Leydis Rivera-Jovel v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 11, 2024
• Docket: 22-2163
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2163

LEYDIS ARELY RIVERA-JOVEL; E.D.C.R.,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted: December 15, 2023 Decided: March 11, 2024

Before THACKER, HARRIS, and RUSHING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: Meghan M. Phillips, VANDERPOOL, FROSTICK & NISHANIAN P.C., IMMIGRANTS FIRST PRACTICE GROUP, Manassas, Virginia, for Petitioners. Brian Boynton, Principal Deputy Assistant Attorney General, Nancy Friedman, Senior Litigation Counsel, Gregory A. Pennington, Jr., Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 2 of 11

PER CURIAM:

Leydis Rivera-Jovel (“Rivera”) and her son, E.D.C.R., (collectively, “Petitioners”)

are natives and citizens of El Salvador. Petitioners seek review of the Board of Immigration

Appeals’ (“BIA”) order affirming the decision of the immigration judge (“IJ”) denying

their applications for asylum, withholding of removal, and protection pursuant to the

Convention Against Torture (the “CAT”).

Petitioners argue that the BIA erred in affirming the IJ’s rejection of their asylum,

withholding of removal, and CAT claims. On their asylum claim, they make two

arguments: (1) the IJ failed to develop the record; and (2) the IJ and BIA disregarded

country condition reports in concluding Petitioners failed to establish a nexus between their

protected grounds and alleged persecution. Petitioners argue they are entitled to

withholding of removal because they presented sufficient evidence to succeed on their

claim, particularly, that they establish nexus. And finally, they contend that they are

eligible for CAT protection, asserting that the BIA erred in holding that their CAT claim

was waived. The Attorney General (“Respondent”) argues that the BIA did not err in

affirming the IJ’s rejection of Petitioners’ asylum, withholding of removal, and CAT

claims. Respondent argues that Petitioners failed to exhaust their argument that the IJ

failed to develop the record on their asylum claim, and they failed to exhaust their CAT

claim by not raising it before the BIA. On asylum and withholding of removal, Respondent

argues that the IJ and BIA did not err in holding that Petitioners failed to establish nexus

to a protected ground, and therefore, their asylum and withholding of removal claims fail.

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Having considered the arguments presented and reviewed the record, we conclude

that the BIA did not err and that substantial evidence supports the denial of relief.

Accordingly, we deny the petition for review.

I.

A.

Petitioners fled to the United States from El Salvador in June 2014 after receiving

a death threat from members of the MS-13 gang. In 2013, Rivera opened a store selling

grain. Sometimes, MS-13 gang members would come to the store and demand small items,

which Rivera gave them. Gang members would make similar demands of other small

businesses.

Rivera’s store was successful, allowing her to buy a house in the area. In late April

2014, MS-13 gang members painted graffiti on Rivera’s house, with the letters “MS” on

the wall. J.A. 167. * Rivera tried to erase the graffiti. When the gang members saw her,

they came to her house, and declared that the wall was theirs and that she should not touch

the graffiti. Additionally, the gang members told Rivera that a jailed member of the gang

wanted to speak with her, but she refused. Rivera was afraid of what the jailed gang

member would say or ask her to do.

The next day, three gang members came to Rivera’s house, again telling Rivera that

a gang member wanted to speak with her from jail. Rivera refused. Later that afternoon,

twelve armed gang members showed up at the corner across from Rivera’s house. Rivera

* Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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called the police and told them she was afraid of the gang members because they were

armed. Two hours later, a police patrol car drove by her house but did not stop to check

on Rivera.

Two days later, the gang members returned and again told Rivera to speak with the

jailed gang member. Again, Rivera refused. The gang members became upset, and they

explained to Rivera that she had to talk to the jailed member the next time they came back,

“because if not, we’re going to kill you . . . .” J.A. 171. The gang members also threatened

E.D.C.R.’s father, who similarly refused to speak to the jailed gang member. Rivera did

not file a police report after this death threat.

Fifteen days later, Rivera fled El Salvador with E.D.C.R., who was four years old

at the time.

B.

When Petitioners arrived in the United States, they were charged as inadmissible

and put into removal proceedings. Petitioners conceded their removability but sought

asylum, withholding of removal, and CAT protection.

Rivera based her asylum claim on allegations that gang members persecuted her on

account of her membership in a proposed particular social group (“PSG”) of “Salvadorian

female heads of household who are raising a minor child.” J.A. 152. Her son E.D.C.R.

alleged past persecution on account of his membership in the nuclear family of Rivera.

Rivera provided the sole testimony to support her and E.D.C.R’s applications.

The IJ denied Petitioners’ asylum, withholding of removal, and CAT claims.

Despite finding Rivera’s testimony credible, the IJ concluded that the gang members’

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single death threat did not amount to past persecution. The IJ also concluded that Rivera’s

proposed PSG was too amorphous to be cognizable. The IJ further explained that Rivera

failed to establish that the gang members were motivated on account of her or E.D.C.R.’s

purported PSGs. In particular, the IJ highlighted that the gang members also threatened

E.D.C.R.’s father, who was not a part of either alleged PSG. Finally, the IJ determined

that Petitioners failed to demonstrate that the government of El Salvador was unwilling or

unable to control the gang members.

Petitioners appealed to the BIA. In their notice of appeal, they asserted that the IJ

erred when it denied their asylum, withholding of removal, and CAT claims. That said,

their brief only raised the asylum issue, arguing that Petitioners demonstrated past

persecution, PSG cognizability and nexus, and that the Salvadoran government was unable

or unwilling to protect them. Petitioners’ brief did not address withholding of removal or

CAT protection.

A single member of the BIA dismissed Petitioners’ appeal. The BIA affirmed the

IJ’s determination that Petitioners did not establish that their persecution was on account

of their proposed PSGs. The BIA noted that Rivera’s testimony did not connect the gang

members’ threats with Rivera being a female head of household. Instead, the BIA

highlighted Rivera’s attempt to remove the graffiti from her house and refusal to speak

with the jailed gang member as potential reasons for the gang members’ threat. Thus, the

BIA affirmed the IJ’s determination that Petitioners failed to meet their burden of proof for

asylum and withholding of removal.

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In a footnote, the BIA explained that because Petitioners had “not meaningfully

challenged the [IJ’s] denial of their request for protection under the CAT,” the issue was

“waived on appeal.” J.A. 3 n.2. Petitioners asked this court for review.

II.

We may not disturb the BIA’s determinations on asylum eligibility and withholding

of removal if those determinations are “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). Whether Petitioners have demonstrated a nexus between their protected

grounds and alleged persecution is a factual question, which we review for substantial

evidence. Madrid-Montoya v. Garland, 52 F.4th 175, 179 (4th Cir. 2022). Still, we have

often explained that applicants for asylum and withholding of removal are “entitled to

know that agency adjudicators reviewed all [of their] evidence, understood it, and had a

cogent, articulable basis for its determination that [their] evidence was insufficient.”

Orellana v. Barr, 925 F.3d 145, 153 (4th Cir. 2019) (internal quotation marks omitted).

Additionally, we “review the denial of relief under the CAT for substantial evidence.”

Lizama v. Holder, 629 F.3d 440, 449 (4th Cir. 2011).

III.

As to Petitioners’ asylum claim, we begin with Petitioners’ argument that the IJ

failed to develop the record by not adequately clarifying the facts surrounding Petitioners’

PSG and nexus. Respondent argues that Petitioners failed to exhaust this argument by not

arguing it before the BIA. Respondent is correct. Because Petitioners did not argue that

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the IJ failed to develop the record in their brief to the BIA, Petitioners failed to exhaust

their claim and therefore waived it on appeal.

A petitioner must exhaust all administrative remedies before petitioning for review

of a final order of removal. 8 U.S.C. § 1252(d)(1). Although § 1251(d)(1)’s rule is no

longer jurisdictional, it remains a “mandatory claim-processing rule” and when invoked by

Respondent, the rule serves as a basis to deny review of an argument not raised before the

BIA. Tepas v. Garland, 73 F.4th 208, 213–14 (4th Cir. 2023). When Petitioners did not

make this argument in their brief before the BIA, leading the BIA to not address the

argument, they failed to exhaust their administrative remedies. Id. at 214. And because

Respondent has properly invoked the exhaustion requirement, we decline to consider

Petitioners’ argument.

Petitioners also challenge the denial of their asylum applications by arguing that the

BIA’s nexus finding was not supported by substantial evidence because the BIA

disregarded country condition evidence. To qualify for asylum, Petitioners must prove

they (1) have a “well-founded fear of persecution;” (2) “on account of a protected ground;”

(3) “by an organization that the Salvadoran government is unable or unwilling to control.”

Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). “Persecution occurs ‘on

account of’ a protected ground if that ground serves as ‘at least one central reason for’ the

feared persecution.” Toledo-Vasquez v. Garland, 27 F.4th 281, 286 (4th Cir. 2022)

(quoting Hernandez-Avalos, 784 F.3d at 949). To establish nexus, the protected ground

need not be the central reason for the persecution, but it must be more than an “incidental,

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tangential, superficial, or subordinate reason” for the persecution. Quinteros-Mendoza v.

Holder, 556 F.3d 159, 164 (4th Cir. 2009) (internal quotation marks omitted).

When analyzing whether Rivera met the nexus requirement, the BIA highlighted

that the gang members first threatened Rivera because she tried to remove their graffiti

from her house. When she refused to speak with the gang member in jail, they threatened

her again. The BIA concluded that Rivera provided no other reason as to why she was

being targeted by the gang. Thus, the BIA held that the record did not support that the

gang was motivated by Rivera’s status as a Salvadoran female head of household raising a

minor child -- her alleged PSG. In response, Petitioners point to country condition

evidence that indicates gang members often threaten female heads of households when

they disrespect the gangs.

Along these same lines, Petitioners liken this case to Hernandez-Avalos. In

Hernandez-Avalos, gang members threatened a mother who interfered with the gang

recruiting her son. 784 F.3d at 947. The mother argued that the gang threatened her on

account of her maternal relationship to her son. We agreed and held that the reason the

gang threatened the mother “rather than another person, [was] because of her family

connection to her son.” Id. at 950. Petitioners argue that the gang threatening the mother

in Hernandez-Avalos demonstrates that gangs threaten female heads of households. But in

Hernandez-Avalos, the gang members targeted the woman because she resisted the gang

recruiting her son. And there, the proposed PSG was membership in her nuclear family --

which included her son. That is not the case here.

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Here, per her own testimony, the gang targeted Rivera because she removed their

graffiti from her home and refused to speak with a jailed gang member. Rivera’s testimony

did not tie the gang targeting her to her proposed PSG of female heads of households with

minor children. Despite Petitioners’ country condition reports, substantial evidence does

not mandate reversal because Rivera’s testimony supports the conclusions of the IJ and

BIA. See Toledo-Vasquez, 27 F.4th at 288 (upholding the IJ and BIA’s nexus finding when

“[Petitioner’s] testimony support[ed] the conclusions of the [IJ] and the [BIA]”).

As to whether E.D.C.R.’s persecution was on account of his proposed PSG --

members of Rivera’s family -- Petitioners argue that the BIA conflated the persecution

prong with the nexus analysis. Specifically, Petitioners point to the BIA’s opinion which

concluded that the “record is devoid of any evidence that the gang member ever threatened

[E.D.C.R.]” J.A. 4. On appeal, Petitioners do not explain how the record supports the

conclusion that E.D.C.R. was threatened because he is Rivera’s son. Thus, the record does

not indicate, let alone compel, a nexus finding in E.D.C.R.’s case.

Substantial evidence supports the BIA’s finding that Petitioners failed to meet their

burden of proving that their persecution was on account of their proposed PSGs. And

because the nexus finding disposes of Petitioners’ asylum claim, we need not address

Petitioners’ remaining challenges to the IJ’s findings on past persecution, PSG

cognizability, or El Salvador’s ability or willingness to control private actors.

C.

Petitioners argue that they are entitled to withholding of removal based on the same

ground they state in support of their asylum claim. In order to state a successful

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withholding of removal claim, a petitioner must present evidence demonstrating a clear

probability of persecution -- a similar but higher burden of proof than that required to

establish asylum eligibility. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010).

Therefore, an “applicant ‘who has failed to establish the less stringent well-founded fear

standard of proof required for asylum relief is necessarily also unable to establish an

entitlement to withholding of removal.’” Id. at 600 (quoting Anim v. Mukasey, 535 F.3d

243, 253 (4th Cir. 2008)). Because Petitioners cannot meet their burden to establish nexus

on their asylum claims, they necessarily fail to meet the heightened burden for withholding

of removal.

D.

Finally, Petitioners argue that the BIA abused its discretion in finding that they are

ineligible for CAT protection. In their view, CAT protection is mandatory when there is

evidence in the record of a likelihood of torture. Pet’rs’ Opening Br. 19. But see 8 C.F.R.

§ 208.16(c)(2) (requiring an applicant to establish that it is “more likely than not that he or

she would be tortured”). Respondent argues that Petitioners waived their CAT claim

because they failed to include their CAT argument in their brief before the BIA. In

response, Petitioners maintain that by raising the CAT issue in their notice of appeal to the

BIA, they did not waive it.

As explained above, Petitioners must exhaust all administrative remedies before

petitioning for review of a final order of removal. 8 U.S.C. § 1252(d)(1). And when

invoked by Respondent, exhaustion serves as a basis to deny review of an argument not

raised before the BIA. See Tepas, 73 F.4th at 213–14. Petitioners included their argument

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that the IJ erred in denying them CAT protection in the body of their notice of appeal to

the BIA. However, in doing so, Petitioners checked the box indicating that they intended

to file a “separate written brief or statement . . . .” J.A. 39. And in their brief to the BIA,

they never addressed their CAT claim. The BIA then deemed their CAT claim waived on

appeal. We agree. In failing to make the CAT argument in their brief, Petitioners failed

to exhaust their administrative remedies. Tepas, 74 F.4th at 214. And because Respondent

has properly invoked the exhaustion requirement, we decline to consider this argument.

IV.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid in the

decisional process. For the foregoing reasons, the petition for review is

DENIED.