Leonor Castillo-Iraheta v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: February 5, 2024
• Docket: 23-1155
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 23-1155

LEONOR BEATRIZ CASTILLO-IRAHETA; A. N. C., Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

On Petition for Review of a Decision of the Board of Immigrations Appeals (A212-993-896 & A212-993-895) Immigration Judge: John B. Carle

Submitted Under Third Circuit LAR 34.1(a) on November 3, 2023

Before: JORDAN, ROTH and AMBRO, Circuit Judges

(Opinion filed: February 5, 2024)

OPINION*

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. AMBRO, Circuit Judge

Petitioners Leonor Castillo-Iraheta and her daughter, a minor, seek review of the

dismissal by the Board of Immigration Appeals (“BIA”) of their appeal from the decision

of an Immigration Judge (“IJ”) denying their applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We deny the

petition for review.

I.

Castillo-Iraheta and her daughter are natives and citizens of El Salvador who

entered the United States in May 2017. Because Castillo-Iraheta did not have valid travel

documents at the time of the application for admission, the Department of Homeland

Security began removal proceedings under 8 U.S.C. § 1182(a)(7)(A)(i)(I). She conceded

removability and filed the applications already noted based on her membership in two

particular social groups: “Women in El Salvador” and “Women in El Salvador who have

had children with known gang members.” App. 9-11. 1

In written briefs and testimony before the IJ, Castillo-Iraheta described that, back

in El Salvador, she was in a relationship and had two daughters with Gerson Javier

Rodriguez Bermudez (“Rodriguez”). In 2014, Rodriguez received a call from an MS-13

gang member demanding that he transport drugs for the gang. When he refused, the

1 Before the IJ, Castillo-Iraheta described her second proposed group as “Women in El Salvador who have had children with or by known gang members.” Agency Record (“A.R.”) 133-34. Before us, Castillo-Iraheta omits the term “known” from her second proposed group because it is “repetitive and unnecessary.” See Pet’r Br. 1, 9. For purposes of our review, we refer to the proposed group in the same manner as the IJ and BIA. 2 caller threatened to kill his family. Following the phone call, Castillo-Iraheta and her

daughters moved to a town thirty minutes away, and her relationship with Rodriguez

ended soon after. In 2015, she learned that Rodriguez, who turned out to be a member of

a different gang, was killed by police. She never suspected his gang membership.

After Rodriguez’s death, Castillo-Iraheta lived peacefully in her town for two

years. In April 2017, a stranger approached her at a doctor’s office, asking if she was

Rodriguez’s wife and ordering her to “never come around the area again,” or else she

would be killed. App. 3. The man did not identify himself as a gang member, and

Castillo-Iraheta testified he looked “normal” and did not have any visible gang tattoos.

Id. Fearing for her safety, she and her older daughter left El Salvador and entered the

United States in May 2017. Her younger daughter stayed in El Salvador with Castillo-

Iraheta’s mother, where they still reside and have experienced no threats or violence.

Castillo-Iraheta testified that, although she was never harmed while living in El Salvador,

she believes she and her daughter will be raped and killed by MS-13 if they return. She

also fears gang violence generally.

In January 2021, the IJ found Castillo-Iraheta removable and denied her requested

relief, concluding that she had not suffered past persecution and did not have a well-

founded fear of future persecution on account of her membership in a particular social

group. See App. 1-16. The IJ reasoned that: (1) the isolated threats did not rise to the

level of past persecution—Castillo-Iraheta safely relocated following MS-13’s threat to

her former partner, and she was not physically harmed or contacted again by the stranger

at the doctor’s office; (2) her proposed particular social groups were not cognizable; and

3 (3) even if they were, she failed to establish a nexus between her membership in those

groups and the harm she feared. As for nexus, he found no evidence that anyone ever

targeted Castillo-Iraheta on account of her nationality or gender and observed that “gangs

target people in El Salvador regardless of gender, age or family ties.” App. 12. Her

former partner’s death “may have been rooted in his failure to comply with the demands

of the gang or his changing loyalties to another gang,” and that “animus … now extended

to her and her daughter.” Id. The threat she received in 2017, the IJ concluded, thus

“was rooted in vendetta, revenge and/or criminality” and not based on Castillo-Iraheta’s

status as a Salvadoran woman. Id. Having concluded that she failed to satisfy the

requirements for asylum, the IJ determined Castillo-Iraheta necessarily could not meet

the higher burden of proving entitlement to withholding of removal. He also denied her

CAT protection because she had not shown a likelihood of future torture by or with the

acquiescence of a Salvadoran government official.

The BIA affirmed the IJ’s decision. It agreed that the “unfulfilled threats”

Castilla-Iraheta experienced—once indirectly through her former partner and once

directly by a stranger—were neither “highly … menacing [in] nature” nor “sufficiently

imminent or concrete.” App. 19. The BIA also agreed that her proposed particular social

groups failed to meet the requirements of particularity and social distinction. It also

found no clear error in the IJ’s finding that Castillo-Iraheta did not demonstrate she was

targeted because of her membership in her proposed social groups “rather than due to

some form of animus [the individuals] had against her former partner.” App. 21. It thus

upheld the IJ’s denial of Castillo-Iraheta’s application for asylum and withholding of

4 removal. As for her application for relief under CAT, it affirmed the IJ’s determination

that she was not likely to be subject to torture upon removal, “particularly because she

has not shown that any gang members would be aware of her return to El Salvador, locate

her, and target her for harm rising to the level of torture.” App. 21. She timely petitioned

for review.

II. 2

Castillo-Iraheta challenges the BIA’s decision that she is ineligible for asylum or

withholding of removal based on her membership in two proposed social groups. She

also quibbles with the BIA’s denial of her application for relief under CAT.3 We address

each in turn.

2 The BIA had jurisdiction under 8 C.F.R § 1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252(a)(1). “Although our jurisdiction only extends to final orders of removal and thus only to decisions of the BIA, we also review the IJ’s decision to the extent it is adopted, affirmed, or substantially relied upon by the BIA.” Guzman Orellana v. Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020). We review the agency’s factual findings for substantial evidence and its legal determinations de novo. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020). Under the substantial evidence standard, we must “uphold the agency’s determination unless the evidence would compel any reasonable fact finder to reach a contrary result.” Sesay v. Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015). 3 The Government claims Castillo-Iraheta “waived all of the dispositive and salient issues” by failing to “substantively rais[e]” that (1) she experienced past persecution, (2) a nexus exists between her feared future persecution and her membership in her proposed particular social groups, and (3) she is eligible for CAT protection. Gov’t Br. 12. We disagree with that characterization. As an initial matter, nothing in her opening brief suggests she intentionally relinquished these issues in her petition for review. See United States v. Dowdell, 70 F.4th 134, 140 (3d Cir. 2023) (cleaned up) (“Waiver is the intentional relinquishment or abandonment of a known right” whereas “forfeiture is the failure to make the timely assertion of a right,” a distinction that “can carry great significance”). In this context, we fail to see how Castillo-Iraheta forfeited the nexus issue, as her opening brief addresses it. See Pet’r Br. 7-8. She also mentions past persecution and CAT eligibility. See Pet’r Br. v, xi, 7-9; United States v. Brow, 62 F.4th 5 A. Asylum and Withholding of Removal

To establish eligibility for asylum, Castillo-Iraheta must show a reasonable

likelihood that she has been persecuted—or has a well-founded fear of persecution if

returned to El Salvador—based on her membership in a particular social group. See

8 U.S.C. §§ 1158(b)(1)(B)(i); S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543-44 (3d Cir. 2018).

The standard for withholding of removal is higher still, requiring her to demonstrate a

“clear probability” that she will suffer persecution on account of a protected ground.

Blanco v. Att’y Gen., 967 F.3d 304, 310 (3d Cir. 2020). Persecution is generally

understood to encompass only severe harms, such as “threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin

v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). “A showing of past persecution gives rise to a

rebuttable presumption of a well-founded fear of future persecution.” Thayalan v. Att’y

Gen., 997 F.3d 132, 138 (3d Cir. 2021). Without that presumption, Castillo-Iraheta must

demonstrate both a subjective fear of persecution and an objectively reasonable

possibility of future persecution. See S.E.R.L., 894 F.3d at 544.

Though Castillo-Iraheta primarily challenges the BIA’s rejection of her proposed

social groups, we first dispense with her argument—to the extent that she advances it—

that the IJ and BIA erred in determining that the two threats she experienced do not

establish that she was persecuted in the past. See Pet’r Br. 8. The BIA’s conclusion is

supported by substantial evidence. Castillo-Iraheta did not personally experience bodily

114, 119 n.4 (3d Cir. 2023) (“[W]e may … ‘affirm on any ground supported by the record as long as the appellee did not waive—as opposed to forfeit—the issue.’”). 6 harm or lose her freedom in the two incidents to which she testified. Even though

unfulfilled threats can constitute persecution if they pose a “severe affront to [her] life or

freedom” that is “concrete and menacing,” see Blanco, 967 F.3d at 313, we agree with

the BIA’s determination that the oral threats Castillo-Iraheta experienced, while

unsettling, are not at that level. After the initial threat against her partner, she moved to a

new town where she lived peacefully and without incident for more than two years. Her

mother and younger daughter still reside in El Salvador and have encountered no

problems. And the individual who threatened Castillo-Iraheta never approached or

threatened her again. With this backdrop, there is no presumption of future persecution.

We also agree with the BIA’s determination that Castillo-Iraheta failed to establish

that she will be targeted on account of her membership in a cognizable “particular social

group.” A group must be “(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially distinct within the society in

question.” S.E.R.L., 894 F.3d at 540.

To satisfy the particularity requirement, the group must have “discrete and …

definable boundaries that are not amorphous, overbroad, diffuse, or subjective.” Id. at

548 (internal quotation marks omitted). Substantial evidence supports the BIA’s

determination that “women in El Salvador” lacks particularity. A group comprised of

“all women in a particular country” is “overbroad[] because no factfinder could

reasonably conclude that all [of a country’s] women had a well-founded fear of

persecution based solely on their gender.” See Chavez-Chilel v. Att’y Gen., 20 F.4th 138,

146 (3d Cir. 2021) (“Guatemalan women” not sufficiently particularized).

7 Substantial evidence likewise supports the BIA’s conclusion that “women in El

Salvador who have had children with known gang members” lacks particularity and

“definable boundaries” to be socially distinct. App. 20. The IJ determined, and we

agree, that it is unclear whether the proposed group “would include women who are

currently involved in a relationship with a known gang member, women who recently

ended their relationship, women who ended their relationship years ago and/or women

who were only casually involved with the alleged gang member” and that it “would also

include women who conceived their child in an act of sexual violence.” App. 11.

Castillo-Iraheta makes no attempt to define this group more precisely in her petition for

review. The IJ also noted the lack of evidence in the record establishing that members of

her proposed group would be perceived, considered, or recognized in El Salvador as a

distinct group. Again, Castillo-Iraheta fails to direct us to anything in the record to

challenge that conclusion.

Even assuming Castillo-Iraheta belongs to a cognizable social group, we agree that

she failed to demonstrate the requisite link between that group and her feared harm. The

IJ found no “persuasive evidence” to support the notion that she was targeted because she

had a child with her former partner or that the stranger cared that he was a former gang

member, let alone that she was targeted because she was a woman in El Salvador. App.

12. Instead, the IJ determined the threats were “rooted in animosity” or “vendetta”

against her former partner and rightly concluded that those acts do not establish a claim

for asylum. Id.; see Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015)

8 (“[c]onflicts of a personal nature,” like isolated criminal acts, are not persecution on

account of a protected characteristic).

Castillo-Iraheta’s sole response is her conclusory statement that she and her

daughter “were threate[ne]d with death because of the fact that they were women, and

also women associated with a gang member,” which, she contends, was “not a personal

vendetta but a recognition that their membership in the enunciated groups made them

vulnerable to persecutors who could not be reigned [sic] in by the government or

authorities.” Pet’r Br. 8. But she presents no evidence to establish that her allegedly

protected grounds are a “central reason” for the mistreatment she experienced, or fears, in

El Salvador. See 8 U.S.C. §§ 1158(b)(1)(B)(i); 1252(b)(4)(B); Gonzalez-Posadas, 781

F.3d at 685 (relief “may not be granted when the characteristic at issue ‘played only an

incidental, tangential, or superficial role in persecution’”). In fact, Castillo-Iraheta

testified she “ha[d] not the faintest idea why” the stranger at the doctor’s office

threatened her. A.R. 131. And we agree with the BIA that the generalized evidence of

violence against women in El Salvador does not speak to the motivations of the two men

who threatened her and does not atone for her failure to establish the requisite nexus. See

Elsayed v. Att’y Gen., 366 F. App’x 340, 342 (3d Cir. Feb. 17, 2010) (citing Vente v.

Gonzales, 415 F.3d 296, 301 (3d Cir. 2005)) (“[G]eneralized violence does not excuse

the petitioner from demonstrating a nexus between the persecutory acts and a protected

category.”).

In sum, there is no compelling reason to reverse the BIA’s determination that

Castillo-Iraheta failed to demonstrate that she was, or will be, singled out on the basis of

9 her membership in a particular social group. Her failure to establish eligibility for

asylum necessarily precludes her from meeting the more stringent standard for

withholding of removal. See Hernandez Garmendia v. Att’y Gen., 28 F.4th 476, 484 (3d

Cir. 2022).

B. CAT Relief

To qualify for relief under the Convention Against Torture, Castillo-Iraheta needed

to prove that, if she were removed to El Salvador, she would “more likely than not” be

tortured “by, or at the instigation of, or with the consent or acquiescence” of public

officials. 8 C.F.R. §§ 1208.16(c)(2); 1208.18(a)(1); Blanco, 967 F.3d at 315. “Torture is

an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel,

inhuman, or degrading treatment or punishment.” 8 C.F.R § 1208.18(a)(2). To determine

whether a petitioner is likely to be tortured, the BIA considers “all evidence relevant to the

possibility of future torture,” including evidence of “past torture” and “gross, flagrant or

mass violations of human rights within the country of removal.” Id. § 1208.16(c)(3).

Substantial evidence supports the determination that Castillo-Iraheta failed to

demonstrate a likelihood of future torture. The IJ reasonably concluded that she did not

suffer torture in the past. Because the threats she experienced do not rise to the level of

persecution, they necessarily do not meet the more stringent standard for torture. We

likewise agree with the IJ and BIA that she has provided no evidence tending to show a

future likelihood that she will suffer such treatment. The BIA thus properly denied her

application for relief under CAT.

*****

10 Castillo-Iraheta is ineligible for asylum or withholding relief because she has not

shown past persecution or a well-founded fear of future persecution based on her

membership in a cognizable particular social group. She also is ineligible for CAT relief

because she has not proven that she likely would be tortured when she returns to El

Salvador. We thus deny her petition for review.