Sanchez v. Garland

74 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: July 14, 2023
• Docket: 22-1815
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1815

JOSE DAVID SANCHEZ; SARA RIVAS-ALVARENGA; J.S.R,

Petitioners,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Lynch, and Montecalvo, Circuit Judges.

Kevin P. MacMurray and MacMurray & Associates for petitioners. Karen L. Melnik, Senior Trial Attorney, Office of Immigration Litigation, Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Michael C. Heyse, Senior Litigation Counsel, Office of Immigration Litigation, for respondent.

July 14, 2023 LYNCH, Circuit Judge. Jose David Sanchez, Sara

Rivas-Alvarenga, and their minor son J.S.R. petition for review of

a decision of the Board of Immigration Appeals ("BIA") affirming

the immigration judge's ("IJ") order denying their applications

for asylum and withholding of removal under sections 208(b)(1)(A)

and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1158(b)(1)(A), 1231(b)(3)(A), as well as relief under the

Convention Against Torture ("CAT").

The BIA held that there was no error in the IJ's holdings

that (1) the petitioners did not meet their burden to establish a

well-founded fear of persecution and (2) the petitioners did not

bear their burden as to the two separate particular social groups

they claimed. The IJ first determined that "Salvadoran business

owners perceived as wealthy" was not a valid particular social

group. Second, the IJ accepted that a nuclear family can be a

valid particular social group under certain circumstances. The IJ

determined that there was no nexus to that particular social group

because the petitioners failed to establish that their family

membership was one central reason for their experiences in El

Salvador.

Because substantial evidence supports the IJ's factual

determination that the petitioners did not meet their burden as to

the two separate particular social groups they claimed, and the

BIA committed no errors of law in affirming that ruling, we deny

- 2 - the petition for review of the petitioners' asylum and withholding

of removal claims. Having failed to develop any argument of error

with respect to the denial of their claim for CAT relief on appeal,

the petitioners waive any argument regarding CAT relief, and we

deny that portion of their petition.

I.

A.

We recount the facts as they appeared in the record

before the IJ. Lead petitioner Jose David Sanchez is a citizen of

El Salvador. Sanchez left El Salvador on March 1, 2014, entering

the United States without inspection on or about March 17, 2014.

Sanchez is married to Sara Rivas-Alvarenga, who originally

remained in El Salvador with the couple's then-only child, J.S.R.

(a citizen of El Salvador and a petitioner here). Rivas-Alvarenga

and J.S.R. joined Sanchez in the United States in October 2016.

The couple have another child who was born in the United States

after the family's arrival and that child is a U.S. citizen.

Rivas-Alvarenga also separately has a third child, an adult

daughter who lives in El Salvador.

Before leaving El Salvador, Sanchez operated a

successful fruit stand in San Martín de Porres. In his live

testimony and sworn declaration, Sanchez stated that on two

occasions in the span of a week in February 2014 an individual he

knew to be a member of the Barrio 18 gang approached him at his

- 3 - fruit stand and handed him a cell phone. On both occasions he

spoke with an individual on the cell phone who demanded Sanchez

pay $100 a week to the gang or else they would kill him. Sanchez

did not testify as to when or how he was supposed to pay this

money, nor did he describe any attempts to fulfill these threats

(or prevent his departure) between the time he received them in

mid-February and when he left the country on March 1, 2014.

Sanchez testified he did not report these threats to the police

because he knew people who had been killed after reporting

extortion attempts to the police.

Sanchez testified that he was aware of several instances

in which members of his family had been the targets of gang

violence. According to his testimony, sometime in or prior to

2013 a gang had attempted to extort Sanchez's aunt, Maria Narcisa

Sanchez De Moz. When Sanchez De Moz refused to comply, the gang

kidnapped Juan Manuel Sanchez, Sanchez De Moz's son and Sanchez's

cousin, whom Sanchez stated gang members tortured for almost a

year before killing him. Sanchez stated that when Sanchez De Moz

continued to refuse to pay extortion to the gang and filed a

complaint with the local police, gang members killed her as well.

Sanchez stated that this knowledge, coupled with the

demands he had received, motivated him to leave El Salvador on

March 1, 2014. He arrived in the United States on or about

March 17, 2014, and was served with notice to appear in removal

- 4 - proceedings on April 3, 2014. Sanchez testified in 2019 that he

had not received any threats from the Barrio 18 gang since arriving

in the United States. He testified that he believes if he returns

to El Salvador the gang will target him for extortion once again,

including by threatening to kill him.

After Sanchez left, Rivas-Alvarenga remained in El

Salvador with J.S.R. On August 19, 2015, Rivas-Alvarenga's brother

was killed. Rivas-Alvarenga testified that she believes her

brother was killed because he refused to pay extortion after

receiving threats from local gang members.

Rivas-Alvarenga testified that on or about September 15,

2016, two-and-a-half years after Sanchez left the country, she

received her first extortion threat. In her live testimony and

sworn declaration, Rivas-Alvarenga described being approached from

behind by an unknown man while on her way to the grocery store.

She stated that the man pressed a weapon into her right side and

demanded that she pay him $3,000. The man said he knew that

Rivas-Alvarenga's husband was in the United States and that she

had money. The man claimed to know where Rivas-Alvarenga lived

and stated that he would come to her house in order to tell her

how and when to pay the money. When Rivas-Alvarenga told the man

that she was not able to pay that amount, he told her that if she

did not pay he would kill her and her family just like he had

- 5 - killed her brother. Rivas-Alvarenga's testimony did not

specifically identify the man as a gang member.

Five days later, on September 20, 2016, Rivas-Alvarenga

left El Salvador for the United States with her son. Her testimony

did not describe any attempts to enforce the threat and demand for

money before she left (or to prevent her departure). She crossed

into the United States without inspection on or about October 5,

2016. She and her son were both served with notice to appear in

removal proceedings on October 20, 2016. Rivas-Alvarenga

testified in 2019 that, since arriving in the United States, she

had not received any threats, nor had her adult daughter, who she

testified lives "close" to her former home in San Martín.

B.

At their hearing before an IJ on April 2, 2019, Sanchez,

Rivas-Alvarenga, and J.S.R. were represented by counsel. Sanchez

and Rivas-Alvarenga testified as the sole witnesses and submitted

sworn written declarations in support of their applications. The

IJ found both Sanchez and Rivas-Alvarenga to be credible witnesses.

The IJ denied their application for asylum, withholding of removal,

and CAT relief, finding that (1) the petitioners' experiences in

El Salvador fell below the level of harm necessary to establish

persecution and (2) the petitioners had not met their burden as to

the two separate particular social groups they claimed. The IJ

concluded that the petitioners' first claimed group, "Salvadoran

- 6 - business owners perceived as wealthy," was not a valid particular

social group. The IJ accepted that the petitioners' second claimed

group, membership in the Sanchez-Rivas nuclear family, could be a

particular social group under certain circumstances. The IJ

concluded that the petitioners had failed to establish their

treatment in El Salvador occurred on account of their membership

in that family. The BIA adopted the IJ's findings of fact and

affirmed its legal conclusions, dismissing the appeal.

This timely petition for review followed.

II.

We review the BIA's conclusions of law de novo and

provide "some deference to the agency's expertise in interpreting

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 the IJ's findings for support by substantial

evidence and "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) (emphasis and omission in original) (quoting

Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)); see

also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Camara v.

Holder, 725 F.3d 11, 14 (1st Cir. 2013). It is not enough that

evidence may "support[] a conclusion contrary to that reached by

- 7 - the [IJ]." Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st

Cir. 2007) (emphasis omitted).

III.

We begin with the petitioners' asylum application. To

succeed in their asylum application, the petitioners had 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). The petitioners "'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 . . . through

an offer of specific proof that [their] 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). Under either

form of proof, the petitioners must 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) (internal quotation marks omitted) (quoting

Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021)).

- 8 - The IJ and BIA concluded that the petitioners failed to

bear their burden as to the two separate particular social groups

they claimed: "Salvadoran business owners perceived as wealthy"

and the "Sanchez-Rivas nuclear family." Because the IJ's findings

rest on substantial evidence and the BIA made no errors of law, we

deny the petition for review.

The petitioners first argue that the IJ and BIA erred

when they determined that the group "Salvadoran business owners

perceived as wealthy" was not a particular social group. We

disagree. Here, the BIA selected the test this circuit has

accepted for identifying a particular social group. It examined

whether the group "(1) has members who share a common immutable

characteristic, (2) is defined with particularity, and (3) is

socially distinct within the society." See Hernandez-Martinez v.

Garland, 59 F.4th 33, 39 (1st Cir. 2023) (recognizing that "[o]ur

circuit has . . . 'accepted'" that three-part test (quoting

Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012))).

Applying this test, the BIA concluded that "[b]eing a

business owner and being perceived as wealthy are not immutable

characteristics" and that the petitioners had not shown the group

was "perceived as a distinct group within Salvadoran society." We

have upheld similar applications of this test with respect to

business-based particular social groups. See, e.g.,

Hernandez-Martinez, 59 F.4th at 37, 39 (upholding determination

- 9 - that the group "business owners in Guatemala who have a high

profit" was not protected). 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 petitioners next argue that the BIA and IJ erred

when they concluded that the petitioners had failed to establish

a nexus between the alleged persecution and their membership in

the Sanchez-Rivas family. It is true, as the BIA and IJ also

noted, that a nuclear family can be a particular social group under

certain circumstances. See, e.g., Aldana-Ramos v. Holder, 757

F.3d 9, 15 (1st Cir. 2014). Nevertheless, the IJ and BIA

determined that the petitioners failed to demonstrate that their

treatment in El Salvador occurred on account of their family

membership. Substantial evidence supports that conclusion.

To demonstrate their treatment occurred on account of

their membership in a nuclear family, the petitioners had to show

that their family identity was "at the root of the persecution, so

that family membership itself br[ought] about the persecutorial

conduct." Barnica-Lopez, 59 F.4th at 530 (quoting Ruiz-Escobar v.

Sessions, 881 F.3d 252, 259 (1st Cir. 2018)). Such claims fail

where "multiple family members happen to be persecuted for a common

reason[,] but the [reason for] animus is not kinship."

Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012). Here,

- 10 - the IJ found that although the gangs made interconnected threats

to members of the Sanchez-Rivas family, they did so as part of a

strategy "to extort money from [them] because . . . they perceived

[the family] to be wealthy." In affirming that conclusion, the

BIA noted that the petitioners testified that each threat came

with a demand for money, that "other family members were harmed in

El Salvador because they refused to pay," and that the petitioners'

remaining family members in El Salvador had not been harmed or

threatened after Rivas-Alvarenga left the country. The record

contains substantial evidence to support the conclusion that

financial gain, not family membership, was "at the root of" the

threats petitioners received.1

The petitioners also assert a claim for withholding of

removal under 8 U.S.C. § 1231(b)(3). Withholding of removal

contains many of the same elements as an asylum claim -- namely,

persecution on account of one of the same five protected grounds

-- except that while an asylum application requires that the

applicant demonstrate only a well-founded fear of such

1 The petitioners also argue that the IJ and BIA erred when they concluded that the petitioners' evidence of threats in El Salvador fell below the requisite level of harm to constitute persecution. Because we hold that the IJ and BIA did not err when they concluded that the petitioners had failed to carry their burden as to the two particular social groups they claimed, we do not address the IJ's and BIA's conclusions with respect to the level of harm necessary to constitute persecution.

- 11 - persecution, withholding of removal requires the applicant to

demonstrate that it is more likely than not that he or she will in

fact be persecuted on account of a protected ground in the country

of removal. Hernandez-Martinez, 59 F.4th at 40; see also INS v.

Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). Because we have

concluded that the BIA and IJ did not err when they concluded that

the petitioners had failed to meet their burden with respect to

persecution on account of a protected ground for purposes of

asylum, it follows that they did not err when they concluded that

the petitioners did not meet their heavier burden for withholding

of removal. See, e.g., Hernandez-Martinez, 59 F.4th at 40

(applying this logic).

C.

Although the petitioners originally pressed a claim for

relief under the CAT before the IJ, who denied it, they waive any

argument regarding CAT relief because they mention it only in

passing without developing the claim. See Ahmed v. Holder, 611

F.3d 90, 98 (1st Cir. 2010). 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.

- 12 -