Karla Granados Arias v. Merrick B. Garland ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2148
KARLA ELIZABETH GRANADOS ARIAS,
Petitioner,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A206-624-591
____________________
ARGUED MARCH 29, 2023 — DECIDED MAY 31, 2023
____________________
Before SYKES, Chief Judge, and ROVNER and BRENNAN, Cir-
cuit Judges.
BRENNAN, Circuit Judge. El Salvador citizen Karla Elizabeth
Granados Arias petitions for review of an order of the Board
of Immigration Appeals denying her applications for asylum,
withholding of removal, and protection under the Conven-
tion Against Torture. We hold that substantial evidence sup-
ports the Board’s decision and deny the petition.
2 No. 22-2148
I. Background
A. Factual
Granados Arias and her sister, Maria, sold tortillas from a
rented space in their mother’s home in El Salvador beginning
in October 2013. The business was successful, and a few
months after it opened, a note was slipped under their door.
The note demanded they pay $50 per week and send with the
payment a piece of intimate clothing. The author of the note
threatened death if the police were contacted. Granados Arias
recognized the handwriting on the note as belonging to a for-
mer classmate who she knew was a member of the Mara 18
gang.
A friend of Granados Arias, Karina, who had owned a
clothing business, received a similar note two weeks earlier,
which she reported to the police. Karina later received a sec-
ond note threatening death if she did not withdraw her com-
plaint. She complied. One month later, her son was killed.
Karina told Granados Arias that the Mara 18 had killed her
son because of the complaint.
Granados Arias and Maria paid the extortion demand for
one week but did not leave clothing with the payment. Unable
to afford payments and afraid of the gang, they ultimately
closed their business.
Because of the note, Granados Arias left El Salvador and
illegally entered the United States in March 2014. Maria re-
mained in El Salvador but moved to their grandmother’s
home an hour away, living there for about six months without
incident. Maria and Granados Arias’s mother now live in a
different home, five houses away from where the tortilla busi-
ness was located. Maria does not work or leave the home.
No. 22-2148 3
Granados Arias’s son only leaves the home to attend school,
and he is driven to and from school to avoid gangs. Neither
Granados Arias nor her family members have been threat-
ened or harmed since the sisters received the note.
B. Procedural
After a hearing, an immigration judge (IJ) denied Grana-
dos Arias’s applications for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT).
The IJ found her credible but deemed her ineligible for asy-
lum. The isolated threat she had received did not rise to the
level of past persecution. Granados Arias also failed to estab-
lish a well-founded fear of future persecution. She had not
shown that she would be individually targeted for harm be-
cause her family members in El Salvador had not been threat-
ened or harmed since receiving the note. Nor could a pattern
or practice of persecution be shown based on generalized vi-
olence and harsh conditions.
Granados Arias had also failed to show a nexus between
the harm and her proffered social groups of “women in El Sal-
vador,” “business owners in El Salvador who refuse to pay
rent,” “business owners who oppose the gangs,” and
“women business owners.” Even assuming these social
groups were cognizable, the IJ concluded that Granados Arias
had been targeted so the gang could raise money for its crim-
inal ventures and not on account of a protected ground. Fur-
ther, the danger of extortion was shared by all in El Salvador
who are perceived to be wealthy. Granados Arias’s risk of per-
secution was not distinct based on her gender or former busi-
ness ownership, and fear of generalized crime, extortion, or
violence in a country cannot serve as a basis for asylum. Be-
cause Granados Arias had not satisfied the nexus requirement
4 No. 22-2148
for her asylum claim, the IJ found that she could not meet the
same requirement for her withholding of removal claim.
The IJ further denied relief under the CAT, as Granados
Arias had not shown past persecution and therefore could not
show past torture. Nor did she demonstrate that anyone in El
Salvador intended to harm her, given her sister and mother
lived unharmed in her hometown in El Salvador. Granados
Arias also did not establish that similarly situated individuals
experience gross, flagrant, or mass human rights abuses. The
IJ acknowledged that Granados Arias’s documentary evi-
dence indicated that violence and crime are widespread in El
Salvador. But generalized violence did not establish more
likely than not that Granados Arias would be tortured upon
return.
The Board affirmed the IJ’s decision, discerning no clear
error in the IJ’s finding that the gang targeted Granados Arias
to raise money for its criminal ventures. Given no nexus, the
Board declined to address Granados Arias’s arguments on
whether her past harm rose to the level of persecution. As to
future persecution, the Board agreed that Granados Arias and
her family had not been subsequently threatened or harmed,
so she did not show she would be individually targeted for
harm. Because her mother and sister live only five houses
away from where the business had been, the Board deemed
unpersuasive Granados Arias’s claim that she would live as a
fugitive in El Salvador. Nor did she demonstrate a pattern or
practice of persecution against similarly situated individuals.
In addition, the Board agreed with the IJ’s finding that Grana-
dos Arias had not shown a nexus between her fear of future
harm and a protected ground.
No. 22-2148 5
The Board also affirmed the IJ’s denial of Granados Arias’s
withholding of removal claim. Because she had failed to es-
tablish eligibility for asylum, the Board reasoned that she did
not “meet the higher standard, i.e. that of showing it is ‘more
likely than not’ that she would be persecuted on account of a
protected ground, required to establish eligibility for with-
holding of removal.”
Granados Arias was likewise ineligible under the CAT.
She had not shown past torture or that anyone intends to
harm her upon her return. Her similarly situated sister re-
mained unharmed in their hometown in El Salvador, and
country condition reports of generalized crime and violence
were insufficient to show more likely than not that she would
be tortured.
Last, the Board denied Granados Arias’s claim that the IJ
violated her due process rights by failing to sufficiently dis-
cuss her documentary evidence and whether her proposed
social groups were cognizable. The Board concluded that the
IJ’s decision reflected consideration of the documentary evi-
dence. It was not necessary for the IJ to analyze whether each
proposed social group was cognizable, because Granados
Arias had not shown past or future harm on account of a pro-
tected ground. She therefore failed to demonstrate prejudice
for her due process claim.
II. Discussion
Granados Arias petitioned this court for review, raising
several challenges to the Board’s decision. “We review ques-
tions of law de novo and findings of fact for ‘substantial evi-
dence.’” Meraz-Saucedo v. Rosen, 986 F.3d 676, 684 (7th Cir.
2021). “Under the substantial evidence standard, the agency’s
6 No. 22-2148
‘findings of fact are conclusive unless any reasonable adjudi-
cator would be compelled to conclude to the contrary.’” Id.(quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)). Where
the Board’s opinion depends in part on the IJ’s analysis and
supplements instead of adopts it, “we will review ‘the IJ’s de-
cision wherever the Board has not supplanted it with its own
rationale’ and review the Board’s opinion ‘where the Board
has spoken.’” Ferreira v. Lynch, 831 F.3d 803, 808 (7th Cir. 2016)
(quoting Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011)).
A. Asylum 1
Eligibility for asylum turns on whether the petitioner is a
“refugee” under the Immigration and Nationality Act. 8
U.S.C. § 1158(b)(1)(A). A “refugee” is defined in part as an in-
dividual “who is unable or unwilling to return to” a country
of one’s nationality due to “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). Where an asylum claim is based on
membership in a particular social group, the petitioner must
not only identify a social group and establish that she is a
member but must also demonstrate a nexus. See Melnik v. Ses-
sions, 891 F.3d 278, 285 (7th Cir. 2018). In other words, Grana-
dos Arias must show that “the persecution or her well-
founded fear of persecution is based on her membership” in
1 Granados Arias filed her asylum application after the one-year dead-
line provided in 8 U.S.C. § 1158(a)(2)(B). Nevertheless, the IJ found her
application was timely because she fell within one of the classes identified
in Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018). We read the
IJ’s decision to conclude that, for this case, the Rojas decision established
changed circumstances or extraordinary circumstances under
§ 1158(a)(2)(D).
No. 22-2148 7
the identified social group. Id. Here, she has failed to establish
both a well-founded fear of future persecution and a nexus. 2
1. Well-founded fear of future persecution
Granados Arias makes two challenges to the Board’s con-
clusion that she had not established an objectively reasonable
fear of future persecution. First, she argues the Board ignored
evidence demonstrating that her family lives as fugitives. This
evidence includes her testimony that: (1) her son is driven to
and from school to avoid gang confrontation and does not
otherwise leave the home; (2) her sister does not work and
only stays in the home; and (3) her mother is afraid that she
will be targeted by gang members and fears sending letters to
Granados Arias. Second, we understand her to contend the
Board overlooked documentary evidence discussing the
prevalence of gang retaliation in El Salvador against individ-
uals who defy a gang’s authority.
The Board must consider a petitioner’s arguments “‘and
announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely
reacted.’” Ferreira, 831 F.3d at 810 (quoting Solis-Chavez v.
Holder, 662 F.3d 462, 469 (7th Cir. 2011)). Where the record
demonstrates that the agency considered material evidence,
its factual findings are conclusive unless the record compels a
contrary conclusion. See Silais v. Sessions, 855 F.3d 736, 743 (7th
Cir. 2017).
2 Granados Arias has failed to develop an argument in her appellate
briefs as to whether her past harm rose to the level of past persecution, so
she has waived that contention. See Puffer v. Allstate Ins. Co., 675 F.3d 709,
718 (7th Cir. 2012).
8 No. 22-2148
“Whether a petitioner … harbors a well-founded fear of
future persecution [is a] factual finding[] subject to the defer-
ential ‘substantial evidence’ standard, requiring reversal only
if the evidence compels a different result.” Meraz-Saucedo, 986
F.3d at 684. “A well-founded fear of future persecution is one
that is ‘subjectively genuine and objectively reasonable in
light of credible evidence.’” Id. at 685 (quoting Hernandez-Gar-
cia v. Barr, 930 F.3d 915, 920 (7th Cir. 2019)). The Board
affirmed the IJ’s determination that Granados Arias’s fear of
future persecution was not objectively reasonable, so we re-
view only that component. To make that showing, she must
establish either (1) “a reasonable possibility … she would be
singled out individually for persecution” or (2) “a pattern or
practice” of persecution of a group to which she belongs. 8
C.F.R. § 1208.13(b)(2)(iii). Under the first alternative, “[a] pe-
titioner must set forth specific, detailed evidence indicating
that it would be more likely than not that [she] would be in-
dividually targeted for harm.” Orellana-Arias v. Sessions, 865
F.3d 476, 488 (7th Cir. 2017). Under the second, “[t]here must
be a systematic, pervasive, or organized effort to kill, im-
prison, or severely injure members of the protected group,
and this effort must be perpetrated or tolerated by state ac-
tors.” Georgieva v. Holder, 751 F.3d 514, 523 (7th Cir. 2014)
(quoting Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir. 2005)).
The Board considered whether Granados Arias’s family
lived as fugitives. It found this argument unpersuasive be-
cause her sister and mother lived without incident in the same
area where the business had been operated. The Board need
not write an exegesis on every argument, see Ferreira, 831 F.3d
at 810, so it did not have to articulate every detail about the
lives of Granados Arias’s son, sister, and mother.
No. 22-2148 9
Nor does Granados Arias’s testimony compel a finding
that her family lives as fugitives or that she would live a fugi-
tive’s life in El Salvador. The Board was not required to defer
to her son’s or sister’s personal judgments that they are better
off living in hiding. See Ahmed v. Ashcroft, 348 F.3d 611, 615
(7th Cir. 2003). In Ahmed, this court concluded that the record
did not compel a finding that the petitioner lived as a fugitive
in Algeria in part because he failed to present “detailed facts”
showing that “he himself suffered from concrete acts of per-
secution” or that his lifestyle “was necessary to evade such
acts.” Id. at 615–16. This record similarly does not compel a
finding that Granados Arias’s family lives as fugitives, as Gra-
nados Arias has not detailed facts suggesting that remaining
at home, being driven to and from school, or not working
were necessary steps taken by her family to evade acts of per-
secution. Instead, there is no evidence of subsequent threats
or harm to Granados Arias’s family apart from the initial note.
This supports the Board’s conclusion that her fear of future
persecution is not objectively reasonable. See Meraz-Saucedo,
986 F.3d at 685; Hernandez-Garcia, 930 F.3d at 920.
The Board also considered Granados Arias’s documentary
evidence, which it described as “country condition reports of
generalized crime and violence in El Salvador.” Although this
description could have included more detail, the Board’s de-
cision reflects sufficient consideration of that evidence. See
Ferreira, 831 F.3d at 810.
The documentary evidence here does not compel a finding
that Granados Arias established a well-founded fear of future
persecution. It instead demonstrates general conditions of
crime and violence in El Salvador from which small business
owners and women are not exempt. For instance, the
10 No. 22-2148
declaration of Elizabeth G. Kennedy states that in 2015, it was
estimated that “over 90 percent of the country’s neighbor-
hoods have a gang presence,” and that crime, including extor-
tion, is “normalized” in the spaces governed by gangs. In poor
and middle-class neighborhoods under gang influence, most
or all residents make extortion payments, but in varying
amounts based upon the resident’s perceived income. Gener-
alized violence alone is insufficient to meet Granados Arias’s
burden to demonstrate a well-founded fear of persecution. See
Hernandez-Garcia, 930 F.3d at 920–21.
2. Nexus
Even assuming Granados Arias can demonstrate past or
future persecution, she must still meet the nexus requirement.
The Board discerned no clear error in the IJ’s determination
that Granados Arias was targeted by a gang member because
of her perceived wealth. That conclusion was based in part on
this court’s decision in Orellana-Arias, 865 F.3d at 485. Further,
the Board decided that the IJ had properly found that there
was no nexus between the alleged future harm and a pro-
tected ground. On this point, the IJ reasoned that the risk of
extortion is shared by all in El Salvador and that there was no
evidence that Granados Arias faced a distinct risk due to her
gender or former business ownership.
Granados Arias reads the Board’s decision as ignoring her
argument that the IJ failed to consider documentary evidence
discussing the danger faced by business owners and women
in El Salvador. We understand her to contend that this evi-
dence establishes a nexus between her persecution and her
four proffered social groups: (1) women in El Salvador, (2)
business owners in El Salvador who refuse to pay rent, (3)
No. 22-2148 11
business owners who oppose the gangs, and (4) women busi-
ness owners.
An asylum applicant must demonstrate that she was per-
secuted “on account of” her membership in the proffered so-
cial group. Id. (quoting Dominguez-Pulido v. Lynch, 821 F.3d
837, 845 (7th Cir. 2016)). To show a motive sufficiently distinct
from perceived wealth, a petitioner must establish that she
was “more of a target” because of her membership in the
particular social group than had she, for instance, “won the
lottery, inherited a large estate, secured a high-paying job, or
discovered a diamond mine in [her] backyard.” Id. More spe-
cifically, when the social group involves small business own-
ership, the petitioner must submit evidence substantiating a
“particular animus toward small business owners as small
business owners.” Melnik, 891 F.3d at 287. A Board’s determi-
nation on the nexus requirement will be upheld if it is sup-
ported by substantial evidence. See id. at 288.
The Board did not ignore Granados Arias’s contention that
the IJ did not engage with the documentary evidence. It ex-
plained that the IJ’s decision reflected consideration of that
evidence, including citations to specific pages in the IJ’s deci-
sion.
Substantial evidence supports the Board’s conclusion that
Granados Arias’s perceived wealth made her a target for
extortion. Her documentary evidence generally states that
business owners in El Salvador are regularly extorted and face
violence if they do not pay. This is insufficient to show that
Granados Arias was more of a target because she previously
operated a business than had she acquired wealth through
12 No. 22-2148
any other means. 3 See Orellana-Arias, 865 F.3d at 485. Nor has
Granados Arias directed this court to anything compelling the
conclusion that the Mara 18 gang targets small business own-
ers or women for extortion as opposed to “indiscriminately
target[ing] anyone with perceived wealth.” Hernandez-Garcia,
930 F.3d at 920.
B. Withholding of Removal
The Board also decided that Granados Arias was ineligible
for withholding of removal. It reasoned that her ineligibility
for asylum meant she could not meet a higher burden of proof
on past or future persecution “on account of a protected
ground,” as required for a withholding of removal claim. She
responds that by showing she was eligible for asylum she
qualifies for withholding of removal.
As with asylum, an applicant for withholding of removal
must demonstrate a nexus to a protected ground. See 8 U.S.C.
§ 1231(b)(3)(A); Melnik, 891 F.3d at 288 n.25. But by requiring
Granados Arias to demonstrate the nexus requirement by a
3At oral argument, counsel for Granados Arias raised two additional
reasons for why a nexus between past harm and her proffered social
groups had been shown: (1) the extortion note demanded a piece of inti-
mate clothing and (2) Karina was a female business owner who was simi-
larly extorted. Oral arg. at 4:21–5:01 (intimate clothing), 8:04–8:58 (Karina’s
experience). The government responded that the first theory was not ar-
ticulated in Granados Arias’s closing argument to the IJ or on appeal to
the Board. Oral arg. at 16:45–17:12.
Neither theory was presented to the Board as a reason for reversing
the IJ’s finding that the extortion was motivated by Granados Arias’s per-
ceived wealth. But we need not address the question of exhaustion, see 8
U.S.C. § 1252(d)(1), because Granados Arias waived these arguments by
failing to brief them before us. See Hernandez-Garcia, 930 F.3d at 919–20.
No. 22-2148 13
preponderance of the evidence, the Board applied the wrong
legal standard for withholding of removal. “The nexus re-
quirement … is the same for both asylum and withholding of
removal.” W.G.A. v. Sessions, 900 F.3d 957, 965 (7th Cir. 2018).
Even so, “[r]emand is not always necessary” to correct legal
error. Estrada-Martinez v. Lynch, 809 F.3d 886, 897 (7th Cir.
2015). A remand is not required where “nothing remains for
the agency to investigate or explain.” Ghebremedhin v. Ashcroft,
392 F.3d 241, 243 (7th Cir. 2004). Here, the Board concluded
that Granados Arias failed to show either past or future per-
secution on account of a protected ground for her asylum
claim. She offers no further support for a nexus on her with-
holding of removal claim than she did in support of her asy-
lum claim.
As the burden of proof as to nexus and facts in this case
are the same for both asylum and withholding of removal, we
affirm the Board’s decision on the latter claim. We do not re-
mand on this issue because it does not require additional ex-
planation or agency fact-finding. See id. 4
4 Granados Arias also contends the Board failed to address her claim
that the IJ did not consider whether two of her proffered social groups are
cognizable. A due process claim requires a showing of prejudice, meaning
the violation “must have been one likely to have an impact on the result
of the proceeding.” Ramos v. Gonzales, 414 F.3d 800, 804 (7th Cir. 2005).
Granados Arias has failed to demonstrate a nexus, so she has not shown
prejudice. This is an independent reason to deny her asylum and with-
holding of removal claims. See Lopez v. Sessions, 859 F.3d 464, 467–68 (7th
Cir. 2017).
14 No. 22-2148
C. Convention Against Torture
Finally, Granados Arias challenges the Board’s conclusion
that she was ineligible for protection under the CAT. She
points to a 2016 report from the United Nations High Com-
missioner for Refugees explaining that individuals who do
not pay extortion demands face threats and violence, includ-
ing death.
“To receive protection under the CAT, an applicant must
show that there is ‘a “substantial risk” that [she] would be tor-
tured if forced to return’” to her country of nationality. Meraz-
Saucedo, 986 F.3d at 686 (quoting Garcia-Arce v. Barr, 946 F.3d
371, 377 (7th Cir. 2019)). “‘Torture’ is defined as ‘severe pain
or suffering’ or an ‘extreme form of cruel and inhuman treat-
ment’ that is intentionally inflicted with the consent or acqui-
escence of a public official.” Id. (quoting 8 C.F.R.
§ 208.18(a)(1)–(2)); see also 8 C.F.R. § 1208.18(a)(1)–(2). The
agency’s determination of whether the petitioner faces a sub-
stantial risk of torture is reviewed for substantial evidence. See
Meraz-Saucedo, 986 F.3d at 686.
Considering other evidence about Granados Arias and her
family’s experience, this documentary evidence does not
compel a conclusion that she is at a substantial risk of being
tortured in El Salvador. She has not previously been tortured
there, nor does she describe any threats or harm directed to-
ward her since receipt of the note. Moreover, her sister Maria,
who remained in El Salvador after refusing to make ongoing
extortion payments, has not been threatened or harmed de-
spite living near the home from which the business had been
operated. Substantial evidence supports the Board’s decision
on Granados Arias’s request for protection under the CAT.
See Jan v. Holder, 576 F.3d 455, 458 (7th Cir. 2009) (determining
No. 22-2148 15
that country reports and news articles did not establish a sub-
stantial risk of torture due in part to the lack of evidence of
any contact between the alleged persecutors and petitioner
and his family over the past ten years).
III. Conclusion
For these reasons, we DENY Granados Arias’s petition for
review.