Vasquez-Rivera v. Garland

96 F.4th 903

Gloris Sarai VASQUEZ-RIVERA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-3344

United States Court of Appeals, Sixth Circuit

Decided and Filed: March 15, 2024

On Petition for Review from the Board of Immigration Appeals; No. A XXX XX6 492.

ON BRIEF: Paul Grotas, THE GROTAS FIRM, P.C., New York, New York, for Petitioner. Victor M. Lawrence, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GRIFFIN, BUSH, and READLER, Circuit Judges.

OPINION

CHAD A. READLER, Circuit Judge.

The Board of Immigration Appeals dismissed Gloris Sarai Vasquez-Rivera's appeal from the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture. She now seeks review of that order, alleging that she faces a threat of violence and persecution if she returns to El Salvador. We grant in part and deny in part the petition for review.

I.

Vasquez-Rivera, a native and citizen of El Salvador, entered the United States in June 2014, when she was nine years old. Her entry was not authorized by the United States. So the Department of Homeland Security served Vasquez-Rivera with a notice to appear in removal proceedings and charged her as a noncitizen present in the United States without being admitted or paroled after inspection by an immigration officer. See 8 U.S.C. § 1182(a)(6)(A)(i). She was released to her parents, who had been living in Ohio.

Vasquez-Rivera appeared before an immigration judge (IJ). Through counsel, she admitted the allegations set forth in the notice to appear and conceded removability as charged. Vasquez-Rivera applied for asylum and withholding of removal as well as for Convention Against Torture protection.

A hearing was held to consider her application. Both Vasquez-Rivera, then 13 years old, and her mother, Rosa Rivera-Menjivar, appeared as witnesses. According to their testimony, Vasquez-Rivera came to the United States because of her fear of gang violence in El Salvador.

Vasquez-Rivera had been living in El Salvador with her maternal aunt, Raquel, Raquel's husband, Roberto, and Vasquez-Rivera's maternal uncle, Cristian. The bus service to Vasquez-Rivera and Cristian's school was suspended when gang members threatened the bus driver and demanded money from him. And when Vasquez-Rivera and Cristian instead walked to school, gang members harassed Cristian and threatened to harm his family if he did not join the gang. Raquel and Roberto became afraid that something would happen to Vasquez-Rivera and Cristian, fearing that gang members would rape Vasquez-Rivera. These fears were not unfounded—Vasquez-Rivera and Rivera-Menjivar also testified about other gang-related incidents involving their extended family: gang members shot and killed Rivera-Menjivar's uncle in 2006, demanded money from Rivera-Menjivar's aunt and fired shots at her house in 2006, demanded money from Rivera-Menjivar's mother in 2007, and raped Rivera-Menjivar's aunt and cousin in 2008. Ultimately, Vasquez-Rivera and Cristian stopped attending school and left El Salvador for the United States.

After the hearing, the IJ denied Vasquez-Rivera's application and ordered her removal to El Salvador. Starting with Vasquez-Rivera's request for asylum, the IJ described Vasquez-Rivera's proposed social groups as: (1) Salvadoran women and girls whose parents live outside the country; (2) her family; (3) family members of persons targeted for gang recruitment whose family is threatened when they refuse to join the gangs; and (4) young Salvadoran women considered to be property of the gangs. The IJ found that Vasquez-Rivera and her mother were credible witnesses and that Vasquez-Rivera had provided corroboration in support of her claims. But none of Vasquez-Rivera's particular social groups, the IJ found, were cognizable for purposes of federal immigration law.

That left her request for withholding of removal and for protection under the Convention Against Torture (CAT). Because Vasquez-Rivera had failed to establish eligibility for asylum, the IJ held that she also failed to satisfy the burden for withholding of removal. As for Vasquez-Rivera's request for CAT protection, the IJ determined that she had failed to show that she would more likely than not face harm rising to the level of torture in El Salvador or that the Salvadoran government would be willfully blind to any problems that she might have.

Vasquez-Rivera appealed to the BIA. The BIA affirmed the IJ's determination that Vasquez-Rivera failed to establish that three of her four proposed particular social groups were "distinct" in El Salvador, meaning her membership in those groups could not form the basis of her claims for asylum and withholding of removal. As for the remaining particular social group, Vasquez-Rivera's family, the BIA affirmed on different grounds. Assuming that Vasquez-Rivera's family constituted a distinct social group, the BIA agreed with the IJ's purported "determination that [Vasquez-Rivera] did not establish a nexus between this group and the harm she experienced and fears." Finally, the BIA affirmed the IJ's determination that Vasquez-Rivera had failed to demonstrate eligibility for CAT protection. With that, the BIA dismissed Vasquez-Rivera's appeal. This timely petition for review followed.

II.

We review the BIA's decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). To the extent the Board adopted the IJ's reasoning, we necessarily review the IJ's decision as well. Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015). We review legal conclusions de novo. See Zometa-Orellana v. Garland, 19 F.4th 970, 976 (6th Cir. 2021). And we review factual findings for substantial evidence, id., meaning "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B).

Asylum and Withholding of Removal. To be eligible for asylum, Vasquez-Rivera must show that she meets the definition of a "refugee." See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010). That requires her to prove that she is "unable or unwilling" to return to El Salvador because of past persecution or "a well-founded fear of persecution on account of" a protected group, which includes membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i); see Zometa-Orellana, 19 F.4th at 976. To make that showing, Vasquez-Rivera must demonstrate that: (1) her treatment in El Salvador constitutes past persecution or that she has a well-founded fear of future persecution; (2) there was a connection between her persecution and her membership in a particular social group (the "nexus" requirement); and (3) the persecution was committed by the government, or by non-government actors whom the government was unable or unwilling to control. Id.; see Gonzalez Ortiz v. Garland, 6 F.4th 685, 688 (6th Cir. 2021).

Removal has different elements. To qualify for withholding of removal, Vasquez-Rivera must show that, if removed to El Salvador, her "life or freedom would be threatened [there] because of" a protected ground. 8 U.S.C. § 1231(b)(3)(A); see Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir. 2015). The Supreme Court has long recognized that protection from removal requires a more "stringent" showing of persecution than what is required for asylum. See INS v. Cardoza-Fonseca, 480 U.S. 421, 443-44, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); 2 Litigation of International Disputes in U.S. Courts § 10:24. Demonstrating eligibility for asylum requires the noncitizen to show past persecution or a "well-founded fear of persecution." 8 U.S.C. § 1101(a)(42). A "well-founded fear" of persecution can exist even "when there is less than a 50% chance of the occurrence taking place." Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. 1207. For withholding of removal, by contrast, the noncitizen must demonstrate an objective, "clear probability of persecution" in the proposed country of removal. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). We have interpreted "clear probability" to mean that persecution is more likely than not. Sebastian-Sebastian v. Garland, 87 F.4th 838, 851 (6th Cir. 2023). Withholding claims thus fail when applicants cannot show a well-founded fear of persecution under the more forgiving asylum standard. See Andret v. Garland, No. 23-3426, 2024 WL 167115, at *6 (6th Cir. Jan. 16, 2024) (citing Dieng v. Holder, 698 F.3d 866, 871 (6th Cir. 2012)).

Vasquez-Rivera based her claims for asylum and withholding of removal on her membership in four particular social groups. A cognizable social group has three elements: (1) members must share an immutable characteristic; (2) the group must have discrete and definable boundaries; and (3) society must actually perceive the purported group as a distinct class of persons. Cruz-Guzman v. Barr, 920 F.3d 1033, 1036 (6th Cir. 2019). Whether a proposed particular social group is cognizable is a legal determination, where "decisions as to the underlying elements are factual determinations subject to the substantial evidence standard." Turcios-Flores v. Garland, 67 F.4th 347, 354 (6th Cir. 2023) (citation omitted).

We agree with both the BIA and the IJ's conclusion that Vasquez-Rivera failed to identify sufficient evidence in the record establishing that three of these groups (all proposed groups except her family) are perceived as distinct social groups in El Salvador. A cognizable social group "must share a narrowing characteristic other than their risk of being persecuted." Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011). Yet each of Vasquez-Rivera's proposed groups is replete with generalities rather than specifics. Case in point, the record as to country conditions shows merely that women and children in El Salvador generally suffer from...