Maria Vera-Valle v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: January 21, 2025
• Docket: 24-2405
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 24-2405 ___________

MARIA VERA-VALLE; O. C.-V., Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A220-920-487, A220-920-488) Immigration Judge: Dennis J. Ryan ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on January 14, 2025

Before: BIBAS, FREEMAN, and NYGAARD, Circuit Judges

(Opinion filed: January 21, 2025) ____________________________________ ___________

OPINION* ___________

PER CURIAM

Maria Vera-Valle and her minor son, O. C.-V., proceeding pro se, have filed a petition

for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”).

We will deny the petition.

I.

Vera-Valle and her son are citizens of Ecuador who arrived in the United States in

December 2021. The Department of Homeland Security served them with Notices to Ap-

pear, charging them as removable for being present in the United States without having

been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). They conceded the charges and

applied for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”).

At the merits hearing, Vera-Valle testified that she and her son are from the rural town

of Zumbi, Ecuador. On May 8, 2021, Vera-Valle intervened to stop Marcelo “Pecueca”

Olmedo, a member of the local Los Podridos gang, from attacking another woman. On

May 11, 2021, when Vera-Valle was walking home from work with her son, Pecueca at-

tacked and injured her with a knife. She received treatment for her wounds, but she did not

go to the police to seek protection, and she did not suffer any further harm from Pecueca.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Vera-Valle briefly relocated to her parents’ house in Zumbi before she decided to flee Ec-

uador with her son. Since Vera-Valle left, Pecueca has visited her parents’ house to ask

about her, and he has sent her threatening Facebook messages.

The Immigration Judge (“IJ”) denied the applications for relief, concluding that Vera-

Valle failed to demonstrate eligibility for asylum, withholding of removal, or relief under

the CAT. The BIA adopted and affirmed the IJ’s decision. Vera-Valle and her son filed a

timely petition for review.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the agency’s legal

determinations de novo and its factual findings for substantial evidence. See Herrera-Reyes

v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020). Under the substantial-evidence standard,

factual findings “are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Nasrallah v. Barr, 590 U.S. 573, 584 (2020) (cleaned up).

III.

To succeed on an asylum claim, a petitioner must show that she suffered past persecu-

tion or has a well-founded fear of future persecution “on account of” a protected ground

such as “race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42). The protected ground “must be an essential or principal

reason for the persecution.” Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir.

2015); see also 8 U.S.C. § 1158(b)(1)(B)(i). Because the standard for withholding of re-

moval is higher than that for asylum, an application that does not establish asylum

3 eligibility necessarily fails to make the required showing for withholding of removal.

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

Here, we agree with the agency’s conclusion that Vera-Valle failed to establish eligi-

bility for asylum or withholding of removal because there is no nexus between any pro-

tected ground and the harm that she suffered or fears. To the extent that Vera-Valle at-

tempted to articulate any protected ground in the agency proceedings, she claimed mem-

bership in the particular social group of “victims of gang violence in Ecuador.” A.R. at 5.

Like the IJ, we “sympathize[] that she was the victim of a crime having assisted an innocent

individual,” A.R. at 49, but we conclude that this incident alone is not enough to establish

her membership in a cognizable group. See Manuel-Soto v. Att’y Gen., 121 F.4th 468, 471

(3d Cir. 2024) (concluding that “victims of extortion by gang members” was not cognizable

because “a particular social group must exist independently of the persecution suffered by

the applicant”) (cleaned up); see also Inestroza-Tosta v. Att’y Gen., 105 F.4th 499, 518 (3d

Cir. 2024) (concluding that the particular social group of “gang violence recipients” was

“defined by the harm posed to its members, so it is not cognizable”).

Moreover, even if Vera-Valle could establish membership in a cognizable particular

social group,1 substantial evidence supports the agency’s alternative conclusion that her

membership in such a group was not an essential or principal reason for her persecution.

1 In her reply brief, Vera-Valle argues that she is part of the particular social group of “Women who resist the authority of gangs in rural Ecuador.” Pet’rs’ Reply Br. at 2. We do not consider this argument because it was not raised in her opening brief. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (explaining that any issue that an appellant fails to develop in an opening brief is forfeited).

4 Substantial evidence supports the agency’s conclusion that Pecueca has been motivated by

the fact that Vera-Valle disrupted his prior criminal attack against another woman. See

A.R. at 151, 160; see also Gonzalez-Posadas, 781 F.3d at 685 (“Conflicts of a personal

nature and isolated criminal acts do not constitute persecution on account of a protected

characteristic.”).

Substantial evidence also supports another independent basis that the agency pro-

vided for denying asylum and withholding of removal: Vera-Valle failed to show that the

Ecuadorian government was unwilling or unable to protect her from the harm that she suf-

fered and fears from a private actor. See Manuel-Soto, 121 F.4th at 472 (concluding that

petitioners failed to show that the Guatemalan government was unwilling or unable to pro-

tect them where they never reported the relevant conduct to the police and where the coun-

try-conditions report “shows that the Guatemalan government takes [violence against

women] seriously”). Here, Vera-Valle never reported the incident with Pecueca to the po-

lice, and to the extent that she expressed fear about going to the police, substantial evidence

supports the agency’s conclusion, based on the country-conditions report, that the Ecuado-

rian government would be willing to protect her because it takes gang violence and vio-

lence against women seriously. See A.R. at 181, 198.2

Accordingly, we will deny the petition for review.

2 It appears that Vera-Valle has forfeited any argument related to her claim for relief under the CAT because none was raised in her briefing. See In re Wettach, 811 F.3d at 115. In any event, for essentially the same reasons discussed above, substantial evidence supports the agency’s denial of CAT relief based on its conclusion that the Ecuadorian government would not acquiesce in any harm amounting to torture. See Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017). 5