Maria Velasquez v. Jefferson Sessions III , 866 F.3d 188 ( 2017 )

AGEE, Circuit Judge:

Maria Suyapa Velasquez, a citizen and native of Honduras, entered the United States unlawfully in 2014 with her minor son D.A.E.V.; they were detained by U.S. Customs and Border Patrol at the time of entry. The Government issued a Notice to Appear, charging Velasquez and D.A.E.V. with removability under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (the “INA”). See generally 8 U.S.C. § 1182(a)(7)(A)(i)(I). Velasquez conceded her removability, but applied for asylum and withholding of removal, and attached D.A.E.V. as a rider on her petition.¹ An Immigration Judge (“IJ”) rejected her claims, and a single-member panel of the Board of Immigration Appeals (the “BIA” or “Board”) dismissed her appeal. Velasquez now petitions this Court for review. For the reasons that follow, we deny the petition.

I.

A.

We recount the facts set out in the record, which are not disputed.

Velasquez and D.A.E.V. fled Honduras because the mother of D.A.E.V.’s late father, Maria Estrada, demanded custody of D.A.E.V. For nearly a decade, Estrada implored Velasquez to turn D.A.E.V. over to her, but each time Estrada made such a. request Velasquez denied it. In 2013, Estrada’s attempts to take custody of D.A.E.V. became more forceful. On more than one occasion, Estrada kidnapped D.A.E.V.' from Velasquez’ home while Velasquez was away. Each time, D.A.E.V. escaped and walked back home. Shortly before Velasquez fled Honduras, Estrada began threatening to kill Velasquez if she did not relinquish custody of D.A.E.V. to her.

The escalating tension between Velasquez and Estrada prompted Velasquez to relocate to the United States. In April 2014, Velasquez and D.A.E.V. unlawfully crossed the United States’ border with Mexico and were detained shortly after. While detained, Velasquez’ mother communicated to her that Estrada’s son Oscar (D.A.E.V.’s uncle) murdered Velasquez’ sister.. The murder, according to Velasquez’ mother, was a case of mistaken identity: Oscar believed his victim was Velasquez.

B.

The Government issued Velasquez a Notice to Appear and charged her with being removable under section 212 of the INA. Velasquez conceded her removability, but argued she was a “refugee,” entitled to either asylum or withholding of removal under sections 208 and 241 of the INA. See generally 8 U.S.C. § 1158(b)(1)(A) (setting standard for asylum); id. § 1231(b)(3) (setting standard for withholding of removal); see also generally id, § 1101(a)(42)(A) (defining “refugee”). Velasquez based.her per tition for asylum and withholding of removal on alleged persecution “on account of’ her membership in a “particular social group,” which she contended was her nuclear family. See 8 U.S.C. §§ 1101(a)(42). She claimed D.A.E.V. as a derivative beneficiary on her petition for asylum under INA section 208(b)(3)(A). See generally 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 208.21.²

Velasquez’ petition for asylum and withholding of removal was heard by an IJ, who denied the petition on both bases. First, the IJ found that Velasquez was not entitled to asylum because the dispute between Velasquez and Estrada was not “on account of’ Velasquez’ membership in her claimed particular social group, her nuclear family, but rather was “an intra-family custody dispute over” D.A.E.V. A.R. 93. In particular, the IJ held that. Velasquez “failed to proffer evidence that the motivation for the conduct'of the Estrada family was to persecute [her], on account of her family membership.” A.R. 93. It observed, for example, that Oscar had killed Velasquez’ sister “in the presence of [her] mother, who remained untargeted and intact” and that Velasquez’ “four other. children [by a different father] remain in Honduras and are unharmed.” A.R. 93. Because the IJ denied Velasquez’ application for asylum, it necessarily also denied D.A.E.V.’s derivative claim. In addition, because withholding of removal employs a more stringent standard than asylum, it held Velasqúéz could not meet her burden of proof as to withholding of removal. Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) (“[A]n applicant who is ineligible for asylum is necessarily ineligible for withholding of removal.”). Compare 8 U.S.C. § 1231(b)(3)(A) (providing that an alien cannot be removed if she demonstrates that her “life or freedom would be threatened” because of her “membership in a particular social group”), with 8 U.S.C. § 1158(b)(1) (stating that an alien may be granted asylum if she can demonstrate that membership ■ in a particular social group “was or will be at least one central reason” for persecution in her native country).

Velasquez timely appealed the IJ’s adverse decision to the Board, which dismissed her appeal in a single-member decision. The Board adopted and supplemented the IJ’s reasoning, stating: “The [IJ’s] finding that the criminal acts committed by ..[Velasquez’], deceased husband’s family against [her] . d[id] not constitute persecution on account of a statutorily protected ground is not clearly erroneous inasmuch as the record supports the finding that [Velasquez] was targeted due to a personal dispute over who should have custody of [D.A.E.V.].” A.R. 437. The Board reiterated the IJ’s conclusion that “the current facts involve a dispute over a personal matter within the family.” A.R, 437.

Velasquez timely petitioned this Court for review of the Board’s decision. We have jurisdiction to consider her petition under section 242 of the INA. See generally 8 U.S.C. § 1252.

II.

“The decisions of the BIÁ concerning asylum eligibility or withholding of removal are deemed conclusive if supported by reasonable, substantial arid probative evidence on the record considered as a whole.” Abdel-Rahman v. Gonzales, 493 F.3d 444, 448 (4th Cir. 2007) (internal quotation marks omitted). “Where[, as here,] the BIA has adopted and supplemented an IJ’s decision, [the Court] review[s] both rulings and accord[s] them appropriate deference.” Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010). We review the IJ’s findings of fact for substantial evidence; we must affirm unless the record would compel “any reasonable adjudicator ... to conclude to the contrary.” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). We review legal issues de novo. Id.

III.

In her petition for review, Velasquez³ argues that the BIA erred as a matter of law in concluding that she was not a “refugee” entitled to asylum in light of . Estrada’s actions.

A.

Velasquez is entitled to asylum only if she is- a “refugee,” as the INA defines that term. See 8 U.S.C. § 1158(b)(1)(A). A “refugee” is an alien outside the country of her nationality “who is unable or unwilling to return to, and is unable or unwilling to avail ... herself of the protection of, that 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.” Id. § 1101(a)(42)(A). The asylum-seeker bears the burden of demonstrating her refugee status. Id. § 1158(b)(1)(B)®.

To do so, Velasquez must demonstrate:- (1) she “has a well-founded fear of persecution”; (2) her. fear arises “on account of’ membership in a protected social group; and-'(3) the threat is made by an organization that the Honduran government “is unable or unwilling to control.” Hernandez-Avalos v. Lynch, 784 F.3d 944, 948-49 (4th Cir. 2016). The parties here address .only the second prong: whether Estrada’s- prosecution of Velasquez arose “on account of’- Velasquez’ membership in a particular social group, her nuclear family.⁴ We have recognized that an individual’s membership in her nuclear family is a particular social group. Id. at 949 (“[Membership in a nuclear family qualifies as a protected ground for asylum purposes.”).

To satisfy the second prong, Velasquez must show that her membership in her nuclear family “was or will be at least one central reason for” her persecution. 8 U.S.C. § 1158(b)(l)(B)(i). She “need' not show that h[er] family ties provide the central reason or even a dominant central reason for h[er] persecution.” Hernandez-Avalos, 784 F.3d at 949 (internal quotation marks omitted). Rather, she “must demonstrate [only] thát these ties are more‘than an incidental, tangential, superficial, or subordinate reason for h[er] persecution.” Id.

B.

Velasquez contends both the IJ and the Board erred in characterizing her dispute as a personal one that it is not protected rather than one “on account of’ her membership in her nuclear family, which would be protected. “[A]liens with a well-founded fear of persecution supported by concrete facts are. not eligible for asylum if those facts indicate, only that the alien fears retribution over purely personal matters.... ” Huaman-Cornelio v. Bd. of Immigration Appeals, 979 F.2d 995, 1000 (4th Cir. 1992); accord Jun Ying Wang v. Gonzales, 445 F.3d 993, 998-99 (7th Cir. 2006) (stating “[t]his circuit and others, however, have repeatedly held that a personal dispute cannot give rise to a claim for- asylum”;- collecting cases). “[E]very threat that references a family member is [not] made on account of family ties.” Hernandez-Avalos, 784 F.3d at 950 n.7.

Substantial evidence in the record supports the IJ’s factual conclusion that this case is solely one of personal conflict among family members: Velasquez and her mother-in-law. Most pointedly, Velasquez’ trial testimony proves this point: no one besides Velasquez, her mother-in-law, and brother-in-law were involvéd. For example, upon-cross examination Velasquez testified as follows:

[Q:] Is anybody else outside of these two families involved in this disagreement?

[A:] No

[Q:] Are you afraid of anybody else in Honduras taking your son, besides this family?

[A:] No.

A.R. 165-66. Upon redirect examination, she confirmed that “[t]he disagreement has been with her and me.” A.R. 167.

In that circumstance, “Evidence consistent with acts of. private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground.” Sanchez v. U.S. Att’y General, 392 F.3d 434, 438 (11th Cir. 2004). We must view the facts “holistically, with an eye to the full factual context,” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). Viewed through that lens, Estrada’s threats were motivated not by Velasquez’ family status but by a personal desire to obtain custody over D.A.E.V. Velasquez testified that “[t]he disagreement [between myself and Estrada] is that [Estrada] does not want me to have [D.A.E.V.]. She wants to have him.” A.R. 165.

Nevertheless, Velasquez contends that our decision in Hernandez-Avalos required the IJ to find that the dispute between herself and Estrada was “on account of’ her status as a member of her nuclear family. We disagree. Were we to credit Velasquez’ understanding of Hernandez-Avalos, we would transform every intra-family dispute into a case for asylum.

In Hernandez-Avalos we held that threats made by a gang and directed at the petitioner were made “on account of’ her membership in her nuclear family, where gang members tried to have her persuade her son to join the gang. Five members of the El Salvadorian gang “Mara 18” approached the petitioner and demanded that she allow her son to join the gang. 784 F.3d at 947. When the petitioner refused, one of the gang members “put a gun to her head and told her that if she opposed her son’s joining them” that she would die. Id. Later, the gang members returned, demanded the petitioner let her son join the gang, and gave her “one day to turn her son over to the gang or she would be killed.” Id. On those facts, the BIA concluded that the petitioner had not been persecuted “on account of’ her family membership. We reversed and concluded that “Mara 18 threatened [the petitioner] in order to recruit her son into their ranks, but they also threatened [her], rather than another person, because of her family connection to her son.” Id. at 950. Continuing, we noted the “threats that directed [the petitioner] to turn her son over to the gang were meaningful only because of. her maternal authority over her son’s actions, and there is no evidence that she would have been selected as the recipient of those-threats absent- that familial connection.” Id. at 950 n.7.-

Although the'familial relationships at issue in Hernandez-Avalos and the present case involve a mother’s relationship with her son, this case is unlike Hernandez-Avalos in critical respects. In Hernandez-Avalos, a non-familial third party persecuted the petitioner because of her family association for the purpose of gang recruitment. In contrast, Velasquez had a long-standing personal disagreement with Estrada over a solely personal conflict regarding D.A.E.V. Estrada’s persecution of Velasquez was only between the two of them—that is, merely incidental to Estrada’s desire to obtain custody of D.A.E.V.⁵ “[T]he asylum statute was not' intended as a panacea for the numerous personal álter-catioris that invariably characterize economic and social relationships.” Saldarriaga v. Gonzales, 402 F.3d 461, 467 (4th Cir. 2005). Because Estrada was motivated out of her antipathy toward Velasquez' and desire to obtain custody over D.A.E.V., and not by Velasquez’ family status, Hernandez-Avalos does not provide the rule here. The IJ and BIA appropriately concluded that Estrada’s motive was not Velasquez’ familial status, but simply a personal conflict between two family members seeking custody of the-same family member. That factual conclusion is fully supported by the record and not clearly erroneous. Abdel-Rahman, 493 F.3d at 448 (“The decision[] of the BIA concerning asylum . .. [is] .deemed conclusive if supported by reasonable, substantial and probative evidence on .the record considered as a whole.” (internal quotation marks omitted)). Thus, substantial evidence’supports the IJ’s conclusion that Velasquez simply failed to show that family status was a reason,, central or otherwise, for her difficulties. See Hernandez-Avalos, 784 F.3d at 949.

For similar reasons, this case also is unlike the recent decision in Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017). In Cruz, the petitioner, a Honduran national, applied for asylum based on her membership in a “particular social group,” namely the “nuclear family of [her husband,] Johnny Martinez.” Id. at 124-25. Martinez had been killed by his boss, who worked closely with organized crime groups, ostensibly after Martinez had discovered his boss’ illicit business and tried to go to authorities. See id. After Martinez’ death, Cruz confronted Martinez’ boss, who repeatedly threatened her and stationed his criminal associates outside of Cruz’ home. See id. at 125-26. Cruz fled to the United States, where she was detained and issued a Notice to Appear. When Cruz later claimed asylum, an IJ denied her petition, observing that her dispute with Martinez’ boss was a dispute with a “private actor for personal reasons.” Id. at 126-27. We reversed, relying on Hernandez-Avalos and concluding that the IJ, and subsequently the BIA, applied an “excessively narrow interpretation of the evidencé relevant to ■the statutory nexus requirement” and that Cruz had satisfied her burden of proof by demonstrating that she more likely than not was targeted “because of [her] relationship with' her husband.” M at 129-30.

Velasquez’ case is inapposite. The dispute between Velasquez and Estrada was a private and purely personal dispute between grandmother and mother regarding D.A.E.V. Velasquez specifically testified to that fact. Unlike Cruz or Hernandez-Avalos, this case does not involve outside or non-familial actors engaged in persecution for non-personal reasons, such as gang recruitment or revenge. Rather, this case concerns solely a custody dispute between two relatives of the same child and necessarily invokes the type of personal dispute falling outside the scope of asylum protection. See Huaman-Cornelio, 979 F.2d at 1000; Jun Ying Wang, 445 F.3d at 998-99.

For all these reasons, Velasquez did not meet her burden of showing persecution “on account of” a protected ground.

C.

Velasquez spends "considerable time in her petition for review trying to shift the'factual basis of her claim from that presented to the IJ and BIA in order to align more to the facts of Hernandez-Avalos. She speculates without proof that Estrada’s persecution was part of a larger scheme orchestrated by the gang Mara Salvatrucha, commonly known in the United States as MS-13. According to Velasquez, both Estrada and Oscar have some connection to MS-13, and Estrada’s effort to take custody over D.A.E.V. really was an effort to recruit him into the gang. As evidence of this recent theory, Velasquez contends that Oscar, who killed her sister, is an active member of MS-13; that after the murder, Oscar spray-painted a death threat on her home and signed it “M.S.,” A.R. 150; and that Estrada “g[a]ve[ ] [MS-13 members] food,” A.R. 419. But none of these “facts” establishes a relevant nexus to a third party persecuting the victim on account of their particular social group. In particular, there is no evidence in the record that Estrada’s interest in her grandson had any connection of any kind to gang recruitment or any gang involvement. Instead, it is a late conjured theory devoid of record evidence of any connection to a particular social group.

As .an initial matter, it is not clear that we have jurisdiction over Velasquez’ claim insofar as she asserts that MS-13, not Estrada, was the source of her persecution. “[A]n alien who does not raise a particular claim before the [Board] fails to exhaust [her] administrative remedies as to that claim,” leaving the federal courts without jurisdiction to consider it. Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir. 2015). The record contains only passing references to gangs generally, and MS-13 particularly. In Velasquez’ application for asylum, she mentions as a matter-of-fact “Oscar is often with members of the MS gang.” A.R. 250. Yet she offered nothing else to tie Estrada’s actions to a gang, and stated that she did not “know if [Estrada]' is associated with the MS.” Id. None of her arguments to the IJ or the Board asserted that she was being persecuted by a gang or that affected her or D.A.E.V. in any way.

But even if we do’ have jurisdiction, substantial evidence supports the IJ’s conclusion, affirmed by the Board, that Velasquez was persecuted’by Estrada, not by MS-13, and that this persecution was solely personal. Velasquez’ petition confirms the deeply personal nature of her conflict with Estrada, attributing Estrada’s threats tq the fact that that sh,e “never liked [Velasquez] very much,” not to a gang-related motive. A.R. 249. Again, when asked directly about the source of her persecution before the IJ, Velasquez, explicitly confirmed that no one “outside of [the Velasquez and Estrada] families [were] involved in this disagreement.” A.R. 165. Accordingly, we hold that the IJ’s conclusion, adopted by the Board, that the dispute between Velasquez and Estrada was solely a personal dispute was supported by substantial evidence.

⅜ $ ⅜ ‡

In sum, the IJ did not err in concluding that the dispute between Velasquez and Estrada was not “on account of’ Velasquez’ membership in a particular social group, but was simply a personal dispute. As such, Velasquez failed to meet her burden of proof as to an essential element of her asylum claim: that her persecution arose “on account of membership in a particular social group.” Therefore, we deny Velasquez’ petition for review.⁶

IV.

Based on the foregoing, Velasquez’ petition for review of the Board’s decision dismissing her petition for. asylum - and withholding of removal is denied.

PETITION DENIED

1 . Velasquez also applied for relief under the United Nations Convention Against Torture. An Immigration Judge denied that claim, and Velasquez does not pursue it in her petition for review. Accordingly, she has abandoned that claim. See Karimi v. Holder, 715 F.3d 561, 565 n.2 (4th Cir. 2013).

2 . Velasquez did not, and could not, claim D.A.E.V. as a derivative beneficiary on her withholding of removal petition. See Niang v. Gonzales, 492. F.3d 505, 513 (4th Cir. 2007) (“[T]he statute permitting withholding of removal does not encompass derivative withholding claims, that is, claims for withholding of removal based on persecution to another person; instead, an alien seeking withholding of removal must established that, they will suffer harm if removed.”).

3 . Because D.A.E.V. is a rider on Velasquez’ petition for asylum, we need only examine her arguments.

4 , The IJ did not address the third prong, but resolved the case under the protected social group aspect. Velasquez never pursued the third prong before the IJ or BIA, and we, therefore, lack jurisdiction to consider it at this juncture. See Cordova v. Holder, 759 F.3d 332, 336 n.2 (4th Cir. 2014) (noting that where a petitioner failed to press a claim before the BIA, we "lack jurisdiction to review” it).

5 . Nor, as Velasquez suggests, does Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), control. There, the BIA considered whether "married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group for asylum relief. Id. at 392. The -legal validity of the social group identified by Velasquez is not at issue in this case. Moreover, A-R-C-G does not bear on our nexus analysis because, there, the Government "concede[d] ... that the mistreatment [suffered by the alien] was, at for at least one central reason, on account of her membership in a cognizable particular social group.” Id. at 395'.

6 . Velasquez also applied for withholding of removal under section 241(b)(3) of the INA. See generally 8 U.S.C. § 1231(b)(3). That statute provides that the Attorney General cannot "remove an alien to a country if [he] 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." Id. § 1231(b)(3)(A). "[A]n applicant who is ineligible for asylum is necessarily ineligible for withholding of removal.” Camara, 378 F.3d at 367. Given the above discussion, Velasquez necessarily did not meet the higher burden for withholding of removal. Accordingly, we also deny Velasquez’ petition for withholding of removal.