Nolasco v. Garland

• Decision Date: 02 August 2021
• Docket Number: No. 20-1034,20-1034
• Parties: German Alexander NOLASCO, a/k/a German Chavez, a/k/a Alex Nolasco, a/k/a Goofie, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

7 F.4th 180

German Alexander NOLASCO, a/k/a German Chavez, a/k/a Alex Nolasco, a/k/a Goofie, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1034

United States Court of Appeals, Fourth Circuit.

Argued: May 6, 2021

Decided: August 2, 2021

ARGUED: Jasmin Tohidi, TOHIDI LAW OFFICE PLLC, Falls Church, Virginia, for Petitioner. Stephen Philip Finn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before NIEMEYER, FLOYD, and RUSHING, Circuit Judges.

Petition for review denied by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Floyd joined.

RUSHING, Circuit Judge:

German Alexander Nolasco, a native and citizen of El Salvador, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Nolasco claims that he fears persecution by the gangs and police of El Salvador on account of his status as a former member of the MS-13 gang. For the reasons explained below, we deny the petition.

I.

Nolasco entered the United States without authorization in 1998, when he was five or six years old. After Nolasco was arrested for assault in April 2019, the Department of Homeland Security (DHS) charged him with being "an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General," in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Nolasco admitted the charge and applied for asylum, withholding of removal, and CAT relief. See 8 U.S.C. §§ 1158, 1231(b)(3) ; 8 C.F.R. §§ 1208.16(c), 1208.18.

At a hearing before the immigration judge (IJ), Nolasco testified that he fears returning to El Salvador because of his former membership in the MS-13 gang. Nolasco was a member of MS-13 in Vienna, Virginia, from approximately 2006 to 2010. He left the gang when he completed a juvenile diversion program and moved to a more rural part of Virginia. But Nolasco's body still bears tattoos identifying him as a gang member: three dots on his hand; his gang nickname "Goofie" (spelled "GOOF13" to symbolize MS-13); "gangster love" on his forearms; "laugh now cry later masks"; the numbers "1" and "3" on his left and right upper arm; and the area code "213" on his back (representing Los Angeles, MS-13's founding location). Nolasco fears that gangs and police in El Salvador will perceive him to be a member of MS-13 because of his tattoos, which he cannot fully cover even with long sleeves. Nolasco also contends that "[t]he United States will share [his] criminal history with the government of El Salvador," which will allow authorities to identify and target him as a former gang member. A.R. 187. He submitted news articles and various country reports about the violence perpetrated by and against gang members in El Salvador, as well as the Department of State Human Rights Report for El Salvador (State Department Report). He also testified to his belief, based on accounts from former gang members he met in detention, that Salvadoran police torture and kill suspected gang members.

The IJ denied Nolasco's application and ordered him removed to El Salvador. As relevant to his asylum and withholding claims here, the IJ found that Nolasco's proposed particular social groups—(1) former members of MS-13 and (2) former members of MS-13 who leave for moral reasons—did not satisfy the particularity and social-distinction requirements necessary to state a cognizable particular social group.¹ The IJ also found that Nolasco's evidence did not show he would more likely than not be identified as a gang member and tortured if removed to El Salvador and so denied CAT relief.

Nolasco appealed to the BIA, which affirmed the IJ in a single-member opinion. Regarding asylum and withholding of removal, the BIA agreed with the IJ that the proposed particular social groups lacked particularity because they were overbroad and lacked social distinction because Nolasco had failed to show that former gang members are recognized as a distinct group in Salvadoran society. A.R. 4 (citing Matter of M-E-V-G- , 26 I. & N. Dec. 227 (BIA 2014) ; Matter of W-G-R- , 26 I. & N. Dec. 208 (BIA 2014) ). As for CAT relief, the BIA observed that the IJ considered "the risk of torture from both gang members and the Salvadoran police" in the aggregate and determined that Nolasco "did not establish a clear probability of torture." A.R. 5. The BIA also reasoned from the State Department Report that, although "corruption and violence remain[ ] a problem in El Salvador," the Salvadoran government has implemented "programs to combat ... police corruption ... [and] gang violence." A.R. 5.

II.

We have jurisdiction to review the BIA's final order of removal pursuant to 8 U.S.C. § 1252(a)(1). When the BIA "adopts and affirms the IJ's decision and supplements it with its own opinion, we review both decisions." Cordova v. Holder , 759 F.3d 332, 337 (4th Cir. 2014) ; see also Martinez v. Holder , 740 F.3d 902, 908 n.1 (4th Cir. 2014), as amended (Jan. 27, 2014). But where, as here, the BIA adopts only a portion of the IJ's analysis, "we limit our consideration of the IJ's opinion to the portions that have been adopted and incorporated into the [BIA's] decision." Arita-Deras v. Wilkinson , 990 F.3d 350, 356 (4th Cir. 2021).

The BIA's decision that "an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law." 8 U.S.C. § 1252(b)(4)(C) ; see also id. § 1252(b)(4)(D) ; Tassi v. Holder , 660 F.3d 710, 719 (4th Cir. 2011). We review legal conclusions de novo, "affording appropriate deference to the BIA's interpretation of the [Immigration and Nationality Act] and any attendant regulations." Li Fang Lin v. Mukasey , 517 F.3d 685, 691–692 (4th Cir. 2008). We review factual findings for substantial evidence, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) ; see also INS v. Elias-Zacarias , 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ; Cordova , 759 F.3d at 337. In reviewing for substantial evidence, we ask whether the administrative record, considered as a whole, "contains ‘sufficien[t] evidence’ to support the agency's factual determinations." Biestek v. Berryhill , ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ); see also Tassi , 660 F.3d at 719. Thus, "even if the record plausibly could support two results," reversal is appropriate only where the evidence "not only supports [the petitioner's] conclusion, but compels it." Tang v. Lynch , 840 F.3d 176, 180 (4th Cir. 2016) (original alterations omitted) (quoting Mulyani v. Holder , 771 F.3d 190, 197 (4th Cir. 2014) ). Finally, the agency "abuses its discretion if it fails to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant's claim." Cordova , 759 F.3d at 337 (internal quotation marks omitted).

III.

We first consider Nolasco's challenge to the denial of his application for asylum and withholding of removal. The Immigration and Nationality Act (INA) authorizes the Attorney General and the Secretary of Homeland Security, in their discretion, to grant asylum to any "refugee." 8 U.S.C. § 1158 (b)(1)(A). To qualify as a refugee, an applicant must demonstrate that he "is unable or unwilling to return to, and is unable or unwilling to avail himself ... of the protection of, [his native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id . § 1101(a)(42)(A); see also id. § 1158(b)(1)(B)(i) ("The burden of proof is on the applicant to establish that the applicant is a refugee."). The INA further requires the Attorney General to withhold removal of an applicant who shows that his "life or freedom would be threatened in [the proposed country of removal] because of [his] race, religion, nationality, membership in a particular social group, or political opinion." Id . § 1231(b)(3)(A); see also Lizama v. Holder , 629 F.3d 440, 446 & n.3 (4th Cir. 2011). "Because withholding of removal is mandatory if the alien meets the standard of proof," Gomis v. Holder , 571 F.3d 353, 359 (4th Cir. 2009), the applicant "must show a ‘clear probability of persecution’ on account of a protected ground," as opposed to the lower burden for asylum of showing a well-founded fear of persecution, Djadjou v. Holder , 662 F.3d 265, 272 (4th Cir. 2011) (quoting INS v. Stevic , 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) ). Thus, if an applicant cannot demonstrate asylum eligibility, his application for withholding of removal "will necessarily fail as well." Id.

The BIA concluded that Nolasco was not eligible for asylum because he failed to demonstrate membership in a cognizable "particular social group."² "The [INA] does not define ‘particular social group,’ and there is little legislative history on the matter." Martinez , 740 F.3d at 910 ; see also Fatin v. INS , 12 F.3d 1233, 1238 (3d Cir. 1993). The BIA, however, has defined the requirements of a particular social group, and we "defer to [its] reasonable interpretation of the term." Lizama , 629 F.3d at 446.

Concerned that "the social group concept would virtually swallow the entire refugee definition if common characteristics, coupled with a meaningful level of harm, were all that need be shown," ...