Jose Lopez-Benitez v. Merrick Garland

91 F.4th 763

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 30, 2024
• Docket: 22-1808
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1808

JOSE LINCE LOPEZ-BENITEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: October 24, 2023 Decided: January 30, 2024

Before WILKINSON, AGEE, and RICHARDSON, Circuit Judges.

Petition denied by published opinion. Judge Richardson wrote the opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED: Ivan Yacub, YACUB LAW OFFICES, LLC, Woodbridge, Virginia, for Petitioner. Allison Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Acting Assistant Attorney General, James A. Hurley, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 22-1808 Doc: 33 Filed: 01/30/2024 Pg: 2 of 13

RICHARDSON, Circuit Judge:

Jose Lince Lopez-Benitez petitions for judicial review of the Board of Immigration

Appeals’ action. The Board upheld an Immigration Judge’s decision to deny Lopez

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”), and ordered Lopez removed. But the Board and Immigration Judge properly

determined that Lopez failed to show that his alleged persecution was on account of his

membership in a protected group. So he doesn’t qualify for asylum or withholding of

removal. And Lopez failed to exhaust administrative remedies for his CAT claim. We

therefore deny his petition.

I. Background

In 2013, Lopez, a native of El Salvador, illegally entered the United States and was

apprehended by the Department of Homeland Security. A month later, he requested an

interview to determine whether he had a credible fear of persecution or torture in El

Salvador.

During that interview, Lopez informed the asylum officer that his parents live in the

United States and his father has legal status. When asked about El Salvador, Lopez

explained that “the situation is very dangerous there.” J.A. 584. While he had never been

physically harmed, the gang MS-13 “would ask [him] for money.” J.A. 584–85. Lopez

complied with the requests out of fear because the gang members told him that “if [he]

didn’t give [them] the money they would beat [him] and murder [him].” J.A. 585. But the

gang never harmed Lopez in any other way; it “just threatened [him] and took [his] money.”

Id.

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Lopez explained that MS-13 extorted him because it needed money “to buy drugs”

and “thought [he] had a lot of money with [him].” J.A. 585. The gang members may have

thought that because “they saw [he] was dressed well” or “because they found out that [his]

parents were in the U.S. and in their minds they thought [he] had money.” Id. But Lopez

noted that he was not MS-13’s only extortion victim. In fact, “a lot of people that live[d]

close to [him] were also victims . . . , not only [him].” Id. Lopez never reported the

extortion to the police, and it was the only harm he suffered in his home country. As a

result of this interview, the asylum officer determined Lopez had a credible fear of torture.

Lopez was charged with being present in the United States without being admitted

or paroled and was issued a Notice to Appear to determine the validity of his asylum claim.

So he formally applied for asylum, withholding of removal, and protection under the CAT.

Then came Lopez’s removal hearing in front of an Immigration Judge. There,

Lopez asserted that his alleged persecution was on account of his membership in two

particular social groups: (1) the “family of Noel Dubert Lopez Gonzalez,” Lopez’s father;

and (2) “Salvadoran males without male protection.” J.A. 89.

Lopez was the only witness at the hearing. As for the alleged persecution, Lopez

recounted his extortion at the hands of MS-13. He restated his credible-fear-interview

testimony about the gang’s demands and how he complied out of fear. And he added

further detail. The extortion began in 2011, when he was eighteen years old, and occurred

approximately once every fifteen days from 2011 to 2013. During that period, Lopez split

his time between his grandfather’s house and his paternal uncle’s house. While he spent

Monday through Friday with his uncle, he spent the weekends at his grandfather’s.

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However, Lopez’s grandfather was in the United States from 2011 until 2013, so Lopez

stayed at his grandfather’s house with a female family friend during those years. Lopez

also had three other paternal uncles in El Salvador, all of whom remained in El Salvador

after Lopez came to the United States. None of these male relatives were ever extorted or

physically harmed by MS-13, nor was Lopez’s father. In fact, Lopez’s grandfather has

since moved back to the same town in El Salvador and has had no problems with MS-13.

The only rationale for his extortion that Lopez gave during his removal hearing was

that MS-13 extorted “everyone.” J.A. 111. This included people outside of Lopez’s

father’s family and people whose fathers lived in El Salvador. He did not mention the

gang’s alleged knowledge of his father’s presence in the United States.

Along with his testimony, Lopez submitted several country reports about El

Salvador. The reports emphasized the prevalence of gang violence in the country,

including that gangs often threaten families to induce compliance with their demands.

Following Lopez’s testimony, the Immigration Judge issued an oral decision.

Although he found Lopez’s testimony credible, the Immigration Judge denied Lopez’s

claims for asylum, withholding of removal, and CAT relief.

As to asylum and withholding of removal, the Immigration Judge first determined

that the alleged social group of “Salvadoran males without male protection” was not

cognizable and, even if it was, Lopez hadn’t established that he was a part of that group.

That was because Lopez primarily lived with his uncles during the time he was extorted.

But the Immigration Judge did find that the social group of Lopez’s father’s family was

cognizable and that Lopez was a member of the group.

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Then the Immigration Judge decided that Lopez had not established that his

extortion constituted past persecution or that he had a reasonable fear of future persecution.

Regardless of that conclusion, however, the Immigration Judge found the extortion was

not on account of Lopez’s membership in his father’s family. In other words, the

Immigration Judge found an insufficient causal nexus between the alleged persecution and

Lopez’s social group. Rather than being on account of Lopez’s membership in his father’s

family, Lopez’s extortion occurred because “the MS gang extorted everyone.” J.A. 45.

And, because Lopez failed to establish a claim of asylum, the Immigration Judge also

determined Lopez didn’t qualify for withholding of removal.

The Immigration Judge similarly found Lopez hadn’t met his burden for CAT relief.

According to the Immigration Judge, Lopez hadn’t shown it was “more likely than not that

he would be tortured in the future in El Salvador with the consent or acquiescence of the

government.” J.A. 47.

Lopez subsequently appealed to the Board. But the Board dismissed Lopez’s

appeal. It first noted that the Immigration Judge erred in his legal analysis that led to the

finding that Lopez hadn’t established past persecution, but the Board still determined the

finding was appropriate under the correct legal standard. 1

1 In his order, the Immigration Judge stated “that extortion is not a recognized . . . ground for asylum.” J.A. 46. But the Board acknowledged extortion is a recognized ground for asylum so long as it is sufficiently severe. J.A. 9 (citing Olivia v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015)). The Board concluded that the Immigration Judge’s finding was still not in error, however, because the Immigration Judge correctly “found” the threats Lopez described to be “vague” rather than severe. Id. As noted later, we need not decide whether the Board was right because we deny Lopez’s petition on other grounds. 5 USCA4 Appeal: 22-1808 Doc: 33 Filed: 01/30/2024 Pg: 6 of 13

Next, the Board upheld the Immigration Judge’s determination that Lopez failed to

establish a nexus between the extortion and his membership in his father’s family. Far

from making the requisite showing that he “ha[d] been or would be singled out on account

of a protected ground,” Lopez only showed “that gangs extort[ed] many different types of

people in his community, including families and single households.” J.A. 10.

Lastly, the Board stated that Lopez didn’t raise arguments against the Immigration

Judge’s decisions on the social group “Salvadoran males without male protection” or CAT

relief, so he forfeited whatever arguments he may have had on both issues. The Board thus

dismissed Lopez’s appeal. Then Lopez petitioned for our review.

II. Discussion

In seeking our review, Lopez faces an uphill battle because the Department of

Justice’s decision denying asylum is “conclusive unless manifestly contrary to the law and

an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). So the decision stands if it is “supported

by reasonable, substantial, and probative evidence on the record considered as a whole.”

Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). And while we review legal conclusions

de novo, Portillo Flores v. Garland, 3 F.4th 615, 625 (4th Cir. 2021) (en banc), factual

findings are “conclusive unless the evidence was such that any reasonable adjudicator

would have been compelled to a contrary view,” Tassi, 660 F.3d at 719 (emphasis added);

8 U.S.C. § 1252(b)(4)(B). Put differently, “it is not our task to ‘reweigh the evidence and

determine which of the competing views is more compelling’” but merely to “ensure that

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substantial evidence supports the B[oard’s] judgment.” Ngarurih v. Ashcroft, 371 F.3d

182, 189 (4th Cir. 2004) (quoting Gonahasa v. I.N.S., 181 F.3d 538, 542 (4th Cir. 1999)).

Lopez fails to overcome this high bar as to his claims for asylum and withholding

of removal. And he didn’t exhaust administrative remedies for his CAT claim.

A. The Department did not err in determining Lopez did not establish the requirements for asylum or withholding of removal.

Under the Immigration and Nationality Act, the Attorney General can grant asylum

to any “refugee.” 8 U.S.C. § 1158(b)(1)(A). To qualify as a “refugee,” an applicant bears

the burden of showing he is “unable or unwilling to return to” his home country “because

of persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

§ 1101(a)(42)(A). If an applicant fails to meet these requirements, he “[n]ecessarily . . .

will be unable to satisfy the higher standard for showing withholding of removal.” Mulyani

v. Holder, 771 F.3d 190, 198 (4th Cir. 2014) (quoting Mirisawo v. Holder, 599 F.3d 391,

396 (4th Cir. 2010)). That higher standard is “a clear probability of persecution on account

of [one’s] race, religion, nationality, membership in a social group, or political opinion.”

Mirisawo, 599 F.3d at 396 (quoting Abdel-Rahman v. Gonzales, 493 F.3d 444, 449 (4th

Cir. 2007)).

Because the Board “essentially adopted the [Immigration Judge]’s opinion” as to

nexus “while adding some of its own reasoning,” we review both decisions. Mulyani, 771

F.3d at 196 (quoting Thu v. Holder, 596 F.3d 994, 998 (8th Cir. 2010)).

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Lopez argues that the Board and Immigration Judge erred in concluding that he

failed to satisfy the requirements of asylum and withholding of removal because they

wrongfully (1) determined that Lopez’s extortion didn’t establish past persecution or a

credible fear of future persecution; and (2) found that Lopez failed to show that persecution

was on “account of” his membership in a social group. But we need not decide whether

Lopez would succeed on his first argument because, even if Lopez established persecution,

the finding that he didn’t establish nexus was supported by substantial evidence. That

makes him ineligible for asylum and withholding of removal.

An applicant establishes nexus if he can show that his membership in a particular

social group “was or will at least be one central reason for” his persecution. Velasquez v.

Sessions, 866 F.3d 188, 194 (4th Cir. 2017) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Put

differently, although an applicant “need not show” his protected status “provide[s] the

central reason or even a dominant central reason for h[is] persecution,” he must show that

it is “more than an incidental, tangential, superficial, or subordinate reason for h[is]

persecution.” Id. (quoting Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015)).

The Board did not review the Immigration Judge’s determination as to Lopez’s

alleged social group of “Salvadoran males without male protection” because Lopez didn’t

raise the issue to the Board. The requirement that an alien seeking judicial review of a

removal order first exhaust administrative remedies, while not jurisdictional, is nonetheless

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mandatory. See Tepas v. Garland, 73 F.4th 208, 213 (4th Cir. 2023) (citing Santos-Zacaria

v. Garland, 598 U.S. 411, 419 (2023)). So we cannot review the issue.

That leaves us to ask whether the Immigration Judge and Board erred in determining

that Lopez did not show a nexus between his extortion and his membership in his father’s

family. Lopez asserts that the Immigration Judge and Board committed legal error because

they did not “consider why the applicant and not someone else was targeted by their

persecutors” and “instead considered whether other people outside the group were targeted

in general.” Petitioner’s Br. at 25. And he is correct that a nexus analysis must focus on

why the applicant was the target of the persecution “and not some other person.” Perez

Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021) (quoting Hernandez-Cartagena v.

Barr, 977 F.3d 316, 322 (4th Cir. 2020)). According to Lopez, the evidence showed that

MS-13 extorted many people, but the gang extorted him because it knew his father was in

the United States and was sending remittances.

But the Immigration Judge and Board did not commit legal error because Lopez did

not submit evidence that he was targeted on account of his family. See I.N.S. v. Elias-

Zacarias, 502 U.S. 478, 483–84 (1992) (“[S]ince the statute makes motive critical, [an

asylum applicant] must provide some evidence of it, direct or circumstantial. And if he

seeks to obtain judicial reversal of the B[oard]’s determination, he must show that the

evidence he presented was so compelling that no reasonable factfinder could fail to find

the requisite fear of persecution.”). True, he testified once that his father’s presence in the

United States was the reason why MS-13 targeted him. But Lopez provided no evidence

to support this single contention. And nothing in the record outside his bare assertion

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showed that MS-13 knew Lopez’s father was in the United States or that it assumed Lopez

was consequently receiving money. For example, Lopez did not testify that the gang

members told him they were targeting him because of his father’s presence in the United

States or that the gang’s extortion attempts immediately followed Lopez’s receipt of

money. See Perez Vasquez, 4 F.4th at 218, 222. In fact, he did not submit any

documentation that showed his father sent him money at all. Plus, Lopez testified that no

one else in his father’s family, such as his uncles or grandfather, were targets of MS-13’s

extortion efforts. If Lopez’s “family membership was the reason for [the gang’s]

persecution, they should have been targeted,” too. See Toledo-Vasquez v. Garland, 27

F.4th 281, 287–88 (4th Cir. 2022)

So all the Immigration Judge and Board had to suggest MS-13 extorted Lopez

because his father was in the United States was an isolated and unsupported declaration.

The rest of the evidence suggested that MS-13 extorted Lopez because the gang extorted

indiscriminately. That was the explanation that Lopez himself offered most consistently.

This evidence makes apparent that, when the Immigration Judge and Board mentioned that

“people outside of the respondent’s family” were extorted and that “gangs extort[ed] many

different types of people in [Lopez’s] community,” J.A. 10, 45, they did not commit legal

error by impermissibly focusing on others rather than Lopez. Instead, they were explaining

that the evidence most supported a finding that the only central reason that Lopez was

targeted was because everyone was. See Toledo-Vasquez, 27 F.4th at 287–88 (upholding

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the Department’s finding of no nexus where the record indicated petitioner’s aggressor was

“an equal opportunity persecutor”).

The evidence in the record did not compel an opposite finding. Tassi, 660 F.3d at

719. Quite the contrary: The only thing suggesting a nexus between the extortion and

Lopez’s family membership was Lopez’s once-uttered statement. 2 That wouldn’t be

enough to compel a finding that the nexus was established, even if the Immigration Judge

and Board were required to take every word a credible witness says as truth. See Garland

v. Ming Dai, 141 S. Ct. 1669, 1681 (2021) (“It’s not always the case that credibility equals

factual accuracy, nor does it guarantee a legal victory.”). At most, the evidence suggested

that Lopez’s membership in his father’s family was “an incidental, tangential, superficial,

or subordinate reason for h[is] persecution.” Velasquez, 866 F.3d at 194 (quoting

Hernandez-Avalos, 784 F.3d at 949).

In sum, the Immigration Judge and Board’s determination that Lopez failed to

establish nexus between his claimed social group and his extortion was not in legal error

and was supported by substantial evidence. Such a nexus is required for Lopez to be

eligible for both asylum and withholding of removal. So the Immigration Judge and Board

did not err in concluding Lopez qualified for neither form of relief.

2 The country reports Lopez introduced do not support a nexus finding, either. The reports state that families are targeted by gangs, but Lopez provided no evidence that supports a finding that his own extortion fell within that category. 11 USCA4 Appeal: 22-1808 Doc: 33 Filed: 01/30/2024 Pg: 12 of 13

B. Lopez failed to exhaust administrative remedies for his CAT claim.

Lopez also petitions for review of the Immigration Judge’s determination that he

did not establish eligibility for relief under the CAT. The Board, however, determined that

Lopez forfeited his CAT claim by not raising it in his brief and thus did not reach the issue.

That would keep us from reviewing the issue ourselves. Tepas, 73 F.4th at 213. To avoid

this result, Lopez contends the Board wrongly determined that he didn’t raise the issue in

his brief.

While an applicant doesn’t need to “conjure any ‘magic words’” to adequately raise

an issue to the Board, his brief must at least “launch[] the appropriate argument.” Perez

Vasquez, 4 F.4th at 228 (alteration in original) (citations omitted). The Board correctly

determined Lopez failed to do so for his CAT claim. His brief only mentioned the CAT in

its introduction and statement of the facts. It never laid out the legal requirements for the

CAT, nor did it challenge the Immigration Judge’s determination that Lopez didn’t meet

said requirements. So Lopez’s brief didn’t sufficiently raise the issue. See id. (holding that

petitioner did not adequately raise a CAT claim to the Board when his brief did not

“include[] any argument regarding” the claim “or cite[] any relevant case law”).

Because he did not raise his CAT claim to the Board, Lopez did not exhaust

administrative remedies for the claim. So we deny his petition to review it. Tepas, 73

F.4th at 213.

* * *

Lopez fails to overcome the “narrow and deferential” standard of review that applies

to our oversight of the Department of Justice’s immigration decisions. Djadjou v. Holder,

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662 F.3d 265, 273 (4th Cir. 2011). The Department’s decisions to deny him asylum,

withholding of removal, and relief under the CAT were legally sound and supported by

substantial evidence. As a result, the orders must stand. Lopez’s petition is thus

DENIED.