German Nolasco v. Merrick Garland

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1034
GERMAN ALEXANDER NOLASCO, a/k/a German Chavez, a/k/a Alex Nolasco,
a/k/a Goofie,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: May 6, 2021 Decided: August 2, 2021
Before NIEMEYER, FLOYD, and RUSHING, Circuit Judges.
Petition for review denied by published opinion. Judge Rushing wrote the opinion, in
which Judge Niemeyer and Judge Floyd joined.
ARGUED: Jasmin Tohidi, TOHIDI LAW OFFICE PLLC, Falls Church, Virginia, for
Petitioner. Stephen Philip Finn, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney
General, Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
RUSHING, Circuit Judge:
German Alexander Nolasco, a native and citizen of El Salvador, petitions for review
of a final order of the Board of Immigration Appeals (BIA) denying his application for
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Nolasco claims that he fears persecution by the gangs and police of El Salvador on account
of his status as a former member of the MS-13 gang. For the reasons explained below, we
deny the petition.
I.
Nolasco entered the United States without authorization in 1998, when he was five
or six years old. After Nolasco was arrested for assault in April 2019, the Department of
Homeland Security (DHS) charged him with being “an alien present in the United States
without being admitted or paroled, or who arrived in the United States at any time or place
other than as designated by the Attorney General,” in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i). Nolasco admitted the charge and applied for asylum, withholding of
removal, and CAT relief. See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. §§ 1208.16(c),
1208.18.
At a hearing before the immigration judge (IJ), Nolasco testified that he fears
returning to El Salvador because of his former membership in the MS-13 gang. Nolasco
was a member of MS-13 in Vienna, Virginia, from approximately 2006 to 2010. He left
the gang when he completed a juvenile diversion program and moved to a more rural part
of Virginia. But Nolasco’s body still bears tattoos identifying him as a gang member: three
2
dots on his hand; his gang nickname “Goofie” (spelled “GOOF13” to symbolize MS-13);
“gangster love” on his forearms; “laugh now cry later masks”; the numbers “1” and “3” on
his left and right upper arm; and the area code “213” on his back (representing Los Angeles,
MS-13’s founding location). Nolasco fears that gangs and police in El Salvador will
perceive him to be a member of MS-13 because of his tattoos, which he cannot fully cover
even with long sleeves. Nolasco also contends that “[t]he United States will share [his]
criminal history with the government of El Salvador,” which will allow authorities to
identify and target him as a former gang member. A.R. 187. He submitted news articles
and various country reports about the violence perpetrated by and against gang members
in El Salvador, as well as the Department of State Human Rights Report for El Salvador
(State Department Report). He also testified to his belief, based on accounts from former
gang members he met in detention, that Salvadoran police torture and kill suspected gang
members.
The IJ denied Nolasco’s application and ordered him removed to El Salvador. As
relevant to his asylum and withholding claims here, the IJ found that Nolasco’s proposed
particular social groups—(1) former members of MS-13 and (2) former members of MS-
13 who leave for moral reasons—did not satisfy the particularity and social-distinction
requirements necessary to state a cognizable particular social group. 1 The IJ also found
that Nolasco’s evidence did not show he would more likely than not be identified as a gang
member and tortured if removed to El Salvador and so denied CAT relief.
1
The IJ also found that Nolasco failed to establish a well-founded fear of future
persecution and that his asylum application was untimely.
3
Nolasco appealed to the BIA, which affirmed the IJ in a single-member opinion.
Regarding asylum and withholding of removal, the BIA agreed with the IJ that the
proposed particular social groups lacked particularity because they were overbroad and
lacked social distinction because Nolasco had failed to show that former gang members are
recognized as a distinct group in Salvadoran society. A.R. 4 (citing Matter of M-E-V-G-,
26 I. & N. Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014)). As
for CAT relief, the BIA observed that the IJ considered “the risk of torture from both gang
members and the Salvadoran police” in the aggregate and determined that Nolasco “did
not establish a clear probability of torture.” A.R. 5. The BIA also reasoned from the State
Department Report that, although “corruption and violence remain[] a problem in El
Salvador,” the Salvadoran government has implemented “programs to combat . . . police
corruption . . . [and] gang violence.” A.R. 5.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). When the BIA “adopts and affirms the IJ’s decision and supplements it with
its own opinion, we review both decisions.” Cordova v. Holder, 759 F.3d 332, 337 (4th
Cir. 2014); see also Martinez v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014), as amended
(Jan. 27, 2014). But where, as here, the BIA adopts only a portion of the IJ’s analysis, “we
limit our consideration of the IJ’s opinion to the portions that have been adopted and
incorporated into the [BIA’s] decision.” Arita-Deras v. Wilkinson, 990 F.3d 350, 356 (4th
Cir. 2021).
4
The BIA’s decision that “an alien is not eligible for admission to the United States
is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C); see also id.§ 1252(b)(4)(D); Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). We review legal
conclusions de novo, “affording appropriate deference to the BIA’s interpretation of the
[Immigration and Nationality Act] and any attendant regulations.” Li Fang Lin v. Mukasey,
517 F.3d 685, 691–692 (4th Cir. 2008). We review factual findings for substantial
evidence, treating them as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992); Cordova, 759 F.3d at 337. In reviewing for
substantial evidence, we ask whether the administrative record, considered as a whole,
“contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); see also Tassi, 660 F.3d at 719. Thus, “even if the record plausibly could
support two results,” reversal is appropriate only where the evidence “not only supports
[the petitioner’s] conclusion, but compels it.” Tang v. Lynch, 840 F.3d 176, 180 (4th Cir.
2016) (original alterations omitted) (quoting Mulyani v. Holder, 771 F.3d 190, 197 (4th
Cir. 2014)). Finally, the agency “abuses its discretion if it fails to offer a reasoned
explanation for its decision, or if it distort[s] or disregard[s] important aspects of the
applicant’s claim.” Cordova, 759 F.3d at 337 (internal quotation marks omitted).
III.
We first consider Nolasco’s challenge to the denial of his application for asylum
and withholding of removal. The Immigration and Nationality Act (INA) authorizes the
5
Attorney General and the Secretary of Homeland Security, in their discretion, to grant
asylum to any “refugee.” 8 U.S.C. § 1158 (b)(1)(A). To qualify as a refugee, an applicant
must demonstrate that he “is unable or unwilling to return to, and is unable or unwilling to
avail himself . . . of the protection of, [his native] 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); see also id.
§ 1158(b)(1)(B)(i) (“The burden of proof is on the applicant to establish that the applicant
is a refugee.”). The INA further requires the Attorney General to withhold removal of an
applicant who shows that his “life or freedom would be threatened in [the proposed country
of removal] because of [his] race, religion, nationality, membership in a particular social
group, or political opinion.” Id. § 1231(b)(3)(A); see also Lizama v. Holder, 629 F.3d 440,
446 & n.3 (4th Cir. 2011). “Because withholding of removal is mandatory if the alien
meets the standard of proof,” Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009), the
applicant “must show a ‘clear probability of persecution’ on account of a protected
ground,” as opposed to the lower burden for asylum of showing a well-founded fear of
persecution, Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011) (quoting INS v. Stevic,
467 U.S. 407, 430 (1984)). Thus, if an applicant cannot demonstrate asylum eligibility, his
application for withholding of removal “will necessarily fail as well.” Id.6
The BIA concluded that Nolasco was not eligible for asylum because he failed to
demonstrate membership in a cognizable “particular social group.” 2 “The [INA] does not
define ‘particular social group,’ and there is little legislative history on the matter.”
Martinez, 740 F.3d at 910; see also Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993). The
BIA, however, has defined the requirements of a particular social group, and we “defer to
[its] reasonable interpretation of the term.” Lizama, 629 F.3d at 446.
Concerned that “the social group concept would virtually swallow the entire refugee
definition if common characteristics, coupled with a meaningful level of harm, were all
that need be shown,” Matter of M-E-V-G-, 26 I. & N. Dec. at 231 (internal quotation marks
omitted), the BIA has endeavored to construe “membership in a particular social group” in
accord with the other limited grounds of persecution listed in the Act, id. at 230; see also
Matter of Acosta 19 I. & N. Dec. 211, 233–234 (1985). Thus, an applicant for asylum or
withholding of removal seeking relief based on membership in a particular social group
must establish “that the 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.” Matter of M-E-V-G-, 26 I. & N. Dec. at 237; see also Quintero v.
Garland, 998 F.3d 612, 632 (4th Cir. 2021) (observing that this Court has adopted M-E-V-
2
The IJ also found that Nolasco failed to show a well-founded fear of future
persecution, which Nolasco contests on appeal. But the BIA did not adopt or affirm that
aspect of the IJ’s decision; therefore, we lack jurisdiction to review it. See 8 U.S.C.
§ 1252(a)(1) (limiting this Court’s jurisdiction to final orders of removal); Amaya v. Rosen,
986 F.3d 424, 429 (4th Cir. 2021), as amended (Apr. 12, 2021) (“[T]his Court may only
reach issues decided by the BIA.”).
7
G-’s three-part test). The parties here dispute only the social-distinction requirement, so
we cabin our review accordingly. 3
“Social distinction refers to social recognition” and requires that the group be
“perceived within the given society as a sufficiently distinct group.” Matter of M-E-V-G-,
26 I. & N. Dec. at 238, 240. To qualify, the particular social group must be perceived by
society as a whole, not solely by the group’s alleged persecutors. See id. at 242; Matter of
W-G-R-, 26 I. & N. Dec. at 218; Santos Mejia v. Sessions, 717 Fed. App. 257, 260 (4th Cir.
2018). Perception in this context does not require ocular visibility: “[s]ociety can consider
persons to comprise a group without being able to identify the group’s members on sight.”
Matter of M-E-V-G-, 26 I. & N. Dec. at 240. But there must be evidence that society in
general commonly considers persons sharing the particular characteristic to be a group.
Matter of W-G-R-, 26 I. & N. Dec. at 217. And members of the group must be “set apart,
or distinct, from other persons within the society in some significant way.” Matter of M-
E-V-G-, 26 I. & N. Dec. at 238. “Evidence such as country conditions reports, expert
witness testimony, and press accounts of discriminatory laws and policies, historical
animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or
‘other’ in a particular society.” Id. at 244.
Nolasco contends that the BIA erred in affirming the IJ’s conclusion that his
proposed social groups—former members of MS-13 and former members of MS-13 who
3
The BIA held that Nolasco’s proposed groups lacked social distinction and
particularity. But after this Court’s recent decision in Amaya v. Rosen, 986 F.3d 424 (4th
Cir. 2021), as amended (Apr. 12, 2021), the Government no longer defends the BIA’s
particularity ruling.
8
leave for moral reasons—were not socially distinct. He challenges this conclusion on three
grounds. First, he contends that the agency “erred as a matter of law in focusing on whether
[he] was outwardly visible as a former gang member rather than whether his proposed
group is distinct within Salvadoran society.” Opening Br. 20. Second, he claims the
agency “failed to consider the entirety of the documentary evidence demonstrating social
distinction.” Id. at 21. Third, he argues that the agency “did not give sufficient weight to
the documentary evidence” it did consider. Id. at 22. We address each argument in turn.
A.
Whether the agency employed the correct standard for social distinction is a
question of law we review de novo. See Amaya, 986 F.3d at 429. Nolasco contends that
the IJ conflated social distinction with literal visibility by focusing on whether his tattoos
would identify him as a former gang member. See Matter of M-E-V-G-, 26 I. & N. Dec. at
238 (“Literal or ‘ocular’ visibility is not, and never has been, a prerequisite for a viable
particular social group.”). The record does not support Nolasco’s contention.
To begin, Nolasco does not identify any purported error in the social-distinction
standard applied by the BIA in its order, which is the decision under review. See Arita-
Deras, 990 F.3d at 356 (“[W]e limit our consideration of the IJ’s opinion to the portions
that have been adopted and incorporated into the [BIA’s] decision.”). The BIA agreed with
the IJ that Nolasco’s proposed groups do not satisfy the social-distinction test “because
[he] has not shown that gang members who have renounced their gang membership are
recognized in Salvadoran society to be a distinct group.” A.R. 4 (citing Matter of M-E-V-
9
G-, 26 I. & N. Dec. 227; Matter of W-G-R-, 26 I. & N. Dec. 208). That is the correct
standard.
Even looking through the BIA’s order to the IJ’s social-distinction analysis,
however, the IJ did not apply the wrong standard. The IJ correctly stated that the relevant
inquiry was whether “society in El Salvador recognizes former gang members as a group.”
A.R. 96; see also A.R. 95 (concluding that “former members of MS-13 or former members
of MS-13 who leave for moral reasons are [not] socially distinct within society . . . in El
Salvador”). In answering that question, the IJ noted evidence about “rehabilitation efforts
within El Salvador to protect former gang members,” which “would arguably show that
some people are thinking of former gang members as a group.” A.R. 96. Although the IJ
referred to Nolasco’s repeated testimony that his tattoos would identify him as a former
gang member, it did not employ a literal visibility standard for social distinction. We reject
Nolasco’s first claim of error.
B.
As for his second contention, the record does not support Nolasco’s claim that the
IJ failed to consider the documentary evidence in assessing whether his proposed social
groups were cognizable. To the contrary, the IJ made clear reference to documents
submitted by Nolasco and DHS. For example, the IJ discussed evidence concerning efforts
by some groups in El Salvador “to rehabilitate former gang members or help people come
out of gangs,” and “a few articles [in the record] where police noticed that somebody had
been a former gang member or a gang member because of seeing their tattoos.” A.R. 96,
97–98. Nolasco ignores the IJ’s attention to “evidence on the record of the problem with
10
violent gangs” and “the government’s crackdown on those violent crimes,” including the
IJ’s specific reference to country reports, the State Department Report, and “articles
showing the problems between the gangs and the country’s police.” A.R. 97–98.
This case is therefore quite unlike Oliva v. Lynch, where the BIA wrongly stated
that the petitioner had “identified only one example” of social distinction. 807 F.3d 53, 61
(4th Cir. 2015). There, all parties acknowledged that “the BIA failed to address any of the
other evidence that [the petitioner] put forth, including evidence of government-and
community-driven programs to help former gang members rehabilitate themselves and an
affidavit from a community organizer who stated that former gang members who leave the
gang for religious reasons become seriously and visibly involved in churches.” Id. Here,
by contrast, the agency did address Nolasco’s evidence. His effort to liken his petition to
our decision in Oliva falls flat.
C.
Lastly, Nolasco’s argument that the IJ (and, by extension, the BIA) did not “give
sufficient weight to the documentary evidence demonstrating social distinction” misstates
our standard of review and lacks merit. Opening Br. 22; see id. (requesting reversal on this
ground). Whether Salvadoran society views former MS-13 members or former MS-13
members who left for moral reasons as socially distinct is a question of fact we review only
for substantial evidence. See Cordova, 759 F.3d at 337. “We may not reweigh the
evidence,” Tang, 840 F.3d at 180, and must uphold the agency’s factual findings “unless
any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.
11
§ 1252(b)(4)(B); see also Temu v. Holder, 740 F.3d 887, 891 (4th Cir. 2014) (“We uphold
factual findings unless no rational factfinder could agree with the BIA’s position.”).
Much of the record evidence concerns violence committed by gangs in El Salvador
to prevent members from leaving their ranks, police violence against gang members, and
efforts by the Salvadoran government to track and monitor deported gang members
returning to El Salvador. This evidence does not meaningfully distinguish between former
members of MS-13 and active gang members. We are mindful, moreover, that group
recognition must be determined by the perception of society as a whole, rather than “solely
by the perception of an applicant’s persecutors.” Matter of W-G-R-, 26 I. & N. Dec. at
218; see also Matter of M-E-V-G-, 26 I. & N. Dec. at 242. Nolasco highlights an article
about one member of a different gang, Barrio 18, who left the gang because of his
conversion to Christianity. As the IJ noted, the fact that some religious groups conduct
rehabilitation programs to assist former gang members “arguably show[s] that some people
are thinking of former gang members as a group.” A.R. 96. But the same article also
stresses “a colloquial belief in Salvadoran society that gang members are people forever
ruined” because they never stop being part of the gang and therefore “can’t retire,”
suggesting a lack of distinction between active and former members. A.R. 420. Similarly,
articles and reports that in general terms mention efforts to extricate gang members say
little about whether society views former gang members as “set apart, or distinct, from
other persons within the society in some significant way.” Matter of M-E-V-G-, 26 I. & N.
Dec. at 238.
12
Viewed as a whole, the administrative record does not compel a finding that
Salvadoran society views former MS-13 members or former MS-13 members who left for
moral reasons as socially distinct. We therefore may not disturb the agency’s
determination.
IV.
We turn now to the BIA’s denial of Nolasco’s application for protection from
removal under CAT. An applicant seeking CAT relief bears the burden to prove that “it is
more likely than not that he will be tortured if removed” and “that this torture will occur at
the hands of government or with the consent or acquiescence of government.” Martinez,
740 F.3d at 914 (emphasis and internal quotation marks omitted); see 8 C.F.R.
§ 1208.16(c)(2). A public official acquiesces in torture if he or she is aware, either by
actual knowledge or willful blindness, of the activity constituting torture beforehand and
“thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.”
8 C.F.R. § 1208.18(a)(7). When an applicant claims a fear of torture from multiple entities,
the agency must assess the likelihood of torture by aggregating the risk from all sources.
Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972 (4th Cir. 2019).
Here, both the IJ and the BIA assessed the likelihood of torture from Salvadoran
authorities and gangs in the aggregate and found that Nolasco did not show it was more
likely than not he would be tortured if removed to El Salvador. The IJ acknowledged the
chronic violence in El Salvador, including “allegations of unlawful killings of suspected
gang members and others by security forces,” but also noted that the State Department
Report indicates “El Salvador is investigating and prosecuting corruption when it can.”
13
A.R. 100. The BIA affirmed the IJ’s analysis, concluding that, “given the Salvadoran
government’s implementation of programs to combat not only police corruption, but also
gang violence, [Nolasco] has not met his burden to demonstrate that he faces a clear
probability of torture if he returns to El Salvador.” A.R. 5.
A.
In his petition for review, Nolasco first claims that the agency arbitrarily ignored
evidence relevant to his CAT claim. “We presume that, in reaching [their] conclusions,
the IJ and the BIA reviewed the evidence presented to them and made their decisions based
on the relevant evidence.” Martinez, 740 F.3d at 914. The BIA and IJ “are not required to
discuss every piece of evidence in the record, but they must announce their decisions in
terms sufficient to enable a reviewing court to perceive that they have heard and thought
and not merely reacted.” Ai Hua Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014)
(original alteration and internal quotation marks omitted).
Contrary to Nolasco’s claim, the IJ and BIA specifically addressed some of the
evidence he contends they ignored. The IJ discussed the content of both the State
Department Report and the Intercept article about a Barrio 18 member who attempted to
leave the gang. The BIA similarly refenced country-conditions evidence.
As for the other documents Nolasco highlights, he presents nothing to rebut the
presumption that the agency considered that evidence to the extent it was relevant. See
Rodriguez-Arias, 915 F.3d at 974 (noting that the agency abuses its discretion when it
arbitrarily ignores “legally significant evidence” (internal quotation marks omitted)). The
academic studies and news articles Nolasco emphasizes simply reiterate the allegations of
14
unlawful violence against suspected gang members and government corruption that the IJ
explicitly acknowledged. Documents describing information sharing between the United
States and El Salvador and the nation’s deportee criminal registry show that El Salvador
has access to information about deported gang members but do not recount any abuses
related to the programs. Given their discussion of the more relevant sources in the record,
it is apparent that the IJ and BIA thoughtfully considered the evidence before them in
issuing their decisions. We discern no abuse of discretion.
B.
Nolasco also asserts that the BIA improperly denied his claim for CAT relief. We
review for substantial evidence the BIA’s finding that Nolasco has not shown it is more
likely than not he will be tortured if removed to El Salvador. See Mulyani, 771 F.3d at
200. We conclude that the record does not compel a contrary conclusion.
The thrust of Nolasco’s evidence is that violence among and against gang members
is systemic in El Salvador and shielded by police corruption. The agency weighed this
evidence against DHS’s evidence, including the State Department Report, which noted El
Salvador’s serious efforts to address corruption and prosecute police misconduct, and other
submissions regarding the Salvadoran government’s efforts to ensure the integrity of its
police force, the establishment of violence prevention programs, the decline in overall
violence, and efforts to combat gangs. See Quitanilla v. Holder, 758 F.3d 570, 574 n.6
(4th Cir. 2014) (noting that “[a] State Department report on country conditions is highly
probative evidence” (quoting Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999))). While
Nolasco may disagree with how the agency weighed the documentary evidence, we do not
15
reweigh the evidence on a petition for review. Mulyani, 771 F.3d at 200. Moreover, “the
mere existence of a pattern of human rights violations in a particular country does not
constitute a sufficient ground for finding that a particular person would more likely than
not be tortured.” Singh v. Holder, 699 F.3d 321, 334–335 (4th Cir. 2012) (internal
quotation marks omitted). Viewing the record as a whole, we conclude that substantial
evidence supports the BIA’s decision.
PETITION FOR REVIEW DENIED
16