Cabrera v. Garland

100 F.4th 312

Ana Luisa Donis-Hernandez de CABRERA, Gustavo Adolfo Cabrera-Blanco,Gustavo Emiliano Cabrera-Donis,Jennifer Melissa Cabrera-Donis, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1266

United States Court of Appeals, First Circuit

May 2, 2024

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

Robert F. Weber, with whom Randy Olen was on brief, for petitioners.

Carlton Frederick Sheffield, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Erica B. Miles, Assistant Director, Office of Immigration Litigation, and Duncan T. Fulton, Trial Attorney, Office of Immigration Litigation, were on brief, for respondent.

Before Gelpí, Selya, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

After being subjected to an extortion attempt and death threat to her family, Ana Luisa Donis-Hernandez de Cabrera ("Cabrera") fled her home country of Guatemala with her family -- her husband Gustavo Adolfo Cabrera-Blanco ("Cabrera-Blanco") and their two children, Jennifer Melissa Cabrera-Donis ("Jennifer") and Gustavo Emiliano Cabrera-Donis ("Gustavo") -- in tow. They fled to the United States, where Cabrera applied for asylum (for herself and for her husband and children as derivatives), withholding of removal, and protection under the Convention Against Torture ("CAT").¹ Finding these applications lacking in certain crucial respects, an Immigration Judge ("IJ") denied them across the board -- a decision which the Board of Immigration Appeals ("BIA") affirmed on appeal. Positive that the BIA and IJ (collectively, "the agency") made some mistakes along the way, Cabrera and her family filed a petition for review with this court, with Cabrera as Lead Petitioner and Cabrera-Blanco, Jennifer, and Gustavo as Derivative Petitioners (collectively, "Petitioners"). Although they ask us to step in and correct what the agency allegedly got wrong, we ultimately find no reversible error and therefore deny the petition. But before getting into our reasons for doing so, here's the 411 as to how Petitioners came to be in the United States and how their case got to us.

THE 411

In recounting Petitioners' story, we lift the facts from the administrative record, including Cabrera's and Cabrera-Blanco's testimony, which the IJ deemed credible.² Martínez-Pérez v. Sessions, 897 F.3d 33, 37 n.1 (1st Cir. 2018).

How Petitioners Came to Be in the United States

After they married in 2009, Cabrera and Cabrera-Blanco began living together at his family home in San Gaspar, Zone 16, Guatemala City. Over the next few years, the couple had two children, Jennifer and Gustavo,³ and the four of them continued living in Cabrera-Blanco's family home in San Gaspar.

In the spring of 2017, "hoping to have a better economic[ ] situation for [her] family," Cabrera decided to open a second-hand clothing store, selling used clothing from the United States. She ran the business from inside the family home but did not publicly display or advertise the store and its merchandise on the street. Rather, Cabrera created a Facebook page and advertised her business there and through word of mouth. Advertising her business in this way, however, wasn't by choice. To the contrary, because gangs, like the Mara 18 gang, frequently extorted business owners in San Gaspar, Cabrera decided to run and advertise her business on the down-low out of fear of being extorted.

Her efforts, it turns out, were in vain. On Saturday, September 16, 2017, while Cabrera-Blanco was at work and Cabrera was at home with the children, an individual threw a cell phone into the home through a window. The cell phone soon began to ring and Cabrera, thinking one of her customers had left it behind, answered it. On the other end of the line, a man identified himself as a member of the Mara 18 gang and demanded that she pay the gang 10,000 Quetzales in a week's time "because [she] was running a business." If she did not cough up the money, he warned, the gang would kill Cabrera-Blanco, Jennifer, and Gustavo. To show that they were serious and could kill them if they wanted to, the Mara 18 gang member explained that he knew where Cabrera-Blanco worked and where Jennifer went to school. Understandably scared out of her mind, she said, "Okay," and hung up.

Still in shock and in fear, Cabrera immediately called Cabrera-Blanco at work, but she couldn't get through to him and left him a message. When Cabrera-Blanco finally returned her call, Cabrera explained what happened and he came home right away. At home, they discussed what to do next. They decided not to go to the police out of fear that the Mara 18 gang would find out and kill them. Left with no other choice because "[w]ith those gangs you don't play," they decided to leave Guatemala altogether and go to the United States where Cabrera-Blanco's father lived. Cabrera-Blanco quit his job at a call center, Jennifer was taken out of school (despite having only a month left in her first year in primary school), and the family left their home, cars, and belongings in the care of other family members. Petitioners left Guatemala on the following Tuesday, September 19, 2017. They made it to the United States on or around September 29, 2017.

Upon arrival, Cabrera voiced her fear of returning to Guatemala due to the death threats from the Mara 18 gang, so the Department of Homeland Security ("DHS") referred her to an asylum officer for a credible fear interview ("CFI"). Deeming her fear credible, the asylum officer referred Petitioners to the immigration court for removal proceedings, during which they could seek asylum and related relief.

How Petitioners' Case Got to Us

Less than two years later on August 21, 2019, Petitioners appeared before the IJ to make their case for immigration relief. Cabrera applied for asylum, withholding of removal, and CAT protection. And, as we explained above, she listed Cabrera-Blanco, Jennifer, and Gustavo as derivatives of her asylum application, but they did not otherwise submit their own applications.

Before the IJ, Cabrera claimed she was persecuted in the past and had a well-founded fear of future persecution in Guatemala on account of two protected grounds: her membership in the particular social group ("PSG") of "small business proprietors who have been subjected to extortion demands upon threat of death to family including children by gangs in Colonia Gaspar, Zone 16, Guatemala City, Guatemala" and her anti-gang political opinion (more on what this all means and why it matters in a bit). At the hearing, Cabrera and Cabrera-Blanco were the only witnesses to provide testimony and they testified in line with everything we relayed above. Cabrera-Blanco also testified that after they left Guatemala, a man named Israel Robledo ("Robledo"), who owned a nearby taco shop, rented their home. The Mara 18 gang extorted Robledo too and eventually killed one of his employees, Ludwin Estuardo Valenzuela Reyes ("Valenzuela").

To support their claims and testimony, Petitioners offered (among other things) the following evidence: Cabrera's asylum application; Cabrera's CFI documents; sworn statements from Cabrera and Cabrera-Blanco, detailing what happened to them; a sworn statement from Valenzuela's mother, corroborating his death; a sworn statement from another mother whose son, Gustavo Adolfo Istupe Ruano ("Istupe"), was killed as a result of an extortion; a sworn statement from a man who witnessed the cell phone being thrown into Cabrera's home; death certificates for Valenzuela and Istupe; employment verification for Cabrera-Blanco's job at the call center; a letter from Cabrera-Blanco's supervisor, corroborating that Cabrera-Blanco informed him he had to leave Guatemala immediately; pictures of violent incidents in San Gaspar; a copy of the Facebook page for Cabrera's business; and four country conditions reports.

Notwithstanding Cabrera and Cabrera-Blanco's testimony (and remember, the IJ deemed their testimony credible) and their supporting evidence, the IJ issued an oral decision that same day, denying asylum, withholding of removal, and CAT protection and ordering removal to Guatemala. Kicking things off with asylum, the IJ concluded that Cabrera's proposed PSG of "small business proprietors who have been subjected to extortion demands upon threat of death to family including children by gangs in Colonia Gaspar, Zone 16, Guatemala City, Guatemala" was not a legally valid PSG for three reasons. First, she reasoned that it was not an immutable characteristic, because "[o]ne could own a business and then close it down." Second, the IJ explained that the PSG was not socially distinct because there was no evidence in the record that Guatemalan society viewed the PSG as a distinct group. Third, she noted that the PSG was circular in the sense that it was partly defined by the harm feared -- namely, being "subjected to extortion demands upon threat of death."

The IJ's asylum analysis did not end there. She further explained that Cabrera's anti-gang political opinion could not be a basis for asylum because "[o]pposition to gangs is not a political opinion." Therefore, according to the IJ, Cabrera could not establish past persecution or a well-founded fear of future persecution on account of a protected ground -- whether that protected ground be membership in a PSG or political opinion. To round out her asylum analysis, the IJ indicated that there was no connection (or "nexus," as we refer to it in the immigration-law world) between the harm Cabrera feared and a protected ground. In her view, the evidence simply reflected "widespread violence affecting all [Guatemalan] citizens."

The IJ then turned her attention to withholding of removal and CAT protection. With no protected ground -- membership in a PSG, political opinion, or otherwise -- to anchor Cabrera's withholding claim, the IJ denied this form of relief too. Also on this score, the IJ reasoned that Cabrera...