NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 23-2572 _______________
RENE BENJAMIN BAUTISTA-ROSALES; SARA IVETH TORRES-MONTESINOS; C. B.; S. B., Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________
On Petition for Review of an Order of the Board of Immigration (BIA 1:A208-981-659; 1:A208-982-696; 1:A208-981-660; and 1:A208-982-697) Immigration Judge: Honorable John B. Carle _______________
Submitted Under Third Circuit L.A.R. 34.1(a) June 24, 2024
Before: JORDAN, McKEE, and AMBRO, Circuit Judges
(Filed: June 28, 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. JORDAN, Circuit Judge.
Rene Benjamin Bautista-Rosales, his domestic partner, Sara Iveth Torres-
Montesinos, and their two minor children, C.B. and S.B. (collectively, the “Petitioners”),
petition for review of an order of the Board of Immigration Appeals (“BIA”) denying
their requests for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). We will deny the petition.
I. BACKGROUND1
The Petitioners are natives and citizens of El Salvador. Prior to their departure
from that country in 2016, Bautista-Rosales worked on a farm owned by Torres-
Montesinos’s father. The farm was “eight square blocks” on which Bautista-Rosales
grew crops and tended to livestock. (A.R. at 129.)
In or around 2014, members of the Mara Salvatrucha gang, commonly known as
MS-13, called Bautista-Rosales and demanded that he pay them $1,000 within a week’s
time. He filed a police report after receiving the call, but, in his view, the police did not
“do[] anything about it.” (A.R. at 133.) A week later, members of MS-13 called
Bautista-Rosales again and told him that they were “serious” and “not joking around,”
and they told him his name, his domestic partner’s name, and where he worked. (A.R. at
133.) The following week, the gang called Bautista-Rosales again and doubled the
demand amount to $2,000 because he still had not paid them. He went back to the police,
1 These background facts are drawn from the administrative record and are accepted as true for purposes of this decision.
2 but they told him that there were no “next steps” for them to take because they had not
“been alerted to” any criminal activity directed at him. (A.R. at 134.) They instructed
him to remain calm and to stay indoors as much as possible. Two days later, Bautista-
Rosales sold off some of his livestock and used the money to travel to the United States
with C.B. Shortly thereafter, Torres-Montesinos sold off more animals, and she and S.B.
joined Bautista-Rosales in the United States.
In April 2016, the Department of Homeland Security initiated removal
proceedings against the Petitioners for unlawfully entering the United States. The
Petitioners conceded removability and applied for asylum, withholding of removal, and
CAT relief. Before the immigration judge (the “IJ”), they argued that they had been
persecuted by MS-13 in El Salvador because they were “Salvadoran small farmers[,]”
that they had a well-founded fear of future persecution, and that they would likely be
persecuted and tortured if they returned to El Salvador. (A.R. at 68.)
At a merits hearing, Bautista-Rosales testified that he left El Salvador “[b]asically
… due to the delinquency that is over there[.]” (A.R. at 130.) In particular, he asserted
that two of his family members had been killed by MS-13.2 “Then added to that,” he
said, “[were] the phone calls” from MS-13. (A.R. at 130.) He explained that he thought
2 He testified that his uncle, who “was in the business of … buying and selling … livestock[,]” was murdered by robbers in 2013, and also that one of his father’s cousins had been killed in 2015, while he was leaving a farm near the one Bautista-Rosales worked at. (A.R. at 131.) Bautista-Rosales also testified that, after he left El Salvador, an employee who had worked under him on the farm was killed, off farm premises, by a masked person during the night. At the hearing, Bautista-Rosales asserted that the employee’s killing likely had some connection to him because the employee worked with him for four years. 3 he was targeted by MS-13 because they assumed he “ha[d] some money” because he
owned livestock. (A.R. at 137.) As to his fear of returning to El Salvador, Bautista-
Rosales testified: “[I]f I were to have to go back, … the same situation is going to end up
happening. You know, let’s say I [start] a little business or a little store, … once again
they’re going to come after me demanding money because I’ve put up a store[.]” (A.R.
at 139.)
The IJ denied the Petitioners’ applications for asylum, withholding of removal,
and CAT relief in their entirety. He concluded that the telephone calls Bautista-Rosales
received did not rise to the level of persecution], that “Salvadoran small farmers” is not a
legally-cognizable particular social group (A.R. at 89-90), and that the Petitioners did not
establish a nexus between the harm they fear and their status as small farmers The IJ also
found that the Petitioners did not meet their burden to establish that it is more likely than
not that they would be persecuted or tortured if they returned to El Salvador.
On review, the BIA adopted and affirmed the IJ’s decision for the reasons the IJ
set forth in his opinion. The Petitioners timely filed the present petition for review.
II. DISCUSSION3
To be eligible for asylum, an alien must be a “refugee,” 8 U.S.C. § 1158(b)(1)(A),
which is defined as a person who has suffered past persecution or has a well-founded fear
3 The BIA had jurisdiction under 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s legal determinations de novo, and we review its underlying factual findings for “substantial evidence.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018). 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. 4 of future persecution due to his “race, religion, nationality, membership in a particular
social group, or political opinion,” 8 U.S.C. § 1101(a)(42)(A).
The Petitioners assert that they were persecuted because they belong to a particular
social group – namely, Salvadoran “small-scale farmers.” (Opening Br. at 11.) But
Bautista-Rosales testified at the merits hearing that he thought members of MS-13
targeted him because they assumed he had money. And the Petitioners concede “[t]hat
gangs extort all manner of successful business persons in addition to small-scale
farmers[.]” (Opening Br. at 21.) Nevertheless, the Petitioners say that there is no
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 23-2572 _______________
RENE BENJAMIN BAUTISTA-ROSALES; SARA IVETH TORRES-MONTESINOS; C. B.; S. B., Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________
On Petition for Review of an Order of the Board of Immigration (BIA 1:A208-981-659; 1:A208-982-696; 1:A208-981-660; and 1:A208-982-697) Immigration Judge: Honorable John B. Carle _______________
Submitted Under Third Circuit L.A.R. 34.1(a) June 24, 2024
Before: JORDAN, McKEE, and AMBRO, Circuit Judges
(Filed: June 28, 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. JORDAN, Circuit Judge.
Rene Benjamin Bautista-Rosales, his domestic partner, Sara Iveth Torres-
Montesinos, and their two minor children, C.B. and S.B. (collectively, the “Petitioners”),
petition for review of an order of the Board of Immigration Appeals (“BIA”) denying
their requests for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). We will deny the petition.
I. BACKGROUND1
The Petitioners are natives and citizens of El Salvador. Prior to their departure
from that country in 2016, Bautista-Rosales worked on a farm owned by Torres-
Montesinos’s father. The farm was “eight square blocks” on which Bautista-Rosales
grew crops and tended to livestock. (A.R. at 129.)
In or around 2014, members of the Mara Salvatrucha gang, commonly known as
MS-13, called Bautista-Rosales and demanded that he pay them $1,000 within a week’s
time. He filed a police report after receiving the call, but, in his view, the police did not
“do[] anything about it.” (A.R. at 133.) A week later, members of MS-13 called
Bautista-Rosales again and told him that they were “serious” and “not joking around,”
and they told him his name, his domestic partner’s name, and where he worked. (A.R. at
133.) The following week, the gang called Bautista-Rosales again and doubled the
demand amount to $2,000 because he still had not paid them. He went back to the police,
1 These background facts are drawn from the administrative record and are accepted as true for purposes of this decision.
2 but they told him that there were no “next steps” for them to take because they had not
“been alerted to” any criminal activity directed at him. (A.R. at 134.) They instructed
him to remain calm and to stay indoors as much as possible. Two days later, Bautista-
Rosales sold off some of his livestock and used the money to travel to the United States
with C.B. Shortly thereafter, Torres-Montesinos sold off more animals, and she and S.B.
joined Bautista-Rosales in the United States.
In April 2016, the Department of Homeland Security initiated removal
proceedings against the Petitioners for unlawfully entering the United States. The
Petitioners conceded removability and applied for asylum, withholding of removal, and
CAT relief. Before the immigration judge (the “IJ”), they argued that they had been
persecuted by MS-13 in El Salvador because they were “Salvadoran small farmers[,]”
that they had a well-founded fear of future persecution, and that they would likely be
persecuted and tortured if they returned to El Salvador. (A.R. at 68.)
At a merits hearing, Bautista-Rosales testified that he left El Salvador “[b]asically
… due to the delinquency that is over there[.]” (A.R. at 130.) In particular, he asserted
that two of his family members had been killed by MS-13.2 “Then added to that,” he
said, “[were] the phone calls” from MS-13. (A.R. at 130.) He explained that he thought
2 He testified that his uncle, who “was in the business of … buying and selling … livestock[,]” was murdered by robbers in 2013, and also that one of his father’s cousins had been killed in 2015, while he was leaving a farm near the one Bautista-Rosales worked at. (A.R. at 131.) Bautista-Rosales also testified that, after he left El Salvador, an employee who had worked under him on the farm was killed, off farm premises, by a masked person during the night. At the hearing, Bautista-Rosales asserted that the employee’s killing likely had some connection to him because the employee worked with him for four years. 3 he was targeted by MS-13 because they assumed he “ha[d] some money” because he
owned livestock. (A.R. at 137.) As to his fear of returning to El Salvador, Bautista-
Rosales testified: “[I]f I were to have to go back, … the same situation is going to end up
happening. You know, let’s say I [start] a little business or a little store, … once again
they’re going to come after me demanding money because I’ve put up a store[.]” (A.R.
at 139.)
The IJ denied the Petitioners’ applications for asylum, withholding of removal,
and CAT relief in their entirety. He concluded that the telephone calls Bautista-Rosales
received did not rise to the level of persecution], that “Salvadoran small farmers” is not a
legally-cognizable particular social group (A.R. at 89-90), and that the Petitioners did not
establish a nexus between the harm they fear and their status as small farmers The IJ also
found that the Petitioners did not meet their burden to establish that it is more likely than
not that they would be persecuted or tortured if they returned to El Salvador.
On review, the BIA adopted and affirmed the IJ’s decision for the reasons the IJ
set forth in his opinion. The Petitioners timely filed the present petition for review.
II. DISCUSSION3
To be eligible for asylum, an alien must be a “refugee,” 8 U.S.C. § 1158(b)(1)(A),
which is defined as a person who has suffered past persecution or has a well-founded fear
3 The BIA had jurisdiction under 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s legal determinations de novo, and we review its underlying factual findings for “substantial evidence.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018). 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. 4 of future persecution due to his “race, religion, nationality, membership in a particular
social group, or political opinion,” 8 U.S.C. § 1101(a)(42)(A).
The Petitioners assert that they were persecuted because they belong to a particular
social group – namely, Salvadoran “small-scale farmers.” (Opening Br. at 11.) But
Bautista-Rosales testified at the merits hearing that he thought members of MS-13
targeted him because they assumed he had money. And the Petitioners concede “[t]hat
gangs extort all manner of successful business persons in addition to small-scale
farmers[.]” (Opening Br. at 21.) Nevertheless, the Petitioners say that there is no
contradiction in their argument because, in their view, all they must show is that “the
persecutors’ motive in targeting the [particular social group in question] [was] based on
that [group]’s characteristics[,]” and a characteristic applicable to small-scale farmers is
“persons with financial resources[.]” (Opening Br. at 21-22.)
The Petitioners’ argument is foreclosed by our precedent. We have been clear that
violence motivated “by a desire to reap financial rewards” is “ordinary criminal activity
[that] does not rise to the level of persecution necessary to establish eligibility for
asylum.” Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001). There is substantial
evidence, including Bautista-Rosales’s testimony, to support the IJ’s finding that he was
targeted by MS-13 members because they assumed he had financial resources, and not
Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015). When the BIA has adopted and affirmed the IJ’s decision, we review both the IJ and BIA opinions. Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007).
5 because he was a small-scale farmer. Accordingly, the Petitioners have not met their
burden to show that the threats they received were due to their proffered particular social
group.4
Even if there were a nexus between the particular social group that the Petitioners
advance and the threats Bautista-Rosales received, the IJ’s finding – adopted by the BIA
– that the threats do not rise to the level of persecution are also supported by substantial
evidence. Persecution, for purposes of asylum, “does not encompass all treatment that
our society regards as unfair, unjust, or even unlawful or unconstitutional.” Lukwago v.
Ashcroft, 329 F.3d 157, 167-68 (3d Cir. 2003). “Rather, we have defined persecution as
including threats to life, confinement, torture, and economic restrictions so severe that
they constitute a real threat to life or freedom.” Blanco v. Att’y Gen., 967 F.3d 304, 311
(3d Cir. 2020) (internal quotation marks omitted).
Furthermore, “we have limited the type of threats constituting persecution to only
a small category of cases, and only when the threats are so menacing as to cause
significant actual suffering or harm.” Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.
2006) (internal quotation marks omitted). “Thus, we have refused to extend asylum
protection for threats that, while sinister and credible in nature, were not highly imminent
4 For the same reasons, the Petitioners have not shown that any fear of future persecution is a result of their status as small-scale farmers. Indeed, Bautista-Rosales admitted at the hearing that his situation would fare no better if he opened a business after returning to El Salvador. Because we conclude that there is no nexus between the threats that Bautista-Rosales received and the Petitioner’s asserted particular social group of small-scale farmers in El Salvador, we need not determine whether such a group is legally cognizable.
6 or concrete or failed to result in any physical violence or harm to the alien.” Id. The
threats Bautista-Rosales received were not sufficiently imminent or concrete. While we
are sympathetic to the Petitioners’ plight, we cannot say that the IJ and the BIA erred in
deciding that the threats did not rise to the level of persecution. Thus, the Petitioners’
asylum claims are unsuccessful for that reason as well.
The Petitioners’ withholding of removal claims also fail. “To qualify for
withholding of removal, an alien must establish a clear probability of persecution, i.e.,
that it is more likely than not, that []he would suffer persecution upon returning home.”
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011) (internal quotation
marks omitted). “Since th[at] standard is more demanding than that governing eligibility
for asylum,” the Petitioners are “necessarily ineligible for withholding of removal”
because they fail to qualify for asylum. Id.
Finally, the Petitioners’ effort to obtain CAT relief fares no better. To obtain such
relief, the applicant must “establish that it is more likely than not that he or she would be
tortured if removed[,]” 8 C.F.R. § 1208.16(c)(2), and that the torture would be “inflicted
by, or at the instigation of, or with the consent or acquiescence of, a public official acting
in an official capacity or other person acting in an official capacity[,]” 8 C.F.R.
§ 1208.18(a)(1). The Petitioners argue that they will likely be tortured if they return to El
Salvador because “[t]hey were singled out” by the MS-13, and because the government’s
failure to investigate the threats that Bautista-Rosales received “constitutes
acquiescence.” (Opening Br. at 25-26.) But such assertions are hypothetical. As the IJ
noted, the Petitioners were not tortured in the past and they advance only a speculative
7 assertion that MS-13 will find and torture them upon return to El Salvador and that the
police will not intervene.
At bottom, the Petitioners have not advanced any argument that would compel us
to set aside the conclusion that they failed to show they would more likely than not
experience torture if they returned to El Salvador.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.