Rivas-Duran v. Barr , 927 F.3d 26 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1782
KAREN LILIANA RIVAS-DURÁN, ET AL.,
Petitioners,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Ondine Galvez Sniffin and Law Office of Ondine G. Sniffin, on
brief for petitioners.
Jason Wisecup, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, and Bernard A. Joseph,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
June 17, 2019
TORRUELLA, Circuit Judge. Appellant Karen Liliana Rivas
Durán ("Rivas-Durán") fled her native El Salvador and entered the
United States without inspection with her twin sons. After being
detained, Rivas-Durán sought asylum, with her sons as derivative
beneficiaries, claiming that the children's father threatened her
on numerous occasions. The Immigration Judge ("IJ") granted
Rivas-Durán's application for asylum, but the Board of Immigration
Appeals ("BIA") vacated the IJ's decision and ordered her removal,
holding that she was ineligible for asylum under 8 U.S.C. § 1158
or withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA
found that Rivas-Durán failed to establish that she suffered
persecution or that she was a member of her particular social
group, "women in El Salvador unable to leave a domestic
relationship." Rivas-Durán now appeals. After careful review,
we deny her petition.
I. Background
On July 1, 2014, the Department of Homeland Security
("DHS") charged Rivas-Durán and her sons with removability under
8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States
who have not been admitted or paroled. Rivas-Durán sought asylum
and withholding of removal, with her sons as derivative
beneficiaries of her asylum application.
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In support of her I-589 Application for Political Asylum
and Withholding of Removal, Rivas-Durán declared that when she was
eighteen years-old she met Pedro Ernesto Burgos-Rivas ("Pedro"),
and after dating him for six months she became pregnant with twins.
After learning of her pregnancy, Pedro "became aggressive" and
would "grab [Rivas-Durán] by her shoulders." "At that point,"
Rivas-Durán "told him [that they] needed to end [their]
relationship[,] but he insisted on calling [her]." During that
time, she lived with her father.
While Pedro visited Rivas-Durán in the hospital after
she gave birth, she declared that she did not see him again until
eight months later when he suddenly showed up at her father's
house. During that visit, Pedro became aggressive towards Rivas-
Durán after she received a phone call, slapping her and pushing
her down on the sofa. After that incident, Rivas-Durán did not
see Pedro for more than a year. She declared that Pedro, who was
a gang member, continued to harass and threaten her intermittently
until she moved to the United States. On one occasion, when the
twins were three years-old, Pedro showed up at her father's house
with "about 3 other gang members" and warned her that if she
"didn't want to put [her] sons in danger," she should not let them
wear t-shirts with the number eighteen on them as the number
represented a rival gang. Rivas-Durán further declared that after
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she was in the United States, Pedro's mother tracked her address,
visited her, and tried to see her grandsons.
Following Rivas-Durán's merits hearing on January 6,
2016, the IJ granted her asylum claim. The IJ deemed Rivas-Durán's
testimony credible and "consistent with the application she
filed." The IJ concluded that Rivas-Durán had been the victim of
past persecution. The IJ explained that despite the fact that
"there [was] only one incident of physical harm that the respondent
suffered at the hands of the father of her children," she suffered
past persecution because, "although sporadic," this "was
accompanied by threats and the knowledge that [Pedro] had the
ability to act on these threats."
As to the one incident of physical harm, the IJ recounted
the time when Rivas-Durán received a phone call while Pedro was
visiting at her father's house after the twins were born. As the
IJ described it, Pedro
impulsively grabbed [Rivas-Durán] by the shoulders
and threatened that, if she were not his, she would
belong to no one. He slapped her across her face and
pushed her down on the sofa . . . . He threatened
that she was not to tell anyone that he had done so,
not even her family.
Furthermore, the IJ identified two other instances of
threats: 1) "[o]n one occasion," Pedro "grabbed [Rivas-Durán] by
the shoulders and told her that she could not leave the
relationship"; and 2) "[s]everal years later," Pedro visited
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Rivas-Durán with gang-member friends and warned her that their
kids could not wear either red shirts or the number eighteen as
these were symbols of a rival gang. Regarding this last incident,
the IJ found that Pedro "specifically brought the other gang
members so that [Rivas-Durán] would be intimidated and threatened
by their presence." Finally, the IJ highlighted that after Rivas-
Durán left El Salvador, "Pedro's mother tracked down the twins in
the United States . . ., lied to get into the building in which
[Rivas-Durán] and the twins lived with [Rivas-Durán's] mother and
step-father, and lied to get into the apartment." Based on these
facts, the IJ concluded that "although the threats were few and
the physical harm a single incident, taken together in this
scenario, Pedro's collective actions signal the potential for
imminent and dire danger for the respondent and the children."
Moreover, the IJ found that Rivas-Durán had shown
membership in a cognizable particular social group, specifically,
"women in El Salvador unable to leave a domestic relationship."
The IJ explained that, "[e]ven after leaving El Salvador, her
controlling partner continued to search for her." Moreover, the
IJ highlighted that according to the BIA in Matter of A-R-C-G-, 26
I & N Dec. 388 (BIA 2014), "[w]hether a woman is married or
unmarried, if she is unable to leave the relationship, it makes no
difference in the court's view."
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DHS appealed the IJ's decision to the BIA. On July 5,
2017, the BIA vacated the IJ's decision granting asylum and ordered
Rivas-Durán and her children removed from the United States. It
held that the IJ erred in finding that Rivas-Durán had been
persecuted, as the harm she suffered did not rise to the level of
persecution required to grant asylum. The BIA further found that
the IJ clearly erred in finding that Rivas-Durán was a member of
her particular social group, as the relationship with her ex-
partner "[did] not have the hallmarks of a domestic relationship
required to establish membership in a particular social group based
on domestic violence."
Rivas-Durán now appeals the BIA's decision. She claims
that the evidence on the record compels the IJ's finding that the
harm she suffered constitutes persecution, and that the BIA failed
to analyze the issue under the "clearly erroneous" standard.
Further, she argues that First Circuit and BIA precedent, as well
as the record, compel the IJ's conclusion that she was a member of
her particular social group. As Rivas-Durán's membership in a
particular social group is an indispensable element of her claims,
our analysis begins and ends with it. See Aguilón-López v. Lynch,
664 Fed. App'x. 14, 19 n.2 (1st Cir. 2016) (Petitioner's "claim
fails because, regardless of whether he established persecution,
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he did not establish his membership in a particularized social
group.").
II. Analysis
We review the BIA's legal conclusions de novo, "with
appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles." Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)
(quoting Stroni v. González, 454 F.3d 82, 87 (1st Cir. 2006)). By
contrast, we review factual findings under the deferential
"'substantial evidence standard,' meaning that we will not disturb
such findings if they are 'supported by reasonable, substantial,
and probative evidence on the record considered as a whole.'"
Aguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017)
(quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir 2015)).
An applicant can obtain asylum by proving that he or she
is a refugee pursuant to section 101(a)(42)(A) of the Immigration
and Nationality Act ("INA"). 8 U.S.C. § 1101, 1158. The
applicant must show that she is "unable or unwilling" to return to
her country of origin "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."
8 U.S.C. § 1101(a)(42)(A) (emphasis added).
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To determine that a petitioner is a member of a
particular social group, the petitioner must establish that the
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." Vega-Ayala
v. Lynch, 833 F.3d 34, 39 (1st Cir. 2016) (quoting Paiz-Morales v.
Lynch, 795 F.3d 238, 244 (1st Cir. 2015)). "An immutable
characteristic is one that 'members of the group either cannot
change, or should not be required to change because it is
fundamental to their individual identities or consciences.'" Id.
(quoting Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)).
In order to meet the particularity requirement, "a group
must be 'discrete and have definable boundaries-- it must not be
amorphous, overbroad, diffuse or subjective.'" Paiz-Morales, 795
F.3d at 244 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239
(BIA 2014)). Finally, social distinction refers to "whether those
with a common immutable characteristic are 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. In other words, a
socially distinct group is one that is recognized or perceived as
such within the petitioner's society. Id. In 2014, the BIA held
that "married women in Guatemala who are unable to leave their
relationship" can constitute a cognizable particular social group
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that forms the basis of a claim for asylum or withholding of
removal. Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).
Rivas-Durán's application for asylum was based on a social group
allegedly analogous to that of Matter of A-R-C-G-.1
On appeal, Rivas-Durán challenges the BIA's
determination that the IJ "clearly erred in determining that [she]
is a member of a particular social group [of] 'women in El Salvador
unable to leave a domestic relationship.'" She argues that the
record compelled the IJ's finding that she fits within that
proposed social group. She contends that she indeed was in a
domestic relationship, even though she did not live with Pedro.
She explains that her relationship with Pedro "was a domestic
relationship in that they had two children together, they both had
feelings for one another, Pedro expressed concern for her as the
mother of his children, [she] expressed jealousy at learning of
1 After this appeal was filed, the Attorney General overruled
Matter of A-R-C-G-, finding that "without performing the rigorous
analysis required by the [BIA's] precedents," it recognized "an
expansive new category of particular social groups based on private
violence." Matter of A-B, 27 I & N Dec. 316, 317, 319 (A.G. 2018).
None of the parties request remand for application of Matter of A-
B in the first instance. In any case, we need not remand, as the
BIA found that Rivas-Durán did not prove that she was a member of
her proposed social group, even when Matter of A-R-C-G- was still
in effect, and the intervening case would not change that result.
Here, we need not reach the question of whether Rivas-Durán's
proposed social group was cognizable, which is where Matter of A-
R-C-G would come into play.
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his other relationships and still imagines being with him as
parents to their twins." Furthermore, she stresses that "Pedro,
verbally and physically, from 2010 until 2015, expressed his belief
that [she] belonged to him, despite her expression of having 'ended
it' in 2010." Finally, she contends that, even if she never lived
with Pedro, "further evidence of [her] inability to leave the
relationship are the unsuccessful attempts she made to end her
communication with Pedro." Her arguments are unpersuasive.
The BIA's holding that the IJ clearly erred is "a legal
determination that the evidence in the record was insufficient as
a matter of law to support the IJ's factual finding."
Rosales Justo v. Sessions, 895 F.3d 154, 161 (1st Cir. 2018).
Thus, "because the BIA's holding that the IJ committed clear error
is legal in nature, our review of that conclusion is de novo."
Id. at 162. We conduct de novo review "of the justifications
provided by the BIA for concluding that the IJ's finding . . . was
clearly erroneous." Id.
We agree with the BIA that "the record was insufficient
as a matter of law to support the IJ's factual finding" that Rivas-
Durán fit within her proposed social group. Id. at 161. The BIA
highlighted that Rivas-Durán and Pedro never lived together, were
not married or engaged, and that although her ex-partner harassed
her intermittently over various years, her relationship did not
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"have the hallmarks of a domestic relationship required to
establish membership in a particular social group." The record
supports this determination.
First, Cortez-Cardona v. Sessions, 848 F.3d 519 (1st
Cir. 2017), discredits Rivas-Durán's interpretation of what
qualifies as a "domestic" relationship. In Cortez-Cardona, the
asylum applicant had been in an abusive relationship with a gang
member. Id. at 520. She maintained that she belonged to two
proposed social groups: "Guatemalan women in domestic
relationships who are unable to leave" and "women who are viewed
as property by virtue of their positions within a domestic
relationship." Id. at 523. The BIA emphasized the definition of
"domestic," which included "devoted to home life or household
affairs," and found that Cortez-Cardona was not in a domestic
relationship where she had dated her ex-partner for various months
and after that refused his offer to "be his woman." Id. at 523.
We upheld the BIA's stance. Id. at 523-24.
Moreover, the BIA cited Vega-Ayala v. Lynch, 833 F.3d 34
(1st Cir. 2016), which also supports denial of Rivas-Durán's
petition. Vega-Ayala argued that she had been persecuted because
of her membership in the particular social group of "Salvadoran
women in intimate relationships with partners who view them as
property." Id. at 36. The BIA found, and this court sustained,
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that Vega-Ayala failed to show that her proposed social group was
immutable, as she had not demonstrated an inability to leave her
partner. Id. at 39. This court distinguished Vega-Ayala's case
from Matter of A-R-C-G- in that she
never lived with [her partner]. She saw him only
twice a week and continued to attend a university.
She chose to live in a home that he purchased in her
name while he was in jail. Their relationship spanned
only eighteen months, and he was incarcerated for
twelve of those months."
Id.
As in Vega-Ayala and Cortez-Cardona, and unlike the
applicant in Matter of A-R-C-G-, it is undisputed that Rivas-Durán
never lived with Pedro, but rather chose to live with her father.
Pedro never forced her to leave her father's house to stay with
him. She was only in contact with Pedro when he sporadically
tried to contact her or visit her and the twins in her father's
home. And Rivas-Durán has provided no authority for her
proposition that she was in a domestic relationship merely because
she bore Pedro's children and they "had feelings for one another."2
2 Rivas-Durán contends that a woman's marital status should not
be "the determinative factor" in deciding her domestic violence
asylum claim. As was the case in Cortez-Cardona, 848 F.3d at 523,
the BIA here focused on whether the relationship was "domestic,"
not on whether Rivas-Durán was married. Rivas-Durán does not
point to, and we did not find, anything in the record or the BIA's
decision that suggests that marriage was the determining factor in
the BIA's decision. Thus, we need not linger on this undeveloped
argument.
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Hence, hers was not a "domestic" relationship, as has been
interpreted by the BIA and this court.3
III. Conclusion
For the reasons discussed above, we deny Rivas-Durán's
petition. See Cortez-Cardona, 848 F.3d at 523 (finding that the
record supported the BIA's determination that petitioner "had not
demonstrated factually that she fit within her own proposed social
groups").
3 The same reasoning is dispositive of petitioner's claim for
withholding of removal. As with asylum, an alien seeking
withholding of removal must show that any persecution is on account
of one of the protected grounds, including membership in a "legally
cognizable social group." Paiz-Morales, 795 F.3d at 245 (noting
that withholding of removal "requires a showing that an alien is
more likely than not to face persecution on account of a protected
ground," and that "[a] petitioner who cannot clear the lower hurdle
for asylum will necessarily fail to meet the higher bar for
withholding of removal").
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