United States Court of Appeals For the First Circuit
No. 23-1726
JULIO ALVARADO-REYES; GLENDA GARMENDIA-ARDONA; J.A.G.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Thompson, and Montecalvo, Circuit Judges.
Kristian R. Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioners. Jesse D. Lorenz, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Holly M. Smith, Assistant Director, were on brief, for respondent.
October 7, 2024 THOMPSON, Circuit Judge. We recognized many years ago
the unfortunate reality that "[g]ang violence apparently is
endemic in El Salvador." Flores-Coreas v. Mukasey, 261 F. App'x
287, 291 (1st Cir. 2008) (per curiam). Today's immigration appeal
suggests that that reality may not have changed much since then.
After being threatened by the notorious MS-13 gang, Salvadoran
nationals Julio Alvarado-Reyes ("Alvarado-Reyes"), his wife Glenda
Garmendia-Ardona ("Garmendia-Ardona"), and their minor son J.A.G.
(collectively, "Petitioners") fled to the United States to seek
safety.1 However, an Immigration Judge ("IJ") denied their
applications for immigration relief. The Board of Immigration
Appeals ("BIA" and, collectively with the IJ, "the agency")
affirmed that denial on appeal. A petition for review with this
court followed, asking us to reverse the agency's denial. For
reasons we'll get to shortly, though, we must deny the petition.
HOW IT ALL STARTED
To kick things off, we lay out how it all started (i.e.,
the odyssey that brought Petitioners to the United States and how
their case made its way to us). In doing so, we pull the facts
and procedural history from the administrative record. Dor v.
Garland, 46 F.4th 38, 42 (1st Cir. 2022).
1 We note that the record inconsistently hyphenates Alvarado-Reyes' and Garmendia-Ardona's surnames. As the cover pages to both parties' briefing include the hyphenated spellings, those are what we use throughout this opinion.
- 2 - Life in El Salvador and Journey to the United States
At about fourteen years old, Alvarado-Reyes moved into
his grandparents' home in El Salvador to care for them because
they had serious health issues. Alvarado-Reyes' now-wife,
Garmendia-Ardona, moved in a few years later and also began caring
for his grandparents, while he supported the family through
agricultural work. These two eventually moved to a home nearby,
had J.A.G., and got married. At some point, Alvarado-Reyes' uncle
bought him a truck so that Alvarado-Reyes could take his
grandparents (the uncle's parents) to their medical appointments.
The purchase of this truck, it turns out, set off a chain of events
which led to Petitioners' departure from El Salvador.
Towards the end of 2020, Alvarado-Reyes' grandmother
died and, about a month later, he "began to have problems with the
gangs." "The first incident" occurred when he was driving the
truck and was stopped by MS-13 gang members, who asked him "to do
a little trip for them." Confused by what "little trip" meant, he
told them that he couldn't because the truck didn't belong to him,
to which the gang members responded "that [he] would regret not
helping them, that they knew where [his] family lived, that [his]
family would pay, that [his] son would pay, that they would rape
[his] wife and that they would kill [him]." Over the next few
months and continuing through Petitioners' departure from El
Salvador, Alvarado-Reyes was stopped (while driving) approximately
- 3 - five more times and told the same things. He also received
threatening phone calls from gang members, and these two types of
threats (the calls and the stops on the street) together would
"happen once or twice a week." Anonymous notes would also be left
at Petitioners' home, "asking [Alvarado-Reyes] to give [the MS-13
gang members] rides."
Garmendia-Ardona, on the other hand, was never
approached in person. That said, she did have some relevant
interactions with MS-13 because gang members frequently called
Petitioners' home and she "picked up the phone on [three]
occasions." During these calls, the gang members asked for
Alvarado-Reyes and "said they were asking him for favors and he
was not cooperating." When Garmendia-Ardona responded that
Alvarado-Reyes was not home, they threatened that "if [Alvarado-
Reyes] kept refusing they would come to the house and kidnap
[J.A.G.]." They also told her that she "was pretty and that '[she]
was going to be one of their women.'" At the end of the calls,
the gang members told her not to go to the police "because it will
be worse for [her]." In light of these threats, Garmendia-Ardona
did not feel safe and "would only leave [her] home to go to [her]
mother's house."
Petitioners never went to the Salvadoran police because
they were "afraid that the gangs would find out and kill [them]"
since they "ha[d] heard and read stories of people reporting the
- 4 - gangs to the police and then being killed by the gangs as revenge."
They eventually fled to the United States in August 2021 because
the threats from MS-13 "intensified." A few months after their
arrival, on November 1, 2021, the Department of Homeland Security
initiated removal proceedings against them.
Removal Proceedings
Exactly thirteen months later, on December 1, 2022,
Petitioners appeared before the IJ for their merits hearing. To
avoid removal back to El Salvador, Alvarado-Reyes applied for
asylum, withholding of removal, and protection under the
Convention Against Torture ("CAT"). Garmendia-Ardona and J.A.G.
did not file any applications themselves; rather, they simply
sought asylum as derivatives of Alvarado-Reyes' asylum
application.2 In support of their claims, they offered the
following evidence: in-court testimony and sworn, written
affidavits from Alvarado-Reyes and Garmendia-Ardona, letters of
support from family members and former neighbors in El Salvador,
many country conditions reports, and a legal brief.
2 Immigration law expressly allows for certain relatives of asylees to be granted asylum as "derivatives." Cabrera v. Garland, 100 F.4th 312, 315 n.1 (1st Cir. 2024) (citing 8 U.S.C. § 1158(b)(3)(A)). It doesn't, however, provide for derivative withholding of removal or CAT protection, id. (citing 8 C.F.R. § 1208.16(b), (c)), so by failing to submit any applications in their own names, Garmendia-Ardona and J.A.G. weren't considered for those forms of relief.
- 5 - Once Alvarado-Reyes and Garmendia-Ardona -- the sole
witnesses -- were done testifying, the IJ rendered an oral decision
denying all forms of relief and ordering Petitioners' removal to
El Salvador. As an initial matter, the IJ found both
Alvarado-Reyes and Garmendia-Ardona credible. Turning next to the
merits of the asylum claim,3 he determined that the harm Alvarado-
Reyes endured in El Salvador wasn't sufficiently severe to
constitute "persecution."
The IJ then turned his attention to the three protected
characteristics Alvarado-Reyes proffered -- namely, his membership
in the following three PSGs: "Reyes family," "Salvadoran men,"
and "Salvadoran men who resist gang recruitment."4 While the IJ
3 We'll get more into this in a bit but, for now, just keep in mind that to be asylum-eligible, a noncitizen must demonstrate that they satisfy immigration law's definition of a "refugee." That definition in turn requires a showing that the noncitizen can't or won't return to their home country or country of last habitual residence "because of [past] persecution or a well-founded fear of [future] persecution on account of" at least one of five statutorily protected characteristics, which include "race, religion, nationality, membership in a particular social group [("PSG")], or political opinion." 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). 4 We interrupt our summary of the IJ's decision for two important clarifications on the protected-characteristics front. First, in Petitioners' briefing before the IJ, Alvarado-Reyes also proffered an anti-gang political opinion as another protected characteristic. At the merits hearing, though, it appears he didn't follow through with this theory of his case and the IJ didn't address it. Petitioners also made no political-opinion- based argument to the BIA or to us on appeal.
- 6 - deemed Alvarado-Reyes' first two PSGs legally cognizable, he took
exception to Alvarado-Reyes' third PSG. According to the IJ,
"Salvadoran men who resist gang recruitment" was not sufficiently
particular or socially distinct -- two indispensable requirements
for a PSG to be cognizable.
Having thrown Alvarado-Reyes' third PSG in the bin, the
IJ then considered whether the harm he suffered or feared suffering
in El Salvador was or would be "on account of" his membership in
the PSGs of "Reyes family" or "Salvadoran men." In the IJ's mind,
Alvarado-Reyes was not targeted either for his family or gender;
instead, MS-13 simply "wanted to use his truck to transport them."
And without that causal connection between the harm and any
protected characteristic, the IJ determined that Alvarado-Reyes
Second, Alvarado-Reyes also proffered three additional PSGs: "Salvadoran women," "Salvadoran female," and "Salvadoran women viewed as property by virtue of their status in society." Because Garmendia-Ardona did not file any application for relief in her own name and was only seeking derivative asylum, the IJ explained that "she was not required to establish that she was a victim of past persecution or [had] a well-founded fear of future persecution." In this way, then, the IJ concluded that these women-based PSGs were not relevant to Alvarado-Reyes' applications for immigration relief because he is a man. Petitioners did not challenge this conclusion in their briefing to the BIA or to us. This is all to say, to the extent Petitioners hoped to move forward with any of these theories now, we deem them unexhausted and waived. See Odei v. Garland, 71 F.4th 75, 78 n.1 (1st Cir. 2023) (exhaustion); Martínez-Pérez v. Garland, 897 F.3d 33, 40 n.5 (1st Cir. 2018) (waiver).
- 7 - had not suffered past persecution nor did he have a well-founded
fear of future persecution. The IJ, therefore, denied asylum.
As withholding of removal shares many of asylum's
requirements but has a higher burden of proof, the IJ determined
that Alvarado-Reyes necessarily did not shoulder his burden as to
that form of relief either. CAT protection was also denied
because, to the IJ, there was insufficient evidence in the record
that it was more likely than not that Alvarado-Reyes would be
tortured in El Salvador on behalf of or with the acquiescence of
or willful blindness of a Salvadoran government official.
Petitioners, thereafter, appealed to the BIA, but that
appeal didn't do much for their plight. On August 1, 2023,
pursuant to 8 C.F.R. § 1003.1(e)(4), the BIA dismissed their appeal
with a proverbial thumbs-up to the IJ's decision, affirming the
denial without opinion and rendering the IJ's decision the final
agency decision on the books.
A timely petition for review with this court followed.
HOW WE RESOLVE TODAY'S CASE
It's now time for our explanation as to how we resolve
Petitioners' case. On appeal, they ask us to reverse the agency's
denial of asylum, withholding of removal, and CAT protection. As
the BIA affirmed without opinion, we focus our review on just the
IJ's decision and consider the IJ's findings and conclusions to be
those of the BIA as well. See Keo v. Ashcroft, 341 F.3d 57, 60
- 8 - (1st Cir. 2003). In undertaking our review, "[w]e review the
agency's legal conclusions de novo." Espinoza-Ochoa v. Garland,
89 F.4th 222, 230 (1st Cir. 2023). Meanwhile, factual findings
are scrutinized using the substantial-evidence lens, meaning that
in order for us "[t]o reverse . . . 'the evidence must not only
support the contrary finding, but compel it.'" Caz v. Garland, 84
F.4th 22, 28 (1st Cir. 2023) (quoting Mahmoud v. Barr, 981 F.3d
122, 126 (1st Cir. 2020)).
But before getting into the weeds of whether the agency
properly denied immigration relief, we take a brief detour to
discuss an important preliminary issue.
Hearing Transcript
We are dismayed to note -- but feel compelled to mention
-- that the transcript of Petitioners' merits hearing before the
IJ is riddled with so many "indiscernible" notations so as to
render the transcript effectively meaningless and useless to our
review of their petition for review. Unfortunately for both
noncitizens and our broader immigration system, "the problem of
incomplete transcripts in immigration cases" is a recurring one.
See Oroh v. Holder, 561 F.3d 62, 65 (1st Cir. 2009) (listing First
Circuit cases dealing with similar issues). We have repeatedly
recognized that due process requires that noncitizens have access
to a reasonably accurate and complete transcript (or, at the bare
minimum, an adequate substitute). See, e.g., Jani v. Garland, 110
- 9 - F.4th 30, 39 (1st Cir. 2024); Oroh, 561 F.3d at 65; Kheireddine v.
Gonzales, 427 F.3d 80, 84 (1st Cir. 2005). Be that as it may,
because Petitioners did not present this as an appellate issue, we
leave this topic with our concerns noted and move on to the
arguments before us.
Asylum
Petitioners first challenge the IJ's denial of asylum,
and their challenge has three parts to it. Specifically, they
argue the following: (1) the harm Alvarado-Reyes suffered and
fears suffering in El Salvador amounted and will amount to
"persecution";5 (2) the "Salvadoran men who resist gang
recruitment" PSG is a legally valid PSG; and (3) the harm he
suffered and fears suffering in El Salvador was and will be "on
account of" his PSG memberships. To resolve today's petition,
though, we need only address the second and third of these
arguments. Here's why.
As we alluded to before, an asylum applicant must meet
the definition of a "refugee," which requires a showing of past or
anticipated "persecution" on account of at least one statutorily
protected ground. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i).
5 Petitioners suggest in their briefing that the IJ didn't actually "issue a formal holding on whether the past harm faced by [Alvarado-Reyes] . . . amounted to persecution." Not so. The IJ explicitly "f[ound] that the harm [Alvarado-Reyes] suffered in El Salvador did not rise to the requisite level to constitute past persecution."
- 10 - As used here, "persecution" means harm that surpasses a certain
degree of severity, harm that is causally connected (or has a
"nexus" to) a cognizable statutorily protected characteristic, and
harm that results from governmental action or inaction. Martínez-
Pérez, 897 F.3d at 39. If a noncitizen fails to make a sufficient
showing as to any one of these elements, their asylum claim fails.
Aguilar-De Guillen v. Sessions, 902 F.3d 28, 33 (1st Cir. 2018).
Applying this rubric here, then, and even taking Petitioners at
their word on their first argument (that Alvarado-Reyes suffered
or fears suffering harm that is sufficiently severe so as to
constitute persecution), Petitioners nonetheless cannot prevail
because "Salvadoran men who resist gang recruitment" is not, on
this record, a legally cognizable PSG, and the remainder of their
asylum claim unravels because they have not made a sufficient nexus
showing. We take these in turn.
PSG Cognizability
We start with first principles. "To prove persecution
on account of membership in a [PSG], a[] [noncitizen] must show at
a bare minimum that [he] is a member of a legally cognizable social
group." Mendez–Barrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010).
"For a PSG to be legally cognizable, an asylum applicant must make
a three-part showing: the proposed PSG must (1) bear 'a common
immutable characteristic,' (2) be 'defined with particularity,'
and (3) be considered 'socially distinct within the society in
- 11 - question.'" Cabrera v. Garland, 100 F.4th 312, 321 (1st Cir. 2024)
(quoting Hernandez-Martinez v. Garland, 59 F.4th 33, 39 (1st Cir.
2023)). Teasing that out, we have explained that "a characteristic
is considered immutable when 'members of the group either cannot
change [it], or should not be required to change [it], because it
is fundamental to their individual identities or consciences.'"
Id. (quoting Montoya-Lopez v. Garland, 80 F.4th 71, 82 (1st Cir.
2023)). And "[a] group is considered particularly defined where
it is 'discrete and ha[s] definable boundaries -- it must not be
amorphous, overbroad, diffuse or subjective.'" Id. (quoting Paiz-
Morales v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015)); see also
Matter of M–E–V-G–, 26 I. & N. Dec. 227, 238-39 (B.I.A. 2014)
(reasoning that "[t]he 'particularity' requirement relates to
. . . the need to put 'outer limits' on the definition of a
'particular social group'"). Finally, a group "is considered
socially distinct where its members 'are set apart, or distinct,
from other persons within the society in some significant way.'"
Id. (quoting Rivas-Durán v. Barr, 927 F.3d 26, 31 (1st Cir. 2019)).
Here, we zero in on the particularity requirement and
conclude that, because the proposed "Salvadoran men who resist
gang recruitment" PSG is not sufficiently "particularly defined"
on this record, Petitioners cannot make the necessary three-part
cognizability showing for that proposed PSG. See, e.g., Zhakira
v. Barr, 977 F.3d 60, 68 (1st Cir. 2020) (concluding that a
- 12 - petitioner's asylum claim failed because the proposed PSG did not
satisfy one of the three PSG requirements); Paiz-Morales, 795 F.3d
at 244 (taking a similar approach and passing over immutability
and social distinction "because even if the petitioner could show
that he shared an immutable characteristic with a socially distinct
group, he failed to define the purported group with the requisite
particularity").
Petitioners say that the "Salvadoran men who resist gang
recruitment" PSG may be large, but it has "clear benchmarks for
determining membership":
Members of this group must be men who have been targeted by members of a gang in order to join them in their gang related activities and have resisted the recruitment attempts. While resistance may take different forms, it is readily apparent within the context of Salvadoran society what actions constitute resistance to the gangs. As such, this group's definition is sufficiently particular.
This argument does not actually explain to us what "resist[ing]
gang recruitment" means or how it is defined. And we've been clear
that a petitioner must properly explain the outer limits of a
proposed PSG that is "open to varying, subjective
interpretations." See, e.g., Zhakira, 977 F.3d at 68 (rejecting
as "too amorphous and overbroad" a proposed PSG of
"westernized/Americanized Christians supporting the international
campaign against Al-Shabab" where a petitioner did "not explain
what attributes make an individual 'westernized' or
- 13 - 'Americanized,'" noting that "[t]he 'westernized/Americanized'
characteristic" was "open to varying, subjective
interpretations"). Petitioners conclusorily urge without
elaboration that "resistance may take different forms, [but] it is
readily apparent within the context of Salvadoran society what
actions constitute resistance to the gangs." But this does not an
outer limit create; instead,
it is virtually impossible to identify who is or is not a member [of this group]. There are, for example, questions about . . . the type of conduct that may be considered "recruit[ment]," and the degree to which a person must display "resist[ance]." These are ambiguous group characteristics, largely subjective, that fail to establish a sufficient level of particularity.
Mendez–Barrera, 602 F.3d at 27 (emphases added). Here, Petitioners
have made no attempt to answer these questions or define the terms
used in their largely subjective PSG. Accordingly, we conclude
the IJ did not err in denying Petitioners' claim for asylum based
on Alvarado-Reyes' membership in this "Salvadoran men who resist
gang recruitment" group.
As mentioned several pages back, though, this wasn't the
only PSG on the table. The IJ deemed legally cognizable Alvarado-
Reyes' other two PSGs -- "Reyes family" and "Salvadoran men." So
we proceed to our examination of the IJ's conclusion that any harm
Alvarado-Reyes suffered or feared suffering in El Salvador was not
or would not be "on account of" his membership in those PSGs.
- 14 - Nexus
Recall that, to the IJ's thinking, Alvarado-Reyes was
not targeted for his family or gender, but rather it was because
MS-13 just "wanted to use his truck to transport them." And
remember, because of this, the IJ spotted no causal connection
(nexus) between the harm and any protected characteristic and
therefore determined that Alvarado-Reyes had not suffered past
persecution nor did he have a well-founded fear of future
persecution.
We begin our examination by breaking down what exactly
a sufficient nexus showing looks like. Immigration law provides
that the nexus requirement is satisfied where the asylum applicant
offers sufficient evidence that a statutorily protected ground
"was or will be at least one central reason" for their persecution.
8 U.S.C. § 1158(b)(1)(B)(i). Requiring that the statutorily
protected ground only be "at least one central reason" for the
persecution "clearly contemplates the possibility that multiple
motivations can exist, and that the presence of a non-protected
motivation does not render an applicant ineligible for refugee
status." Aldana-Ramos v. Holder, 757 F.3d 9, 18-19 (1st Cir.
2014). However, if the statutorily protected ground is simply
"incidental, tangential, superficial, or subordinate to another
reason for [the] harm," the applicant cannot be considered a
- 15 - refugee. Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008) (quoting
In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007)).
With that, let's zoom in on Petitioners' arguments as
they relate to nexus. Basically, they argue that the IJ didn't
engage in the required mixed-motive analysis and that the record
compelled the conclusion that Alvarado-Reyes' membership in the
PSGs of "Reyes family" and "Salvadoran men" was or will be at least
one central reason for his persecution in El Salvador. Neither
argument stands up.
Consider first the allegation that the IJ didn't engage
in the proper mixed-motive analysis -- an allegation we review de
novo. Jimenez-Portillo v. Garland, 56 F.4th 162, 166 (1st Cir.
2022). But looking at the decision itself, we are persuaded that
the IJ did, in fact, consider such a possibility. To explain,
after reviewing the evidence and referencing portions of Alvarado-
Reyes' and Garmendia-Ardona's testimony, the IJ reasoned that
Alvarado-Reyes "was targeted simply because he owned a truck."
The IJ then proceeded to consider whether Alvarado-Reyes' legally
cognizable PSGs were another reason for his persecution and
determined that they were not. If the IJ had, indeed, failed to
consider the possibility of mixed motives, he would have stopped
his analysis after determining that MS-13 targeted Alvarado-Reyes
for his truck as there would have been no reason to consider any
- 16 - other motivations. Accordingly, we are not persuaded by
Petitioners' first claim of error.
That leaves us with just Petitioners' second claim of
nexus-related error -- that is, the IJ erred in determining that
Alvarado-Reyes' PSG memberships weren't and won't be "at least one
central reason" for his persecution. The determination of whether
a protected characteristic is one central reason for a noncitizen's
persecution is usually a question of fact, and is a question of
fact in this case, so we review this argument for substantial
evidence. Id. at 167. To win on substantial evidence review,
Petitioners must demonstrate that the IJ's nexus determination was
not "supported by reasonable, substantial, and probative evidence
on the record considered as a whole." Loja-Tene v. Barr, 975 F.3d
58, 62 (1st Cir. 2020) (quoting Immigr. & Naturalization Serv. v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). In other words, the
evidence must point undoubtedly in favor of and compel Petitioners'
preferred reading of the record, such that no adjudicator could
have reasonably reached the IJ's conclusion. See
Jimenez-Portillo, 56 F.4th at 167. They haven't cleared that
daunting hurdle.
Petitioners' first PSG was "Reyes family," but there's
simply nothing in the record from which we could even infer
Alvarado-Reyes was targeted because he was part of the Reyes
family. There's nothing to suggest that, had Alvarado-Reyes
- 17 - belonged to another family but still owned a truck, the MS-13 gang
members would not have targeted him. While Garmendia-Ardona and
J.A.G. arguably might have been targeted due to their familial
connection to Alvarado-Reyes, that is not the relevant inquiry.
Rather, the relevant inquiry is why Alvarado-Reyes -- as the asylum
applicant -- was targeted, and Petitioners have pointed to no
record evidence compelling the conclusion that he was targeted due
to his membership in the "Reyes family."
Petitioners fare no better with their remaining
"Salvadoran men" PSG. As above, there's nothing in the record to
suggest that, had Alvarado-Reyes been a woman (i.e., a member of
"Salvadoran women"), the MS-13 gang members would not have targeted
him. To the contrary, the extensive country conditions evidence
in the record supportably shows that gang members target both men
and women alike. In this way, then, the record does not compel
the conclusion that Alvarado-Reyes' gender was "at least one
central reason" for his persecution.
As such, we conclude that the IJ's no-nexus
determinations were supported by substantial evidence and affirm
the denial of asylum.
Withholding of Removal and CAT Protection
Having affirmed the denial of asylum, we turn to
withholding of removal and CAT protection. Turning first to
withholding of removal, that form of relief -- similar to asylum
- 18 - -- also requires PSG and nexus showings but has a higher burden of
proof. Cabrera, 100 F.4th at 324; Lopez de Hincapie v. Gonzales,
494 F.3d 213, 220 (1st Cir. 2007). The inevitable "corollary" to
this is that, where Alvarado-Reyes failed to carry his asylum
burden, he also failed to carry his withholding burden. Caz, 84
F.4th at 30.
Rounding things out with CAT protection, the only
mention of such relief in Petitioners' opening brief is two
sentences in their introductory summary section, stating that
Alvarado-Reyes "is eligible for . . . protection under the . . .
CAT" and "ask[ing] this court to reverse and remand the BIA's
decision affirming the [IJ's] order denying [Alvarado-Reyes']
application for . . . protection under the CAT." Other than those
two introductory sentences, nothing in their briefing (or at oral
argument, for that matter) addresses the merits of Alvarado-Reyes'
CAT claim, which amounts to waiver, plain and simple. See Sok v.
Mukasey, 526 F.3d 48, 52 (1st Cir. 2008) (deeming CAT claim waived
where "no argument [was made] with respect to the . . . claim
beyond an introductory assertion that '[t]he record establishes
the merits of [petitioner's] claim[] for . . . protection pursuant
to the [CAT]'" (second and fifth brackets in original)).
Affirmance Without Opinion
Before we part, we have one final argument to address.
Petitioners argue that the BIA, in affirming the IJ's decision
- 19 - without opinion, violated its obligation to "give careful,
individualized, rational explanations for its decisions." Haoud
v. Ashcroft, 350 F.3d 201, 207 (1st Cir. 2003) (quoting Mousa v.
Immigr. & Naturalization Serv., 223 F.3d 425, 430 (7th Cir. 2000)).
We think this argument comes up dry.
To begin, "we have held time and time again that the"
BIA's affirmance-without-opinion "procedure constitutes 'a valid
exercise of the Attorney General's discretion to fashion its own
rules of procedure.'" Larios v. Holder, 608 F.3d 105, 108 (1st
Cir. 2010) (quoting Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st
Cir. 2004)). We've also recognized that, under certain
circumstances, regulations actually require that the BIA summarily
affirm the IJ's decision without opinion. See Cruz v. Garland,
106 F.4th 141, 145-46 (1st Cir. 2024).
Even taking Petitioners' argument head on, the BIA
enjoys a presumption of regularity when it acts officially, see,
e.g., Domingo-Mendez v. Garland, 47 F.4th 51, 56 (1st Cir. 2022);
Enwonwu v. Gonzales, 232 F. App'x 11, 15 (1st Cir. 2007) (per
curiam), so an affirmance without opinion does not necessarily
mean the BIA failed to engage in a fulsome review of the record or
offer a rational explanation for its conclusion. Indeed, as the
old saying goes, evidence of absence is not absence of evidence
and Petitioners point to nothing in the record that suggests
anything might have been amiss here. And significantly, as our
- 20 - analysis above shows, we spotted no reversible error in the IJ's
decision so the BIA was not wrong to affirm. See Cruz, 106 F.4th
at 146 (rejecting challenge to BIA's affirmance-without-opinion
procedure, in part, because "the record provides no basis for
questioning the IJ's factual determination"). In sum,
Petitioners' argument comes up short.
HOW IT ENDS
We recognize -- as demonstrated by Petitioners'
statements and the voluminous country conditions evidence in the
record -- that rampant gang violence leaves Salvadorans in
particularly dire straits with little to no recourse.
Nevertheless, on this specific record, there is nothing we can do
about it for Petitioners. All in all, we must deny the petition.
- 21 -