Montoya-Lopez v. Garland

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
PartiesEVELIN RAQUEL MONTOYA-LOPEZ, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.
Decision Date21 August 2023
Docket Number23-1036



MERRICK B. GARLAND, United States Attorney General, Respondent.

No. 23-1036

United States Court of Appeals, First Circuit

August 21, 2023


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.

Before Barron, Chief Judge, Lynch and Gelpi, Circuit Judges.


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


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.



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


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 years[3] 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


$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


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


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.


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, Cuscatlan, 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


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.


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...

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