22-6117 Marquez-Martinez v. Garland BIA Gordon, IJ A209 289 049/050/051
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of February, two thousand twenty-four.
PRESENT: DENNIS JACOBS, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges. _____________________________________
ENA MARITZA MARQUEZ-MARTINEZ, FRANKLIN JAVIER MEDINA- MARQUEZ, DANIEL ALEXANDER ROMERO-MARQUEZ, Petitioners,
v. 22-6117 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONERS: Rosemarie A. Barnett, Law Office of Rosemarie Barnett, PLLC, Freeport, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Shelley R. Goad, Assistant Director; Julia J. Tyler, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Ena Maritza Marquez-Martinez and her children, natives and
citizens of El Salvador, seek review of a February 11, 2022, decision of the BIA
affirming an April 30, 2019, decision of an Immigration Judge (“IJ”) denying their
applications for asylum and withholding of removal. 1 In re Ena Maritza Marquez-
Martinez, et al., Nos. A209 289 049/050/051 (B.I.A. Feb. 11, 2022), aff’g Nos. A209 289
049/050/051 (Immig. Ct. N.Y. City Apr. 30, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
1 We do not address Petitioners’ claim for relief under the Convention Against Torture because they do not argue it on appeal. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not adequately presented in an appellant’s brief, and an appellant’s failure to make legal or factual arguments constitutes abandonment.” (internal quotation marks omitted)). 2 Under the circumstances, we have reviewed the IJ’s decision as the final
agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
We review the agency’s factual findings for substantial evidence and questions of
law and application of law to fact de novo. See Paloka v. Holder, 762 F.3d 191, 195
(2d Cir. 2014). “[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
Marquez-Martinez alleges that gang members in El Salvador repeatedly
threatened and extorted her, and that she was afraid to attend church as often as
usual after the gang threatened her. Based on these allegations she asserted past
persecution and a fear of future persecution based on four particular social groups:
(1) Salvadorans who are against paying a tax to a quasi-governmental entity; (2)
Salvadorans who are asked to pay compulsory payment levied by the gangs on
the individual’s income and business; (3) Salvadorans unable to pay for protection
from the gangs; and (4) Christian Salvadoran women unable to attend church.
An applicant for asylum and withholding of removal has the burden to
demonstrate past persecution or a well-founded fear (asylum) or likelihood
(withholding) of future persecution, and that a protected ground was “one central
3 reason” for the harm. 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);
Quituizaca v. Garland, 52 F.4th 103, 113–14 (2d Cir. 2022) (applying “one central
reason standard” to withholding of removal). In addition, where, as here, the
alleged and feared harm is from private actors, the applicant also has the burden
to establish that “the government is unable or unwilling to control” the alleged
persecutors. Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021) (internal quotation
marks omitted); see also Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020) (“An
applicant seeking to establish persecution based on the violent conduct of a private
actor . . . must show that the government [1] condoned the private actions or [2] at
least demonstrated a complete helplessness to protect the victims.” (internal
quotation marks and brackets omitted)).
In addition to denying relief for failure to establish a nexus to a protected
ground, the IJ made an alternative, dispositive finding that Marquez-Martinez had
no evidence that the Salvadoran authorities would be unwilling or unable to
protect her. Even assuming Marquez-Martinez’s cursory recognition of this issue
on appeal does not constitute abandonment, see Debique v. Garland, 58 F.4th 676,
684 (2d Cir. 2023), she does not sufficiently establish with evidence that the
Salvadoran authorities would be unwilling or unable to protect her. Accordingly,
4 we deny the petition. Moreover, as discussed below, even absent this dispositive
finding, we find no error in the IJ’s conclusion that Marquez-Martinez failed to
establish that she faces persecution on account of a protected ground.
To constitute a 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.” Paloka, 762
F.3d at 196 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). A
social group lacks the required particularity where it is made up of “a potentially
large and diffuse segment of society.” Matter of S-E-G-, 24 I. & N. Dec. 579, 585
(B.I.A. 2008); see also Paloka, 762 F.3d at 196. A proposed social group fails the
social distinction test if the evidence does not demonstrate that the group would
be perceived as a group by society. Paloka, 762 F.3d at 196. There must also
be some evidence that the persecutors were motivated to harm the applicant
because of the applicant’s membership in the group. Id. at 196–97 (“Whether the
requisite nexus exists depends on the views and motives of the persecutor.”
(internal quotation marks omitted)); see also INS v. Elias-Zacarias, 502 U.S. 478, 483
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22-6117 Marquez-Martinez v. Garland BIA Gordon, IJ A209 289 049/050/051
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of February, two thousand twenty-four.
PRESENT: DENNIS JACOBS, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges. _____________________________________
ENA MARITZA MARQUEZ-MARTINEZ, FRANKLIN JAVIER MEDINA- MARQUEZ, DANIEL ALEXANDER ROMERO-MARQUEZ, Petitioners,
v. 22-6117 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONERS: Rosemarie A. Barnett, Law Office of Rosemarie Barnett, PLLC, Freeport, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Shelley R. Goad, Assistant Director; Julia J. Tyler, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Ena Maritza Marquez-Martinez and her children, natives and
citizens of El Salvador, seek review of a February 11, 2022, decision of the BIA
affirming an April 30, 2019, decision of an Immigration Judge (“IJ”) denying their
applications for asylum and withholding of removal. 1 In re Ena Maritza Marquez-
Martinez, et al., Nos. A209 289 049/050/051 (B.I.A. Feb. 11, 2022), aff’g Nos. A209 289
049/050/051 (Immig. Ct. N.Y. City Apr. 30, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
1 We do not address Petitioners’ claim for relief under the Convention Against Torture because they do not argue it on appeal. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not adequately presented in an appellant’s brief, and an appellant’s failure to make legal or factual arguments constitutes abandonment.” (internal quotation marks omitted)). 2 Under the circumstances, we have reviewed the IJ’s decision as the final
agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
We review the agency’s factual findings for substantial evidence and questions of
law and application of law to fact de novo. See Paloka v. Holder, 762 F.3d 191, 195
(2d Cir. 2014). “[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
Marquez-Martinez alleges that gang members in El Salvador repeatedly
threatened and extorted her, and that she was afraid to attend church as often as
usual after the gang threatened her. Based on these allegations she asserted past
persecution and a fear of future persecution based on four particular social groups:
(1) Salvadorans who are against paying a tax to a quasi-governmental entity; (2)
Salvadorans who are asked to pay compulsory payment levied by the gangs on
the individual’s income and business; (3) Salvadorans unable to pay for protection
from the gangs; and (4) Christian Salvadoran women unable to attend church.
An applicant for asylum and withholding of removal has the burden to
demonstrate past persecution or a well-founded fear (asylum) or likelihood
(withholding) of future persecution, and that a protected ground was “one central
3 reason” for the harm. 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);
Quituizaca v. Garland, 52 F.4th 103, 113–14 (2d Cir. 2022) (applying “one central
reason standard” to withholding of removal). In addition, where, as here, the
alleged and feared harm is from private actors, the applicant also has the burden
to establish that “the government is unable or unwilling to control” the alleged
persecutors. Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021) (internal quotation
marks omitted); see also Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020) (“An
applicant seeking to establish persecution based on the violent conduct of a private
actor . . . must show that the government [1] condoned the private actions or [2] at
least demonstrated a complete helplessness to protect the victims.” (internal
quotation marks and brackets omitted)).
In addition to denying relief for failure to establish a nexus to a protected
ground, the IJ made an alternative, dispositive finding that Marquez-Martinez had
no evidence that the Salvadoran authorities would be unwilling or unable to
protect her. Even assuming Marquez-Martinez’s cursory recognition of this issue
on appeal does not constitute abandonment, see Debique v. Garland, 58 F.4th 676,
684 (2d Cir. 2023), she does not sufficiently establish with evidence that the
Salvadoran authorities would be unwilling or unable to protect her. Accordingly,
4 we deny the petition. Moreover, as discussed below, even absent this dispositive
finding, we find no error in the IJ’s conclusion that Marquez-Martinez failed to
establish that she faces persecution on account of a protected ground.
To constitute a 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.” Paloka, 762
F.3d at 196 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). A
social group lacks the required particularity where it is made up of “a potentially
large and diffuse segment of society.” Matter of S-E-G-, 24 I. & N. Dec. 579, 585
(B.I.A. 2008); see also Paloka, 762 F.3d at 196. A proposed social group fails the
social distinction test if the evidence does not demonstrate that the group would
be perceived as a group by society. Paloka, 762 F.3d at 196. There must also
be some evidence that the persecutors were motivated to harm the applicant
because of the applicant’s membership in the group. Id. at 196–97 (“Whether the
requisite nexus exists depends on the views and motives of the persecutor.”
(internal quotation marks omitted)); see also INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992) (requiring “some evidence” of motive, “direct or circumstantial”). There
may be “more than one motive for mistreatment, as long as at least one central
5 reason for the mistreatment is on account of a protected ground.” Acharya v.
Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal quotation marks omitted).
Marquez-Martinez’s proposed social groups—Salvadorans against paying
a tax to a quasi-governmental entity, who are asked to make compulsory
payments to gangs from the individual’s income and business, and who are unable
to pay for protection from the gangs—relate to wealth and refusal or inability to
pay the gang. The agency reasonably concluded that Marquez-Martinez failed to
establish how these groups satisfied the particularity and social distinction
requirements as she did not show that the groups were defined by more than the
harm suffered. See Paloka, 762 F.3d at 198 (distinguishing “between individuals
threatened by state-sponsored or state-condoned criminality on account of their
membership in a particular social group and individuals threatened only because
they live in a country with pervasive criminality” and reiterating that “a particular
social group is not cognizable merely because members have been subjected to
harm” (internal quotation marks omitted)). People who resist gang recruitment
efforts or extortion demands in El Salvador generally “are not in a substantially
different situation from anyone else in that country who has crossed the gang, or
who is perceived to be a threat to the gang’s interests.” Quintanilla-Mejia v.
6 Garland, 3 F.4th 569, 589 (2d Cir. 2021) (internal quotation marks and brackets
omitted). Indeed, “[w]hen the harm visited upon members of a group is
attributable to the incentives presented to ordinary criminals rather than to
persecution, the scales are tipped away from considering those people a ‘particular
social group’ within the meaning of the [Immigration and Nationality Act].”
Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). While Marquez-Martinez
argues that her small business made her visible in the community, “the basis of
the group is still premised on wealth, or the perception of wealth, rather than a
particularized social status.” Lopez-Mendoza v. Holder, 564 F. App’x 635, 636 (2d
Cir. 2014) (summary order).
To the extent Marquez-Martinez argues that the IJ failed to consider whether
she was persecuted due to an imputed political opinion for refusing to pay the
gang, her argument is misplaced. The IJ rejected this argument, reasoning that
Marquez-Martinez failed to establish that the gang members were motivated to
extort her because of an actual or imputed political opinion. Moreover,
“disapproving of things that have a negative impact on one’s life or even one’s
country does not necessarily amount to a political opinion.” Zelaya-Moreno v.
Wilkinson, 989 F.3d 190, 201 (2d Cir. 2021).
7 For similar reasons, Marquez-Martinez’s final proposed social group of
Christian Salvadoran women unable to attend church fails the nexus requirement.
She testified only that the extortion made her afraid to attend; she did not identify
facts to support her speculation that the gang targeted her for extortion because
she was a Christian. See Elias-Zacarias, 502 U.S. at 483. Additionally, Marquez-
Martinez’s country conditions evidence reflects that gang-related violence and
extortion are widespread problems in El Salvador, but that evidence does not
indicate that Christians are targeted more frequently than others or because of
their religion.
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court