, 86 F.4th 443, 449 (1st Cir. 2023).
We review legal conclusions de novo and factual findings under the
"substantial evidence" standard. López-Pérez v. Garland, 26 F.4th
104, 110 (1st Cir. 2022). Under that standard, we "accept the
agency's findings of fact, including credibility findings, as long
as they are 'supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'" Segran v. Mukasey,
511 F.3d 1, 5 (1st Cir. 2007) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)). In other words, we "only disturb the
agency's [factual] findings if, in reviewing the record as a whole,
'any reasonable adjudicator would be compelled to conclude to the
contrary.'" Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir.
2023) (quoting Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir.
2020)).
III.
We begin and end with Lemus-Aguilar's challenge to the
BIA's affirmance of the IJ's determination that she is not eligible
for asylum because she failed to establish the requisite nexus
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between her past persecution (or well-founded fear of future
persecution) and a protected ground. To qualify for asylum,
Lemus-Aguilar must establish that she "suffered in the past or has
a well-founded fear of suffering in the future 'persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion.'" Varela-Chavarria, 86 F.4th
at 449 (emphasis added) (quoting 8 U.S.C. § 1101(a)(42)(A)). Thus,
even assuming arguendo that "single, Salvadoran mothers with no
familial protection" is a cognizable particular social group,
Lemus-Aguilar still must show that her membership in that group
"was or will be at least one central reason" for her persecution.
8 U.S.C. § 1158(b)(1)(B)(i).
To establish nexus, Lemus-Aguilar need not "demonstrate
that [s]he was singled out only due to [her] protected trait."
Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014). Nor
does "the presence of a non-protected motivation" render her
ineligible for asylum, Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st
Cir. 2014), for "of course, persecutors may often have more than
one motivation," Ordonez-Quino, 760 F.3d at 90 (quoting Ivanov v.
Holder, 736 F.3d 5, 15 (1st Cir. 2013)). However, Lemus-Aguilar
must show that a protected ground was or will be more than
"incidental, tangential, superficial, or subordinate to another
reason for [the] harm" in question. Sanchez-Vasquez v. Garland,
994 F.3d 40, 47 (1st Cir. 2021) (quotation omitted).
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On this record, we find that substantial evidence
supports the IJ and BIA's determination that Lemus-Aguilar's
status as a "single, Salvadoran mother with no familial protection"
was not a central reason for her persecution. See id. (reviewing
a gang's motivation to target the petitioner there under the
substantial-evidence standard). Lemus-Aguilar testified that the
gang members "wanted [her] to sell drugs, because [she] lived close
to the field . . . [a]nd they knew that [she] observed a lot of
things." She also testified that the gang members wanted her to
"join them to sell drugs, because [she] was an accessible part
with them," meaning that she "lived in front of the [field] where
they would spend a lot of time" near a "wooded area where they
would do their deals." And when asked why the gang members would
harm her daughter if she refused their demands, Lemus-Aguilar
stated that it was "[b]ecause [her daughter] was . . . the most
valuable thing [she] had." Thus, as the IJ found, "the motivation
for [Lemus-Aguilar] being targeted was because she refused to
comply with [the gang members'] criminal scheme for her to
participate and assist in their apparent efforts at drug
trafficking and drug distribution." Lemus-Aguilar's brief even
concedes that the IJ's nexus finding was "plausible."
The record amply supports the conclusion that
Lemus-Aguilar's status as a "single, Salvadoran mother with no
familial protection" was "incidental, tangential, superficial, or
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subordinate" to the persecutors' principal motivation of
recruiting Lemus-Aguilar to assist with their drug-related
criminal activities.2 Id. To be sure, we may infer from
Lemus-Aguilar's testimony that Lemus-Aguilar's persecutors were
aware that she lived alone with her daughter. But Lemus-Aguilar
presents no compelling evidence that the gang members believed her
to have no family in the area, or that they were motivated by any
deficiency in her familial protection when they decided to target
her for their drug-trafficking activities. See Villalta-Martinez
v. Sessions, 882 F.3d 20, 24 (1st Cir. 2018) (finding that the
petitioner there failed to show that she was persecuted on account
of her relationship with her child's father where she provided no
evidence that the gang members "had any knowledge of her
relationship with [the father of her child]"). If anything,
Lemus-Aguilar's testimony that she sought refuge from the gang
with her father in a nearby town only detracts from any claim that
she lacked "familial protection," let alone that the gang members
targeted her on that basis.
2 Lemus-Aguilar does not argue that resisting the gang
members' recruitment efforts itself constitutes a protected ground
for asylum. In any event, the IJ correctly noted that this
argument would likely fail. See Mendez-Barrera, 602 F.3d at 27;
see also Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010)
(rejecting the proposed social group of "youth resistant to gang
recruitment" as insufficiently particular and lacking social
visibility).
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Additionally, while Lemus-Aguilar presented a
declaration from a female neighbor in La Palma whom gang members
also targeted for extortion by threatening to harm her family
members, no record evidence indicates whether that neighbor shared
any characteristics with "single, Salvadoran mothers with no
familial protection" or whether the gang targeted her on any such
basis. The fact that the gang also targeted Lemus-Aguilar's
neighbor for extortion by threatening to harm her family members
bolsters the agency's conclusion that the gang was motivated by
Lemus-Aguilar's proximity to an area where it conducted criminal
activities and a general desire to further those activities. And
as for Lemus-Aguilar's country conditions evidence, while her
expert reports explain an unfortunate ubiquity of gender-based
violence and discrimination in El Salvador, they do little to
establish that the MS-13 gang members in La Palma targeted
Lemus-Aguilar based on her status as a single Salvadoran mother
with no familial protection, as opposed to as a conduit for
furthering their drug-trafficking activities.
At bottom, Lemus-Aguilar presents insufficient evidence
to "compel a reasonable factfinder to reach a contrary
determination" regarding the nexus between the harm she suffered
and any statutorily protected ground. Jianli Chen v. Holder, 703
F.3d 17, 21 (1st Cir. 2012). As Lemus-Aguilar's failure to
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establish this nexus is fatal to her asylum claim, we need go no
further.3
IV.
For the foregoing reasons, we must deny the petition.
3 We therefore do not decide whether the IJ or BIA erred in
finding that "single, Salvadoran mothers with no familial
protection" is not a legally cognizable particular social group.
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