Maria Emma Salmeron-Hernandez v. U.S. Attorney General

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14064

Non-Argument Calendar

____________________

MARIA EMMA SALMERON-HERNANDEZ,

CARLOS DAVID SALMERON-HERNANDEZ,

ELVIN AARON SALMERON-HERNANDEZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A209-082-694

____________________

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2 Opinion of the Court 21-14064

Before ROSENBAUM, BRASHER, and HULL, Circuit Judges.

PER CURIAM:

Maria Salmeron-Hernandez and her two children, 1 through

counsel, seek review of the Board of Immigration Appeals’s (“BIA”)

final order affirming the Immigration Judge’s (“IJ”) denial of their

application for asylum. On appeal, Salmeron-Hernandez argues

that the BIA erred by finding: (1) death threats made against her by

an international criminal gang, Mara Salvatrucha-13 (“MS-13”), did

not amount to persecution; and (2) no nexus existed between the

death threats against her and a protected ground. After review, we

deny the petition for review.

I. BACKGROUND

A. Removability

In 2016, Salmeron-Hernandez, a native and citizen of El

Salvador, entered the United States without valid entry documents

and without inspection. She was accompanied by her two minor

children, Carlos and Elvin, who are also natives and citizens of El

Salvador.

1Although the agency assigned separate application numbers to Salmeron-

Hernandez’s two children, Carlos and Elvin, and they are listed as separate

petitioners now before us, she listed them as derivative applicants on her

application.

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The Department of Homeland Security (“DHS”) charged

Salmeron-Hernandez and her children with removability under,

inter alia, INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) for being

a noncitizen present in the United States without being admitted

or paroled. Salmeron-Hernandez conceded removability under

that provision.

In April 2017, Salmeron-Hernandez applied for asylum,

withholding of removal, and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (“CAT”).2 Salmeron-

Hernandez claimed that she suffered past persecution and feared

future persecution on account of two protected grounds: (1) her

membership in two particular social groups, namely her familial

relationship with her son and her status as a single woman

perceived not to have protection; and (2) her anti-gang political

opinion.

B. Persecution Evidence

According to Salmeron-Hernandez’s application and her

testimony at her removal hearing, her son was approached by a

classmate multiple times in April 2016 about joining MS-13,

offering him a gun and $200. On April 15, 2016, the classmate told

2 Salmeron-Hernandez’s petition in this Court does not challenge the denial

of withholding of removal or CAT relief, so she has abandoned those issues.

See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

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Salmeron-Hernandez’s son that MS-13 would kill his mother if he

did not join the gang.

Three days later, a friend told Salmeron-Hernandez that MS-

13 posted a photograph of her on Facebook, claiming that the gang

would kill her if she did not join. Shortly thereafter, Salmeron-

Hernandez received a message from MS-13 stating that the gang

would kill her if she did not join.

At her removal hearing, Salmeron-Hernandez explained

that MS-13 targeted her because she was a single mother who could

not defend herself. She testified that her son was asked by his

classmate on April 18, 2016, to confirm that she was single.

Further, Salmeron-Hernandez explained that she did not

report the threats to the police because the police were “aligned”

with the gang. As such, she believed she would be killed if she

returned to El Salvador. However, Salmeron-Hernandez did admit

that she had not experienced any physical harm in El Salvador, and

that her parents and brother—with whom she and her children

lived when in El Salvador—still lived in El Salvador and had not

been threatened, harmed, or visited by the gang members.

In support of her application, Salmeron-Hernandez attached

affidavits from her father, her sister, and a friend. The affidavits

confirmed that Salmeron-Hernandez and her son had been

threatened by MS-13. Salmeron-Hernandez’s friend added that

people who did not collaborate with the gangs died.

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Salmeron-Hernandez also included various reports and

articles describing the gang violence against women in El Salvador.

The 2016 United States Department of State Country Report on

Human Rights Practices in El Salvador stated that there was

“widespread corruption,” “weak rule of law,” and gang violence

against women and girls in El Salvador. Similarly, a 2016

Immigration and Refugee Board of Canada report on El Salvador

stated that women were considered “property” of gang members,

and they could not say “no” to a gang member without being

killed.

C. IJ and BIA Decisions

The IJ issued an oral decision denying relief and ordering

that Salmeron-Hernandez be removed to El Salvador. The IJ found

Salmeron-Hernandez credible but determined that she was

statutorily ineligible for asylum because: (1) she was never

physically harmed and thus did not show that she was the victim

of past persecution; and (2) there was no nexus between the gang’s

death threats and her membership in a protected group.

The IJ found that gang members targeted Salmeron-

Hernandez and her son because they wanted them to join MS-13,

not because of their familial relationship. There was also not

enough evidence to find that Salmeron-Hernandez was targeted

because she was a single mother perceived not to have protection.

Indeed, the IJ pointed out that Salmeron-Hernandez actually lived

with her father and brother. Next, the IJ determined that MS-13’s

threats were not on account of a perceived political opinion

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because Salmeron-Hernandez’s mere refusal to join the gang was

not a valid political opinion. As to future persecution, the IJ found

that Salmeron-Hernandez: (1) did not establish that local

authorities were unwilling or unable to protect her because she did

not report any of the incidents to the police; and (2) did not

establish why she could not relocate within El Salvador based

solely on a picture published online three years ago.

The BIA dismissed Salmeron-Hernandez’s appeal, finding:

(1) no clear error in the IJ’s factual findings; (2) the IJ correctly

concluded that the threats to Salmeron-Hernandez did not amount

to persecution; and (3) the IJ did not clearly err in finding no nexus

between the harm and a protected ground. The BIA did not reach

Salmeron-Hernandez’s arguments as to the Salvadoran

government’s ability to control the gangs or relocation because it

found the nexus issue dispositive.

II. DISCUSSION

A. Past Persecution

Before this Court, Salmeron-Hernandez argues that the BIA

erred by finding that MS-13’s death threats did not amount to

persecution.3

3 Where, as here, the BIA issued its own decision agreeing with the IJ’s

decision and adopting aspects of the IJ’s reasoning, we review both the IJ’s and

the BIA’s decisions. See Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.

2010). We review factual determinations regarding eligibility for asylum

under the “highly deferential” substantial evidence test, which requires that

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To establish eligibility for asylum, the applicant must show

either past persecution or a well-founded fear of future persecution

based on race, religion, nationality, membership in a particular

social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C.

§ 1101(a)(42)(A); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th

Cir. 2006).

This Court has recognized that “[p]ersecution is an ‘extreme

concept’ requiring evidence of ‘more than a few isolated incidents

of verbal harassment or intimidation.’” Martinez v. U.S. Att’y

Gen., 992 F.3d 1283, 1291 (11th Cir. 2021) (quoting Sepulveda v.

U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)). When

reviewing evidence of persecution, “we must consider the

cumulative effect of the allegedly persecutory incidents.” Id.

(quotation marks omitted).

This Court has held that death threats alone do not

necessarily compel a finding of persecution. See Sepulveda, 401

F.3d at 1229, 1231 (concluding there was no persecution where the

applicant received menacing death threats from a guerilla group

both at home and at work). This Court has also held that an asylum

applicant did not show persecution where there were death threats

accompanied by brief detentions and minor physical attacks. See

Martinez, 992 F.3d at 1291–93 (holding that an applicant’s

we affirm the IJ’s and BIA’s decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Id.

(quotation marks omitted). We review de novo any legal determinations. Id.

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treatment did not compel a finding of past persecution when he

was detained multiple times, beaten by two plain-clothes officers

that left him unconscious, and had death and torture threats made

against him).

Here, while MS-13 made multiple death threats against

Salmeron-Hernandez—including posting her photograph on

Facebook and sending her a note—she was never detained or

physically harmed. Nor was there any evidence that MS-13

attempted to carry out its threats. Under our precedent, substantial

evidence supports the finding that her past treatment did not rise

to the level of persecution, and we cannot say that the evidence

compels a finding to the contrary.4

B. Nexus

A noncitizen seeking asylum must prove that she suffered

persecution or has a well-founded fear of persecution on account

of a protected ground. See Perez-Zenteno v. U.S. Att’y Gen., 913

F.3d 1301, 1307 (11th Cir. 2019). To satisfy the nexus requirement,

an applicant must establish that the protected ground was or will

be “at least one central reason” for her persecution. Id. (quoting

INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i)). The protected

ground “cannot be incidental, tangential, superficial, or

subordinate to another reason for harm.” Sanchez-Castro v. U.S.

4 Although Salmeron-Hernandez cites a Ninth Circuit decision to support her

argument that death threats alone amount to persecution, we must follow our

own circuit precedent.

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Att’y Gen., 998 F.3d 1281, 1286 (11th Cir. 2021) (quotation marks

omitted).

Salmeron-Hernandez relied on two protected grounds—her

membership in particular social groups and her anti-gang political

opinion. She claimed she was a member of two social groups

because of her familial relationship with her son and her status as a

single woman perceived not to have protection.5 The IJ and the

BIA did not address whether either of the proposed groups

qualified as a particular social group. Therefore, we assume for the

purposes of this petition that both groups qualify as particular

social groups without resolving the issue.

As to her first social group, her familial relationship with her

son, Sanchez-Castro is instructive. In that case, Sanchez-Castro

applied for asylum, arguing that MS-13 targeted her family in El

Salvador because her father lived in the United States, and the gang

assumed her family had money. Sanchez-Castro, 998 F.3d at 1283–

84. Sanchez-Castro was subjected to death threats, attempted

kidnapping, sexual harassment, and theft. Id. at 1284. This Court

concluded that substantial evidence supported the finding that

Sanchez-Castro failed to establish a nexus between the relationship

with her family and her persecution because her family was not “a

central reason for any persecution she suffered.” Id. at 1285–88.

5 Salmeron-Hernandez also argued to the IJ that MS-13 targeted her because

her son was a student, but she has abandoned that particular social group claim

by not raising it on appeal. See Sepulveda, 401 F.3d at 1228 n.2.

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“Where a gang targets a family only as a means to another end, the

gang is not acting because of who the family is; the identity of the

family is only incidentally relevant.” Id. at 1287. Thus, this Court

held that Sanchez-Castro was targeted by MS-13 because of a

“generic pecuniary motive” and “general criminal activity.” Id. at

1287–88.

On the other hand, in Perez-Sanchez, on which Salmeron-

Hernandez relies, the applicant, Perez-Sanchez, was threatened,

beaten, and extorted because his father-in-law owed money to the

Gulf Cartel in Mexico. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d

1148, 1150–51 (11th Cir. 2019). Because it was “impossible to

disentangle [Perez-Sanchez’s] relationship to his father-in-law from

the Gulf Cartel’s pecuniary motives,” and he was extorted “because

of his father-in-law’s past history with the cartel,” this Court

concluded that Perez-Sanchez’s familial relationship was a “central

reason” for the harm, thus satisfying the nexus requirement. Id. at

1158–59.

Here, Salmeron-Hernandez cannot establish the required

nexus because her evidence does not show that her relationship

with her son was a “central,” rather than “tangential,” reason for

MS-13’s threats. 6 Salmeron-Hernandez’s own testimony

6 Salmeron-Hernandez argues that Matter of A-B-, 28 I. & N. Dec. 307 (U.S.

Att’y Gen. 2021) overturned the proposition that “persecution must somehow

be motivated by the victim’s membership in a social group.” Nothing in Mat-

ter of A-B- disturbed the statutory requirement—nor our precedent interpret-

ing that requirement—that a protected ground must be “at least one central,”

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establishes that MS-13’s only goal was to recruit her and her son

into their criminal enterprise. MS-13 used that mother-son

relationship to coerce them to join the gang, but the gang did not

specifically target Salmeron-Hernandez and her son because of

their family relationship. This is distinguishable from Perez-

Sanchez, where the applicant was targeted because of his father-in-

law’s debt to the Gulf Cartel. Instead, like in Sanchez-Castro, MS-

13’s actions were motivated by general recruitment efforts, and

Salmeron-Hernadez’s relationship with her son was only incidental

to those efforts.

As to her second social group, Salmeron-Hernandez’s status

as single mother perceived not to have protection, substantial

evidence supports the finding of the IJ and the BIA that Salmeron-

Hernandez was a victim of MS-13’s general recruitment efforts.

The evidence shows that Salmeron-Hernandez and her son were

first threatened by the gang members on April 15, 2016, and it was

not until three days later that a gang member asked Salmeron-

Hernandez’s son to confirm that she was a single mother. Thus,

her status as a single mother was incidental to the recruitment

efforts. Further, while the reports attached to Salmeron-

Hernandez’s petition speak of high levels of violence against

women, general lawlessness or discrimination as described in a

country report does not compel a finding that an applicant was or

and not merely a “tangential” or “incidental,” reason for the threatened harm.

See Sanchez-Castro, 998 F.3d at 1286.

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will be targeted based on a protected ground. See Mazariegos v.

U.S. Att’y Gen., 241 F.3d 1320, 1328 (11th Cir. 2001) (noting that

eligibility for asylum is not extended “to anyone who fears the

general danger that inevitably accompanies political ferment and

factional strife” (quotation marks omitted)).

As to political opinion, this Court has held that “it is not

enough to show that the alien was or will be persecuted or tortured

due to the alien’s refusal to cooperate with the guerillas.”

Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir.

2007) (alterations adopted). For example, in Sanchez v. United

States Attorney General, this Court concluded that an applicant for

withholding of removal did not establish a nexus between her

political opinion and the guerilla group’s alleged persecution after

she refused to cooperate with the group because the harassment

was due to her refusal rather than to any actual or imputed political

opinion she held. 392 F.3d 434, 438 (11th Cir. 2004).

Salmeron-Hernandez’s evidence does not compel a

conclusion that she was targeted for her actual or imputed political

opinion. Other than her apparent refusal to join the gang, she

provides no evidence that she held anti-gang beliefs. In any event,

MS-13 attempted to force her and her son to join the gang as part

of general recruitment efforts, not because the gang perceived her

as holding anti-gang political opinions. 7

7 Salmeron-Hernandez’s petition contends that the IJ improperly determined

that she could relocate safely within El Salvador. However, the BIA found it

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III. CONCLUSION

Because substantial evidence supports the IJ’s and BIA’s

findings that Salmeron-Hernandez did not establish past

persecution and that there was no nexus between MS-13’s death

threats and any statutorily protected ground, we deny Salmeron-

Hernandez’s petition.

PETITION DENIED.

unnecessary to reach this ruling by the IJ because it found the nexus issue dis-

positive. Therefore, we have no occasion to consider Salmeron-Hernandez’s

argument about relocation.