Alvarez Trejo v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORIA ORBELINA ALVAREZ No. 21-547
TREJO; ZAIDA LARISSA BENITEZ Agency Nos.
ALVAREZ; SHEILA AYLEN ALVAREZ A209-388-264
TREJO, A209-388-265
A209-388-266
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2023
Pasadena, California
Before: BERZON, MILLER, and LEE, Circuit Judges.
Victoria Orbelina Alvarez Trejo (“Alvarez Trejo”), a native and citizen of
El Salvador, petitions for review of a Board of Immigration Appeals (“BIA”)
decision affirming the immigration judge’s (“IJ”) order denying her and her two
minor daughters’ applications for asylum, withholding of removal, and
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
protection under the Convention Against Torture (“CAT”). We deny the
petition.
“Where, as here, the BIA agrees with the IJ’s reasoning, we review both
decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018).
“We examine the BIA’s ‘legal conclusions de novo and its factual findings for
substantial evidence.’” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir.
2021) (quoting Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.
2017) (en banc)).
1. The BIA did not err in determining that Alvarez Trejo failed to
establish a fear of future persecution on account of her membership in either of
the two particular social groups Alvarez Trejo proposed.
First, substantial evidence supports the BIA’s conclusion that Alvarez
Trejo was not targeted because of her membership in the proposed particular
social group “nuclear family.” No evidence in the record supports the
conclusion that Alvarez Trejo or family members were targeted on account of
their family association. Rather, as the IJ concluded, the evidence, including
Alvarez Trejo’s own testimony, shows that Alvarez Trejo’s interactions, as well
as her family’s interactions, with the 18th Street Gang appear to be random or
economically motivated.
Second, the BIA did not err in concluding that Alvarez Trejo’s second
proposed particular social group, “El Salvadoran women who gangs believe
reported crimes to police” is not cognizable on the instant record. Substantial
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evidence supports the BIA’s conclusion that the proposed group is not
cognizable because it is not socially distinct. No evidence in the record shows
that Salvadoran society perceives women who are perceived by gangs to have
reported crimes to police as a group. Cf. Conde Quevedo v. Barr, 947 F.3d
1238, 1243 (9th Cir. 2020) (noting that people who privately report crimes to
police may be socially distinct “if there were evidence that, in a specific
country, people in the community knew who reported crimes to the police, or if
there were laws protecting those who did”). Although Alvarez Trejo argues that
the witness protection law enacted in 2006 serves as evidence that Salvadoran
society views people who report crimes to police as socially unique, neither the
witness protection law, as described in the record, nor the country conditions
reports mention protections for women who are perceived to have reported
crimes to police. See Matter of H-L-S-A-, 28 I. & N. Dec. 228, 237-38 (BIA
2021).
Moreover, the evidence does not compel a conclusion contrary to the
BIA’s determination that the gang did not actually perceive Alvarez Trejo to
have reported a crime. Although some evidence in Alvarez Trejo’s testimony
supports her contention that the gang believed she had reported a crime, Alvarez
Trejo also recounted that the gang made statements indicating it threatened her
in exchange for future silence, rather than because of a belief that she had
reported crimes.
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In sum, substantial evidence supports the BIA’s conclusion that Alvarez
Trejo failed to show a nexus between past or future persecution and the
proposed group “nuclear family.” Her second proposed social group,
Salvadoran women who gangs believe have reported crimes, is not, on this
record, cognizable. We therefore affirm the denial of Alvarez Trejo’s asylum
application as to those grounds.
2. The BIA also did not err in determining that Alvarez Trejo did not
establish a nexus between either past or feared future persecution and her
political opinion. The record does not support a conclusion that Alvarez Trejo
held or expressed a political opinion by remaining neutral in an environment in
which political neutrality is fraught with hazard. See Sangha v. I.N.S., 103 F.3d
1482, 1488 (9th Cir. 1997). Alvarez Trejo’s testimony that she refused to
shelter a fleeing gang member and initially refused to pay money to gangs from
the family store, is insufficient to compel the conclusion that she expressed a
refusal to support gangs. Alvarez Trejo also did not introduce evidence
compelling the conclusion that the gang imputed a political opinion to her or
targeted her on account of that opinion. Alvarez Trejo explains the gang’s
persecution of her family as principally random (fleeing police), money-based,
or retaliatory. Thus, substantial evidence supports the BIA’s conclusion that
Alvarez Trejo did not establish that she held or was imputed to have a political
opinion for which she was targeted. Her claim for asylum on that ground fails.
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3. Finally, the BIA did not err in rejecting Alvarez Trejo’s Convention
Against Torture claim on the grounds that Alvarez Trejo did not establish that
she is more likely than not to be tortured upon return to El Salvador and that the
government would acquiesce in torture by the 18th Street Gang. See 8 C.F.R. §
1208.18(a)(1). Substantial evidence supports the IJ’s conclusions, incorporated
into the BIA’s review, that the gang did not previously torture Alvarez Trejo
and that she has not shown that any future treatment would reach the level of
torture. Additionally, Alvarez Trejo’s testimony that gang members threatened
her about going to the police and were hiding from the police supports the
BIA’s conclusion that the police and government are not working together with
the gang, so the police would not turn a blind eye to the gang’s treatment of
Alvarez Trejo’s family. Finally, the country conditions reports that Alvarez
Trejo submitted contain descriptions of the Salvadoran government’s efforts to
control gang activity, additionally supporting the BIA’s conclusion that
acquiescence is not shown on the record. In sum, the record does not compel
the conclusion that Alvarez Trejo would be tortured upon return to El Salvador
or that the government would acquiesce in such torture, and the BIA did not err
in denying Alvarez Trejo’s CAT claim.
The petition for review is DENIED. The motion to stay removal is
DENIED.
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