Aguilar-De Guillen v. Sessions

• Decision Date: 27 August 2018
• Docket Number: No. 17-2095,17-2095
• Parties: Irma Yolanda AGUILAR-DE GUILLEN, et al., Petitioners, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

902 F.3d 28

Irma Yolanda AGUILAR-DE GUILLEN, et al., Petitioners,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.

No. 17-2095

United States Court of Appeals, First Circuit.

August 27, 2018

Carlos E. Estrada, Boston, MA, Ashley M. Edens, and Estrada Law Office on brief for petitioner.

Jane T. Schaffner, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before Torruella, Lipez, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner,¹ Irma Yolanda Aguilar-De Guillen, seeks judicial review of a Board of Immigration Appeals ("BIA") opinion affirming an Immigration Judge's ("IJ") decision denying her asylum relief, withholding of removal under the Immigration and Nationality Act ("INA"), and protection pursuant to the Convention Against Torture Act ("CAT") and ordering her removed. She claims the BIA erred in affirming the IJ's finding that: (1) she did not suffer past persecution on account of a protected ground; (2) she did not have a well-founded fear of future persecution; and (3) she was not entitled to protection under CAT.² Finding no merit to her arguments, we affirm.

A. BACKGROUND

1. Life in El Salvador³

Petitioner was born in El Salvador in 1985. In 2006, she married Miguel Ángel and the pair had two children (who, as minors, are co-petitioners in this case). In El Salvador, she owned and operated a fruit and vegetable store with her husband. On several occasions, while her husband was off working as a taxi driver (his second job), gang members threatened to kill them unless their business paid monthly "rent" to the respective gang. The gang threatened to throw a grenade into her home if she refused to pay. The gang members also informed Petitioner that they knew where her children went to school and she interpreted this as an additional threat. While four of the death threats were made via hand-written notes between December 2012 and January 2013, she also received several phone calls during that time with similar threats. She reported these incidents to her husband, who in turn reported them to the police. The police informed the two that they would "look into it" and advised Petitioner to turn off her telephone to avoid future threating calls. Once she reached out to a private detective about these threats and he agreed to be on the lookout at the store, the gang ceased making any threats.

While no one on Petitioner's side of the family had suffered any gang violence, both her husband's nephew and his brother were killed by a gang after they refused to join. In April 2013, her husband came to the United States, and in June 2014, Petitioner followed with their two children. She traveled to the United States through the U.S./Mexico border without inspection.⁴

Upon Petitioner's entry to the United States, Petitioner was apprehended and detained. Thereafter, immigration officials filed a notice to appear alleging removability pursuant to § 212(a)(6)(A)(i) of the INA. Petitioner conceded removability and later applied for relief in the form of asylum, withholding of removal under the INA, and protection under CAT. Petitioner cited the several gang death threats she had received while living in El Salvador as the cause of her traveling to the United States and why she sought relief from removal.

2. The IJ Hearing

A hearing was held before the IJ on her application in March 2017, wherein Petitioner testified about her life in El Salvador. In support of her request for relief, in addition to her own testimony, Petitioner submitted a country condition report highlighting the violence in El Salvador relating to gangs and the police's ongoing struggle to manage the situation.

After the hearing, the IJ denied her application for relief. Although the IJ found Petitioner credible, consistent, and "extremely sympathetic," he found that she had not suffered past persecution or held a well-founded fear of future persecution on a protected ground as necessary to qualify for asylum relief. As to a well-founded fear of future persecution, the IJ noted that she had also failed to prove that any persecution was related or connected to her membership in a protected group, "as the crimes [she] suffered ... appear[ed] to be widespread according to the country conditions." The IJ found the purpose behind the death threats was extortion, and that Petitioner had failed to present any evidence that would support an inference that any future persecution would be on account of her familial relationship.⁵ The IJ also found that Petitioner had failed to show government involvement—either through its inability or unwillingness to protect her from harm. Because Petitioner was unable to establish asylum, she necessarily failed to meet the requirements for withholding of removal under INA. Lastly, the IJ also denied her CAT relief on the basis that she had not proved that she would likely face torture at the hands of the El Salvadoran government if she were to return. The IJ ordered Petitioner removed.

3. Appeal to BIA

Petitioner timely appealed to the BIA, which agreed with the IJ and therefore dismissed her appeal. The BIA held that "the record in this case [did] not indicate that the [petitioner's] family membership, or her familial relationship to her husband, was or will be at least one central reason for the harm she suffered or may suffer upon her return to El Salvador"—rather, the record demonstrated that the gang members were motivated by the desire to increase their wealth through extortion. The BIA also offered two reasons for rejecting Petitioner's new claim that she had a well-founded fear of future persecution on account of being a member of another particular social group: "single mothers who are living without male protection and cannot relocate elsewhere in the country." First, it did not find that this group was "cognizable as a particular social group" pursuant to asylum law because it was not defined with particularity; second, to the extent her argument regarding future persecution related to a general fear of gang violence, that too was not a recognizable ground for asylum. The BIA then quickly disposed of her withholding of removal claim before discussing her CAT claim. Like the IJ, the BIA found that because Petitioner had not met her burden for asylum, it followed she had not satisfied the higher standard of a clear probability of persecution on account of a protected ground as required for withholding of removal. As for her CAT claim, the BIA determined that Petitioner had not established "that she is more likely than not to be tortured in her country, by or at the instigation of or with the consent or acquiescence ... of a public official or other person acting in an official capacity." An order subsequently followed dismissing her appeal, and she now seeks review of that dismissal by this Court.⁶

B. DISCUSSION

Before us, Petitioner assigns three errors to the BIA's decision, specifically, that it erred in affirming the IJ's finding that: (1) she did not suffer past persecution on account of being a member of a protected class; (2) she did not have a well-founded fear of future persecution (irrespective of any past persecution); and (3) she was not entitled to protection under the CAT.

1. Standard of Review

Where, as here, "the BIA adopts and affirms an IJ's decision, we review the IJ's decision to the extent of the adoption, and the BIA's decision as to any additional ground." Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (internal quotation marks, citation and brackets omitted). We review the IJ's findings of fact relied on by the BIA in support of its decision for substantial evidence, meaning we accept the findings "as long as they are supported by reasonable, substantial and probative evidence on the record considered as a whole." Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014) (internal quotation marks and citation omitted). Only where the record compels a contrary outcome will we reject the IJ's findings. Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014).

Moreover, a BIA conclusion regarding the definition and scope of the statutory term "particular social group" is a purely legal determination that we review de novo. Castañeda-Castillo v. Holder, 638 F.3d 354, 363 (1st Cir. 2011) (citation omitted). We do, however, give deference "to the interpretation given the term ‘social group’ by the BIA even if we conclude that the term is susceptible to more than one permissible interpretation." Elien v. Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004) (citation omitted).

2. Asylum Relief

A petitioner may be eligible for asylum if he or she can establish persecution on account of a legally protected ground in one of two ways: (1) past persecution or (2) a well-founded fear of future persecution. Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003) ; 8 U.S.C. § 1158(b)(1) ; § 1101(a)(42)(A); 8 C.F.R. § 208.13. "[R]ace, religion, nationality, membership in a particular social group, or political opinion" are grounds specifically enumerated in asylum law. Olujoke v. Gonzáles, 411 F.3d 16, 21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A) ). "To show that the circumstances the applicant endured constitute persecution for purposes of asylum relief, she must show ‘a certain level of serious harm (whether past or anticipated), a sufficient nexus between that harm and government action or inaction, and a causal connection to one of the statutorily protected grounds.’ " Martínez-Pérez v. Sessions, 897 F.3d 33, 39 (1st Cir. 2018) (quoting Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir. 2012) ).

If a petitioner can prove she suffered past persecution while in her home country, a rebuttable presumption that her fear of future persecution is well-founded is...