Marroquin-Benitez v. Garland

VERONICA DEL CARMEN MARROQUIN-BENITEZ; JULIO ERNESTO SANTAMARIA- MARROQUIN; JOHN DOE, Petitioners, v. MERRICK B. GARLAND, United States Attorney General, Respondent.

No. 22-9519

United States Court of Appeals, Tenth Circuit

February 21, 2023

(Petition for Review)

Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Timothy M. Tymkovich Circuit Judge

Veronica Del Carmen Marroquin-Benitez ("Marroquin-Benitez") and her sons, Julio Ernesto Santamaria-Marroquin ("Julio") and John Doe ("A.N.M."),^[1] seek review of a Board of Immigration Appeals' (BIA) decision dismissing their appeal from an Immigration Judge's (IJ) removal order. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.

Background

Marroquin-Benitez and her sons are natives and citizens of El Salvador. They allege that El Salvadoran gang members threatened Julio stating that the gang would kill him and his family if he did not join the gang. "[A]fter they threatened [him], a car came by and [the gang members] thought it was a police patrol car and so they took off running." Id. at 132.

Julio, who was fifteen at the time, recounted the incident to his mother. Marroquin-Benitez was frightened and remained inside the house with her sons for a week or more. Several years earlier, gangs had murdered a teenage nephew for refusing to join a gang and another nephew for cooperating with police after joining the gang, and she "didn't want the same thing to happen to [her] children or to [herself]." Id. at 107. So, Marroquin-Benitez and her sons fled El Salvador.

On November 30, 2015, they entered the United States without inspection. The Department of Homeland Security took them into custody and charged them as noncitizens present in this country without admission or parole. They conceded removability and sought asylum, withholding of removal, and protection under the Convention against Torture (CAT).^[2]

Represented by counsel, they appeared before an IJ for an asylum hearing. Marroquin-Benitez testified that she "personally hadn't had any problems with the gang before this," id., and that the gang's threat included her and A.N.M. to make it "very painful for" Julio if he did not join, id. at 123. She said that she did not report the incident to the police because she feared gang retaliation. Finally, she testified that her siblings and parents remain in El Salvador and have not been harmed since she fled.

Julio testified that the only reason the gang threatened his family was to "force [him] to join." Id. at 134. He feared the gang would threaten or harm him upon returning to El Salvador "[b]ecause [he] didn't obey them when they asked [him] to join," and "[t]hey wanted . . . [him] to be with them supporting them in all that they were doing." Id. at 137. But he did not want to join the gang because he did not want to "go around with them killing people or stealing," and he feared the "opposing gang" would "come after [him]." Id. at 133. Finally, Julio explained that he did not contact the police because he feared the gang would kill him.

The IJ denied relief and ordered Marroquin-Benitez and her sons removed to El Salvador. They appealed to the BIA, asserting, among other things, that they had shown persecution or a well-founded fear of future persecution due to (1) their membership in social groups comprising "Julio's Immediate Family Members" and "Salvadoran Males Resisting and Fleeing Gang Recruitment," and (2) "Julio's political opinion." Id. at 62-63. As for their CAT claims, they argued that "[c]ountry conditions and the family's personal experience make it clear that the government would acquiesce to their torture and that the gang will certainly torture and murder them if they are forced to return to El Salvador." Id. at 32.

The BIA dismissed their appeal, concluding, in regard to asylum, that Marroquin-Benitez and her sons "did not establish that they suffered past persecution or have a well-founded fear of persecution in El Salvador on account of a protected ground." Id. at 4 (emphasis added). The BIA explained that when threats of gang violence are centrally motivated by resistance to gang recruitment, there is an insufficient nexus between persecution and a protected ground. See Orellana-Recinos v. Garland, 993 F.3d 851, 855-56 (10th Cir. 2021) (observing that persecution qualifies as "on account of" if the asylum "applicant . . . possess[ed] a protected characteristic and that protected characteristic . . . motivated the persecutor to harm the applicant" (internal quotation marks omitted)). Next, the BIA noted that because Marroquin-Benitez and her sons failed to meet the requirements for asylum, they necessarily could not meet the higher standard for withholding of removal. Finally, the BIA stated that their CAT claims failed because they did not show they "are personally at risk of torture." R., Vol. I at 4. The BIA acknowledged that there are "widespread issues of gang violence and corruption in El Salvador" and that two "extended family members were killed by gang members in 2010 and 2011," but that evidence alone did not indicate they will likely be tortured if removed to El Salvador. Id.

Discussion

I. Standards of Review

"Because a single member of the BIA affirmed the IJ's decision in a brief order, we review the BIA's opinion rather than the decision of the IJ." Neri-Garcia v. Holder, 696 F.3d 1003, 1008 (10th Cir. 2012) (citation omitted). But "resort to the IJ's decision is appropriate in situations where the BIA incorporates the IJ's rationale or a summary of its reasoning." Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006).

"When reviewing BIA decisions, an appellate court must look to the record for substantial evidence supporting the agency's decision: Our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole." Sarr v. Gonzales, 474 F.3d 783, 788 (10th Cir. 2007) (brackets and internal quotation marks omitted).

II. Asylum

"To qualify for asylum, a noncitizen must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Addo v. Barr, 982 F.3d 1263, 1269 (10th Cir. 2020) (internal quotation marks omitted). A protected ground must "be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i). This court "interpret[s] 'one central reason' to mean [that] the protected ground cannot play a minor role in the alien's past mistreatment or fears of future mistreatment and cannot be incidental, tangential, superficial, or subordinate to another reason for harm." Rodas-Orellana v. Holder, 780 F.3d 982, 996 (10th Cir. 2015) (internal quotation marks omitted). The persecutor's "motive [is] critical to" the asylum analysis. Id. (internal quotation marks omitted).

"In this circuit, the ultimate determination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution." Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (internal quotation marks omitted). Thus, we may not reverse unless "any reasonable adjudicator would be compelled to conclude to the contrary" as to persecution. 8 U.S.C. § 1252(b)(4)(B).

A. Membership in a Particular Social Group^[3] 1. Julio's Immediate Family Members

Petitioners contend that the evidence in this case "make[s] it clear that the gang persecuted [Marroquin-Benitez and A.N.M.] because they are Julio's immediate family." Opening Br. at 18. They suggest that the gang's threat to harm Marroquin-Benitez and A.N.M stemmed from animus against the family unit, separate from the gang's criminal objectives.

But they ignore the testimonial evidence in this case. Both Julio and Marroquin-Benitez testified that the gang threatened her and A.N.M. in order to pressure Julio to join the gang. Their membership in the social group of Julio's immediate family members "is relevant only as a means to an end-that is, [their] membership enables the persecutors to effectuate their objectives," Orellana-Recinos, 993 F.3d at 856, which, as the agency noted, are "to expand their criminal enterprise," R., Vol. I at 64.

Nevertheless, Petitioners argue that the gang had mixed motives-"one motivation . . . to maintain control of the Salvadoran population" and one motivation "specifically target[ing] . . . Julio's immediate family." Opening Br. at 12 (emphasis omitted). Although "a persecutor can have multiple motives for targeting someone," Orellana-Recinos, 993 F.3d at 855, there is no evidence in this case that the threat against Marroquin-Benitez and A.N.M. was uttered for any reason other than as a recruitment tool, let alone evidence to suggest that one central reason for the threat might have been a protected ground, see id. (stating that "even when the protected ground is intertwined with unprotected reasons, the protected ground must still be a central reason" (internal quotation marks omitted)).^[4] social group is not cognizable. See Rodas-Orellana, 780 F.3d at 991, 992 (holding that the group of "El Salvadoran males threatened and actively recruited by gangs, who resist joining because they oppose the gangs" is not a cognizable social group because its members "are . . . not in a substantially different situation from anyone who has crossed the gang[] or who is perceived to be a threat to the gang's interests" (internal quotation marks omitted)).

Because the record does not compel the conclusion that Marroquin-Benitez's and A.N.M.'s membership in "Julio's...