Sanchez v. Garland ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1815
JOSE DAVID SANCHEZ; SARA RIVAS-ALVARENGA; J.S.R,
Petitioners,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Lynch, and Montecalvo,
Circuit Judges.
Kevin P. MacMurray and MacMurray & Associates for
petitioners.
Karen L. Melnik, Senior Trial Attorney, Office of Immigration
Litigation, Brian Boynton, Principal Deputy Assistant Attorney
General, Civil Division, and Michael C. Heyse, Senior Litigation
Counsel, Office of Immigration Litigation, for respondent.
July 14, 2023
LYNCH, Circuit Judge. Jose David Sanchez, Sara
Rivas-Alvarenga, and their minor son J.S.R. petition for review of
a decision of the Board of Immigration Appeals ("BIA") affirming
the immigration judge's ("IJ") order denying their applications
for asylum and withholding of removal under sections 208(b)(1)(A)
and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1158(b)(1)(A), 1231(b)(3)(A), as well as relief under the
Convention Against Torture ("CAT").
The BIA held that there was no error in the IJ's holdings
that (1) the petitioners did not meet their burden to establish a
well-founded fear of persecution and (2) the petitioners did not
bear their burden as to the two separate particular social groups
they claimed. The IJ first determined that "Salvadoran business
owners perceived as wealthy" was not a valid particular social
group. Second, the IJ accepted that a nuclear family can be a
valid particular social group under certain circumstances. The IJ
determined that there was no nexus to that particular social group
because the petitioners failed to establish that their family
membership was one central reason for their experiences in El
Salvador.
Because substantial evidence supports the IJ's factual
determination that the petitioners did not meet their burden as to
the two separate particular social groups they claimed, and the
BIA committed no errors of law in affirming that ruling, we deny
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the petition for review of the petitioners' asylum and withholding
of removal claims. Having failed to develop any argument of error
with respect to the denial of their claim for CAT relief on appeal,
the petitioners waive any argument regarding CAT relief, and we
deny that portion of their petition.
I.
A.
We recount the facts as they appeared in the record
before the IJ. Lead petitioner Jose David Sanchez is a citizen of
El Salvador. Sanchez left El Salvador on March 1, 2014, entering
the United States without inspection on or about March 17, 2014.
Sanchez is married to Sara Rivas-Alvarenga, who originally
remained in El Salvador with the couple's then-only child, J.S.R.
(a citizen of El Salvador and a petitioner here). Rivas-Alvarenga
and J.S.R. joined Sanchez in the United States in October 2016.
The couple have another child who was born in the United States
after the family's arrival and that child is a U.S. citizen.
Rivas-Alvarenga also separately has a third child, an adult
daughter who lives in El Salvador.
Before leaving El Salvador, Sanchez operated a
successful fruit stand in San Martín de Porres. In his live
testimony and sworn declaration, Sanchez stated that on two
occasions in the span of a week in February 2014 an individual he
knew to be a member of the Barrio 18 gang approached him at his
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fruit stand and handed him a cell phone. On both occasions he
spoke with an individual on the cell phone who demanded Sanchez
pay $100 a week to the gang or else they would kill him. Sanchez
did not testify as to when or how he was supposed to pay this
money, nor did he describe any attempts to fulfill these threats
(or prevent his departure) between the time he received them in
mid-February and when he left the country on March 1, 2014.
Sanchez testified he did not report these threats to the police
because he knew people who had been killed after reporting
extortion attempts to the police.
Sanchez testified that he was aware of several instances
in which members of his family had been the targets of gang
violence. According to his testimony, sometime in or prior to
2013 a gang had attempted to extort Sanchez's aunt, Maria Narcisa
Sanchez De Moz. When Sanchez De Moz refused to comply, the gang
kidnapped Juan Manuel Sanchez, Sanchez De Moz's son and Sanchez's
cousin, whom Sanchez stated gang members tortured for almost a
year before killing him. Sanchez stated that when Sanchez De Moz
continued to refuse to pay extortion to the gang and filed a
complaint with the local police, gang members killed her as well.
Sanchez stated that this knowledge, coupled with the
demands he had received, motivated him to leave El Salvador on
March 1, 2014. He arrived in the United States on or about
March 17, 2014, and was served with notice to appear in removal
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proceedings on April 3, 2014. Sanchez testified in 2019 that he
had not received any threats from the Barrio 18 gang since arriving
in the United States. He testified that he believes if he returns
to El Salvador the gang will target him for extortion once again,
including by threatening to kill him.
After Sanchez left, Rivas-Alvarenga remained in El
Salvador with J.S.R. On August 19, 2015, Rivas-Alvarenga's brother
was killed. Rivas-Alvarenga testified that she believes her
brother was killed because he refused to pay extortion after
receiving threats from local gang members.
Rivas-Alvarenga testified that on or about September 15,
2016, two-and-a-half years after Sanchez left the country, she
received her first extortion threat. In her live testimony and
sworn declaration, Rivas-Alvarenga described being approached from
behind by an unknown man while on her way to the grocery store.
She stated that the man pressed a weapon into her right side and
demanded that she pay him $3,000. The man said he knew that
Rivas-Alvarenga's husband was in the United States and that she
had money. The man claimed to know where Rivas-Alvarenga lived
and stated that he would come to her house in order to tell her
how and when to pay the money. When Rivas-Alvarenga told the man
that she was not able to pay that amount, he told her that if she
did not pay he would kill her and her family just like he had
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killed her brother. Rivas-Alvarenga's testimony did not
specifically identify the man as a gang member.
Five days later, on September 20, 2016, Rivas-Alvarenga
left El Salvador for the United States with her son. Her testimony
did not describe any attempts to enforce the threat and demand for
money before she left (or to prevent her departure). She crossed
into the United States without inspection on or about October 5,
2016. She and her son were both served with notice to appear in
removal proceedings on October 20, 2016. Rivas-Alvarenga
testified in 2019 that, since arriving in the United States, she
had not received any threats, nor had her adult daughter, who she
testified lives "close" to her former home in San Martín.
B.
At their hearing before an IJ on April 2, 2019, Sanchez,
Rivas-Alvarenga, and J.S.R. were represented by counsel. Sanchez
and Rivas-Alvarenga testified as the sole witnesses and submitted
sworn written declarations in support of their applications. The
IJ found both Sanchez and Rivas-Alvarenga to be credible witnesses.
The IJ denied their application for asylum, withholding of removal,
and CAT relief, finding that (1) the petitioners' experiences in
El Salvador fell below the level of harm necessary to establish
persecution and (2) the petitioners had not met their burden as to
the two separate particular social groups they claimed. The IJ
concluded that the petitioners' first claimed group, "Salvadoran
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business owners perceived as wealthy," was not a valid particular
social group. The IJ accepted that the petitioners' second claimed
group, membership in the Sanchez-Rivas nuclear family, could be a
particular social group under certain circumstances. The IJ
concluded that the petitioners had failed to establish their
treatment in El Salvador occurred on account of their membership
in that family. The BIA adopted the IJ's findings of fact and
affirmed its legal conclusions, dismissing the appeal.
This timely petition for review followed.
II.
We review the BIA's conclusions of law de novo and
provide "some deference to the agency's expertise in interpreting
both the statutes that govern its operations and its own
implementing regulations." Cabrera v. Lynch, 805 F.3d 391, 393
(1st Cir. 2015). Where, as here, the BIA adopted the IJ's findings
of fact, we review the IJ's findings for support by substantial
evidence and "accept the [IJ's] factual findings . . . unless the
record is such as to compel a reasonable factfinder to reach a
contrary conclusion." Dorce v. Garland, 50 F.4th 207, 212 (1st
Cir. 2022) (emphasis and omission in original) (quoting
Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)); see
also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Camara v.
Holder, 725 F.3d 11, 14 (1st Cir. 2013). It is not enough that
evidence may "support[] a conclusion contrary to that reached by
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the [IJ]." Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st
Cir. 2007) (emphasis omitted).
III.
A.
We begin with the petitioners' asylum application. To
succeed in their asylum application, the petitioners had the burden
to "'demonstrate a well-founded fear of persecution on one of five
protected grounds' -- race, religion, nationality, political
opinion or membership in a particular social group."
Paiz-Morales v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015) (quoting
Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014)); see 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1). The petitioners "'can meet this
burden through proof of past persecution, which creates a
rebuttable presumption of a well-founded fear of future
persecution' or by demonstrating 'a well-founded fear . . . through
an offer of specific proof that [their] fear is both subjectively
genuine and objectively reasonable.'" Chen v. Lynch, 814 F.3d 40,
45 (1st Cir. 2016) (quoting Singh, 750 F.3d at 86). Under either
form of proof, the petitioners must demonstrate that one of the
five protected grounds is at least "one central reason for the
harm alleged." Barnica-Lopez v. Garland, 59 F.4th 520, 528 (1st
Cir. 2023) (internal quotation marks omitted) (quoting
Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021)).
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The IJ and BIA concluded that the petitioners failed to
bear their burden as to the two separate particular social groups
they claimed: "Salvadoran business owners perceived as wealthy"
and the "Sanchez-Rivas nuclear family." Because the IJ's findings
rest on substantial evidence and the BIA made no errors of law, we
deny the petition for review.
The petitioners first argue that the IJ and BIA erred
when they determined that the group "Salvadoran business owners
perceived as wealthy" was not a particular social group. We
disagree. Here, the BIA selected the test this circuit has
accepted for identifying a particular social group. It examined
whether the group "(1) has members who share a common immutable
characteristic, (2) is defined with particularity, and (3) is
socially distinct within the society." See Hernandez-Martinez v.
Garland, 59 F.4th 33, 39 (1st Cir. 2023) (recognizing that "[o]ur
circuit has . . . 'accepted'" that three-part test (quoting
Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012))).
Applying this test, the BIA concluded that "[b]eing a
business owner and being perceived as wealthy are not immutable
characteristics" and that the petitioners had not shown the group
was "perceived as a distinct group within Salvadoran society." We
have upheld similar applications of this test with respect to
business-based particular social groups. See, e.g.,
Hernandez-Martinez, 59 F.4th at 37, 39 (upholding determination
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that the group "business owners in Guatemala who have a high
profit" was not protected). Because the BIA made no error of law
in interpreting the statute and the IJ's factual findings related
to the application of these factors are supported by substantial
evidence, we deny the petition for review.
The petitioners next argue that the BIA and IJ erred
when they concluded that the petitioners had failed to establish
a nexus between the alleged persecution and their membership in
the Sanchez-Rivas family. It is true, as the BIA and IJ also
noted, that a nuclear family can be a particular social group under
certain circumstances. See, e.g., Aldana-Ramos v. Holder, 757
F.3d 9, 15 (1st Cir. 2014). Nevertheless, the IJ and BIA
determined that the petitioners failed to demonstrate that their
treatment in El Salvador occurred on account of their family
membership. Substantial evidence supports that conclusion.
To demonstrate their treatment occurred on account of
their membership in a nuclear family, the petitioners had to show
that their family identity was "at the root of the persecution, so
that family membership itself br[ought] about the persecutorial
conduct." Barnica-Lopez, 59 F.4th at 530 (quoting Ruiz-Escobar v.
Sessions, 881 F.3d 252, 259 (1st Cir. 2018)). Such claims fail
where "multiple family members happen to be persecuted for a common
reason[,] but the [reason for] animus is not kinship."
Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012). Here,
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the IJ found that although the gangs made interconnected threats
to members of the Sanchez-Rivas family, they did so as part of a
strategy "to extort money from [them] because . . . they perceived
[the family] to be wealthy." In affirming that conclusion, the
BIA noted that the petitioners testified that each threat came
with a demand for money, that "other family members were harmed in
El Salvador because they refused to pay," and that the petitioners'
remaining family members in El Salvador had not been harmed or
threatened after Rivas-Alvarenga left the country. The record
contains substantial evidence to support the conclusion that
financial gain, not family membership, was "at the root of" the
threats petitioners received.1
B.
The petitioners also assert a claim for withholding of
removal under 8 U.S.C. § 1231(b)(3). Withholding of removal
contains many of the same elements as an asylum claim -- namely,
persecution on account of one of the same five protected grounds
-- except that while an asylum application requires that the
applicant demonstrate only a well-founded fear of such
1 The petitioners also argue that the IJ and BIA erred
when they concluded that the petitioners' evidence of threats in
El Salvador fell below the requisite level of harm to constitute
persecution. Because we hold that the IJ and BIA did not err when
they concluded that the petitioners had failed to carry their
burden as to the two particular social groups they claimed, we do
not address the IJ's and BIA's conclusions with respect to the
level of harm necessary to constitute persecution.
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persecution, withholding of removal requires the applicant to
demonstrate that it is more likely than not that he or she will in
fact be persecuted on account of a protected ground in the country
of removal. Hernandez-Martinez, 59 F.4th at 40; see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). Because we have
concluded that the BIA and IJ did not err when they concluded that
the petitioners had failed to meet their burden with respect to
persecution on account of a protected ground for purposes of
asylum, it follows that they did not err when they concluded that
the petitioners did not meet their heavier burden for withholding
of removal. See, e.g., Hernandez-Martinez, 59 F.4th at 40
(applying this logic).
C.
Although the petitioners originally pressed a claim for
relief under the CAT before the IJ, who denied it, they waive any
argument regarding CAT relief because they mention it only in
passing without developing the claim. See Ahmed v. Holder, 611
F.3d 90, 98 (1st Cir. 2010). We deny any portion of the petition
seeking review of that part of the IJ and BIA decisions.
IV.
For the foregoing reasons, the petition for review of
the decision of the BIA is denied.
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