Villalta-Martinez v. Sessions, 17-1201

• Decision Date: 07 February 2018
• Docket Number: No. 17-1201,17-1201
• Citation: 882 F.3d 20
• Parties: Rosa Maria VILLALTA–MARTINEZ, Petitioner, v. Jefferson B. SESSIONS, III, Respondent.
• Court: U.S. Court of Appeals — First Circuit

882 F.3d 20

Rosa Maria VILLALTA–MARTINEZ, Petitioner,

v.Jefferson B. SESSIONS, III, Respondent.

No. 17-1201

United States Court of Appeals, First Circuit.

February 7, 2018

Kevin MacMurray and MacMurray & Associates, on brief for petitioner.

Jeffrey R. Meyer, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Stephen J. Flynn, Assistant Director, on brief for respondent.

Before Lynch, Stahl, and Barron Circuit Judges.

STAHL, Circuit Judge.

Petitioner Rosa Maria Villalta–Martinez ("Villalta–Martinez") seeks our review of an order of the Board of Immigration Appeals ("BIA") denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture Act ("CAT"). After careful consideration, we deny the petition for review.

I. Facts & Prior Proceedings

We recite here the relevant factual background. On May 8, 2015, Villalta–Martinez, a citizen of El Salvador, illegally entered the United States. On May 9, 2015, she was apprehended by Border Patrol Agents, charged under 8 U.S.C. § 1182(a)(6)(A)(i), and released on her own recognizance. Villalta–Martinez admitted to her removability, and thereafter, filed applications for asylum, withholding of removal, and protection under the CAT, claiming she was persecuted, and faced future persecution, at the hands of Salvadorian gang members, on account of her family membership.¹

Villalta–Martinez was the only witness to testify in support of her applications before the Immigration Judge ("IJ"). She provided the following information: From 2012–2015, while in El Salvador, she was in a relationship with Ever Eliseo Garcia–Linares ("Garcia"). She became pregnant with Garcia's child and, although she moved into an apartment with Garcia, the couple never married.

Garcia owned a chain of stores in El Salvador. The Marasalvatrucha gang demanded money from Garcia on a weekly basis. Due to these extortion demands, Garcia left El Salvador with the intent to move to Canada; however, he was apprehended in the United States for illegal reentry, having previously been deported.²

During her relationship with Garcia, Villalta–Martinez worked in one of his stores. She testified that after Garcia left El Salvador, on at least five separate occasions, gang members came to the store that she worked at, put a gun to her head, and demanded money. As a result, Villalta–Martinez moved to another store to work,³ in hopes of avoiding trouble with the gang, but the same thing happened. She testified that the gang members came to that store and demanded $2,000. A gang member told her that if she did not pay, he would pull the unborn child from her womb, cut her, and rape her.

After receiving this threat, Villalta–Martinez obtained $3,000 from an aunt, who also resided in El Salvador, in order to travel to the United States. Villalta–Martinez testified that "she was afraid to return to El Salvador because gang members would take reprisals because she did not comply with their demands for money."

The IJ credited Villalta–Martinez's testimony as true. Nonetheless, the IJ found that Villalta–Martinez: (1) failed to establish that she suffered persecution in El Salvador; and (2) failed to establish that she was persecuted on account of her family membership with Garcia. The IJ explained that "the evidence was not that [Villalta–Martinez] was targeted because of Mr. Garcia, but that she was targeted by gangs and each and every time because they wanted money. The respondent has not established that one of the reasons she was targeted was because of her relationship with Mr. Garcia."

The BIA affirmed the IJ's denial and reasoning. The BIA explained:

[E]ven if [Villalta–Martinez] is considered to be in a familial relationship with a man with whom she was in a romantic relationship and with whom she had a child, the respondent has not established a nexus between her past and future fear of harm by gang members and her familial relationship to the man. The record reflects that the respondent was the victim of extortion and that she continues to fear future criminal activity.

Because Villalta–Martinez could not meet her burden for asylum, the BIA determined that "she has also not satisfied the higher standard of a clear probability of persecution" as required for the withholding of removal.

II. Discussion

In order to qualify for asylum, an applicant must demonstrate that she has experienced past persecution or has a well-founded fear of future persecution on account of her "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The standard for withholding of removal is even higher; the applicant must show that it is more likely than not that she would be subject to persecution on account of an enumerated ground if she were repatriated. See id. § 1231(b)(3); Mayorga–Vidal v. Holder, 675 F.3d 9, 13 (1st Cir. 2012).

We first consider whether Villalta–Martinez has established a well-founded fear of persecution based on one of the five statutorily recognized categories. 8 U.S.C. § 1101(a)(42)(A). In her petition for review, Villalta–Martinez's argues that the BIA erred in concluding that there was no evidence establishing a nexus between her past persecution and her proposed social group, her family membership. Villalta–Martinez explains that "[a]lthough money was part of the reasons why gangs targeted her, the main reason was her familial relationship."

Whether an applicant has met his or her burden for proving eligibility is a question of fact, reviewed under the substantial evidence standard. See Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) ("[W]hether persecution is on account of one of the five statutorily protected grounds is fact-specific"; therefore, "we review the BIA's answer to that question through the prism of the substantial evidence rule."). "We uphold the BIA's findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole, and will reverse only if any reasonable adjudicator would be compelled to conclude to the contrary." Ratnasingam v. Holder, 556 F.3d 10, 13 (1st Cir. 2009) (internal quotations and citations omitted). "When the BIA adopts and affirms the IJ's ruling but also examines some of the IJ's conclusions, this Court reviews both the BIA's and IJ's opinions." Perlera–Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012).

"[S]howing a linkage to one of the five statutorily protected grounds is ‘critical’ to a successful asylum claim." Hincapie, 494 F.3d at 218 (quoting I.N.S. v. Elias–Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ). In order to sufficiently demonstrate persecution on account of a protected ground, the petitioner "must provide sufficient evidence to forge an actual connection between the harm [suffered] and some statutorily protected ground," beyond a "reasonable possibility of a nexus." Id.

In describing the gang's extortion tactics before the IJ, Villalta–Martinez testified that "[t]here were times that we were able to close the doors on time, but at the end they would be outside waiting for us and they would take us, take all our belongings." On cross-examination, she explained that the gang members would follow her and "the rest of the employee[s]." "They were demanding money from the store and then they demanded directly money from me." When asked if she was targeted for working at the store, she responded "[f]or that reason, and also because I was the partner of the owner of the store."

We agree with the finding of the BIA that there is "insufficient evidence in the record to demonstrate that the gang members were or would be motivated to harm [Villalta–Martinez] for any other reason than to extort money from her," and we cannot find, viewing the record as a whole, that a reasonable adjudicator would be compelled to conclude to the contrary. Villalta–Martinez consistently testified in the plural, explaining that both she and her fellow employees were targeted by gang members. Such testimony likely indicates that gang members were targeting all the employees in the store in order to extort money. The threats, albeit terrifying, do not satisfy the statutory requirements for asylum. See Escobar v. Holder, 698 F.3d 36, 38 (1st Cir. 2012) (internal citations omitted) ("Evidence of widespread violence ... affecting all citizens is not enough to establish persecution on a protected ground."). Further, Villalta–Martinez failed to demonstrate whether any of the gang members who threatened her had any knowledge of her relationship with Garcia. See id. at 38 (finding that petitioner failed to provide a connection between family and protected classification where "nothing indicate[d] that the guerrillas specifically targeted [petitioner's] father").

The dissent suggests that remand is appropriate because "neither the BIA nor the IJ ... addressed (or even mentioned) the significant countervailing evidence in the record that suggests that Villalta–Martinez was targeted—at least in part—due to her familial ties to the father of her child." The dissent argues that the IJ and the BIA failed to consider Villalta–Martinez's testimony that the gangs targeted her "because she was the partner of the owner of the store[.]". Relying on Aldana–Ramos v. Holder, 757 F.3d 9, 18 (1st Cir. 2014), the dissent explains that asylum is proper in mixed-motive cases, "so long as one of the statutorily protected grounds is ‘at least one central reason’ for persecution."

In Aldana–Ramos, the IJ and the BIA erred by stating that the persecution at issue was due to wealth, and therefore could not be attributed to familial relation. Id. The BIA thus failed to consider the possibility of a mixed-motive case. No such error occurred here. The IJ explained that Villalta–Martinez "has not established that one of the reasons she was targeted was because...