United States Court of Appeals For the First Circuit
No. 23-1036
EVELIN RAQUEL MONTOYA-LOPEZ,
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, Lynch and Gelpí, Circuit Judges.
Kevin P. MacMurray and MacMurray & Associates on brief for petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Brianne Whelan Cohen, Senior Litigation Counsel, Office of Immigration Litigation, and Christina R. Zeidan, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on brief for respondent.
August 21, 2023 LYNCH, Circuit Judge. Evelin Raquel Montoya-Lopez
petitions for review of a decision of the Board of Immigration
Appeals ("BIA") affirming the immigration judge's ("IJ") order
denying her application for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A),
as well as relief under the Convention Against Torture ("CAT").
In its decision, the BIA adopted and affirmed the IJ's
denial, agreeing that the petitioner "did not establish past
persecution or a well-founded fear of future persecution on account
of one of the protected grounds enumerated in section 101(a)(42)(A)
of the INA, 8 U.S.C. § 1101(a)(42)(A)." First, the IJ determined
that the petitioner had not demonstrated past persecution. Second,
the IJ determined that, although the petitioner had a well-founded
fear of future persecution, there was no nexus between this fear
and her status as a member of a particular social group, because
neither of the two social groups the petitioner alleged -- "family
members of business owners perceived as wealthy" and "people who
have fled the gangs instead of continuing to pay extortion" -- was
cognizable under the particular social group criteria.
Because substantial evidence supports the IJ's factual
determinations and the BIA committed no errors of law in its
ruling, we deny the petition for review of the petitioner's asylum
and withholding of removal claims. Having failed to raise issue
- 2 - with the BIA's denial of CAT relief on appeal to this court, the
petitioner has waived this claim, and we deny that portion of her
petition as well.
I.
A.
The petitioner is a 30-year-old native and citizen of El
Salvador. She came to the United States on or about March 13,
2016, without inspection by an immigration officer. The petitioner
is unmarried and has two children, ages six and four, who were
born in the United States. Her parents and three of her five
siblings live in El Salvador, while her remaining two siblings
live in the United States. She obtained her "bachillerato" -- the
equivalent of a U.S. high school degree -- in El Salvador.1 Prior
to her arrival in 2016, she had never before visited the United
States.
Before leaving for the United States on March 5, 2016,
the petitioner lived in San Miguel, El Salvador, with her sister
Delmy.2 Her parents lived, and still reside, in San Miguel as
1 For more information on the bachillerato degree program in El Salvador, see El Salvador, AACRAO Edge, https://www.aacrao.org/edge/country/el-salvador (last visited Aug. 17, 2023).
2 In her testimony before the IJ on September 15, 2020, the petitioner stated that she was living in San Miguel, El Salvador, before coming to the United States, though later during the same hearing she testified that she had lived in San Ramon, El Salvador, until March 2016, but moved to San Miguel to be closer
- 3 - well. She sold fruits and vegetables at a stand Delmy owned in a
busy market in San Miguel, where she earned $10 per day. She
worked Monday through Saturday from 1:00 am until 2:00 pm or 4:00
pm, mostly alone, as her sister spent much of this time purchasing
additional produce to sell the following day.
In her testimony before the IJ, the petitioner stated
that after she had been working at her sister's fruit and vegetable
stand for between one and two years3 and the business became more
profitable, members of the MS-13 gang began to extort money from
the business. In the first instance, two men she identified as
gang members based on their baggy clothing approached her while
she was selling produce alone and gave her a phone, telling her
someone wanted to speak to her. When she answered, the person on
the other end of the line, whom she believed to be in the MS-13
gang, stated that he was in jail, and that since he had observed
her making a "good profit" at the fruit and vegetable stand, she
and her sister needed to pay some "rent," or extortion money, of
to her sister's business. This inconsistent timeline has not been raised as an issue on appeal.
3 On direct examination during her hearing in front of the IJ, the petitioner stated that she had been working at her sister's fruit and vegetable stand for approximately one year when she was first approached by the gang members, but on cross-examination during the same hearing, she stated that she had been working at the stand for "like two years" when the extortion began.
- 4 - $25 per week.4 He then stated "you already know what can happen
to you" if the petitioner did not pay the extortion money, which
she understood to mean that they could kill her. Based on her
experience in El Salvador and her knowledge that "they kill a lot
of people over there because of that," she believed this threat.
When she told her sister about the threat, her sister told her to
pay the fee, "otherwise they will hurt us."
The petitioner began to make these extortion payments on
a weekly basis from the profits of the fruit and vegetable stand.
Because her sister was never present at the stand when they
visited, the gang members only ever collected money from the
petitioner. She believed that the gang had not extorted money
from the stand before she began working there because it had
originally been a smaller and not as profitable operation; once
Delmy had hired her and purchased more merchandise for the stand,
the gang assumed that the stand was making more money and decided
to seek extortion payments.
When business was poor, the petitioner and her sister
used the petitioner's personal earnings from working at the stand
to pay the extortion money. Over the course of one year, the
4 In her memorandum in support of her Form I-589 Application for Asylum, the petitioner stated that the original extortion amount was $5 per week, but before the IJ, she said that the original amount was $25 per week. The IJ adopted the $25 per week amount in her oral decision.
- 5 - extortion payments increased, from $25 to $35, $50, and then $75,
at which point the stand's profits were insufficient to continue
paying.5 In order to pay the extortion money, the petitioner's
sister began to buy fruits and vegetables for the stand on credit
and use the profits to pay the gang members instead.
The petitioner stated that she did not believe that the
police could protect her from the gang in El Salvador because the
gang members also threaten the police for protecting civilians.
Yet she also stated that she and her sister never reported the
extortion to the police because she believed that the police would
arrest and prosecute the gang members if she identified them, and
she was afraid that the gang members had infiltrated the police
and would take revenge against her and Delmy for reporting by
killing them.
In the final weeks before the petitioner left for the
United States, she informed the gang members that due to low sales
at the stand, she and her sister could not afford the extortion
5 In her memorandum in support of her asylum application, the petitioner stated that the original extortion amount was $5 per week, which increased to $10 and then, after a few months, $50 per week, but before the IJ, she said that the original amount was $25 per week, which increased to $35, then $50, and finally $75. The IJ adopted the starting point of $25 per week and subsequent escalations in her oral decision. Additionally, before the IJ, the petitioner stated that the amounts increased over one year, but in the affidavit attached to her asylum application she stated that "[t]he threats began approximately seven months before I left El Salvador."
- 6 - payments, to which the gang members stated that they just wanted
the payments and did not care whether the stand produced enough
profits to provide them. She stated that she ultimately left El
Salvador out of fear that her sister could not afford to pay the
extortion money and the petitioner would be held responsible as
the individual who had been present at the stand delivering the
payments. She believed that by leaving El Salvador, rather than
continuing to pay extortion, she put herself in danger from the
gang, as she could recognize the gang members and identify them as
extortioners to other people and the police.
After the petitioner left El Salvador, her sister Delmy
remained in El Salvador and continued to make extortion payments
to the gang members. At the time of her hearing in front of the
IJ, the petitioner had not spoken to her sister in over a year.
The last she had heard, Delmy had closed the fruit and vegetable
stand, though she did not know with certainty whether Delmy was
still operating the stand. She also said that in their last
conversation, Delmy had told her that the gang members had
continued to charge the $75 per week extortion and she planned on
filing a police report against them, but the petitioner learned
from her mother that ultimately Delmy did not file a report. The
petitioner's mother also stated during this conversation that
Delmy wanted to go to Nicaragua or Panama.
- 7 - The petitioner testified that she is afraid to return to
El Salvador and claimed she does not have a place where she can
live there outside of San Miguel. She had previously lived in San
Ramon, Cuscatlán, El Salvador, a three-to-four hour bus ride from
San Miguel, with her sister, but claimed that she could not go
back there either because it is "a very dangerous place as well."
No one ever threatened or harmed her personally in San Ramon. She
believed gang members had killed several of her family members
there, including her cousin and her cousin's child, another cousin,
and a third cousin's husband. She testified that no arrests had
been made regarding those deaths, and her knowledge of the
perpetrators was based on reports from family members and is
uncorroborated by other evidence. She did not know why any of her
relatives were killed.
Before the IJ, the petitioner continued testifying that
she does not know whether the gang members asked about her or
attempted to look for her after she left El Salvador.6 She did
not attempt to relocate within El Salvador before leaving for the
6 The petitioner stated she was not sure whether the MS- 13 gang members had asked about her, but in the affidavit attached to her asylum application, she stated, "The MS-13 has asked for me, and my sister lied and told them that I was no longer working there because I had messed up the business and would no longer be working there. She did this because if she told them that I had come to the United States, she was afraid that the MS-13 would try to find me and continue extorting me." The IJ did not mention this discrepancy in her opinion, and the petitioner did not raise it as an issue on appeal.
- 8 - United States. The petitioner had not been physically harmed by
the gang members at the time she left El Salvador. When asked
whether, to her knowledge, Delmy had been threatened or physically
harmed since the petitioner left El Salvador, the petitioner stated
that the last thing Delmy had told her was that she intended to
file a police report because of continued extortion and that sales
were bad. The petitioner had told her to be careful.
B.
The petitioner was placed into removal proceedings by
the Department of Homeland Security through a Notice to Appear
filed on August 5, 2016, charging her with removability pursuant
to 8 U.S.C. § 1182(a)(6)(A)(i). She filed an application for
asylum on March 7, 2017. At a hearing before the immigration court
on December 6, 2017, the IJ found her removable and directed El
Salvador as the country for removal.
At her 2020 hearing before the IJ, the petitioner was
represented by counsel. She testified as the sole witness and
submitted a written declaration in support of her application.
She claimed that although she had told her family members about
the extortion she experienced in El Salvador, none of her family
members in El Salvador provided statements in support out of fear
of retaliation against them if they spoke against the gang members,
and she was not aware that she could provide statements from family
members located outside of El Salvador. The IJ found the
- 9 - petitioner to be a credible witness.
After hearing her testimony, the IJ denied the
petitioner's application for asylum, withholding of removal, and
CAT relief, finding that (1) the petitioner's experiences in El
Salvador fell below the level of harm necessary to establish past
persecution and (2) although the petitioner had demonstrated a
well-founded fear of future persecution, she had not met the
criteria for asylum or withholding of removal regarding the two
separate particular social groups she claimed. The IJ determined
that the petitioner's first claimed group, "family members of a
business owner perceived as wealthy," was not a valid particular
social group because it did not satisfy the requirement of
immutability. The IJ also determined that the petitioner's second
claimed group, "people who have fled gangs instead of continuing
to pay extortion," was not a valid particular social group because
it failed the requirement of being perceived as a distinct group
within El Salvador. The BIA adopted the IJ's findings of fact and
affirmed its legal conclusions; it held that the petitioner's
second claimed group failed because it was "based purely on fear
of crime and economic extortion."
This timely petition for review followed.
II.
We review the BIA's conclusions of law de novo but
provide "some deference to the agency's expertise in interpreting
- 10 - both the statutes that govern its operations and its own
implementing regulations." Cabrera v. Lynch, 805 F.3d 391, 393
(1st Cir. 2015). Where, as here, the BIA adopted the IJ's findings
of fact, "we review both the IJ's and the BIA's decisions as a
unit." Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)
(quoting Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012)); see
also Camara v. Holder, 725 F.3d 11, 14 (1st Cir. 2013). We use
the "substantial evidence standard," a deferential standard that
"requires us to accept the [IJ's] factual findings . . . unless
the record is such as to compel a reasonable factfinder to reach
a contrary conclusion." Dorce v. Garland, 50 F.4th 207, 212 (1st
Cir. 2022) (omission in original) (quoting Mazariegos-Paiz, 734
F.3d at 64); see also INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). "That the record supports a conclusion contrary to that
reached by the BIA [or IJ] is not enough to warrant upsetting the
BIA's [or IJ's] view of the matter." Lopez de Hincapie v.
Gonzales, 494 F.3d 213, 218 (1st Cir. 2007); see also Arkansas v.
Oklahoma, 503 U.S. 91, 113 (1992) (holding that when using the
substantial evidence standard, courts of appeals "should not
supplant [an] agency’s findings merely by identifying alternative
findings that could be supported by substantial evidence").
- 11 - III.
We begin with the petitioner's asylum application. To
succeed, the petitioner bears the burden to "'demonstrate a well-
founded fear of persecution on one of five protected grounds' --
race, religion, nationality, political opinion or membership in a
particular social group." Paiz-Morales v. Lynch, 795 F.3d 238,
243 (1st Cir. 2015) (quoting Singh v. Holder, 750 F.3d 84, 86 (1st
Cir. 2014)); see 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); see
also Elias-Zacarias, 502 U.S. at 482-83. The petitioner "'can
meet this burden through proof of past persecution, which creates
a rebuttable presumption of a well-founded fear of future
persecution' or by demonstrating 'a well-founded fear of
persecution through an offer of specific proof that [her] fear is
both subjectively genuine and objectively reasonable.'" Chen v.
Lynch, 814 F.3d 40, 45 (1st Cir. 2016) (quoting Singh, 750 F.3d at
86). The petitioner must also demonstrate that one of the five
protected grounds is at least "'one central reason' for the harm
alleged." Barnica-Lopez v. Garland, 59 F.4th 520, 528 (1st Cir.
2023) (quoting Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008));
see 8 U.S.C. § 1158(b)(1)(B)(i).
1.
The IJ and BIA each concluded that the petitioner's
evidence of threats and extortion were insufficient to constitute
- 12 - past persecution. We find this conclusion is supported by
substantial evidence and affirm.
For harm to qualify as persecution, it "must add up to
more than ordinary harassment, mistreatment, or suffering." Lopez
de Hincapie, 494 F.3d at 217. "We have long held that 'credible,
specific threats can amount to persecution if they are severe
enough' -- particularly if they are death threats." Aguilar-
Escoto v. Garland, 59 F.4th 510, 516 (1st Cir. 2023) (quoting Javed
v. Holder, 715 F.3d 391, 395-96 (1st Cir. 2013)); see also Un v.
Gonzales, 415 F.3d 205, 210 (1st Cir. 2005) ("[C]redible verbal
death threats may fall within the meaning of 'persecution.'"). We
have further recognized that "the addition of physical violence,
although not required, makes a threat more likely to constitute"
persecution, Javed, 715 F.3d at 396, though "hollow
threats, . . . without more, certainly do not compel a finding of
past persecution." Moreno v. Holder, 749 F.3d 40, 44 (1st Cir.
2014) (omission in original) (emphasis added) (quoting Ang v.
Gonzales, 430 F.3d 50, 56 (1st Cir. 2005)).
Here, the IJ concluded that the petitioner did not meet
her burden of demonstrating that the threats she received
constituted past persecution. Specifically, the IJ stated that
the threats needed to be "more specific" than those shown by the
petitioner and that the petitioner did not "provide enough evidence
about specific threats." In so concluding, the IJ cited to our
- 13 - decision in Javed where we distinguished between, on the one hand,
"a single, vague threat or even a number of non-specific threats"
and, on the other, "credible, specific threats," where the latter
are more likely to constitute persecution. 715 F.3d at 395.
Substantial evidence supports the IJ's determination that the
threats the petitioner received lacked sufficient specificity to
rise to the level of persecution.
The petitioner was threatened over the course of a year
while working at her sister's business by gang members who demanded
extortion payments. The weekly payments began at $25 per week and
increased to $75 per week, at which point the petitioner and her
sister could no longer afford them despite the petitioner
forfeiting her personal earnings and her sister buying produce on
credit and using the stand's income to pay extortion money instead.
Based on her experience living in El Salvador and her initial
conversation with her extortioners, the petitioner believed that
if she did not make these payments, she would be killed by the
gang members.
Yet, the threats that the petitioner received were of a
general nature. There were no displays of force or violence to
accompany the threats, and the petitioner was never physically
harmed by the gang during her time in El Salvador. Although she
mentioned that the extortion continued after she left, she did not
provide evidence that anyone had tried to threaten or harm her
- 14 - sister after the petitioner left El Salvador. The petitioner does
not know whether the gang members have asked about her or attempted
to look for her after the petitioner left El Salvador. She
believed that other relatives had been killed by gangs in El
Salvador, but did not know why, and did not provide evidence that
their deaths were related to the threats she received.
Viewing the evidence of the threats the petitioner
received and the surrounding circumstances, we find that the IJ's
conclusions that the threats were not sufficiently specific or
credible to rise to the level of persecution to be supported by
substantial evidence. Even taking the petitioner's claims as true,
we cannot say that the record "compel[s] a reasonable factfinder
to reach a contrary conclusion." Dorce, 50 F.4th at 212.
The petitioner also argued that the economic harm she
suffered was sufficient to constitute past persecution. While, as
the petitioner notes, extortion alone may constitute persecution,
to reach this level the extortion must constitute "deliberate
imposition of severe economic disadvantage or the deprivation of
liberty, food, housing, employment, or other essentials of life."
Kadri v. Mukasey, 543 F.3d 16, 22 (1st Cir. 2008) (quoting Matter
of T-Z-, 24 I. & N. Dec. 163, 171 (BIA 2007)); see also Matter of
T-Z-, 24 I. & N. Dec. at 173 ("[E]conomic difficulties must be
above and beyond those generally shared by others in the country
of origin."). For example, in Kadri, we held that the petitioner
- 15 - "may [have] be[en] able to sustain a claim for economic
persecution" under this standard because he was ostracized from
the medical profession in Indonesia and unable to earn a living as
a doctor due to his sexual orientation. 543 F.3d at 22.
Here, the petitioner has failed to provide evidence of
such hardship. In her testimony, she stated that making the
extortion payments deprived her and her sister of some of the
profits of the fruit and vegetable stand and that on occasion she
paid from her personal earnings when profits were low. She did
not testify that making these extortion payments imposed such
difficulty as to deprive her of her liberty, threaten her survival,
or bar her from employment.
On these facts we cannot say the record compels a finding
of past persecution.7
2.
The IJ and BIA next concluded that the petitioner, having
failed to prove she experienced past persecution, also failed to
demonstrate future persecution on the basis of a protected ground
because neither of the particular social groups she claimed --
7 The petitioner argues that the IJ erred by not addressing whether the petitioner's proffered particular social groups were cognizable or whether the petitioner had established a nexus between these groups and the harm she had suffered after finding her experiences failed to constitute past persecution. She asks that we remand her matter for re-adjudication on these questions. Because we find that the agency did not err in its finding of no past persecution, this argument is irrelevant.
- 16 - "family members of business owners perceived as wealthy" and
"people who have fled the gangs instead of continuing to pay
extortion" -- were legally cognizable.
"[A]n applicant for asylum or withholding of removal
based on membership in a particular social group must establish
that 'the group is (1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.'" Hernandez-
Martinez v. Garland, 59 F.4th 33, 39 (1st Cir. 2023) (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). "Our
circuit has . . . 'accepted'" this three-part test. Id. (quoting
Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)). "We
must defer to the BIA's interpretation of the term particular
social group as long as it is reasonable . . . [i.e.,] based on a
permissible construction of the statute." Id. at 38 (internal
quotation marks omitted).
First, the IJ and BIA concluded that "family members of
business owners perceived as wealthy" was not cognizable as a
particular social group because it failed to meet the requirement
of immutability. "Immutability" with regard to a particular social
group means that all members "share a common, immutable
characteristic." Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir.
2009) (quoting In Re C-A-, 23 I. & N. Dec. 951, 951 (BIA 2006)).
- 17 - This characteristic "must be one that members of the group either
cannot change, or should not be required to change, because it is
fundamental to their individual identities or consciences." In Re
C-A-, 23 I. & N. Dec. at 951.
Here, the petitioner had not been in contact with her
sister for more than a year before her merits hearing. The IJ was
"unable to find that [the petitioner] . . . ha[d] a well-founded
fear of future persecution as a family member of a business owner
perceived as wealthy" because the petitioner did not know whether
her sister Delmy was even still a business owner in El Salvador.
The BIA also concluded "there [wa]s no indication the claimed
group, or the business they once shared, continued to exist at the
time of the merits hearing." It thus held that the petitioner's
"past membership [in] this group would not likely be immutable nor
would she have a well[-]founded fear of persecution related to
this group upon return."
The petitioner argues that there is also "no definitive
indication that [her sister] is no longer a business owner," but
in an asylum proceeding the petitioner bears the burden of proving
a nexus between her harm and a legally cognizable particular social
group. See Paiz-Morales, 795 F.3d at 243-45; Hernandez-Martinez,
59 F.4th at 39-40.
The thrust of the petitioner's attack on the decision
below is that she has met that burden and that the agency erred in
- 18 - concluding otherwise insofar as it concluded that the claimed group
is not defined by an immutable characteristic. The petitioner
contends in support of her position that "a shared past experience"
may be an immutable characteristic, Matter of Acosta, 19 I. & N.
Dec. 211, 233 (BIA 1985), and that she and other family members
share the past experience of having been related to a business
owner. The petitioner further contends that regardless of whether
her sister is still a business owner, it is very likely that the
petitioner's persecutors will continue to impute her membership in
this particular social group, even if the perception does not
reflect reality.
But, as the BIA correctly noted, "[a] particular social
group must not be amorphous, overbroad, diffuse, or subjective,
and not every 'immutable characteristic' is sufficiently precise
to define a particular social group." Thus, even if we were to
assume that the claimed trait of a familial relation to a business
owner is immutable, a proposed social group such as the one
petitioner proposes -- that encompasses all family members of all
business owners, past or present, who were perceived as wealthy at
one point in time -- fails to meet this standard because it
represents a "large, diffuse portion of society with
characteristics simply too amorphous to readily distinguish the
boundaries of membership." Mayorga-Vidal, 675 F.3d at 15 (citing
Matter of S-E-G-, 24 I. & N. Dec. 579, 585 (BIA 2008)). Thus, the
- 19 - petitioner's arguments with respect to this purported social group
fail.
Second, the IJ concluded that the petitioner's other
alleged group, "people who have fled the gangs instead of
continuing to pay extortion," was not cognizable because the
petitioner had failed to submit sufficient evidence showing it "is
a discr[ete] group perceived by Salvadoran society as a group."
The BIA alternatively held that this group fails to meet the
criteria for a particular social group because "it is based purely
on fear of crime and economic extortion," and "[e]xposure to
general conditions of crime and violence does not constitute
persecution (past or future) for asylum purposes."
Although the petitioner challenges the BIA's rejection
of this group on the ground that it is not circular because it is
based on a shared immutable characteristic of a past experience,
the BIA also separately adopted the IJ's reasoning for denying her
claim of future persecution. And, in so ruling, the IJ gave as an
independent reason for concluding that this asserted group is not
cognizable that it lacks social distinctiveness. Thus, to succeed
in showing the group is cognizable, the petitioner must show not
only that the BIA's immutability analysis is mistaken but also
that the IJ erred in finding that the group lacks social
distinctiveness, as either ground for deeming the claimed group
- 20 - not to be cognizable suffices to preclude the group from being so
deemed. And while the petitioner contends that the IJ did err in
so finding, we disagree.
The petitioner argues that the IJ erred because reports
on country conditions in El Salvador showing that persons who
refuse to pay extortion are at an "increased risk of violent
retribution" provide evidence that "Salvadoran society perceives
members of this proposed group as a distinct group."8 She notes
also that the Salvadoran Legislative Assembly revised a counter-
terrorism criminal statute to impose criminal penalties on
individuals who "solicit[], demand[], offer[], promote[],
formulate[], negotiate[], convene[], or enter[] into a non-
persecution agreement" with gangs, which she claims includes the
kind of extortion agreement to which she was subjected, and argues
the imposition of laws meant to protect against extortion means
extortion" are viewed as a discrete group within El Salvador.
The petitioner's argument fails because this evidence,
which demonstrates that gang members who use extortion tactics are
8 The petitioner specifically cited a report from Human Rights Watch on El Salvador in 2019 which states "Gangs kill, disappear, rape, or displace, those who resist. These conditions have resulted in internal and cross-border displacement." She also stated, "studies estimate that nearly 300,000 Salvadorans were displaced in 2017 as a result of gang threats, violence, and extortion."
- 21 - a recognized threat in El Salvador and that individuals who resist
them face greater risk, focuses on her visibility to her alleged
persecutors, rather than the visibility of her alleged particular
social group to society. For the social distinction requirement,
"[t]he relevant inquiry is whether the social group is visible in
the society, not whether the alien herself is visible to the
alleged persecutors." Mendez-Barrera v. Holder, 602 F.3d 21, 27
(1st Cir. 2010). Further, we have repeatedly held that alleged
particular social groups based on resistance to gang pressure and
extortion attempts do not meet the social distinctiveness
requirement. See, e.g., Perez-Trujillo v. Garland, 3 F.4th 10, 18
(1st Cir. 2021) (finding "young, male, Salvadoran students who are
forcibly recruited into gangs, refuse gang orders, and desert the
gang" lacked social distinction); Mendez-Barrera, 602 F.3d at 27
(finding the group "young women recruited by gang members who
resist such recruitment" is not socially visible nor generally
recognized in the community (El Salvador) as a cohesive group).
Because the BIA made no error of law in interpreting the
statute and the IJ's factual findings related to the application
of these factors are supported by substantial evidence, we deny
the petition for review.
The petitioner also asserted a claim for withholding of
removal under 8 U.S.C. § 1231(b)(3). "To petition successfully
- 22 - for withholding of removal, an alien must show that, if returned
to h[er] homeland, [s]he would more likely than not be subjected
to persecution on account of a statutorily protected ground."
Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009). Although based
upon the same requirements, "withholding of removal 'imposes a
more stringent burden of proof on an alien than does a counterpart
claim for asylum.'" Rivera-Coca v. Lynch, 844 F.3d 374, 378 (1st
Cir. 2016) (quoting Morgan v. Holder, 634 F.3d 53, 60 (1st Cir.
2011)). Because the BIA and IJ did not err when they concluded
that the petitioner had not suffered past persecution and that
neither of her alleged groups were cognizable for purposes of
asylum, it follows that they did not err when they concluded that
the petitioner did not meet her heavier burden for withholding of
removal. See, e.g., Hernandez-Martinez, 59 F.4th at 40 (applying
this logic).
C.
Although the petitioner originally entered a claim for
relief under the CAT before the IJ, who denied it, she did not
meaningfully challenge the IJ's denial on appeal before the BIA.
The BIA still affirmed the IJ's denial because the petitioner "did
not establish that it is more likely than not that she would be
subjected to torture in El Salvador by or with the acquiescence,
(including willful blindness) of a public official or other person
acting in an official capacity." By failing to raise any issue
- 23 - with that ruling on appeal before this court, the petitioner has
waived this claim. We deny any portion of the petition seeking
review of that part of the IJ and BIA decisions.
IV.
For the foregoing reasons, the petition for review of
the decision of the BIA is denied.
- 24 -