Kelly Sanchez-Castro v. U.S. Attorney General ( 2021 )


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  •          USCA11 Case: 19-15091      Date Filed: 06/01/2021   Page: 1 of 15
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 19-15091
    ________________________
    Agency No. A205-734-452
    KELLY SANCHEZ-CASTRO,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _______________________
    (June 1, 2021)
    Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit
    Judges.
    WILLIAM PRYOR, Chief Judge:
    Kelly Sanchez-Castro, a native of El Salvador, petitions for our review after
    she unsuccessfully sought relief from removal because a gang targeted her family
    based on the assumption that her father’s work in the United States made it
    USCA11 Case: 19-15091       Date Filed: 06/01/2021   Page: 2 of 15
    wealthy. The Board of Immigration Appeals denied her applications for asylum,
    withholding of removal, and protection under the Convention Against Torture, and
    substantial evidence supports its decision. Sanchez-Castro is ineligible for asylum
    and withholding of removal because the gang that targeted her family did so only
    as a means to the end of obtaining funds, not because of any animus against her
    family. And she is ineligible for protection under the Convention Against Torture
    because she has not established that any harm she will suffer if returned to her
    home country will come with at least the acquiescence of a government official.
    We deny Sanchez-Castro’s petition for review.
    I. BACKGROUND
    Kelly Sanchez-Castro is a citizen of El Salvador who entered the United
    States in December 2012. She was detained after she reached a border patrol
    checkpoint without any immigration documents. The government charged her as
    removable due to her lack of valid entry documents. 
    8 U.S.C. § 1182
    (a)(7)(A)(i)(I).
    Sanchez-Castro conceded that she was removable but applied for asylum,
    withholding of removal, and protection under the Convention Against Torture. She
    asserted that she had been and would be persecuted in El Salvador based on her
    membership in a particular social group: a nuclear family with a father abroad. In
    her view, the gang Mara Salvatrucha—better known as MS-13—targeted her
    family because her father lived in the United States.
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    In November 2017, Sanchez-Castro testified before an immigration judge
    about her applications for relief. She explained that her father moved to the United
    States in 2000 to find work. Based on his residence abroad, the gang assumed that
    Sanchez-Castro’s family had money, and they began to extort her mother. The
    gang threatened to rape and kill her family if Sanchez-Castro’s mother did not
    comply.
    Sanchez-Castro recounted the threats and harassment that she and her
    siblings faced. On one occasion, a gang member pointed a gun at Sanchez-Castro
    while she was playing on the roof of the family home. On another occasion, gang
    members attempted to kidnap Sanchez-Castro and her sister; Sanchez-Castro
    escaped, and the gang later released her sister based on their mother’s previous
    payments. As Sanchez-Castro grew older, gang members began to sexually harass
    her—they wanted her to be “their woman.” Gang members also stole or attempted
    to steal the family’s possessions, including a bicycle and a golden ring. And a gang
    member once shoved Sanchez-Castro’s brother after he wore a shirt emblazoned
    with a number associated with a rival gang.
    Sanchez-Castro’s family occasionally called the police in response to these
    events. Although Sanchez-Castro testified that the police never came, she
    confirmed that gang members would run away after the family made these calls.
    Sanchez-Castro explained that Mara Salvatrucha had spotters on the streets to warn
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    if the police were arriving and that the gang wanted to recruit her brothers to
    become spotters.
    Sanchez-Castro testified that she and her immediate family fled to the
    United States. She first arrived in 2008. After four years here, she followed her
    then-boyfriend to Honduras when he was deported. She found that Honduras was
    unsafe, so she left within six months. When she attempted to return to the United
    States, she was apprehended by border patrol agents. Her family continues to live
    in Georgia.
    Sanchez-Castro also testified that Mara Salvatrucha threatened and harassed
    her extended family after her nuclear family left El Salvador. When her mother’s
    stepsister moved into the Sanchez-Castro family home, gang members demanded
    title to the home. They extorted the stepsister and kidnapped and raped her
    daughter. After the gang threatened to kill the stepsister unless she abandoned the
    house, she left, and the gang took over the house and the belongings within it.
    Sanchez-Castro expressed fear that Mara Salvatrucha would kill her if she returned
    to El Salvador, and she stated that her extended family would not help her because
    it did not want to draw the attention of the gang.
    No other witnesses testified. The immigration judge declined to hear
    testimony from Sanchez-Castro’s father because he had no personal knowledge of
    the events in El Salvador. Her mother and siblings refused to testify because they
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    feared being deported too. Sanchez-Castro instead provided the immigration judge
    with a variety of supporting documents, including statements from her mother and
    siblings about the harm they faced in El Salvador, statements establishing that
    three of her extended family members had been killed by gangs or other violence,
    and reports about gang violence in El Salvador.
    The immigration judge denied Sanchez-Castro’s applications for relief.
    Although he found her credible, he found that Sanchez-Castro’s experience in El
    Salvador did not rise to the level of past persecution. He also found that Sanchez-
    Castro did not have a well-founded fear of future persecution because her fears
    were based on general gang violence, which is not a statutorily protected ground
    for relief. Because she failed to satisfy her burden of proof for asylum, she could
    not meet the higher burden for withholding of removal. And she was not eligible
    for protection under the Convention Against Torture because she had not
    established that it was more likely than not that she would be tortured if she were
    returned to El Salvador.
    The Board of Immigration Appeals dismissed Sanchez-Castro’s appeal. It
    explained that she was not eligible for asylum or withholding of removal because
    she had not established that a protected ground was a central reason for either past
    or feared future persecution. Citing Matter of L-E-A-, 
    27 I. & N. Dec. 40
    , 44–45
    (B.I.A. 2017), the Board distinguished between when “a persecutor targets a family
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    member as a means to an end,” like the gang did here, and when a persecutor is
    motivated by “animus against the family per se.” The former is not by itself
    enough to obtain relief, but the latter can be. The Board also agreed with the
    reasoning of the immigration judge as to Sanchez-Castro’s Convention Against
    Torture claim.
    After Sanchez-Castro petitioned this Court for review, the government
    moved to remand the matter to the Board. It pointed out that Matter of L-E-A- was
    not yet final because the Attorney General had stayed that decision pending his
    review. And it argued that remand was appropriate so that the Board could clarify
    its analysis in the light of the finality issue. We vacated the order of the Board and
    granted the motion to remand.
    A few weeks later, the Attorney General issued his decision in Matter of
    L-E-A-, 
    27 I. & N. Dec. 581
     (A.G. 2019). He concluded that a nuclear family
    ordinarily will not qualify as a particular social group, so family-based claims for
    relief will rarely be successful under the Immigration and Nationality Act. 
    Id. at 589
    . But he “le[ft] . . . undisturbed” the Board’s analysis of the circumstances in
    which membership in a family constitutes a central reason for persecution. 
    Id. at 597
    .
    On remand, the Board again dismissed Sanchez-Castro’s appeal. It
    acknowledged the holding in Matter of L-E-A- but noted that the decision of the
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    Attorney General did not bear on the issue it had earlier considered in Sanchez-
    Castro’s case. So the Board readopted its earlier conclusions.
    II. STANDARDS OF REVIEW
    We review only the decision of the Board, except to the extent that the
    Board expressly adopted the decision of the immigration judge. Kazemzadeh v.
    U.S. Att’y Gen., 
    577 F.3d 1341
    , 1350 (11th Cir. 2009). We review conclusions of
    law de novo and findings of fact for substantial evidence. 
    Id.
     The substantial-
    evidence standard is highly deferential: we view the record in the light most
    favorable to the decision of the Board and affirm if the decision is “supported by
    reasonable, substantial, and probative evidence on the record considered as a
    whole.” 
    Id. at 1351
     (internal quotation marks omitted). We may not reverse a
    finding of fact unless the record compels reversal. 
    Id.
    III. DISCUSSION
    We divide our discussion in two parts. We first review whether substantial
    evidence supports the finding that Sanchez-Castro has failed to establish a nexus
    between the identity of her nuclear family and her asserted persecution. Because it
    does, she does not qualify for asylum or withholding of removal. We then review
    whether substantial evidence supports the finding that Sanchez-Castro has not
    proved government acquiescence in any torture she faces if returned to El
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    Salvador. Because it does, we likewise agree that Sanchez-Castro does not qualify
    for protection under the Convention Against Torture.
    A. Substantial Evidence Supports the Finding that Sanchez-Castro Has
    Failed to Satisfy the Nexus Requirement for Asylum and Withholding of
    Removal.
    We determine eligibility for asylum and for withholding of removal based
    on related inquiries. To be eligible for asylum, an applicant must prove either past
    persecution “on account of” a statutorily protected ground or a well-founded fear
    that a protected ground will cause future persecution. Diallo v. U.S. Att’y Gen., 
    596 F.3d 1329
    , 1332 (11th Cir. 2010). To be eligible for withholding of removal, an
    applicant must prove that it is more likely than not that she will be persecuted or
    tortured because of a protected ground if returned to her home country. Sepulveda
    v. U.S. Att’y Gen., 
    401 F.3d 1226
    , 1232 (11th Cir. 2005). The “more likely than
    not” standard is more demanding than the “well-founded fear” standard, so an
    applicant who is ineligible for asylum is necessarily ineligible for withholding of
    removal. Id.; Djonda v. U.S. Att’y Gen., 
    514 F.3d 1168
    , 1177 (11th Cir. 2008).
    Both standards contain a causal element known as the nexus requirement.
    Perez-Sanchez v. U.S. Att’y Gen., 
    935 F.3d 1148
    , 1158 (11th Cir. 2019). An
    applicant must establish that a protected ground “was or will be at least one central
    reason for persecuting the applicant.” 
    8 U.S.C. § 1158
    (b)(1)(B)(i); see Perez-
    Sanchez, 935 F.3d at 1158. A reason is central if it is “essential” to the motivation
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    of the persecutor. Parussimova v. Mukasey, 
    555 F.3d 734
    , 740 (9th Cir. 2009)
    (internal quotation marks omitted). In other words, “the protected ground cannot
    play a minor role in the alien’s past mistreatment or fears of future mistreatment.
    That is, it cannot be incidental, tangential, superficial, or subordinate to another
    reason for harm.” 
    Id. at 741
     (internal quotation marks omitted). Any past or feared
    future persecution must be at least in significant part “because of” the protected
    ground. See Rodriguez Morales v. U.S. Att’y Gen., 
    488 F.3d 884
    , 891 (11th Cir.
    2007).
    The Board based its denial of asylum and withholding solely on Sanchez-
    Castro’s failure to satisfy the nexus requirement. She invoked the protected ground
    of “membership in a particular social group” and argued that she was persecuted
    and feared future persecution on that basis. 
    8 U.S.C. § 1158
    (b)(1)(B)(i). She
    defined her particular social group as a “[s]ingle family unit[] targeted by [Mara
    Salvatrucha] because the father is away living in the United States.” The Board
    found that the record did not establish that Sanchez-Castro’s family status was a
    central reason for the harm she suffered or feared that she would suffer.
    Because the Board considered only the nexus requirement, we review only
    whether substantial evidence supports its finding that Sanchez-Castro did not
    satisfy that requirement. See Donawa v. U.S. Att’y Gen., 
    735 F.3d 1275
    , 1279 (11th
    Cir. 2013). We do not consider whether Sanchez-Castro’s experience rises to the
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    level of persecution, whether she has a well-founded fear of future persecution, or
    whether her family unit qualifies as a particular social group. Cf. Perez-Sanchez,
    935 F.3d at 1158 n.7.
    We conclude that substantial evidence supports the finding of the Board.
    The record does not compel a finding that any persecution that Sanchez-Castro
    suffered or fears occurred “because of” the status of her nuclear family. Several of
    her anecdotes are manifestly unrelated to her family status and instead establish
    that she and her family members have been the victims of ordinary criminal
    activity. Cf. Ruiz v. U.S. Att’y Gen., 
    440 F.3d 1247
    , 1258 (11th Cir. 2006). For
    example, Mara Salvatrucha did not try to kidnap Sanchez-Castro and her sister
    “because of” their family; indeed, it released her sister after it learned of their
    mother’s previous payments. Nor did a gang member target Sanchez-Castro’s
    brother “because of” his family; it targeted him because he wore clothing
    associated with a rival gang. The record likewise supports the inference that the
    gang engaged in sexual harassment and theft not because it sought to target
    Sanchez-Castro’s family, but because the gang engages in that kind of behavior
    indiscriminately. Cf. 
    id.
    To the extent that the gang extorted Sanchez-Castro’s mother by threatening
    her family, the record also supports the conclusion that this extortion was not
    “because of” her family specifically. Like the Board, we distinguish persecution of
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    a family as a means to an unrelated end from persecution based on animus against
    a family per se. Matter of L-E-A-, 27 I. & N. Dec. at 44–46. Where a gang targets a
    family only as a means to another end, the gang is not acting because of who the
    family is; the identity of the family is only incidentally relevant. Id.; cf. INS v.
    Elias-Zacarias, 
    502 U.S. 478
    , 483 (1992), superseded by statute on other grounds,
    
    8 U.S.C. § 1252
    (b)(4)(B). So Sanchez-Castro cannot satisfy the nexus requirement
    if Mara Salvatrucha was motivated, at bottom, by a desire “to raise funds.” See
    Rivera v. U.S. Att’y Gen., 
    487 F.3d 815
    , 823 (11th Cir. 2007). When a family is
    targeted because its wealth makes it an “obvious target[] for extortionate
    demands,” that motivation does not constitute extortion “because of family
    relationships.” Cambara-Cambara v. Lynch, 
    837 F.3d 822
    , 826 (8th Cir. 2016). So
    it goes here: Sanchez-Castro admitted to the Board that the gang extorted her
    mother “to get money.”
    Sanchez-Castro’s admission that the gang had a generic pecuniary motive
    distinguishes her case from Perez-Sanchez, where we held that an applicant for
    asylum and withholding satisfied the nexus requirement. 935 F.3d at 1158–59. In
    Perez-Sanchez, the record was “replete with evidence” that a cartel extorted the
    applicant “because of his father-in-law’s past history with the cartel,” so it was
    “impossible to disentangle” the extortion from the cartel’s grievance against the
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    father-in-law. Id. at 1158. By contrast, nothing in the record here suggests that
    Mara Salvatrucha harbored animus against the Sanchez-Castro family per se.
    In evaluating the issue of extortion, we reject Sanchez-Castro’s invitation to
    follow the approach of the Fourth Circuit. The Fourth Circuit takes a more lenient
    approach to the nexus requirement than we do. For example, in Hernandez-Avalos
    v. Lynch, it concluded that a gang persecuted a mother “on account of her
    membership in her nuclear family” when it threatened to kill her unless she would
    allow her son to join the gang. 
    784 F.3d 944
    , 950 (4th Cir. 2015) (internal
    quotation marks omitted). Although the threat was a means to the end of recruiting
    her son into the gang, the Fourth Circuit reasoned that “Hernandez’s relationship to
    her son [was] why she, and not another person, was threatened.” 
    Id.
     We decline to
    follow this reasoning because it expands the nexus inquiry to include family status
    as a central reason even when it is “incidental” and “subordinate to another reason
    for harm.” Parussimova, 
    555 F.3d at 741
     (internal quotation marks omitted); see
    also Orellana-Recinos v. Garland, 
    993 F.3d 851
    , 858–59 (10th Cir. 2021).
    Moreover, the harm identified by Sanchez-Castro is not unique to her
    particular social group. Although she defined her particular social group in terms
    of her nuclear family, she provided evidence that relatives outside her nuclear
    family suffered in the same ways or worse. And she submitted country reports
    suggesting that the criminality she experienced before and fears experiencing again
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    is widespread in El Salvador. Evidence that treatment is consistent with general
    criminal activity does not help Sanchez-Castro with the nexus requirement. Cf.
    Ruiz, 
    440 F.3d at 1258
    .
    Taken together, the record does not compel the conclusion that Sanchez-
    Castro’s nuclear family was a central reason for any persecution she suffered or
    that she fears. Instead, substantial evidence supports the conclusion that the harm
    that she identifies is “nothing more than a manifestation of the general extortion
    and gang violence that plagues El Salvador.” Velasquez v. Sessions, 
    866 F.3d 188
    ,
    199 (4th Cir. 2017) (Wilkinson, J., concurring). So we agree with the Board that
    Sanchez-Castro is ineligible for asylum or withholding of removal.
    B. Substantial Evidence Supports the Finding that Sanchez-Castro Has
    Failed to Satisfy the Government-Acquiescence Requirement for
    Protection Under the Convention Against Torture.
    To be eligible for protection under the Convention Against Torture, an
    applicant must establish that it is “more likely than not that he or she would be
    tortured if removed to the proposed country of removal.” 
    8 C.F.R. § 208.16
    (c)(2).
    Torture involves, among other elements, “an[] act by which severe pain or
    suffering . . . is inflicted by or at the instigation of or with the consent or
    acquiescence of” a government official or other person acting in an official
    capacity. 
    Id.
     § 208.18(a)(1). A government official acquiesces to torture only if,
    “prior to the activity constituting torture, [he] ha[s] awareness of such activity and
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    thereafter breach[es] his . . . legal responsibility to intervene to prevent” the
    activity. Id. § 208.18(a)(7).
    Substantial evidence supports the conclusion of the Board that Sanchez-
    Castro is ineligible for protection under the Convention Against Torture. See
    Fahim v. U.S. Att’y Gen., 
    278 F.3d 1216
    , 1218 (11th Cir. 2002). In particular, she
    has failed to establish any likelihood that she will suffer harm “inflicted by or at
    the instigation of or with the consent or acquiescence of” a government official. 
    8 C.F.R. § 208.18
    (a)(1). She has not asserted that she will suffer harm “inflicted by”
    or “at the instigation of” a government official, so her feared harm at the hands of
    Mara Salvatrucha can qualify only if it comes “with the consent or acquiescence
    of” a government official. 
    Id.
     But the record makes clear that the government of El
    Salvador is fighting Mara Salvatrucha. True, Sanchez-Castro testified that the
    police never arrived when her family called for them. But she also testified that the
    gang recruited spotters to warn them when the police were on the way and that
    gang members would run away before the police could arrive. If Mara Salvatrucha
    had the acquiescence of the police, then it would not need spotters. And even if
    Sanchez-Castro were right that the police are not effective at controlling Mara
    Salvatrucha, it is dispositive that they are trying to do so. Cf. Zaldana Menijar v.
    Lynch, 
    812 F.3d 491
    , 502 (6th Cir. 2015) (“That the Salvadoran government is
    unable to control the gangs does not constitute acquiescence.”); Reyes-Sanchez v.
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    U.S. Att’y Gen., 
    369 F.3d 1239
    , 1243 (11th Cir. 2004) (“That the police did not
    catch the culprits does not mean that they acquiesced in the harm.”).
    IV. CONCLUSION
    We DENY the petition for review.
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