Jimenez-Portillo v. Garland

56 F.4th 162

• Court: Court of Appeals for the First Circuit
• Decided: December 27, 2022
• Docket: 21-1117P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1117

MIGUEL JIMENEZ-PORTILLO, HUGO DANILLO TORRES-PORTILLO, and RACHEL IRA-TORRES,

Petitioners,

v.

MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Selya and Kayatta, Circuit Judges.

Steve J. Gutherz on brief for petitioners. Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Lance L. Jolley, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Acting Attorney General Robert Montague Wilkinson as the respondent. December 27, 2022 SELYA, Circuit Judge. The rule that an agency's

determination of a disputed question of fact must stand so long as

that determination is supported by substantial evidence presents

a formidable barrier to those who challenge such a determination.

This case illustrates the point. Concluding, as we do, that the

final decision of the Board of Immigration Appeals (BIA) rests

upon a fact-based determination that is supported by substantial

evidence in the record as a whole, we deny the petition for review.

I

The Immigration Judge (IJ) found the petitioners

generally credible, so we draw the facts largely from their

testimony. See Rodríguez-Villar v. Barr, 930 F.3d 24, 25 (1st

Cir. 2019).

Petitioners Miguel Jimenez-Portillo, Hugo Danillo

Torres-Portillo, and Rachel Ira-Torres are El Salvadoran

nationals. Jimenez-Portillo and Ira-Torres are married, and

Jimenez-Portillo and Torres-Portillo are brothers. All three

petitioners came to the United States, without inspection, in 2015,

having left El Salvador for fear of harm at the hands of the Mara

Salvatrucha 18 gang.1

1 The record is tenebrous as to which specific gang may have caused the petitioners' harm. When testifying, the petitioners referred to the gang as "Eighteen" and "MS-18." In their brief, however, the petitioners refer to the gang as "Mara Salvatrucha 18," which — based on other evidence in the record — could potentially implicate two different gangs: Mara Salvatrucha ("MS-

- 3 - According to the petitioners, they lived in an area of

El Salvador where gang activity was prevalent. Jimenez-Portillo

operated a small store out of the family's home. In January of

2015, two members of Mara Salvatrucha 18 — one of whom the

petitioners identified as Kevin Alexander Masariegos — visited the

store and demanded that Jimenez-Portillo assist the gang by hiding

their weapons on the premises. Jimenez-Portillo refused, and the

gang members warned him that "not collaborating with us [] has

consequences."2

A few days later, Masariegos and other gang members

returned to the store. This time, the gang members assaulted

Jimenez-Portillo, breaking a tooth in the process.

The protagonists had no further contact until September

of 2015, when Masariegos (accompanied by another gang member)

returned to the store. Masariegos held Jimenez-Portillo at

gunpoint and told him that the gang members had "orders from the

penitentiary to kill" the petitioners. He specifically noted that

Masariegos said that the gang would murder "me, the bitch that is

13") or the Eighteenth Street ("M18"). For present purposes, we use the same nomenclature as the petitioners use in their brief.

2At the time of this incident, Masariegos was a known quantity (at least to Ira-Torres). Years before Ira-Torres met Jimenez- Portillo, Masariegos had courted Ira-Torres. She rejected Masariegos's advances, and he not only beat her but also threatened to kill her.

- 4 - my wife, and my brother." The petitioners reported these threats

to the El Salvadoran police and then fled to the United States.

Shortly thereafter, the petitioners learned that

Jimenez-Portillo's grandmother had been slain in her store. The

petitioners testified that "gang members" killed her by shooting

her fifteen or sixteen times. The petitioners did not identify

the gang to which the assailants belonged, and the record contains

no identifying evidence.

The petitioners were detained by United States Customs

and Border Patrol agents in November of 2015. Immigration

officials determined that the petitioners had a credible fear of

persecution in El Salvador and paroled them into the United States.

In due course, the Department of Homeland Security

instituted removal proceedings, charging each petitioner as

removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I). The petitioners

conceded removability but cross-applied for asylum, withholding of

removal, and relief under the United Nations Convention Against

Torture (CAT). See 8 U.S.C. § 1158; id. § 1231(b)(3); 8 C.F.R.

§ 1208.16-.18. In support, the petitioners alleged that they had

suffered past persecution on account of their membership in a

particular social group: their family. See Ruiz v. Mukasey, 526

F.3d 31, 38 (1st Cir. 2008) ("Kinship can be a sufficiently

permanent and distinct characteristic to serve as the linchpin for

a protected social group within the purview of the asylum laws.").

- 5 - They also alleged that they feared torture in El Salvador should

they be repatriated.

The petitioners' cases were consolidated for hearing

before an IJ in October of 2018. The IJ found that the petitioners

were generally credible, notwithstanding "minor discrepancies."

Even so, the IJ rejected the petitioners' claims for relief. Of

particular pertinence for present purposes, the IJ denied the

petitioners' asylum claim because they had neither shown

persecution nor shown that family membership was "one central

reason" for the persecution they claimed to have suffered in the

past and feared in the future.

The BIA affirmed the IJ's rejection of the petitioners'

claims. With respect to the asylum claim, the BIA agreed with the

IJ that "the problems the [petitioners] experienced in El Salvador

with gang members were motivated by criminal reasons" not "family

ties." Thus, the petitioners had failed to show that the claimed

persecution bore a nexus to a protected ground.

This timely petition for judicial review followed.

II

In this venue, the petitioners do not renew their claims

for withholding of removal or CAT protection. Those claims are,

therefore, waived. See Rotinsulu v. Mukasey, 515 F.3d 68, 71 (1st

Cir. 2008); see also United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).

- 6 - This leaves the petitioners' asylum claim. "In the

immigration context, judicial review typically focuses on the

final decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58, 60

(1st Cir. 2020). But "[w]here, as here, the BIA adopts and affirms

an IJ's decision 'while adding its own gloss, we review both the

IJ's and the BIA's decisions as a unit.'" Villafranca v. Lynch,

797 F.3d 91, 94 (1st Cir. 2015) (quoting Jianli Chen v. Holder,

703 F.3d 17, 21 (1st Cir. 2012)).

When conducting this analysis, we review the agency's

answers to questions of law de novo, giving "some deference to the

agency's reasonable interpretation of statutes and regulations

that fall within its purview." Pan v. Gonzales, 489 F.3d 80, 85

(1st Cir. 2007). We afford greater deference to the agency's

factual determinations, applying the venerable "substantial

evidence rule." Loja-Tene, 975 F.3d at 61. Under this rule, we

must uphold the agency's fact-bound determinations "as long as

those determinations are 'supported by reasonable, substantial,

and probative evidence on the record considered as a whole.'" Id.

at 62 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

A

The petitioners first complain that the agency

misapplied a legal standard by failing to allow for the possibility

of a mixed-motive persecution. This plaint presents a question of

- 7 - law and, therefore, engenders de novo review. See Pan, 489 F.3d

at 85.

Some context helps to put this plaint into perspective.

To qualify for asylum, an asylum-seeker must establish that he is

a "refugee" within the meaning of the immigration laws. Urgilez

Mendez v. Whitaker, 910 F.3d 566, 570 (1st Cir. 2018); see 8 U.S.C.

§ 1158(b)(1). "A refugee is someone who cannot or will not return

to his homeland 'because of [past] persecution or a well-founded

fear of [future] persecution on account of'" one of five

statutorily protected grounds: "race, religion, nationality,

membership in a particular social group, or political opinion."

Urgilez Mendez, 910 F.3d at 570 (quoting 8 U.S.C.

§ 1101(a)(42)(A)).

It is common ground that an asylum-seeker must carry the

burden of showing that persecution is "on account of" a protected

ground. Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217 (1st

Cir. 2007). This means, of course, that the asylum-seeker must

show that there is a "nexus" between the harm suffered and the

protected ground. Rodríguez-Villar, 930 F.3d at 27. Withal, "the

statutorily protected ground need not be the sole factor driving

the alleged persecution." Loja-Tene, 975 F.3d at 61. Instead,

the statutorily protected ground need only be "'one central reason'

for the [asylum-seeker's] persecution." Aldana-Ramos v. Holder,

757 F.3d 9, 18 (1st Cir. 2014) (quoting 8 U.S.C.

- 8 - § 1158(b)(1)(B)(i)). After all, "[t]he language of the

Immigration and Nationality Act 'clearly contemplates the

possibility that multiple motivations can exist, and that the

presence of a non-protected motivation does not render an [asylum-

seeker] ineligible for refugee status.'" Loja-Tene, 975 F.3d at

61 (quoting Aldana-Ramos, 757 F.3d at 18-19).

Although the petitioners identify the correct legal

standard, their claim of error fails because the record does not

support their assertion that the agency spurned the possibility of

a mixed-motive theory of persecution. The IJ made pellucid that

the petitioners only had to "show that a protected ground is 'one

central reason' for the persecution they fear or suffered in the

past." What is more, the IJ explicitly denied the petitioners'

asylum claim because they had failed to satisfy that requirement.

The BIA decision was of a piece with the IJ's decision: the BIA

determined that the petitioners had "not demonstrate[d] a nexus

between the claimed persecution and a protected ground."

Seen in this light, the IJ's and BIA's decisions take

due account of the possibility of mixed motives. Indeed, those

decisions mirror the decision we upheld in Villalta-Martinez v.

Sessions, 882 F.3d 20 (1st Cir. 2018). There, the petitioners

claimed that the BIA had failed to consider the possibility of a

mixed-motive case. See id. at 22-24. Quoting the IJ's decision,

we observed that the IJ had found that the petitioner "ha[d] not

- 9 - established that one of the reasons she was targeted was because

of her [familial] relationship" to another individual. Id. at 24.

(emphasis in original). We held that this language showed that

"[t]he IJ and thus the BIA explicitly acknowledged the possibility

of a mixed-motive case, but, based on the evidence presented, made

a fact-specific determination that [the petitioner] had not shown

that the persecution was motivated by a family relationship." Id.

The same is true here. It follows, then, that the IJ and the BIA

applied the appropriate mixed-motive standard.

B

This brings us to the petitioners' fallback claim: that

the agency erred by finding that familial membership was not a

central reason for the alleged persecution. Whether a protected

ground is one central reason for an asylum-seeker's persecution is

ordinarily a question of fact, see Singh v. Mukasey, 543 F.3d 1,

4 (1st Cir. 2008), and it is a question of fact in this case.

Consequently, our inquiry reduces to whether the agency's

determination is supported by substantial evidence. See Lopez de

Hincapie, 494 F.3d at 218. And as we have said, in making that

assessment we must honor the agency's findings of fact as long as

those findings "are 'supported by reasonable, substantial, and

probative evidence on the record considered as a whole.'" Loja-

Tene, 975 F.3d at 62 (quoting Elias-Zacarias, 502 U.S. at 481).

- 10 - In reviewing for substantial evidence, we may not upset

the BIA's decision even if "the record supports a conclusion

contrary to that reached by the BIA." Lopez de Hincapie, 494 F.3d

at 218 (emphasis in original). Reversal is warranted only if the

record "compel[s] the contrary conclusion." Id. (emphasis in

original); see Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.

1999) (explaining that record evidence must "compel a reasonable

factfinder to make a contrary determination").

With this plinth in place, we turn to the case at hand.

The IJ denied the petitioners' asylum claim after hearing their

testimony and considering the other record evidence. The

petitioners had the burden of proving their claim of persecution.

See Moreno v. Holder, 749 F.3d 40, 44 (1st Cir. 2014). The IJ

found that they had failed to carry that burden: she found that

the petitioners were "unable to show that . . . the harm that

[they] experienced [constituted] past persecution on account of

family membership." Similarly, she found that the petitioners had

not "demonstrated that family . . . is one central reason for

their fear of future persecution." The BIA adopted these findings.

This determination — that family membership was not a

central reason for the petitioners' persecution — is supported by

substantial evidence on the record as a whole. Reasonable,

substantial, and probative evidence in the record supports the

agency's determination that family ties did not drive the

- 11 - petitioners' persecution. The record reveals that — in January of

2015 — gang members approached Jimenez-Portillo and demanded that

he hide weapons in his store. He refused — and it was only after

his refusal that the gang members threatened that his failure to

cooperate would have "consequences." The gang members did not

link the threat to anything other than Jimenez-Portillo's refusal

to become complicit in the concealment of weapons.

The same theme was sounded when gang members returned to

the store a few days later. They assaulted Jimenez-Portillo, but

they did or said nothing that linked the assault to his family in

any way. And when asked on cross-examination whether he "[was]

beaten that day because [he] refused to collaborate and for no

other reason . . . ?", Jimenez-Portillo agreed. This evidence

firmly supports the conclusion that the gang targeted Jimenez-

Portillo because he refused to assist their criminal enterprise.

A like conclusion may be drawn regarding the death

threat. Jimenez-Portillo testified that when gang members

returned to his store in September of 2015, they told him that

they had "orders from the penitentiary to kill" the three

petitioners because he "didn't want to collaborate." Jimenez-

Portillo testified that he believed that the orders came directly

from "bosses in the gangs." Based on this evidence, the IJ

reasonably could have concluded — as she did — that the gang

members meant exactly what they said: that the death threat was

- 12 - in retaliation for Jimenez-Portillo's earlier refusal to accede to

the gang's weapon-concealment demand. See Arévalo-Girón v.

Holder, 667 F.3d 79, 83 (1st Cir. 2012) (affirming denial of

withholding of removal claim because evidence suggested that

gang's interest in petitioner was "trigger[ed]" by criminal

activity, not social group membership); see also Orellana-Recinos

v. Garland, 993 F.3d 851, 858-59 (10th Cir. 2021) (affirming denial

of asylum claim because agency could have found that threat against

petitioner's family was motivated solely by petitioner's failure

to knuckle to gang's demands).

The petitioners resist these conclusions and argue that

the record compels a contrary conclusion.3 In support, the

petitioners point to their grandmother's murder. Specifically,

they cite the brutality of the murder and the fact that it occurred

shortly after they fled from El Salvador. These bits of

information, they insist, show that her death was not a

"coincidence" but, rather, occurred because the gang was seeking

"revenge against the[ir] family." Along this line, Jimenez-

Portillo testified that his grandmother was killed as a proxy,

The petitioners do not develop any arguments suggesting that 3

the "nexus" analysis should differ among the three petitioners. For example, they do not argue that the gang threatened to kill Torres-Portillo "on account of" his relationship to Jimenez- Portillo. Consequently, any such arguments are waived. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010); Zannino, 895 F.2d at 17.

- 13 - that is, "because they couldn't kill [him]." So, too, Ira-Torres

testified that she thought that the gang had killed Jimenez-

Portillo's grandmother for "revenge" because the gang members

"couldn't find [Jimenez-Portillo]." Refined to bare essence, the

petitioners argue that the grandmother's murder demonstrates that

the gang harbored an animus toward the petitioners' family that it

took out on the murdered woman when it could not take that animus

out on the petitioners.

Even assuming for argument's sake that the petitioners'

theory is plausible — a matter on which we take no view — the

record as a whole does not compel the conclusion that the killing

took place because of family membership. One primary reason is

that the record contains no evidence at all as to who killed the

petitioners' grandmother. Ira-Torres testified that she did not

know which gang was responsible for the murder, nor did she know

the identity of the murderer. Similarly, Jimenez-Portillo

testified that he did not know who killed his grandmother; all he

knew was that the killers were "gang members" — but he could not

identify the gang to which they belonged. To cinch the matter,

the petitioners proffered no evidence sufficient to support a

finding that their grandmother was killed by the same gang that

had threatened Jimenez-Portillo for refusing to cooperate.

That ends this aspect of the matter. Overcoming the

substantial evidence rule requires more than guesswork or hunch.

- 14 - And when an asylum-seeker does not "know[] who was responsible"

for a killing, "it is no more than a guess that a nexus existed

between the [killing] and a statutorily protected ground." López-

Castro v. Holder, 577 F.3d 49, 53 (1st Cir. 2009). So it is here.

We are equally unpersuaded by the petitioners' argument

that evidence of Masariegos's past romantic interest in Ira-

Torres, coupled with the prior assault that he perpetrated against

her, compels the conclusion that the harm suffered by the

petitioners was on account of their family membership. The premise

of this argument is that Masariegos and his fellow gang members

demanded that Jimenez-Portillo hide weapons because Masariegos was

jealous of the relationship between Jimenez-Portillo and Ira-

Torres. Building on this premise, the petitioners suggest that

the beating of Jimenez-Portillo in January of 2015 was motivated

— at least to some degree — by Masariegos's jealousy.

The premise on which this theory rests is belied by the

record. The linchpin of the premise is that Masariegos — in the

petitioners' words — "was well aware of [Ira-Torres's]

relationship with [Jimenez-Portillo] when he demanded [Jimenez-

Portillo] store guns" for the gang. But this linchpin erodes when

scrutinized: the beating occurred in January of 2015 but Ira-

Torres and Jimenez-Portillo both testified, without contradiction

in the record, that they did not begin their relationship until

February of that year. This temporal incongruity is telling. In

- 15 - order for a nexus to exist between persecution and a protected

ground, "[t]here must be evidence that the would-be persecutors

knew of the [protected ground] and targeted the [asylum-seeker]

for that reason." Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st

Cir. 2010) (emphasis in original). Because Jimenez-Portillo and

Ira-Torres were not yet in a relationship in January of 2015,

Masariegos could not have targeted them at that time on the basis

of a familial connection.

To sum up, the best face that the petitioners can put on

the record is that the BIA's findings may not represent the only

plausible interpretation of the record. But that does not take

the petitioners where they want to go: "[g]iven two plausible but

conflicting inferences from a body of evidence, the BIA's choice

between those inferences is by definition supported by substantial

evidence." Ruiz, 526 F.3d at 37. We hold, therefore, that the

agency's fact-based determination — that the petitioners failed to

show a nexus between their claimed persecution and their family

membership — is supported by substantial evidence in the record.

It follows that we must uphold the BIA's decision.

III

We need go no further. The substantial evidence rule is

not petitioner-friendly, and the petitioners here have failed to

- 16 - bring their case outside the rule's force field. Thus — for the

reasons elucidated above — the petition for judicial review is

Denied.

- 17 -