The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2291
MISAEL CORNEJO-AVALOS; ISAI ISMAEL AVALOS-VASQUEZ,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 4, 2013 Decided: April 10, 2013
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Alison J. Brown, LAW OFFICE OF ALISON J. BROWN LLC, Takoma Park,
Maryland, for Petitioners. Stuart F. Delery, Principal Deputy
Assistant Attorney General, Jennifer Williams, Senior Litigation
Counsel, Colette J. Winston, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Misael Cornejo-Avalos (“Misael”) and Isai Ismael
Avalos-Vasquez (“Isai”), natives and citizens of El Salvador,
petition for review of an order of the Board of Immigration
Appeals (“Board”) dismissing their appeal from the immigration
judge’s order denying their applications for asylum, withholding
of removal and withholding under the Convention Against Torture
(“CAT”). We deny the petition for review.
The current state of the law regarding this court’s
review of final orders denying asylum, withholding of removal
and applications for relief under the CAT was summarized in
Djadjou v. Holder, 662 F.3d 265, 272-74 (4th Cir. 2011). The
Immigration and Naturalization Act (“INA”) vests in the Attorney
General the discretionary power to grant asylum to aliens who
qualify as refugees. Id. at 272. A refugee is someone “who is
unable or unwilling to return to” his native country “because of
persecution or a well-founded fear of persecution on account of
. . . membership in a particular social group” or other
protected ground. 8 U.S.C. § 1101(a)(42)(A) (2006). Asylum
applicants have the burden of proving that they satisfy the
definition of a refugee to qualify for relief. Djadjou, 662
F.3d at 272. They may satisfy this burden by showing that they
were subjected to past persecution or that they have a well
founded fear of persecution on account of a protected ground
2
such as being a member of a particular social group. See 8
C.F.R. § 208.13(b)(1) (2012). If the applicant establishes past
persecution, he has the benefit of a rebuttable presumption of a
well-founded fear of persecution. Djadjou, 662 F.3d at 272.
In this instance, the Petitioners sought relief on the
basis that they suffered past persecution and have a well
founded fear of persecution on account of their membership in a
particular social group: the Avalos family. The burden was on
the Petitioners to show that their membership in this particular
social group is at least “one central reason” that they will be
persecuted if they return to El Salvador. 8 U.S.C.
§ 1158(b)(1)(B)(i) (2006). A central reason is one that is more
than “‘incidental, tangential, superficial, or subordinate to
another reason for harm.’” See Quinteros–Mendoza v. Holder, 556
F.3d 159, 164 (4th Cir. 2009) (quoting In re J–B–N–, 24 I. & N.
Dec. 208, 214 (BIA 2007)).
Aliens face a heightened burden of proof to qualify
for withholding of removal to a particular country under the
INA. They must show a clear probability of persecution on
account of a protected ground. If they meet this heightened
burden, withholding of removal is mandatory. However, if
applicants cannot demonstrate asylum eligibility, their
applications for withholding of removal will necessarily fail as
well. Djadjou, 662 F.3d at 272-73.
3
When the Board adopts the immigration judge’s decision
and includes its own reasons for affirming, this court reviews
both decisions. Djadjou, 662 F.3d at 273. We will uphold the
Board’s decision unless it is manifestly contrary to the law and
an abuse of discretion. The standard of review of the agency’s
findings is narrow and deferential. Factual findings are
affirmed if supported by substantial evidence. Substantial
evidence exists to support a finding unless the evidence was
such that any reasonable adjudicator would have been compelled
to conclude to the contrary. Id.
The immigration judge found that the Petitioners were
not victims of past persecution. In their brief, the
Petitioners do not challenge this conclusion and they have
therefore waived review of this claim. See Ngarurih v.
Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004) (finding that
failure to raise a challenge in an opening brief results in
abandonment of that challenge); Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (same).
We have reviewed the record and conclude that
substantial evidence supports the finding that the Petitioners
did not establish that they have a well founded fear of
persecution on account of their membership in a particular
social group. Whether their fear is on account of their
membership in a particular social group is a factual finding
4
reviewed for substantial evidence. Crespin-Valladares v.
Holder, 632 F.3d 117, 127-28 (4th Cir. 2011). Threats prompted
by a desire to extort money are not on account of the alien’s
membership in a particular social group. Hincapie v. Gonzales,
494 F.3d 213, 219 (1st Cir. 2007). Here, the record shows that
the gangs took all sorts of retaliatory actions if a family
member refused to submit to an extortion demand. The gangs
attacked the bus company’s employees, bus passengers, the buses
themselves and family members. Substantial evidence supports
the finding that the gangs were motivated by greed and not
membership in a particular family.
We note that the Petitioners now claim that they have
a well founded fear of persecution on the basis that the gangs
have retaliated when a family member has reported their criminal
conduct to the police resulting in an arrest. The Petitioners
never asserted this ground for relief before the immigration
judge. Their statements focused on the extortion demands the
family received, the attacks on the family as a result of the
failure to comply with the extortion demands, the failure of the
police to control the gangs and the disruption brought upon
civil society by the existence of these gangs. We conclude that
record does not compel a different result in this regard.
Substantial evidence supports the finding that the Petitioners’
5
fear of persecution is not on account of their membership in a
particular social group.
The Petitioners also contend that the Board erred by
denying their applications for relief under the CAT. To qualify
for protection under the CAT, a petitioner bears the burden of
proof of showing “it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2) (2012). To state a prima
facie case for relief under the CAT, a petitioner must show that
he will be subject to “severe pain or suffering, whether
physical or mental . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)
(2012); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th
Cir. 2008). “A public official acquiesces to torture if, ‘prior
to the activity constituting torture, [the official] ha[s]
awareness of such activity and thereafter breach[es] his or her
legal responsibility to intervene to prevent such activity.’”
Lizama v. Holder, 629 F.3d 440, 449 (4th Cir. 2011) (quoting 8
C.F.R. § 1208.18(a)(7)). The applicant need not prove the
torture would be inflicted on account of a protected ground.
Dankam v. Gonzales, 495 F.3d 113, 115-16 (4th Cir. 2007). This
court reviews for substantial evidence the denial of relief
under the CAT. Id. at 124.
6
We conclude that substantial evidence supports the
finding that the Salvadoran government does not acquiesce in the
torture of its citizens by gang members. We note that the
record shows that the government has taken affirmative steps to
control the gang problem. Furthermore, the record does not
compel a finding that police at the local level have either
instigated or acquiesced in the torture of the local citizenry.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
7