Sandra Arieta-Lopez v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1086
___________
SANDRA LORENA ARIETA-LOPEZ;
DIEGO RODRIGO ARIETA-RODRIGUEZ,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A099-663-559 and A208-885-625)
Immigration Judge: John B. Carle
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 7, 2022
Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit Judges
(Opinion filed: November 9, 2022)
___________
OPINION*
__________
NYGAARD, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Sandra Arieta-Lopez and her minor son petition for review of the Board of
Immigration Appeals’ (BIA) final order of removal, arguing that the BIA erred by finding
that her proposed social group was not cognizable. Because Arieta-Lopez failed to
exhaust one claim and her other arguments lack merit, we will dismiss in part and deny in
part the petition for review.
I.
Arieta-Lopez, a native and citizen of El Salvador, entered the United States in
2006 and was subsequently removed pursuant to a removal order in January 2010. She
and her minor son, also a native and citizen of El Salvador, then entered the United States
again in January 2016. The Department of Homeland Security (DHS) reinstated Arieta-
Lopez’s 2010 removal order. After she claimed a fear of returning to El Salvador, an
asylum officer conducted a reasonable fear interview and determined that Arieta-Lopez
did not have a reasonable fear of persecution or torture. She requested review of that
determination before an Immigration Judge (IJ), who vacated the decision and placed
Arieta-Lopez in “withholding-only” proceedings. DHS also placed the minor son into
removal proceedings by filing a Notice to Appear, charging him with inadmissibility
under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being
admitted or paroled.
Although Arieta-Lopez was not eligible to seek asylum, see Cazun v. Att’y Gen.,
856 F.3d 249, 251 (3d Cir. 2017) (noncitizens “subject to reinstated removal orders are
ineligible to apply for asylum”), she sought withholding of removal and protection under
the Convention Against Torture (CAT). The minor son filed an application for asylum,
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withholding of removal, and relief under CAT. The applications were denied, finding,
among other things, that Arieta-Lopez did not identify a cognizable particular social
group, and she and her son were ordered removed to El Salvador. They appealed to the
BIA.
The BIA affirmed the IJ’s decision. The BIA agreed that Arieta-Lopez’s proposed
particular social group lacked immutability, particularity, and social distinction, was not
persuaded that being a bank teller is fundamental to her identity in El Salvador, and
concluded that her proposed group is impermissibly circularly defined by the harm
experienced or feared. The BIA also concluded that even if the group were cognizable,
there was no clear error in the IJ’s finding that Arieta-Lopez did not establish a nexus
between the harm she feared and a protected ground. As she did not meet her burden for
withholding of removal, her appeal was dismissed.1 The BIA also dismissed the minor
son’s appeal, finding that he presented “no meaningful arguments” contesting the IJ’s
denial of his claims and as such “waived” those issues.2 Arieta-Lopez petitions for
review.
II.3
1
The BIA also concluded that Arieta-Lopez and her son waived any challenge to
the IJ’s denial of their claims for CAT protection because they presented “no meaningful
arguments” challenging the IJ’s denial of the claims. AR 3 n.2, 303. Their failure to raise
the issue before the BIA constituted a failure to exhaust the issue, so we lack jurisdiction
over the CAT claim. 8 U.S.C. § 1252(d)(1); Lin. v. Att’y Gen., 543 F.3d 114, 126 (3d Cir.
2008).
2
The minor son does not challenge the BIA’s conclusion that he waived his
challenge to the denial of his claims for asylum and withholding of removal.
3
We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252(a)(1).
We may consider both the BIA and the IJ’s opinions “to the extent the BIA deferred to or
3
The BIA correctly concluded that Arieta-Lopez has not shown that she is a
member of a cognizable particular social group. The only substantive challenge before us
is to the BIA’s denial of Arieta-Lopez’s claim for withholding of removal. Arieta-Lopez
argues that the BIA overlooked the law and evidence by holding that her proposed
particular social group lacked immutability, particularity, and social distinction.
“[T]he Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Arieta-Lopez argues that her particular
social group, “El Salvadoran professional women subjected to extortion who have access
to large sums of money and/or have perception of one who has access to large sums of
money,” entitles her to withholding of removal. To sustain a claim for withholding of
removal based on membership in a particular social group, Arieta-Lopez must show that
her 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.” Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 146 (3d Cir. 2021) (internal
quotation marks and citation omitted). She must “establish by a ‘clear probability’ that
[her] life or freedom would be threatened in the proposed country of deportation.”
adopted the [IJ’s] reasoning.” Mendoza-Ordonez v. Att’y Gen., 869 F.3d 164, 169 (3d Cir.
2017) (internal quotation marks and citation omitted). We review the BIA’s legal
conclusions de novo. Id. We “decide the petition only on the administrative record” and
“the administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252 (b)(4)(A)-(B).
4
Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (internal quotation marks and
citation omitted). Finally, she must prove that persecution would be “because of” her
group membership—the nexus requirement. See Gonzalez-Posadas v. Att’y Gen., 781
F.3d 677, 684–85 & n.6 (3d Cir. 2015).
Though her Arguments heading asserts that the BIA erred by finding a lack of
immutability, particularity, and social distinction, Arieta-Lopez’s brief focuses most
clearly on immutability. Of course, lack of particularity and social distinction, which
Arieta-Lopez does not meaningfully challenge, are dispositive of her claim. Regardless,
the argument that her proposed social group is immutable is not supported by the record
because she has not shown that her occupation is a fundamental aspect of her identity.
Compare Mwembie v. Gonzales, 443 F.3d 405, 415 (5th Cir. 2006) (“Because [petitioner]
can change her employment, which is not fundamental to her identity or conscience, she
does not belong to a ‘social group’ of government employees.”), with Plancarte Sauceda
v. Garland, 23 F.4th 824, 834 (9th Cir. 2022) (“[Petitioner] cannot avoid compulsion by
the cartel simply by changing jobs, because even if she ceased employment as a nurse,
she would still be a nurse. . . . The cartel targeted [petitioner] precisely because of her
specialized nursing skills.”). Thus, we are unable to conclude that the record compels
reversal of the BIA’s opinion. As a result, withholding of removal is not warranted.
We need not reach Arieta-Lopez’s additional arguments because her failure to
establish membership in a cognizable group is dispositive of her claim.
III.
5
For the foregoing reasons, we will dismiss in part and deny in part the petition for
review.
6