Lemus-Aguilar v. Garland

112 F.4th 39

• Court: Court of Appeals for the First Circuit
• Decided: August 12, 2024
• Docket: 23-1799
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1799

PATRICIA MARILY LEMUS-AGUILAR,

Petitioner,

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, Kayatta and Gelpí, Circuit Judges.

Kristian Robson Meyer, with whom Kevin P. MacMurray and MacMurry & Associates were on brief, for petitioner.

Tatiana G. Pino, Trial Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

August 12, 2024 KAYATTA, Circuit Judge. Patricia Marily Lemus-Aguilar

petitions for review of a Board of Immigration Appeals ("BIA")

final order of removal. The BIA affirmed an Immigration Judge's

("IJ") decision that denied Lemus-Aguilar's request for asylum and

ordered her removed to El Salvador. Seeing no error in the

agency's underlying conclusion that Lemus-Aguilar failed to

establish a nexus between the harm that befell her and any

protected ground for asylum, we must deny the petition. Our

reasoning follows.

I.

Lemus-Aguilar, a native and citizen of El Salvador,

entered the United States near Hidalgo, Texas without inspection

or valid entry documents on February 21, 2016. Later that year,

the Department of Homeland Security ("DHS") filed a Notice to

Appear with the Immigration Court to begin removal proceedings

against her. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). On March 3,

2017, Lemus-Aguilar filed an application for asylum.1 She

otherwise conceded removability as charged.

In her pre-hearing memorandum, Lemus-Aguilar indicated

that she sought asylum based on the persecution she suffered and

would continue to suffer on account of -- as relevant here -- her

1 Lemus-Aguilar also sought withholding of removal and protection under the regulations implementing the Convention against Torture ("CAT"). However, she does not petition for review of the IJ or BIA's dismissal of those claims.

- 2 - membership in the particular social group of "single, Salvadoran

mother[s] with no familial protection." She later submitted

supporting documents, including her own declaration, a declaration

from a female neighbor in El Salvador who was also targeted for

extortion by gang members, and a 2017 U.S. Department of State

Human Rights Report on El Salvador. She also submitted

declarations from various experts on conditions in El Salvador.

Those reports described common types of gang violence, including

extortion of single women. The reports also described the

prevalence of patriarchal cultural norms that often leave women

dependent on the men in their households and victims of

gender-based violence.

On October 15, 2019, Lemus-Aguilar testified before the

IJ at her merits hearing. She testified that she fled El Salvador

with her daughter on February 10, 2016, due to "threats by the

gangs." She stated that she and her daughter had lived in a town

called La Palma, in a home near a field and wooded area where she

would observe MS-13 gang members conducting drug deals. A few

weeks before she left the country, gang members approached

Lemus-Aguilar's house. As Lemus-Aguilar testified, "they wanted

[her] to sell drugs, because [she] lived close to the field" and

had observed their activities there. According to Lemus-Aguilar,

a gang member told her he "had been watching [them]" and therefore

knew that hurting her daughter "would be the way to hurt [her] the

- 3 - most." The gang gave Lemus-Aguilar two days to decide if she would

help them sell drugs -- otherwise they would "harm [her] daughter

in front of [her]."

When asked why the gang would harm her daughter,

Lemus-Aguilar stated it was because her daughter "was the only

thing [she] had, the most valuable thing [she] had." She also

testified that she believed the gang threatened them because she

and her daughter lived alone together and were "vulnerable" to the

gang.

Lemus-Aguilar stated that after those two days passed,

she told the gang members that she refused to help them. She

testified that she then fled -- in fear of the gang's

reprisals -- to her father's house in a town some forty minutes

away, where she and her daughter hid out for two weeks before

leaving for the United States. She also noted that the gangs

separately threatened to extort her female neighbor who continues

to live in La Palma with her family.

On October 15, 2019, the IJ denied Lemus-Aguilar's

asylum claim. The IJ found Lemus-Aguilar credible and genuinely

afraid of returning to El Salvador. The IJ also found that the

threats Lemus-Aguilar and her daughter received rose to the level

of past persecution. However, the IJ found that Lemus-Aguilar

failed to show that any past persecution (or well-founded fear of

future persecution) was on account of a statutorily protected

- 4 - ground. That is, the IJ determined that the gang members were

motivated to target Lemus-Aguilar "because she refused to comply

with their criminal scheme for her to participate and assist in

their apparent efforts at drug trafficking and drug distribution."

It noted that this court has rejected "resist[ing] gang

recruitment" as a protected ground for asylum. See, e.g.,

Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010)

(rejecting a proposed particular social group of "young women

recruited by gang members who resist such recruitment"). Thus,

the IJ found itself "[un]able to connect [Lemus-Aguilar's] claimed

fear to a protected ground."

In so finding, the IJ noted Lemus-Aguilar's argument

that she was targeted on account of being a "single, Salvadoran

[mother] with no familial protection." However, the IJ found that

this was not "one central reason" she was targeted. Rather, she

was targeted because of her home's proximity to an area where the

gang conducted drug deals, and because of her knowledge of those

activities. Additionally, the IJ found that Lemus-Aguilar's

proposed particular social group was not legally cognizable

because it was insufficiently particular. The IJ found that

Lemus-Aguilar's proposed group "preclude[d] determinacy" because

the definition of "familial protection" was unclear, as the record

showed that Lemus-Aguilar herself was able to seek help from her

father when fleeing La Palma. Consequently, given Lemus-Aguilar's

- 5 - failure to put forward a cognizable particular social group, and

the lack of evidence that she was targeted on grounds of membership

in that group, the IJ concluded that Lemus-Aguilar's asylum claim

failed.

The BIA affirmed. First, the BIA agreed with the IJ

that Lemus-Aguilar's proposed particular social group was

insufficiently particular. It noted that while "mother" and

"Salvadoran" may have clear definitions, "no familial protection"

is a "subjective term without a clear meaning." The BIA also

agreed that it was not clear whether Lemus-Aguilar indeed had "no

familial protection." As such, the BIA found that her proposed

particular social group lacked the "requisite well-defined

boundaries" to be cognizable. Second, the BIA agreed with the IJ

that Lemus-Aguilar failed to establish that membership in her

proposed social group was a "central reason" for her claimed

persecution. To that end, the BIA found that it was unclear to

what extent, if any, the individual gang members were even aware

that Lemus-Aguilar had no familial protection. Therefore, the

IJ's conclusion that the gang instead targeted Lemus-Aguilar for

purely extortionary reasons was not clearly erroneous.

Lemus-Aguilar now petitions this court for review. She

asserts two points of error. First, she argues that the BIA erred

in affirming the IJ's determination that her proposed particular

social group is not legally cognizable. Second, she argues that

- 6 - the BIA also erred in affirming the IJ's finding that she failed

to establish a nexus between that proposed group and the

persecution she suffered or fears she will suffer.

II.

When the BIA adopts and affirms an IJ's decision while

adding its own gloss, we review both decisions together.

Varela-Chavarria v. Garland, 86 F.4th 443, 449 (1st Cir. 2023).

We review legal conclusions de novo and factual findings under the

"substantial evidence" standard. López-Pérez v. Garland, 26 F.4th

104, 110 (1st Cir. 2022). Under that standard, we "accept the

agency's findings of fact, including credibility findings, as long

as they are 'supported by reasonable, substantial, and probative

evidence on the record considered as a whole.'" Segran v. Mukasey,

511 F.3d 1, 5 (1st Cir. 2007) (quoting INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992)). In other words, we "only disturb the

agency's [factual] findings if, in reviewing the record as a whole,

'any reasonable adjudicator would be compelled to conclude to the

contrary.'" Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir.

2023) (quoting Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir.

2020)).

III.

We begin and end with Lemus-Aguilar's challenge to the

BIA's affirmance of the IJ's determination that she is not eligible

for asylum because she failed to establish the requisite nexus

- 7 - between her past persecution (or well-founded fear of future

persecution) and a protected ground. To qualify for asylum,

Lemus-Aguilar must establish that she "suffered in the past or has

a well-founded fear of suffering in the future 'persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion.'" Varela-Chavarria, 86 F.4th

at 449 (emphasis added) (quoting 8 U.S.C. § 1101(a)(42)(A)). Thus,

even assuming arguendo that "single, Salvadoran mothers with no

familial protection" is a cognizable particular social group,

Lemus-Aguilar still must show that her membership in that group

"was or will be at least one central reason" for her persecution.

8 U.S.C. § 1158(b)(1)(B)(i).

To establish nexus, Lemus-Aguilar need not "demonstrate

that [s]he was singled out only due to [her] protected trait."

Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014). Nor

does "the presence of a non-protected motivation" render her

ineligible for asylum, Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st

Cir. 2014), for "of course, persecutors may often have more than

one motivation," Ordonez-Quino, 760 F.3d at 90 (quoting Ivanov v.

Holder, 736 F.3d 5, 15 (1st Cir. 2013)). However, Lemus-Aguilar

must show that a protected ground was or will be more than

"incidental, tangential, superficial, or subordinate to another

reason for [the] harm" in question. Sanchez-Vasquez v. Garland,

994 F.3d 40, 47 (1st Cir. 2021) (quotation omitted).

- 8 - On this record, we find that substantial evidence

supports the IJ and BIA's determination that Lemus-Aguilar's

status as a "single, Salvadoran mother with no familial protection"

was not a central reason for her persecution. See id. (reviewing

a gang's motivation to target the petitioner there under the

substantial-evidence standard). Lemus-Aguilar testified that the

gang members "wanted [her] to sell drugs, because [she] lived close

to the field . . . [a]nd they knew that [she] observed a lot of

things." She also testified that the gang members wanted her to

"join them to sell drugs, because [she] was an accessible part

with them," meaning that she "lived in front of the [field] where

they would spend a lot of time" near a "wooded area where they

would do their deals." And when asked why the gang members would

harm her daughter if she refused their demands, Lemus-Aguilar

stated that it was "[b]ecause [her daughter] was . . . the most

valuable thing [she] had." Thus, as the IJ found, "the motivation

for [Lemus-Aguilar] being targeted was because she refused to

comply with [the gang members'] criminal scheme for her to

participate and assist in their apparent efforts at drug

trafficking and drug distribution." Lemus-Aguilar's brief even

concedes that the IJ's nexus finding was "plausible."

The record amply supports the conclusion that

Lemus-Aguilar's status as a "single, Salvadoran mother with no

familial protection" was "incidental, tangential, superficial, or

- 9 - subordinate" to the persecutors' principal motivation of

recruiting Lemus-Aguilar to assist with their drug-related

criminal activities.2 Id. To be sure, we may infer from

Lemus-Aguilar's testimony that Lemus-Aguilar's persecutors were

aware that she lived alone with her daughter. But Lemus-Aguilar

presents no compelling evidence that the gang members believed her

to have no family in the area, or that they were motivated by any

deficiency in her familial protection when they decided to target

her for their drug-trafficking activities. See Villalta-Martinez

v. Sessions, 882 F.3d 20, 24 (1st Cir. 2018) (finding that the

petitioner there failed to show that she was persecuted on account

of her relationship with her child's father where she provided no

evidence that the gang members "had any knowledge of her

relationship with [the father of her child]"). If anything,

Lemus-Aguilar's testimony that she sought refuge from the gang

with her father in a nearby town only detracts from any claim that

she lacked "familial protection," let alone that the gang members

targeted her on that basis.

2 Lemus-Aguilar does not argue that resisting the gang members' recruitment efforts itself constitutes a protected ground for asylum. In any event, the IJ correctly noted that this argument would likely fail. See Mendez-Barrera, 602 F.3d at 27; see also Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010) (rejecting the proposed social group of "youth resistant to gang recruitment" as insufficiently particular and lacking social visibility).

- 10 - Additionally, while Lemus-Aguilar presented a

declaration from a female neighbor in La Palma whom gang members

also targeted for extortion by threatening to harm her family

members, no record evidence indicates whether that neighbor shared

any characteristics with "single, Salvadoran mothers with no

familial protection" or whether the gang targeted her on any such

basis. The fact that the gang also targeted Lemus-Aguilar's

neighbor for extortion by threatening to harm her family members

bolsters the agency's conclusion that the gang was motivated by

Lemus-Aguilar's proximity to an area where it conducted criminal

activities and a general desire to further those activities. And

as for Lemus-Aguilar's country conditions evidence, while her

expert reports explain an unfortunate ubiquity of gender-based

violence and discrimination in El Salvador, they do little to

establish that the MS-13 gang members in La Palma targeted

Lemus-Aguilar based on her status as a single Salvadoran mother

with no familial protection, as opposed to as a conduit for

furthering their drug-trafficking activities.

At bottom, Lemus-Aguilar presents insufficient evidence

to "compel a reasonable factfinder to reach a contrary

determination" regarding the nexus between the harm she suffered

and any statutorily protected ground. Jianli Chen v. Holder, 703

F.3d 17, 21 (1st Cir. 2012). As Lemus-Aguilar's failure to

- 11 - establish this nexus is fatal to her asylum claim, we need go no

further.3

IV.

For the foregoing reasons, we must deny the petition.

3 We therefore do not decide whether the IJ or BIA erred in finding that "single, Salvadoran mothers with no familial protection" is not a legally cognizable particular social group.

- 12 -