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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13054
Non-Argument Calendar
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Agency No. A209-219-187
ALMA MARISOL LOPEZ-DIAZ,
JOSE ALEXANDER TREJO-LOPEZ,
JOSUE NEFTALI TREJO-LOPEZ
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 8, 2020)
Before WILLIAM PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM:
Alma Marisol Lopez-Diaz, a native and citizen of El Salvador, and her
children, as derivative beneficiaries, petition this Court to review the denial of her
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application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
Lopez-Diaz, a store owner, and her children entered the United States illegally to
escape extortion by members of the MS-13 gang. The Board of Immigration
Appeals agreed with the immigration judge that Lopez-Diaz failed to prove that
she was a member of a particular social group, that a nexus existed between a
protected ground and a harm that she faced, or that she was likely to be tortured
when she returned to El Salvador. We deny Lopez-Diaz’s petition.
I. BACKGROUND
At the end of March 2016, members of the MS-13 gang demanded money
from Lopez-Diaz three times inside her store, which was attached to her home.
During the first incident, Lopez-Diaz responded she could not pay, and the gang
members pointed a gun at her stomach and stole some goods as they left her store.
When the gang members returned a few days later, Lopez-Diaz again pleaded
poverty, and the gang members pointed a gun at her head and pilfered cigarettes
and food. On March 25, 2016, Lopez-Diaz reported the two incidents to law
enforcement in San Miguel. Two days later, the gang members appeared a third
time, and when Lopez-Diaz could not pay, they threatened to harm her children.
Lopez-Diaz and her children promptly left their home and fled to the United States.
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After the Department of Homeland Security detained Lopez-Diaz, she
applied for asylum, withholding of removal, and relief under the Convention.
Lopez-Diaz alleged that she had suffered past persecution and feared future
persecution from members of the MS-13 gang. She asserted that she was
persecuted based on her membership in two particular social groups: “individuals
and family members who have been targeted [for] violent crimes and are seen as
benefiting from current socioeconomic structures because of perceived wealth
associated with presence in and family ties to the United States” and “business
owners in El Salvador.” Lopez-Diaz attached to her application copies of her
police report; letters from neighbors and friends recounting Lopez-Diaz’s stories
about being extorted and threatened; and several reports recounting the conditions
in El Salvador, including the 2016 Human Rights Report, the 2017 Travel
Warning, and the 2016 Crime and Safety Report.
During her removal hearing, Lopez-Diaz testified about the three incidents
with members of the MS-13 gang and about her departure from El Salvador.
Lopez-Diaz testified that, after she closed her store, she and her children traveled
to the capital city of El Salvador, where they stayed for several days until leaving
the country. She also testified that a man with whom her brother had worked had
been killed by members of the MS-13 gang because he refused to pay them. When
questioned on cross-examination, Lopez-Diaz admitted that she did not know
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whether police in El Salvador had arrested anyone based on her complaint and that
she failed to report the third incident of extortion to the police.
The immigration judge denied Lopez-Diaz immigration relief, and the Board
dismissed Lopez-Diaz’s appeal. The Board agreed with the immigration judge that
Lopez-Diaz was not entitled to asylum or withholding of removal because she
identified no cognizable particular social group in which she was a member and
because no nexus existed between the harm she experienced and a protected
ground. The Board found that Lopez-Diaz’s first proposed group was “too
expansive as [it] includes individuals from all segments of Salvadorian society who
are perceived to have wealth” and was “overbroad and diffuse because ‘victims of
gang violence come from all segments of society’” and gang members were
unlikely to differentiate among wealthy persons within “the general population of
El Salvador.” And the Board rejected as “unavailing” Lopez-Diaz’s “attempt to
narrow the proposed group of those with perceived wealth by referring to family
ties to the United States . . . as her testimony did not indicate that the gang
members were motivated by her family ties to the United States.” The Board also
found that Lopez-Diaz’s second proposed group was not cognizable because
“[t]the risk of persecution . . . [to business owners did] not create a particular social
group” and “[t]he fact that business owners were convenient targets for extortion
did not show that they were ‘a particular social group.’” The Board found that
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Lopez-Diaz failed to establish that she suffered past persecution or faced a
likelihood of future persecution on account of a protected ground because the gang
members’ “motives in extorting and threatening [her] in March 2016 were criminal
in nature . . . .”
The Board also affirmed the finding of the immigration judge that Lopez-
Diaz was not entitled to relief under the Convention. The Board stated that Lopez-
Diaz failed to “meaningfully challenge the specific reasons that the Immigration
Judge provided for denying her application for protection under the Convention
Against Torture.” And the Board found that Lopez-Diaz “was never threatened or
harmed by the police or government” and presented no evidence that she would
“likely be tortured in El Salvador by or at the instigation of, or with the consent or
acquiescence of, a public official or person acting in an official capacity.”
II. STANDARDS OF REVIEW
We review de novo the legal conclusions of the Board. Rodriguez v. U.S.
Att’y Gen.,
735 F.3d 1302, 1308 (11th Cir. 2013). Because the Board agreed with
the findings of the immigration judge, we review the decisions of the Board and
the immigration judge.
Id. Our review of the decision is limited by “the highly
deferential substantial evidence test,” under which we must affirm if the decision is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Silva v. U.S. Att’y Gen.,
448 F.3d 1229, 1237 (11th Cir.
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2006) (internal quotation marks omitted). We do not disturb factual findings unless
the record compels a reversal.
Rodriguez, 735 F.3d at 1308.
III. DISCUSSION
Lopez-Diaz raises two arguments. First, she argues that she was entitled to
asylum and withholding of removal because she was harmed on account of her
membership in two particular social groups in El Salvador: persons who have been
targeted for violent crimes because of their perceived wealth associated with
family ties to the United States and business owners in El Salvador. Second, she
argues that she was entitled to relief under the Convention because, if she returns
to her homeland, she is likely to be tortured by members of gangs because the
government is aware of and fails to protect its citizens against gang violence and
because relocation is not a reasonable option due to the existence of criminal gangs
throughout the country.
A. Lopez-Diaz Fails to Identify Error in the Decision to Deny Her Applications for
Asylum and Withholding of Removal.
For Lopez-Diaz to qualify for asylum and withholding of removal, she had
to prove she was a member “in a particular social group” for which she suffered
past persecution, 8 U.S.C. § 1158(b)(1)(A), and harbored an objectively reasonable
fear that her “life or freedom would be threatened in [her] country” upon her
return,
id. § 1231(b)(3)(A). To qualify as “a particular social group,”
id.
§ 1101(a)(42)(A), Lopez-Diaz’s proposed groups had to consist of “persons who
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share a common, immutable characteristic that . . . [they] either cannot change, or
should not be required to change because it is fundamental to their individual
identities or consciences,”
Rodriguez, 735 F.3d at 1310. She also had to prove that
her “membership in a particular social group . . . was or will be at least one central
reason for persecuti[on].” 8 U.S.C. § 1158(b)(1)(B)(i). In addition, Lopez-Diaz had
to “present specific, detailed facts” that she suffered past persecution and that she
fears “be[ing] singled out for persecution on account of a protected ground.”
Rodriguez, 735 F.3d at 1310 (alteration adopted) (quoting Najjar v. Ashcroft,
257
F.3d 1262, 1287 (11th Cir. 2001)).
The Immigration and Nationality Act does not define “particular social
group,” so we make that determination based on the criteria designed by the Board.
Castillo-Arias v. U.S Att’y Gen.,
446 F.3d 1190, 1196 (11th Cir. 2006). A
particular social group has three defining characteristics: immutability; social
distinction; and particularity. Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 404 (11th
Cir. 2016). To have immutability, the members of the group must have a common
characteristic other than a shared risk of being persecuted that they “either cannot
change, or should not be required to change because it is fundamental to their
individual identities or consciences.”
Castillo-Arias, 446 F.3d at 1193 (quoting
Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)). A group achieves social
distinction when society in the homeland recognizes it as a group and its members
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are not too numerous or inchoate.
Rodriguez, 735 F.3d at 1310 (citing Castillo-
Arias, 446 F.3d at 1198); Matter of W-G-R-, 26 I. & N. Dec. 208, 216–18 (BIA
2014); see also Perez-Zenteno v. U.S. Att’y Gen.,
913 F.3d 1301, 1310–11 (11th
Cir. 2019) (holding that a group defined, in part, based on family ties between
Mexico and the United States was impermissibly inchoate and numerous). And a
group is particular if it has “characteristics that provide a clear benchmark for
determining who falls within that group” that make it “discrete and [give it]
definable boundaries—it must not be amorphous, overbroad, diffuse, or
subjective.” Matter of W-G-R-, 26 I. & N. Dec. at 214.
The Board did not err in determining that Lopez-Diaz’s two proposed groups
were not cognizable social groups. Both of Lopez-Diaz’s proposed groups lack
immutability because the risk of persecution that Lopez-Diaz seeks to escape as a
person and as a business owner —violent crimes perpetrated by criminal gangs—is
faced by virtually every citizen of and business owner in El Salvador. See Castillo-
Arias, 446 F.3d at 1198. Her two proposed groups also lack social distinction
because the record shows that a large percentage of the El Salvadoran population
has likely been the target of violent crime. See
id.
Lopez-Diaz’s two proposed groups also do not qualify as distinctive
subgroups of society for other reasons. Her first proposed group lacks immutability
because wealth is not something fundamental to an individual’s identity, see
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Rodriguez, 735 F.3d at 1310, and lacks particularity because wealth turns on
subjective perception and results in too broad a group, see Castillo-
Arias, 446 F.3d
at 1198. Lopez-Diaz’s first proposed group also lacks particularity even with its
members’ family ties to the United States because of the undefined number of El
Salvadorians who share that characteristic. See
Perez-Zenteno, 913 F.3d at 1311.
And Lopez-Diaz’s second proposed group of business owners in El Salvador lacks
immutability. See Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA 1985) (“[T]he
internationally accepted concept of refugee simply does not guarantee an
individual the right to work in the job of his choice.”). Lopez-Diaz’s “membership
in the group of [store owners] was something [she] had the power to change . . . to
avoid persecution by the [MS-13 gang] . . . .”
Id.
Even if we were to assume, like the Board, that Lopez-Diaz’s proposed
groups qualify as particular social groups, substantial evidence supports the finding
that she did not qualify for asylum and withholding of removal because no nexus
exists between her membership in those groups and the harm she suffered or she
feared would occur if she returned to El Salvador. The reports submitted by Lopez-
Diaz reflected that virtually everyone in El Salvador with money, not just business
owners or those perceived as wealthy due to familial ties to the United States, were
subject to extortion and violent crimes. And evidence that criminal gangs targeted
a majority of the population in El Salvador supports the finding of the Board that
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Lopez-Diaz had not been harassed and another business owner had not been killed
on account of their status as business owners.
Lopez-Diaz fails to qualify for asylum or withholding of removal. When “an
applicant is unable to meet the ‘well-founded fear’ standard for asylum, [she] is
generally precluded from qualifying for either asylum or withholding of
deportation.”
Najjar, 257 F.3d at 1292–93. Because Lopez-Diaz failed to satisfy
her burden to qualify for asylum, she cannot satisfy the higher standard required to
qualify for withholding of removal.
B. Substantial Evidence Supports the Decision to Deny Lopez-Diaz’s Application
for Relief Under the Convention.
To qualify for relief under the Convention, Lopez-Diaz must prove that it is
more likely than not that she would be tortured when she returns to El Salvador.
Najjar, 257 F.3d at 1303. Torture is defined as any act intended to cause “severe
pain and suffering, whether physical or mental” that is inflicted by, under the
direction, or with the acquiescence of a public official or person acting in an
official capacity. 8 C.F.R. § 208.18(a)(1). “Acquiescence” requires that a public
official have awareness of the torture before it occurs and “thereafter breach his or
her legal responsibility to intervene to prevent [it].”
Id. § 208.18(a)(7). Evidence
relevant to assessing Lopez-Diaz’s eligibility for relief requires consideration of
whether she had been tortured in El Salvador, her ability to relocate within the
country, and relevant country conditions.
Id. § 208.16(c)(3).
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Substantial evidence supports the finding that Lopez-Diaz will not likely be
tortured if removed to El Salvador. Lopez-Diaz provided no evidence of past
torture, and her evidence reflected that the government had not acquiesced in the
criminal activities of the MS-13 gang. Local authorities prepared a criminal
complaint that documented the extortion and threats that Lopez-Diaz reported, but
because Lopez-Diaz left El Salvador immediately, she was unaware whether police
had caught any of the culprits. Although country reports reflect that the
government has been unsuccessful in quelling gang criminal activities and
violence, the reports do not suggest that the government would acquiesce in any
torture that gangs might inflict on Lopez-Diaz. See Reyes-Sanchez v. U.S. Att’y
Gen.,
369 F.3d 1239, 1243 (11th Cir. 2004). Moreover, relocation is a viable
option for Lopez-Diaz. Lopez-Diaz testified that, after leaving her hometown, she
lived in the capital city of El Salvador for several days without incident.
IV. CONCLUSION
We DENY Lopez-Diaz’s petition for review.
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