holding that members of a Salvadoran taxi cab cooperative had not “shown that the conduct [they] feared was ‘persecution on account of membership in a particular social group’” because they had the power to change jobs
How later courts described this case
- holding that members of a Salvadoran taxi cab cooperative had not “shown that the conduct [they] feared was ‘persecution on account of membership in a particular social group’” because they had the power to change jobs
- issues not reached by the BIA are not properly before this Court
- retaliation for petitioner’s refusal to pay a war tax to the FARC did not constitute persecution on account of a political opinion
- “[U]nder BIA precedent, the term ‘family business owner’ is too amorphous to adequately describe a social group.”
Written by the judges who cited it.
The opinion
Case: 17-14226 Date Filed: 07/31/2018 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14226
Non-Argument Calendar
________________________
Agency No. A206-734-882
DINA R. GOMEZ DE SANDOVAL,
YARI RAQUEL SANDOVAL-GOMEZ,
ANDREA YAMILETH SANDOVAL-GOMEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 31, 2018)
Before TJOFLAT, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
Case: 17-14226 Date Filed: 07/31/2018 Page: 2 of 12
Dina Raquel Gomez De Sandoval and her children seek review of the Board
of Immigration Appeals’s (“BIA”) final order affirming the Immigration Judge’s
(“IJ”) denial of her 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”). The BIA concluded that Gomez
de Sandoval failed to meet her burden of proof for asylum and withholding of
removal because she failed to establish her membership in a particular social
group, and even if she did not, she failed to establish a nexus between any
persecution she may have faced and any of the enumerated grounds in the
Immigration and Nationality Act (“INA”). The BIA also found that she was not
eligible for CAT relief because she would not be tortured by or with the
acquiescence of Salvadoran government officials. After careful review, we deny
the petition.
I.
Gomez de Sandoval and her daughters, Yari Raquel Sandoval-Gomez and
Andrea Yamileth Sandoval-Gomez, are natives and citizens of El Salvador who
entered the United States in May 2014. Soon after, the government initiated
removal proceedings, charging her as removable for being present in the United
States without being admitted or paroled. Gomez de Sandoval conceded
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removability and then applied for asylum, withholding of removal, and protection
under CAT.
Gomez de Sandoval testified at a hearing before an IJ that she came to the
United States with her daughters to escape extortion demands and threats by the
Mara-18 gang, which operates throughout El Salvador. She had been a restaurant
owner in El Salvador for nearly 20 years. In 2011, in the city of Santa Ana,
members of the Mara-18 gang demanded $150 per month in “rent.” Gomez de
Sandoval refused to pay and instead moved her restaurant to another city, Cara
Sucia. After she opened the restaurant in Cara Sucia, members of the Mara-18
gang on two separate occasions, two weeks apart, demanded $200 per month in
“rent.” The gang members threatened her and her daughters with retaliation—
stating that they “knew where her daughters studied, where they walked”—if she
did not pay. She and her daughters left for the United States soon thereafter. She
testified that she refused to pay extortion money due to her Christian principles.
The IJ issued an oral decision finding her ineligible for relief from removal.
In a sympathetic ruling, the IJ found that Gomez de Sandoval was a “very hard
working” and “very pleasant lady” who came to the United States “to escape this
constant harassment and criminal activity by the gangs.” “Unfortunately,” the IJ
stated, “that is not an asylum case.”
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While the IJ found that Gomez de Sandoval’s experiences did not rise to the
level of “persecution,” the “real problem” with her claim, in the IJ’s view, was that
she had not shown persecution on account of a statutorily protected ground.
Specifically, the IJ found that she was not a member of a “particular social group”
under the INA because her asserted social group—small business owners who
refuse to pay extortion money—did not meet the BIA’s requirements for
“particular social groups.” Moreover, the IJ explained, her evidence was
consistent with acts of private violence or criminal activity, which did not
constitute evidence of persecution based on a protected ground. Because she failed
to meet her burden for asylum, the IJ found that she necessarily could not meet the
higher standard for withholding of removal. Finally, the IJ denied CAT relief,
finding no evidence that she would be tortured upon removal by or with the
consent or acquiescence of the Salvadoran government.
The BIA affirmed the IJ’s decision. The BIA agreed with the IJ that Gomez
de Sandoval was not a member of a “particular social group” under the INA. It
said that her proposed group was not socially distinct, could not be defined with
particularity, and did not possess immutability. The BIA also found unpersuasive
her claim of persecution based on an imputed anti-gang political opinion, stating
that the IJ’s finding that the gang’s motives were criminal in nature was not clearly
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erroneous. Finally, the BIA agreed with the IJ’s denial of her CAT application.
Gomez de Sandoval now brings this petition for review.
II.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s reasoning, we
will review the decisions of both the BIA and the IJ to the extent of the agreement.
Id. Here, because the BIA agreed with the IJ’s reasoning as to the particular social
group’s cognizability, we will review the decisions of both the IJ and the BIA as to
that finding but otherwise review only the BIA’s decision. Id.
We review de novo, as a question of law, whether an asserted group
qualifies as a particular social group under the INA. Malu v. U.S. Att’y Gen., 764
F.3d 1282, 1286, 1290 (11th Cir. 2014). We review administrative findings of fact
under the substantial-evidence test. Antipova v. U.S. Att’y Gen., 392 F.3d 1259,
1261 (11th Cir. 2004). Under the substantial-evidence test, we must affirm the
BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (quotation marks omitted).
A. Asylum and Withholding of Removal
The government has the discretion to grant asylum if the applicant
establishes that she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is
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someone who is unable or unwilling to return to her country of nationality
“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.”
8 U.S.C. § 1101(a)(42)(A). One of these protected grounds must be “at least one
central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i).
Similarly, an applicant for withholding of removal must establish that her
“life or freedom would be threatened in [her] country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is more likely than not
that she will be persecuted on account of a protected ground if returned to her
home country. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013).
Gomez de Sandoval rests her applications for asylum and withholding of
removal on two protected grounds: (1) membership in a particular social group;
(2) imputed political opinion. Neither is availing.
A “particular social group” is not defined in the INA, but we have deferred
to the BIA’s formulation of criteria for determining whether a particular group
qualifies. Castillo-Arias v. U.S Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006).
In the BIA’s formulation, a “particular social group” has three defining
characteristics: (1) immutability; (2) social distinction; and (3) and particularity.
See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404 (11th Cir. 2016).
6
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With regard to “immutability,” the group’s members must share a common
characteristic—other than risk of persecution—that is either immutable or
fundamental to their individual conscience or identity. Castillo-Arias, 446 F.3d at
1193–94, 1196–97. The risk of persecution alone does not create a particular
social group within the meaning of the INA. Rodriguez, 735 F.3d at 1310. For a
group to have “social distinction,” according to the BIA, it must be socially distinct
within the society in question—that is, it must be perceived as a group by society
in general, not by the persecutors in particular. Matter of W-G-R-, 26 I. & N. Dec.
208, 215–18 (BIA 2014); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA
2014). Finally, regarding the “particularity” requirement, a proposed group must
“be discrete and have definable boundaries—it must not be amorphous, overbroad,
diffuse, or subjective.” Gonzalez, 820 F.3d at 404 (quoting Matter of W-G-R-, 26
I. & N. Dec. at 214).
In evaluating persecution based on political opinion, the relevant question is
whether the persecutor is acting because of the victim’s actual or imputed political
opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437–38 (11th Cir. 2004).
Evidence that is consistent with acts of private violence, or that merely shows that
a person has been the victim of criminal activity, does not constitute evidence of
persecution on account of a statutorily protected ground. Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006).
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Here, the BIA and IJ correctly determined that Gomez de Sandoval is not a
member of a “particular social group” entitled to protection under the INA. Her
proposed social group—variably defined as “small business owners,” “small
business owners who [were] targets of economic extortion,” or “entrepreneurial
individuals who own small business[es], share common socio/political economic
goals, refuse to pay extortion money and are targets of economic
terrorism/persecution by [the Mara-18 gang]”—lacks the requisite immutability,
social distinction, and particularity.
On its own, owning a small business is not the type of shared characteristic
that the BIA considers to be immutable or fundamental to identity or conscience.
As the BIA stated in Matter of Acosta, “the internationally accepted concept of
refugee simply does not guarantee an individual the right to work in the job of his
choice.” 19 I. & N. Dec. 211, 234 (BIA 1985) (holding that members of a
Salvadoran taxi cab cooperative had not “shown that the conduct [they] feared was
‘persecution on account of membership in a particular social group’” because they
had the power to change jobs). Because Gomez de Sandoval’s proposed group is
not based on some shared past experience but rather her current choice of
profession, the proposed group lacks immutability. See Melnik v. Sessions, ___
F.3d ___, ___, 2018 WL 2377798, *5 (7th Cir. May 25, 2018) (proposed group of
“business owners targeted for extortion and not protected by the government”
8
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lacked a shared, immutable characteristic); Ochoa v. Gonzales, 406 F.3d 1166,
1171 (9th Cir. 2005) (proposed group of “business owners in Colombia who
rejected demands by narco-traffickers” lacked an “innate characteristic to bond its
members”).
Other than the characteristic of being “small business owners,” the only
common characteristic of members of the proposed class is that they are targeted
for economic extortion by the Mara-18 gang. But “the risk of persecution alone
does not create a particular social group.” Rodriguez, 735 F.3d at 1310 (quotation
marks omitted). Put differently, the fact that small business owners may be
convenient targets for extortion is not alone sufficient to show that small business
owners are a “particular social group” within the meaning of the statute. See
Melnik, ___ F.3d at ___, 2018 WL 2377798, *5.
Additionally, Gomez de Sandoval’s proposed group is too “amorphous,
overbroad, diffuse, or subjective” to meet the particularity requirement. 1 See
Gonzalez, 820 F.3d at 404; see Davila-Mejia v. Mukasey, 531 F.3d 624, 629 (8th
Cir. 2008) (“[U]nder BIA precedent, the term ‘family business owner’ is too
amorphous to adequately describe a social group.”); Ochoa, 406 F.3d at 1171
(holding that Colombian business owners who rejected demands from narcotics
1
In this regard, Gomez de Sandoval’s attempt to add the shared characteristic of
“common socio/political economic goals” to her proposed group may narrow the group’s
membership somewhat but does little to correct the fatal indeterminacy of its boundaries.
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traffickers are “too broad to qualify as a particularized social group” because
“[t]here is no unifying relationship or characteristic to narrow this diverse and
disconnected group”). Gomez de Sandoval also presented no evidence that
Salvadoran society perceives small business owners as a socially distinct group.
See Matter of M-E-V-G-, 26 I. & N. Dec. at 240, 242.
In any case, even if Gomez de Sandoval was a member of a cognizable
social group, the record does not compel a finding of a nexus between any
persecution and either her group membership or an imputed anti-gang or anti-
violence political opinion. Her refusal to pay extortion money alone is not enough
to establish persecution on account of a protected ground. See Sanchez, 392 F.3d
at 438 (“It is not enough to show that she was or will be persecuted or tortured due
to her refusal to cooperate with the guerillas.”); Rivera v. U.S. Att’y Gen., 487 F.3d
815, 822 (11th Cir. 2007) (retaliation for petitioner’s refusal to pay a war tax to the
FARC did not constitute persecution on account of a political opinion). Although
she testified that she refused to pay based on her Christian principles, there is no
evidence that she communicated this reason, or any reason, to the gang members.
Moreover, Gomez de Sandoval’s own documentary evidence indicates that,
unfortunately, almost everyone in El Salvador who has money, not just small
business owners, is subject to extortion by the Mara-18 gang. In sum, substantial
evidence supports the BIA’s finding that the evidence was merely consistent with
10
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the fact that Gomez de Sandoval had been the victim of criminal activity, which is
not evidence of persecution based on a statutorily protected ground. See Ruiz, 440
F.3d at 1258.
For these reasons, the BIA and IJ did not err in finding that Gomez de
Sandoval was not eligible for asylum or withholding of removal because she failed
to establish that any persecution was on account of her membership in a cognizable
social group or an imputed political opinion. 2
B. CAT Relief
An applicant for CAT relief must prove that it is more likely than not that
she would be tortured by, or with the consent or acquiescence of, a public official
or person acting in an official capacity upon return to her country. Najjar v.
Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001). Substantial evidence supports the
BIA and IJ’s finding that Gomez de Sandoval was ineligible for CAT protection.
Despite the threats she received, Gomez de Sandoval and her daughters were never
physically harmed, and the record contains evidence that the Salvadoran
government is attempting to fight the gangs. Therefore, the record does not
compel a finding that Gomez de Sandoval or her daughters will “more likely than
2
We need not and do not consider whether Gomez de Sandoval established past or future
persecution, which the BIA did not address in any event. See Seck v. U.S. Att’y Gen., 663 F.3d
1356, 1369 (11th Cir. 2011) (issues not reached by the BIA are not properly before this Court).
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not” be tortured with the consent or acquiescence of the government if they were to
return to El Salvador. See Antipova, 392 F.3d at 1261.
Accordingly, we deny the petition for review.
PETITION DENIED.
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