Petition for Writ of Certiorari — Douglas Humberto Urias-Orellana, et al., Petitioners v. Pamela Bondi, Attorney General

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the First Circuit, Urias-Orellana v.

Garland, 121 F.4th 327, 2024 WL

4784942 (1st Cir. 2023) ......................................1a

Decision of the Board of Immigration Appeals,

Matter of Urias-Orellana, et al., Nos.

A208-691-512, et al. (B.I.A. Dec. 7, 2023),

AR* 3-6 ..............................................................18a

Oral Decision and Order of the Immigration

Judge, Matter of Urias-Orellana, et al.,

Nos. A208-691-512, et al. (Dep’t of Justice

Mar. 14, 2022; amended and digitally

signed July 11, 2023), with Standard

Language Addendum: Asylum, AR 51-75 ........25a

8 U.S.C. § 1101(a)(42) .............................................57a

8 U.S.C. § 1158(b)(1) ...............................................59a

8 U.S.C. § 1252(a)(1)-(2), (b)(4)-(9) .........................62a

*

“AR” refers to the Administrative Record filed in the

First Circuit on February 5, 2024.

1a

[121 F.4th 327]

United States Court of Appeals

For the First Circuit

No. 24-1042

DOUGLAS HUMBERTO URIAS-ORELLANA;

SAYRA ILIANA GAMEZ-MEJIA; G.E.U.G.,

Petitioners,

v.

MERRICK B. GARLAND, United States

Attorney General

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Gelpí, Lynch, and Montecalvo,

Circuit Judges.

Kevin P. MacMurray and MacMurray and

Associates, on brief for petitioners.

Brooke M. Maurer, Trial Attorney, Bryan M.

Boynton, Principal Deputy Assistant Attorney

General, and Nancy E. Friedman, Senior Litigation

Counsel, Office of Immigration Litigation, U.S.

Department of Justice, on brief for respondent.

2a

November 14, 2024

GELPÍ, Circuit Judge. Petitioner Douglas

Humberto Urias-Orellana (“Urias-Orellana”) is a

thirty-three-year-old native and citizen of El

Salvador. He -- along with his wife, Sayra Iliana

Gamez-Mejia (“Gamez-Mejia”), and their minor child,

G.E.U.G. -- petition for review of a final order of the

Board of Immigration Appeals (“BIA”) affirming the

Immigration Judge’s (“IJ,” together with the BIA, “the

Agency”) denial of their requests for asylum. UriasOrellana also petitions for review of the denial of his

application for protection under the Convention

Against Torture (“CAT”).1 The Agency premised its

denials on several grounds, including that Petitioners

did not meet their burden to (1) demonstrate harm

rising to the level of persecution to qualify for asylum

or withholding of removal, or (2) show that they could

not reasonably relocate in El Salvador. As to CAT

relief, Urias-Orellana did not show there was error in

the factual finding that it is “[un]likel[y] [UriasOrellana] will face torture by or with the consent or

1

Where necessary, we refer to the trio collectively as

“Petitioners.” Although Gamez-Mejia and G.E.U.G. can seek

asylum as Urias-Orellana’s derivative beneficiaries, they cannot

assert derivative claims for CAT protection or withholding of

removal. That is because those forms of relief do not carry

derivative benefits, and Gamez-Mejia and G.E.U.G. did not file

separate applications. See 8 C.F.R. § 1208.16(b), (c). The upshot

is that our denials of Urias-Orellana’s petitions for review of the

asylum and withholding of removal determinations apply to

their asylum application. Only Urias-Orellana brought a CAT

claim. See Cabrera v. Garland, 100 F.4th 312, 315 n.l (1st Cir.

2024).

3a

acquiescence (including willful blindness) of any

public official or persona acting in an official

capacity.” We deny the petition for review.

I. BACKGROUND

“We

draw

our

background

‘from

the

administrative record, including [Urias-Orellana’s]

testimony before the IJ, which the IJ found credible.’”

Gonzalez-Arevalo v. Garland, 112 F.4th 1, 6 (1st Cir.

2024) (quoting Chun Mendez v. Garland, 96 F.4th 58,

61 (1st Cir. 2024)).

A. UNDERLYING FACTS

On or about June 28, 2021, Petitioners entered the

United States without authorization.

The

Department of Homeland Security (“DHS”) served

them on August 10 with Notices to Appear in

immigration court. DHS charged Petitioners with

removability for being present in the United States

without being admitted or paroled, Immigration and

Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C.

§ 1182(a)(6)(A)(1).

Petitioners conceded proper

service and admitted their removability. In so doing,

Petitioners noted that they would seek asylum, while

Urias-Orellana indicated that he would also seek

protection under the CAT.2

In his asylum application, Urias-Orellana

explained that he feared harm because his halfbrothers, Juan and Remberto, had been shot and

2

He also indicated his intent to seek withholding of

removal. But Petitioners’ brief is devoid of any argument

mentioning withholding of removal. Accordingly, any challenge

to the denial of withholding of removal has been waived. See

Jimenez-Portillo v. Garland, 56 F.4th 162, 165 (1st Cir. 2022) .

4a

severely injured, and he believed that similar harm

would befall him and his family.

Urias-Orellana expanded on these concerns

during his testimony before the IJ at a hearing on

March 14, 2022, and through an affidavit filed in

immigration court. Urias-Orellana, represented by

counsel, explained that he feared persecution in El

Salvador on the basis of his particular social group:

Urias-Orellana’s family. Specifically, Urias-Orellana

feared returning to El Salvador because of Wilfredo, a

“sicario” (which roughly translates to “hitman”) for a

local drug lord in El Salvador. Wilfredo’s mother and

the father of Urias-Orellana’s half-brothers3 were

involved in a relationship of which Wilfredo did not

approve.

Around February 2016, Wilfredo’s

disapproval turned to violence when, after an

argument with Juan at a cantina, he shot Juan six

times.

Juan suffered severe injuries from the

shooting -- he is now wheelchair-bound -- and moved

away to Cara Sucia (a forty-minute drive from where

he was shot).

The shooting apparently did not placate Wilfredo’s

anger. So he vowed to kill Juan’s entire family. He

turned his crosshairs next on Remberto in August

2016. Wilfredo ambushed Remberto in a secluded

alley, shooting him nine times. Remberto survived

the encounter. Urias-Orellana feared for his and his

family’s safety, and they fled to Cojutepeque, El

Salvador, where they remained in peace for about one

year.

Believing the worst to be over, Petitioners moved

in February or March 2017 to live with Gamez-Mejia’s

3 Juan and Remberto have the same mother as UriasOrellana but a different father.

5a

family to another town in El Salvador, Colonia

Claudia Lara -- about a thirty-minute drive from

Sonsonate, where Urias-Orellana used to live. But,

according to Urias-Orellana, Wilfredo must have

learned of this move because two masked men

approached Urias-Orellana in Claudia Lara a few

months after. They demanded money and, when

Urias-Orellana refused, warned him that they would

“leave [him] like” his half-brothers and possibly kill

him if he did not cave to their demands.

About six months later, Urias-Orellana again was

threatened at gunpoint by masked men in August

2017. They threatened to kill him if he did not pay up

the next time that they saw him.4

Petitioners then moved, again within El Salvador,

to Cara Sucia to stay with Juan. They lived there

without any harassment or complaints or threats for

two-and-a-half years. In December 2020, UriasOrellana and Gamez-Mejia returned to visit his

family in Sonsonate, and while there, he was

confronted by two masked men on a motorcycle

demanding money. They threatened him, assaulted

him by striking him three times in the chest, and

warned him that they would kill him if he did not pay

them.

Urias-Orellana and Gamez-Mejia returned to

Cara Sucia thereafter. But, on their journey, UriasOrellana noticed two men on a motorcycle -- whom he

4

Urias-Orellana testified that he and his family moved to

Cara Sucia after the threats in February or March 2017. He

explained that he was not approached again after that incident.

But his affidavit indicates that he was targeted in August 2017.

The IJ also analyzed the August 2017 encounter. Accordingly,

we shall consider the August 2017 encounter in our analysis.

6a

believed to be the same men who beat him -- following

him to Cara Sucia. Fearful that Cara Sucia was

unsafe, Petitioners took a taxi to San Salvador before

ultimately returning to Claudia Lara.

Upon their return, Urias-Orellana noticed that the

same men who assaulted him were patrolling Claudia

Lara apparently in search for him. And, while

shopping in Claudia Lara around February or March

2021, he overheard two men asking a store employee

if there were any newcomers to the area and where

they were located.

The IJ asked Urias-Orellana questions once he

finished recounting this narrative. He asked if UriasOrellana’s mother had ever been harmed or

mistreated while living in El Salvador. UriasOrellana answered that she had not, besides a threat

from individuals “from Guatemala.” The IJ asked the

same question about Urias-Orellana’s siblings, who

also lived in El Salvador. Neither his sister nor his

half-sister (nor his half-sister’s children) were ever

harmed or mistreated while in El Salvador. The IJ

asked about Urias-Orellana’s other siblings besides

Juan and Remberto -- Jaime, Celina, Rosabel, and

Elmer. Although Urias-Orellana explained that some

unknown assailants had “grabbed” and placed Jaime

“in a room for [three] hours” at some point, he did not

recall any of his other siblings facing harm or

harassment in El Salvador.

The IJ further asked Urias-Orellana if he had been

able to live without being harmed or threatened when

he moved to Cojutepeque and Claudia Lara. UriasOrellana admitted that he had been.

7a

B. Procedural History

The IJ denied the application after considering

Urias-Orellana’s testimony, the submissions in

support of Petitioners’ claims, and the entire record.

We focus on the facets of the IJ’s decision that are

relevant to this petition for review.

First, the IJ concluded that Urias-Orellana’s

testimony was credible, and that the recounted harm

did not rise to the level of past persecution. The IJ

acknowledged the death threats and assault, and

found that the death threats were not so menacing as

to qualify as past persecution. Further, the December

2020 assault did not require Urias-Orellana to receive

medical treatment, and so was not past persecution.

Beyond that, the IJ found that Petitioners did not

meet their burden to show that a reasonable person

would fear returning to El Salvador. The IJ so

concluded, reasoning (1) Urias-Orellana’s relatives

lived throughout El Salvador without suffering any

harm or mistreatment at Wilfredo’s hands, and

(2) Petitioners were able to successfully relocate in El

Salvador without facing any harassment or

mistreatment. Indeed, the IJ noted, Urias-Orellana

only encountered danger after he returned to his

hometown.

Third, the IJ found that Urias-Orellana’s CAT

claim failed. The IJ noted that Urias-Orellana

neither reported his harassment to the police nor

demonstrated that doing so would be futile. The IJ

acknowledged that a 2020 U.S. Department of State

Country Conditions Report for El Salvador

“present[ed] a mixed picture” on the country’s efforts

to combat organized crime. That mixed picture

included the limited resources available to and

8a

corruption in the Salvadoran police and judiciary.

The IJ also noted that the Report stated that the

police had developed new techniques to combat gang

violence and made efforts to root out corruption in the

police force. The IJ concluded it would not be futile

for Urias-Orellana to report any threats to the

authorities, and he had not shown that, if there were

further harassment, the Salvadoran government

would acquiesce to it.

Petitioners appealed to the BIA, attacking the IJ’s

finding that the Petitioners had not shown that they

(1) faced past persecution due to the threats and

December 20 assault; or (2) had a well-founded fear of

future persecution due to internal relocation and

unharmed family members. Petitioners also appealed

the IJ’s finding that Urias-Orellana had not shown he

qualified for CAT relief.

The BIA affirmed. It adopted the IJ’s reasoning

and added its views as to the denials of Petitioners’

asylum claim and Urias-Orellana’s CAT claim. The

BIA agreed with the IJ that the threats and assault

did not amount to persecution. And, after recognizing

that Petitioners’ failure to prove past persecution

meant that they bore the burden of showing that

relocation would be unreasonable, the BIA concluded

that Petitioners had not met this burden. Moreover,

the BIA noted that Urias-Orellana’s mother and

sisters were never threatened or harmed in El

Salvador, and that Jaime was held by someone

unaffiliated with Wilfredo. Finally, the BIA noted,

inter alia, as to Urias-Orellana’s CAT claim, that he

never attempted to report his mistreatment to the

police -- and that it would not have been futile to do

so, in light of the country conditions evidence.

9a

This timely petition for judicial review, over which

we have jurisdiction, followed. 8 U.S.C. § 1252(a)(1).

II. DISCUSSION

A. Legal Standards

“Where, as here, ‘the BIA adopts and affirms an

IJ’s decision, we review the IJ’s decision “to the extent

of the adoption, and the BIA’s decision as to [any]

additional ground”’” López-Pérez v. Garland, 26

F.4th 104, 110 (1st Cir. 2022) (alteration in original)

(quoting Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st

Cir. 2007)).

“We review the [A]gency’s legal conclusion de

novo. But we review its factual findings under the

substantial evidence standard.” Gonzalez-Arevalo,

112 F.4th at 8 (citation omitted).

Under this

standard, we must “accept the findings ‘as long as

they are supported by reasonable, substantial and

probative evidence on the record considered as a

whole.’” Gomez-Abrego v. Garland, 26 F.4th 39, 45

(1st Cir. 2022) (quoting Aguilar-De Guillen v.

Sessions, 902 F.3d 28, 32 (1st Cir. 2018)). Thus, “we

will only disturb the [A]gency’s findings if, in

reviewing the record as a whole, ‘any reasonable

adjudicator would be compelled to conclude to the

contrary.’” Gonzalez-Arevalo, 112 F.4th at 8 (quoting

Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir.

2023)). “That the record supports a conclusion

contrary to that reached by the [Agency] is not enough

to warrant upsetting the [Agency’s] view of the

matter; for that to occur, the record must compel the

contrary conclusion.” Santos Garcia v. Garland, 67

F.4th 455, 460-61 (1st Cir. 2023) (quoting Hincapie v.

Gonzales, 494 F.3d 213, 218 (1st Cir. 2007)). It is

10a

through this lens that we consider Petitioners’ asylum

claim and Urias-Orellana’s CAT claim.

The INA requires a petitioner for asylum to prove

that he is a “refugee,” meaning someone “who is

unable or unwilling to return to” his country of origin

“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). “Persecution in

this sense ‘requires proof of a “certain level of serious

harm (whether past or anticipated), a sufficient nexus

between that harm and government action or

inaction, and a causal connection to one of those

statutorily protected grounds.”’” Gonzalez-Arevalo,

112 F.4th at 8 (quoting Barnica-Lopez, 59 F.4th at

527). If a petitioner fails to meet any of these

requirements, then so too must his past or future

persecution claim fail. See id.

B. Asylum Claim

We consider Petitioners’ arguments concerning

asylum. In so doing, we cabin our review to whether

the Agency conclusion they had not demonstrated

past persecution or a well-founded fear of future

persecution was supported by substantial evidence.

i. Past Persecution

Part of Petitioners’ past persecution burden was to

prove that Urias-Orellana suffered “a certain level of

serious harm.” Gonzalez-Arevalo, 112 F.4th at 8

(quoting Barnlea-Lopez, 59 F.4th at 527).

Persecution

transcends

“unpleasantness,

harassment, and even basic suffering.”

Santos

Garcia, 67 F.4th at 461 (quoting Nelson v. INS, 232

F.3d 258, 263 (1st Cir. 2000)). While “‘[c]redible,

specific threats can amount to persecution if they are

11a

severe enough’ -- particularly if they are death

threats,” Montoya-Lopez v. Garland, 80 F.4th 71, 80

(1st Cir. 2023) (quoting Aguilar-Escoto v. Garland, 59

F.4th 510, 516 (1st Cir. 2023)) -- to qualify as past

persecution, these threats must be “so menacing as to

cause significant actual suffering or harm,” Santos

Garcia, 67 F.4th at 461 (quoting Lobo v. Holder, 684

F.3d 11, 18 (1st Cir. 2012)).

Petitioners argue that the record compelled a

finding that the threats and assault experienced by

Urias-Orellana met this burden. They emphasize

that Urias-Orellana’s assailants were armed,

assaulted him on one occasion, and promised to leave

him like his half-brothers if he did not comply.

Unfulfilled death threats rarely prove past

persecution unless they are “so menacing as to cause

significant actual suffering or harm.” Id. The Agency

reasonably concluded that the threats experienced by

Urias-Orellana do not meet that threshold. As an

initial matter, Urias-Orellana did not testify “about

the ‘immediate impact, if any, that these threats had

on him,’” so we cannot say that the record compels a

conclusion that they caused significant actual

suffering or harm. Id. (quoting Rodriguez v. Lynch,

654 F. App’x 498, 500 (1st Cir. 2016)). Here, “there

[was] no finding that [] threats [against the

petitioner] were ‘credible’ threats of death as opposed

to threats intended to frighten him into paying,

especially given the lack of severity of the one

assault.” Vargas-Salazar v. Garland, 119 F.4th 167,

173 (1st Cir. 2024) (alterations in original) (quoting

Santos Garcia, 67 F.4th at 461. Indeed, the Agency

considered how, over a four-year period, UriasOrellana was threatened only three times by

unknown assailants who demanded money and, on

12a

one occasion, struck him in the chest, three times -an attack that did not result in hospitalization. That

the assault “did not require hospitalization bears on

the ‘nature and extent’ of [a petitioner’s] injuries and

is certainly ‘relevant to the ultimate determination’”

of persecution. Jinan Chen v. Lynch, 814 F.3d 40, 46

(1st Cir. 2016) (quoting Vasili v. Holder, 732 F.3d 83,

89 (1st Cir. 2013)).

Because this sequence of events did not involve

threats or actions “so menacing as to cause significant

actual suffering,” Santos Garcia, 67 F.4th at 461,

substantial evidence supports the Agency’s no-pastpersecution finding.

Petitioners highlight the assailants’ striking the

chest of Urias-Orellana and the assailants’

mentioning of Juan and Remberto’s fates as proof that

they could make good on their threats. But these

circumstances do not present a case distinct from our

precedents. Previously, we have upheld Agency

decisions concluding that nearly identical -- or even

more egregious -- circumstances did not rise to the

level of persecution. Vargas-Salazar, 119 F.4th at

172-73 (concluding that multiple extortionate death

threats and an injury that did not require

hospitalization did not compel a finding of past

persecution); Santos Garcia, 67 F.4th at 459-61 (three

extortionate threats and a beating by armed

assailants did not constitute persecution); Jinan

Chen, 814 F.3d at 42-43 (upholding the Agency’s nopersecution finding when the petitioner “was beaten

and subsequently taken to the police station where he

was placed in custody, interrogated, further

assaulted, and threatened with forced sterilization”);

Cabas v. Holder, 695 F.3d 169, 174 (1st Cir. 2012)

(upholding no-persecution finding where the

13a

petitioner was kidnapped, beaten, and left

unconscious and received threats after a break-in at

his parents’ home); Bocova v. Gonzales, 412 F.3d 257,

263 (1st Cir. 2005) (upholding no-persecution finding

based on two death threats and a beating that left the

petitioner unconscious and hospitalized). It follows

that the record here did not compel a finding of past

persecution.

ii. Well-Founded Fear of Future Persecution

Because Petitioners did not establish past

persecution, they are not entitled to a presumption of

future persecution. Santos Garcia, 67 F.4th at 462.

The Agency ruled that Petitioners did not establish

future persecution, finding that they had no

reasonable fear of future persecution on the basis that

they could internally relocate. We thus examine the

merits of that conclusion.

Even if a petitioner proves that “[he has] suffered

past persecution or [has] a well-founded fear of future

persecution, [the] application for asylum will be

denied if the adjudicator determines that [he] could

avoid persecution by internally relocating within the

country of removal and, under all the circumstances,

it would be reasonable to do so.” Caz v. Garland, 84

F.4th 22, 27 (1st Cir. 2023). For a petitioner “to be

able to internally relocate safely, there must be an

area of the country where he or she has no wellfounded fear of persecution.” Matter of M-Z-M-R-, 26

I. & N. Dec. 28, 33 (B.I.A. 2012). To determine this,

the Agency considers “the totality of the relevant

circumstances” for relocation, such as “the size of the

country of nationality or last habitual residence, the

geographic locus of the alleged persecution, the size,

numerosity, and reach of the alleged persecutor, and

14a

the [petitioner’s] demonstrated ability to relocate to

the United States in order to apply for asylum.”

8 C.F.R. § 208.13(b) (3). Other relevant factors to the

analysis include whether the petitioner previously

had success relocating internally and his family’s

“continued safe residence . . . in the country of

removal.” Caz, 84 F.4th at 28. After all, a petitioner’s

unimpeded movement “demonstrates that [he] can

relocate safely,” Chen Qin v. Lynch, 833 F.3d 40, 45

(1st Cir. 2016), and that “close relatives continue to

live peacefully in the [petitioner’s] homeland

undercuts the [petitioner’s] claim that persecution

awaits his return,” López-Pérez, 26 F.4th at 112

(quoting Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st

Cir. 1999)). Because Petitioners have not shown past

persecution, they bear the burden “to establish that

relocation would be unreasonable.”

Camara v.

Holder, 725 F.3d 11, 15 n.3 (1st Cir. 2013) .

Substantial evidence supports the Agency’s

conclusion that internal relocation in El Salvador

would be reasonable. Urias-Orellana testified that he

avoided harm, harassment, and threats twice

successfully: first by moving to Cojutepeque and

staying for one year, and then by moving to Cara

Sucia and staying there for two and a half years. See

Chen Qin, 833 F.3d at 45 (considering the petitioner’s

successful internal relocation to a relative’s house).

Likewise, as he has admitted, Urias-Orellana’s

relatives live throughout El Salvador undisturbed.

See, e.g., López-Pérez, 26 F.4th at 112 (considering

that the petitioner’s sister and cousin still resided in

Guatemala without being persecuted). Evidence of

“prior successful internal relocation and the

continued safe residence of [Petitioners’] family

members in” El Salvador supports the Agency’s

15a

conclusion. Caz, 84 F.4th at 28 (first citing LópezPérez, 26 F.4th at 112; and then citing Chen Qin, 833

F.3d at 45).

Petitioners contend that Urias-Orellana did not

internally relocate with success because, upon

returning to Claudia Lara, he was confronted by the

men who threatened him. They also note that El

Salvador has a high per-capita murder rate; is full of

criminal gangs dispersed throughout the country; and

is so small as to make it impossible to avoid Wilfredo.

Petitioners’ complaints falter against the

substantial evidence standard. As we have stated, we

do not consider whether the record contains any

evidence suggesting that relocation might not be

reasonable -- only “whether a reasonable factfinder,

having considered all the evidence, would be

compelled to conclude that [ Urias-Orellana] could

not safely relocate within” El Salvador. Id. at 29. A

reasonable factfinder would not be so compelled here.

Urias-Orellana was able to live in towns across El

Salvador for years without harassment and only

encountered difficulties once he returned to his

hometown. And his relatives -- members of his family

who Wilfredo would presumably also want dead -have lived across El Salvador unscathed. Therefore,

substantial evidence supports the Agency’s conclusion

that Urias-Orellana did not establish that relocation

was unreasonable.

C. CAT Claim

To succeed on his CAT claim, Urias-Orellana

“must show that ‘it is more likely than not that he will

be tortured if returned to his home country.’”

Lafortune v. Garland, 110 F.4th 426, 438 (1st Cir.

2024) (quoting Bonnet v. Garland, 20 F.4th 80, 84 (1st

16a

Cir. 2021)). In doing so, he must show that “he would

be subject to torture ‘by or with the acquiescence of a

government official.’” Perez-Trujillo v. Garland, 3

F.4th 10, 18 (1st Cir. 2021) (quoting Aldana-Ramos v.

Holder, 757 F.3d 9, 19 (‘1st Cir. 2014)).

“Acquiescence” requires that a “public official, prior to

the activity constituting torture, have awareness of

such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.”

8 C.F.R. § 208.18(a)(7).

Urias-Orellana argues that the record compels the

conclusion that the Salvadoran government lacked

the resources to protect him from torture at the hands

of criminal gangs. He stresses that the 2020 country

conditions report demonstrates corruption in the

judicial system and government, along with impunity

for those officials, undermining the rule of law. In

turn, he contends that this led to the government’s

inability to halt gangs.

Urias-Orellana’s argument fails, as the Agency

held, for a fundamental reason: The 2020 country

conditions report does not “supplant the need for

particularized evidence.” Amouri v. Holder, 572 F.3d

29, 35 (1st Cir. 2009) (noting that country conditions

reports “do not necessarily override petitioner-specific

facts”). He is “oblig[ated] to point to specific evidence

indicating that he, personally, faces a risk of torture.”

Alvizures-Gomes v. Lynch, 830 F.3d 49, 55 (1st Cir.

2016).

That he does not do. Urias-Orellana never even

attempted to report his harassment, which did not

rise to the level of persecution and certainly not

torture, to the police. He only speculates here -- as he

did before the Agency -- about its inability to protect

him. See, e.g., Ramirez Pérez v. Barr, 934 F.3d 47, 52

17a

(1st Cir. 2019) (rejecting petitioner’s argument of

government acquiescence where he never attempted

to report his mistreatment to the police); GomezAbrego, 26 F.4th at 46 (rejecting petitioner’s

arguments where she only pointed to “her belief that

the police were ‘in cahoots’ with gang members and

[a] country report showing widespread violence and

police corruption in El Salvador,” and the Agency

properly considered and rejected this as evidence of

acquiescence to torture).

And “even where ‘efforts at managing gang

activity [are not] completely effectual,’ that is

insufficient to sustain a CAT claim unless the record

‘compel[s] a conclusion that the government has

acquiesced in gang activities.’” Perez-Trujillo, 3 F.4th

at 20 (alteration in original) (quoting Mayorga-Vidal

v. Holder, 675 F.3d 9, 20 (1st Cir. 2012)). The record

does not compel such a conclusion. The IJ explicitly

considered the 2020 country conditions report, and

noted that report described how the Salvadoran

police’s investigative units “have shown great

promise” in managing gangs. See id. at 20-21 (holding

that substantial evidence supported the Agency’s noacquiescence finding where country conditions

evidence stated, in part, that the Salvadoran police

had made efforts to crack down on gang violence);

Mayorga-Vidal, 675 F.3d at 20 (holding similarly).

III. CONCLUSION

For these reasons, we deny the petition for

judicial review.

18a

NOT FOR PUBLICATION

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

MATTER OF:

Douglas Humberto URIASORELLANA, A208-691-512

Sayra Ilana GAMEZ-MEJA,

A216-663-245

[G.E.U.G.], A216-663-246

FILED

Dec. 07,

2023

Respondents

ON BEHALF OF RESPONDENTS:

MacMurray, Esquire

Kevin P.

IN REMOVAL PROCEEDINGS

On Appeal from a Decision of the Immigration

Court, Boston, MA

Before: Owen, Appellate Immigration Judge

OWEN, Appellate Immigration Judge

The respondents,1 natives and citizens of El

Salvador, have appealed from the Immigration

1

The respondents in this case are the lead respondent

(A208-691-512), who is the principal applicant for asylum, his

wife (A216-663-245), and their minor child (A216-663-246). The

wife and child seek asylum as derivative beneficiaries of the lead

respondent, but they cannot assert derivative claims for

19a

Judge’s decision dated March 14, 2022.

The

Immigration Judge found the respondents removable,

denied the respondent’s applications for asylum and

withholding of removal under sections 208 and

241(b)(3) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), and denied

their request for protection under the regulations

implementing the Convention Against Torture

(“CAT”).2 The Department of Homeland Security

(“DHS”) has not responded to the respondents’ appeal.

The appeal will be dismissed.

This Board reviews an Immigration Judge’s

findings of fact, including findings as to the credibility

of testimony, under the “clearly erroneous” standard.

See 8 C.F.R. § 1003.1(d)(3)(i). This Board reviews

questions of law, discretion, and judgment, and all

other issues raised in an appeal of an Immigration

Judge’s decision de novo.

See 8 C.F.R.

§ 1003.1(d)(3)(ii).

On appeal, the respondent challenges the denial of

asylum, withholding of removal under the INA, and

withholding of removal under the CAT. We affirm the

Immigration Judge’s decision for the reasons set forth

withholding of removal under the Immigration and Nationality

Act, or protection under the Convention Against Torture.

Section 208(b)(3)(A) of the INA, 8 U.S.C. § 1158(b)(3); 8 C.F.R.

§ 1208.3(a); Matter of A-K-, 24 I&N Dec. 275. 279 (BIA 2007)

(stating that although the INA provides for derivative asylum, it

does not provide for derivative withholding of removal).

References to the “respondent” in the singular are to the lead

respondent, unless otherwise indicated.

2 The Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,

S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85 (entered into force

for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c)-1208.18.

20a

by the Immigration Judge. See Matter of Burbano, 20

I&N Dec. 872, 874 (BIA 1994) (recognizing that

adoption or affirmance of a decision of an Immigration

Judge, in whole or in part, is simply a statement that

the Board’s conclusions upon review of the record

coincide with those which the Immigration Judge

articulated in his or her decision). We supplement

solely to address the dispositive issues raised on

appeal.3

First, on appeal, the respondent argues that he

suffered past persecution. The respondent credibly

testified that, in 2016, a sicario who was angry with

his stepfather for having had a relationship with the

sicario’s mother, shot at his two half-brothers,

seriously injuring them. Because the sicario failed to

kill them, he vowed to kill the entire family. The

sicario never personally threatened or harmed the

respondent, his mother, or his sisters. However,

between 2017 and 2021, whenever the respondent

returned to his hometown, armed masked men

demanded money from him and threatened to kill him

if he did not provide the demanded money. During

one instance, one man pounded his chest three times

(IJ at 4-6; Tr. at 30-55). The Immigration Judge

concluded that the aggregate harm did not rise to the

level of persecution because the threats of harm were

not sufficiently menacing or imminent (IJ at 6-7). The

3

Because we find these issues to be dispositive, we find it

unnecessary to address the remaining issues raised by the

respondent on appeal. See Matter of J-G-, 26 I&N Dec. 161, 170

(BIA 2013) (holding that agencies are not required to make

findings on issues that are unnecessary to the results they

reach); Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002)

(concluding that resolving a case on the basis of a dispositive

issue is a sound exercise of judicial economy).

21a

Immigration Judge was not clearly erroneous in these

factual findings, and we agree with the Immigration

Judge’s determination that the respondent did not

establish that he suffered past harm in the aggregate

rising to the level of persecution. See 8 C.F.R.

§ 1003.1(d)(3)(i) (concerning clear error); Matter of

O-Z- & I-Z-, 22 I&N Dec. 23, 26 (BIA 1998) (indicating

that, whether harm rises to past persecution is

determined by assessing all harm suffered in the

aggregate); Matter of Acosta, 19 I&N Dec. 211, 222

(BIA 1985) (holding that persecution includes a threat

to life or freedom, the infliction of suffering or harm,

confinement or torture, and economic deprivation or

restrictions so severe that it constitutes a threat to life

or freedom).

Next, the respondent argues that the Immigration

Judge erred in determining that internal relocation

was possible and reasonable. With regard to asylum

and withholding of removal under the INA, where an

applicant has not established past persecution, the

applicant bears the burden of establishing that it

would not be reasonable for the applicant to relocate,

unless the persecution is by a government or is

government-sponsored. See 8 C.F.R. §§ 1208.13(b)(3)(i)

(concerning asylum), 1208.16(b)(3)(i) (concerning

withholding of removal under the INA); Matter of

M-Z-M-R-, 26 I&N Dec. 28, 34 (BIA 2012) (holding

that, in assessing an asylum applicant’s ability to

internally relocate, an Immigration Judge determines

whether the applicant could avoid future persecution

by relocating to another part of the applicant’s

country of nationality and whether, under all the

circumstances, it would be reasonable to expect the

applicant to do so).

22a

Here, because there was no past persecution and

because the alleged persecutor was not the

government or government-sponsored, the burden

was on the respondent to show that internal

relocation was not possible or reasonable. We agree

with the Immigration Judge’s determination that the

respondent did not carry this burden (IJ at 7-10).

The respondent credibly testified that, after each

half-brother was shot by the sicario, he moved away

and did not have further problems. The respondent’s

stepfather has not been harmed either.

The

respondent also testified that, after the second halfbrother was shot, the respondents moved to

Cojutepeque for 1 year and had no problems there.

The respondents later moved to Cara Sucia for 2.5

years and had no problems there. The respondent

only had problems when he returned to his

hometown. The respondent also admitted that his

mother was not threatened or harmed by the sicario.

None of his sisters has been threatened or harmed

either. One lives in San Salvador, another lives in

Sonsonate. His brother Jaime was held for 3 hours by

someone, but it may not have been someone

associated with the sicario (IJ at 4-5, 7-10; Tr. at

33-34, 39-41, 44-50). The Immigration Judge was not

clearly erroneous in these factual findings, and we

agree with the Immigration Judge’s determination

that the respondent did not carry his burden of

establishing that the respondents could not

reasonably internally relocate in El Salvador to avoid

the sicario and the extortionists in their hometown.

See 8 C.F.R. § 1003.1(d)(3)(i) (concerning clear error).

Finally, the respondent argues that the

Immigration Judge erred in finding that he did not

establish withholding of removal under the CAT.

23a

However, we agree with the Immigration Judge’s

determination that the respondent did not establish

withholding of removal under the CAT. See 8 C.F.R.

§ 1208.16(b) (indicating that the respondent has the

burden of proving withholding of removal under the

CAT).

The Immigration Judge noted that the respondent

did not go to the police and noted that country

conditions do not reflect that going to the police would

be futile (IJ at 13-16; Tr. at 36-37). Consequently, the

respondent did not establish that the government of

El Salvador is likely to acquiesce in his torture. See

8 C.F.R. § 1208.18(a)(1) (defining torture); 8 C.F.R.

§ 1208.18(a)(7) (indicating that acquiescence requires

that, prior to the tortuous activity, a public official

must have awareness of the torture and breach the

legal responsibility to intervene to prevent the

torture). Cf. Mayorga-Vidal v. Holder, 675 F.3d 9, 20

(1st Cir. 2012) (indicating that the fact that El

Salvador’s efforts at managing gang activity have not

been completely effectual is not a basis for finding

that the government has acquiesced in gang

activities).

We find no clear error in the Immigration Judge’s

predictive fact-finding regarding the likelihood that

the respondent will face torture by or with the consent

or acquiescence (including willful blindness) of any

public official or person acting in an official capacity.

See 8 C.F.R. § 1003.1(d)(3)(i) (concerning clear error);

8 C.F.R. § 1208.18(a)(1) (defining torture); 8 C.F.R.

§ 1208.18(a)(7) (defining acquiescence). See also

Matter of Z-Z-O-, 26 I&N Dec. 586, 590 (BIA 2015)

(concluding that an Immigration Judge’s finding that

a future event will occur is fact-finding subject to

review for clear error).

24a

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

25a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

UNITED STATES IMMIGRATION COURT

BOSTON, MASSACHUSETTS

March 14, 2022

File: A208-691-512/

216-663-245/ 246

In the Matter of

DOUGLAS URIASORELLANA

SAYRA GAMEZ-MEJIA

[G.E.U.G.]

RESPONDENTS

)

)

)

)

)

)

)

IN REMOVAL

PROCEEDINGS

CHARGES: INA § 212(A)(6)(a)(i)

APPLICATIONS: Asylum, Withholding of Removal,

CAT

ON BEHALF OF RESPONDENTS:

AKSELSEN, ESQUIRE

ON

DENIEL

BEHALF OF DHS: CATHERINE Jennifer

MULCAHY, ESQUIRE

ORAL DECISION AND ORDER OF THE

IMMIGRATION JUDGE

The Respondents are a mother, father, and child.

The lead Respondent, Douglas Urias-Orellana, is a

31-year-old native and citizen of El Salvador. The

26a

co-Respondents are the lead Respondent’s wife and

partner, Sayra Gamez-Mejia, a 25-year-old native

and citizen of a Salvador. The other co-Respondent is

the child of the lead Respondent and his wife,

[G.E.U.G.], a 4-year-old native and citizen of El

Salvador. On August 13, 2021, the U.S. Department

of Homeland Security filed Notices to Appear against

the above-named Respondents. The filing of these

charging documents commenced proceedings and

vested jurisdiction with this Court. 8 C.F.R.

§ 1003.14(a). The Notices to Appear have been

admitted into evidence as Exhibits 1,1-A, and 1-B,

respectively. The Respondents have conceded proper

service of the form I-862, Notices to Appear. Based

upon the Respondents’ admissions and concessions,

and based upon the certificate of service contained in

the respective Notices to Appear, the Court finds that

the Notices to Appear have been properly served. The

Respondents were afforded 10 days following service

of the Notices to Appear prior to appearing before

an Immigration Judge.

The undersigned has

familiarized himself with the record of proceedings in

these matters.

REMOVABILITY

The Notices to Appear charge the Respondents

with inadmissibility under INA § 212(a)(6)(A)(i). The

Respondents, through counsel, have previously

admitted the allegations contained in the Notices to

Appear and conceded inadmissibility as charged.

Based upon the Respondents’ admissions and

concessions, and based upon Exhibits 2, 2-A, and 2-B,

the Court finds that the DHS has met its burden of

proving removability by clear and convincing

evidence as required by INA § 240(c).

The

Respondents have declined to designate a country for

27a

removal. At the November 2, 2021, hearing, the

Court directed El Salvador as the country of removal

at the request of DHS. In lieu of removal, the

Respondents do seek asylum, withholding of removal,

and withholding of removal under the Convention

Against Torture. The Court notes that in the written

pleadings at Exhibits 2, 2-A, and 2-B, the

Respondents also checked off voluntary departure.

The Court notes that the Respondents are not

statutorily eligible for post-conclusion voluntary

departure under § 240B(b) of the Act, because the

Notices to Appear was were served on them within

1 year of their last arrival. See Exhibits 1, 1-A, and

1-B.

Additionally, the Court notes that the

Respondents have not made any request for preconclusion voluntary departure under § 240B(a) of

the Act and that the Respondents would otherwise

have to withdraw their applications for relief and

waive appeal and have a DHS stipulation in order to

be granted voluntary departure at today’s hearing.

See generally 8 C.F.R. § 1240.26. The Respondents,

through Counsel, have not indicated that they are

seeking pre-conclusion voluntary departure because

they did elect to go forward with their applications for

relief and indicated they did wish to reserve appeal.

Accordingly, even though the Respondents did

indicate in their pleadings they were seeking

voluntary departure, because the Respondents have

not sought pre-conclusion voluntary departure and

because the Respondents are not statutorily eligible

for post-conclusion voluntary departure, the Court

does not consider such applications for relief.

28a

EVIDENTIARY RECORD

The evidentiary record of this proceeding consists

of documentary Exhibits 1 through 8. Documentary

Exhibits 1 through 7 have been admitted into

evidence without objection. Documentary Exhibit 8 is

a standard language addendum that is hereby gonna

going form part of the oral decision today. Exhibit 8

is not evidence and is solely meant to be read in

conjunction with the oral decision itself.

STATEMENT OF LAW

I hereby incorporate what’s been marked as

Exhibit 8 by the Court, which is the standard

language addendum for asylum, withholding, and

Convention Against Torture relief.

ANALYSIS AND FINDINGS ON ELIGIBILITY

FOR RELIEF

I. CREDIBILITY AND CORROBORATION

The lead Respondent was the sole witness in this

matter. The Court notes that the thrust of the coRespondents’ claims is to essentially be derivatives on

the lead Respondent’s claim for relief. The Court

otherwise does consider the co-Respondents’

independent claims as well for withholding and

Convention Against Torture relief. The Court does

find that the lead Respondent is a credible witness

because the answers to the questions posed were

responsive,

internally

consistent

with

his

documentary evidence, and consistent with his

written application. His demeanor appeared to be

forthright and he appeared to be generally trying to

try to answer all the questions that he was asked.

Accordingly, the Court does credit his testimony and

29a

does hereby incorporate by reference his March 14,

2022, testimony herein.

In a nutshell, according to the Respondent’s

testimony and sworn affidavit, the lead Respondent

had two maternal half-brothers, Juan Antonio Urias

and Remberto. Because his half-brothers’ father had

a relationship with a sicario named Wilfredo, a local

drug lord, who also instigated murder, intimidation,

and drug smuggling, Wilfredo did not approve of the

relationship, that he got in a fight with Wilfredo’s son,

Juan Antonio, in February 2016. As a result of the

fight, Juan went to a soccer field with his friends and

Wilfredo came out with a gun and shot Juan six times.

While he survived, Juan is still wheelchair bound and

has been targeted by Wilfredo again because Juan

moved away to Cara Sucia, a 40-minute drive from

where the area where the shooting happened.

Upon discovering that Juan had survived,

according to the Respondent’s testimony, Juan vowed

to kill Juan’s whole family and came looking for

Juan’s family members. In August of 2016, Remberto

got a call from a friend asking to meet in a secluded

alley. When Remberto met the friend they talked for

a while and then upon leaving, Wilfredo appeared and

shot Remberto nine times and left. Fortunately,

Remberto survived, and then after the attack,

knowing that it was not safe, the Respondent and his

family moved to Cojutepeque where he stayed there

for about a year. The Court notes that during his time

in El Salvador, the lead Respondent claims he worked

as a cattle rancher.

In around February and March of 2017, thinking

it would be safe to return to the general area where

his family used to live, the lead Respondent moved to

Colonia Claudia Lara to live with his wife’s family.

30a

About 3 to 4 months after moving back two unknown

people approached the lead Respondent on a

motorcycle with faces covered, with guns demanding

money from him, and upon refusing to give them

money, they warned that if he refused to comply with

their demands, he would end up like his two brothers.

Approximately 6 months later in August 2017, again

two people approached the lead Respondent again

faces covered with guns demanding money from him

and when he said he didn’t have any they warned the

next time they approached him they would kill him.

After the second approach, the lead Respondent and

his family moved to Cara Sucia where he remained

until approximately December 2020. In December

2020, 3 years after -- more than 3 years after the last

threat against him, only when visiting his family in

his town, again two people approached him and said

he was lucky to escape the few previous time and that

he still must pay, and they wouldn’t forgive him the

next time he didn’t have the money or they’d kill him

or whoever else he was with, and they hit him on the

chest three times and left. Upon this incident, they

went back to Cara Sucia, and again saw a motorcycle

with two men constantly following them. So they

stayed there for a week. They went and took a taxi to

San Salvador where they stayed for a night, and then

took another taxi to Colonia Claudia Lara, and then

in February or March of 2021, the lead Respondent

overheard that men were asking for any newcomers

to the area and fortunately, the people in the stores

did not reveal the Respondents’ whereabouts.

Because of the attacks on his brothers, and death

threats, and extortion attempts, the lead Respondent

and his family decided to leave El Salvador and come

to the United States.

31a

II. ASYLUM UNDER INA § 208

A. PAST PERSECUTION

The Court finds that the sum of the threats and

the one time where he was hit three times on the chest

does not rise to the level of past persecution. To rise

to the level of persecution the sum of a non-citizen’s

experiences, “must add up to more than ordinary

harassment, mistreatment, or suffering.” Lopez De

Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir.

2007). In this case, the sum of the lead Respondent’s

and his family’s mistreatment was approximately

three threats, all of which demanded that if he does

not pay money, he would end up like his brothers or

would be killed. One instance he was hit in the chest.

The Court certainly notes that credible verbal death

threats may fall within the meaning of persecution,

but this is only when the threats are “so menacing as

to cause significant actual suffering or harm.” Bonilla

v. Mukasey, 539 F.3d 72, 77 (1st Cir. 2008) (quoting

Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir.

2008) (“threats standing alone . . . constitute past

persecution only in a small category of cases, and only

when the threats are so menacing as to cause

significant – cause actual suffering or harm.”) In the

instant matter, the Court is not able to find that the

threats were so menacing as to cause significant

actual suffering or harm. In this regard, the Court

notes that there was no type of medical evaluation,

psychiatric evaluation, social worker evaluation, or

other type of psychological or physiological evaluation

that the threats were so menacing as to cause

significant actual suffering or harm either to the lead

Respondent or the -- to the co-Respondents. Indeed,

the sole time that he was physically mistreated he

32a

was hit on the chest three times. There’s no

indication that he had long-lasting physical or mental

effects from that mistreatment. Based on the Court’s

comparison to the facts in these matters to other First

Circuit case law in which similar or higher levels of

harm were found not to constitute past persecution,

the Court finds that the Respondents have failed to

show that the harm and mistreatment rises to the

level of past persecution. See, e.g., Gilca v. Holder,

680 F.3d 109, 115 (1st Cir. 2012) (rejecting past

persecution supported by five or six incidents of

threats or extortion); Lobo v. Holder, 684 F.3d 11, 17

(1st Cir. 2012); Bocova v. Gonzales, 412 F.3d 257, 263

(1st Cir. 2005) (finding no persecution based on two

death threats and a beating resulting in loss of

consciousness and hospitalization).

B. WELL-FOUNDED FEAR

While the Court finds that the Respondent has

established a subjective fear based on his credible

testimony, the Court finds that the evidence is not

sufficient to show that there is a that a reasonable

person in the Respondent’s’ situation would be afraid

of returning to El Salvador today. The Court bases

this finding first on the fact that the lead

Respondent’s and Respondents’ well-founded fear of

persecution based on his or her particular social group

consisting that of family or nuclear family, is

undermined by the fact that the lead Respondent has

similarly situated family living in El Salvador

unharmed. See Zhakira v. Barr, 2020 West Law 586

9460 at *5 (1st Cir. October 2, 2020) (finding agency

supportedly found that Petitioner had “not

differentiated himself from his family members who

have not been directly threatened or harmed, or from

33a

the majority of Kenyans who are also Christians and

have [indiscernible] experienced no persecution”).

Indeed living in El Salvador are other members of the

lead Respondent’s nuclear family who have not been

harmed or mistreated, or where the evidence is

lacking that they were ever harmed and mistreated,

including his sister Lydia Urias [phonetic], who lives

in San Salvador, is a mother with grown children and

works delivering plastic cups and plates in El

Salvador and has not been mistreated or harmed by

anyone. The lead Respondent also testified that his

sister Elsa Urias [phonetic] lives in Sonsonate, the

birthplace of where the lead Respondent was born and

where she has children and is a pastor, and there’s no

indication that she was ever threatened or harmed by

anyone. He also indicated that he has no knowledge

that Celina [phonetic], Rosabel [phonetic], or other

siblings were ever harmed and mistreated by anyone

in El Salvador. While his mother passed away

sometime around March of 2017, although the lead

Respondent cannot remember the exact date

according to his testimony, he did indicate that his

mother was threatened by people from Guatemala,

but there was no connection to Wilfredo or his cohorts

or other criminals connecting them to the personal

animosity that occurred between Wilfredo and the

father of Juan Antonio and Remberto. The lead

Respondent also testified that his brother, Jaime

[phonetic], was harmed on one occasion where he was

placed in a room for 3 hours, but the lead Respondent

testified he did not know if this were the same people

who had a problem with his brothers or -- maternal

half-brothers or if it was somehow unconnected to

that. So the Court is not able to draw an inference

based on that testimony. Considering that there are

34a

similarly situated family members that continue to

live in El Salvador without further harm and

mistreatment, the Court knows finds that this factor

does undermine the objectiveness of the Respondent’s’

well-founded fear. See Lobo v. Holder, 685 F.3d 11,

19 (1st Cir. 2012) (stating that “we have often echoed

the fact that close relatives continue to live peacefully

in the alien’s homeland undercuts the alien’s claim

that persecution await his return”).

The Court notes that the objectiveness of the

Respondent’s’ well-founded fear is undermined by the

fact that it appears that they had successfully

relocated within El Salvador in the past. Because this

Court finds that the Respondents have not shown

past persecution, the regulations provide “in cases

which the applicant has not established past

persecution, the applicant shall bear the burden of

establishing that it would not be reasonable for him

or her to relocate, unless the persecution is by a

government or is government-sponsored.” 8 C.F.R.

§ 1208.13(b)(3)(i). In these matters, the Court notes

that the threats and attacks occurred from private

actors and there is no indication they were connected

by or to the government. Additionally, there were

long periods of times in which the lead Respondent

and his family were to relocate -- able to relocate

successfully within El Salvador and only brought

themselves back in danger when they went to the

hometown in which the threats had originated. For

instance, after the attack on Remberto, his maternal

half-brother, the lead Respondent and his family

moved to Cojutepeque and stayed there for about a

year, apparently working and living without any

physical type of harm. It was only after they returned

and they thought it would be safe to return in

35a

February or March 2017 that they were threatened by

unknown masked armed men and asked for money,

and warned they would end up like the lead

Respondent’s two brothers. Again approached in

August of 2017, the lead Respondent and his family

moved to Cara Sucia where the lead Respondent’s

brother, Juan, who was handicapped and lived, and

he lived there without any further harm or

mistreatment until December 2020, for 3 years. It

was only when the lead Respondent and his family

and went back to visit his wife’s family and his family

in the same area, then they were located, and then

followed again. The Court notes that, and it does

express in extreme sympathy, that Juan Antonio

appears to be handicap and that Remberto suffered a

traumatic shooting.

But similar to the lead

Respondent, when they relocated, it appears they

were able to escape any further harms or

mistreatment in El Salvador. Similarly, the lead

Respondent, when he did relocate to an area where

the shootings never occurred, it appears that he was

able to live his life peacefully with his family and

avoid the harm or mistreatment that he suffered at or

near his hometown. Based on the fact that it is his

burden of proof to show that it would not be

reasonable for him to relocate, based on the fact that

he did successfully do it for long periods of time in the

past, and only brought himself to danger when he

returned to his same hometown, the Court finds that

this further undermines the objectiveness of his wellfounded fear, and also reflects that he hasn’t been

unable to show that internal relocation would not be

reasonable or possible in El Salvador.

The Court further notes, as further explained in

section D below, that because it appears that the

36a

record evidence reflects that filing a police report

would not have been futile in El Salvador, and where

the lead Respondent nor his family ever reported any

of the threats or attack to the police, this further

undermines the objectiveness of his well-founded

fear. Hence, the Court finds that the Respondents

have failed to show that they have an objective wellfounded fear of persecution in El Salvador.

C. NEXUS AND BASIS

The Court certainly recognizes that members of an

immediate family may constitute a particular social

group. See Matter of L-E-A-, 27 I&N Dec. 40, 42 (BIA

2018). The Court also views this case as required

under the mixed-motive analysis. See EnamoradoRodriguez v. Barr, 941 F.3d 589, 596 (1st Cir. 2019).

Notwithstanding the lead Respondent’s testimony,

the Court finds that the testimony is insufficient to

show that the threats and one beating on the chest

that occurred on one occasion was on account of his

particular social group of family, or that he has a wellfounded fear of future persecution on account of

family, even considering the mixed-motive analysis.

The Court bases this finding first and foremost on the

fact that in the three incidents in which he was

encountered by the masked armed men, that they

were simply demanding money from him, and that

they warned he would end up like his two brothers if

he did not pay the money. The Court certainly

recognizes the arguments of the Respondents that

because they warned he would end up like his two

brothers, that the inference should be drawn that

they were working in cahoots or in conjunction with

the sicario Wilfredo.

The Court does not find

sufficient evidence to draw that inference in this

37a

record, because Wilfredo’s motivation in attacking

Juan Antonio and Remberto appear to be animus

based on the fact of who their father was, who is not

the father of the lead Respondent. To be clear, Juan

Antonio and Remberto only share a common mother

and not a common father, and Wilfredo’s animus

appeared to be against the father of Juan Antonio and

Remberto and perhaps his father’s biological sons.

There’s no indication that Wilfredo ever directly or

indirectly threatened the lead Respondent, or his

partner, or children directly or even indirectly. While

the unknown armed masked men made passing

reference to his brothers and the lead Respondent

ending up like his brothers, the Court is not able to

draw an inference based on this evidence that they

were motivated to attack him on account of his family,

as opposed to wanting to extort money from him for

criminal exploitative means. The Court bases this

finding on the lead Respondent’s own corroborative

evidence. Indeed, the lead Respondent’s own sister

submitted a statement at Exhibit 6, page 10, which

does reflect that because the lead Respondent “did not

have the capacity to pay the amount of money that the

gang members were asking for, and decided to leave

for the country for the United States, to save his life.”

Furthermore, the lead Respondent’s friend, Douglas

Humberto Urias-Orellana, indicated that the lead

Respondent immigrated to the United States because

he was threatened with death and asked him for a

large amount of money in order not to attempt against

the lead Respondent’s life, that he and his family

decided to leave. The statement -- seeSee Exhibit 6 at

page 13. The lead Respondent’s father-in-law at

Exhibit 6, page 16, and the lead Respondent’s friend

at Exhibit 6, page 7, makes the same type of

38a

statements that the armed masked men made

extortions demand for money and does not make any

reference, either direct or indirect, that the

motivation for this was on account of his family, or

nuclear family, or relationship with his maternal halfbrothers, Juan Antonio or Remberto. The Court

further finds that because, as indicated above, his

mother had resided in El Salvador without any

threats from Wilfredo or his cohorts, and where he

has two sisters and other siblings who continue to

reside in El Salvador without any type of threats or

mistreatment, the U.S. Court of Appeals for the First

Circuit, under whose jurisdiction this matter arises,

has found that in similarly situated cases that the

mere targeting of multiple family members does not

establish that that family group was a central reason

for the harm threatened or inflicted. See, e.g., Ruiz

Varela v. Barr, 984 F.3d 122, 126-27 (1st Cir. 2020)

(finding substantial evidence supporting the agency’s

finding that petitioner failed to establish a nexus

between the police persecution of him and his family

status, where his mothers and siblings continue to

reside in the area without incident, and where it is

not clear that the police conduct of shooting at or

beating petitioner and his friend resulted because

they had run a roadblock or because they refused to

submit to extortion demands); Loja-Tene v. Barr, 975

F.3d 58, 62 (1st Cir. 2020) (finding that substantial

evidence supported the agency’s conclusion “that

family ties did not motivate the petitioner’s

persecution, even though those ties may have brought

him into proximity with his persecutor” based on fact

persecutor only made menacing statements to

petitioner and his father “only after they refused to

leverage their day-to-day access to potential drug

39a

clientele.”). Accordingly, where it is not clear that the

individuals who were making the extortionate

demands were ever even tied to Wilfredo and his

cohorts and where similarly situated family members

continue to reside in El Salvador without incident, the

Court finds that the Respondents have failed to show

that any past harm or mistreatment or any wellfounded fear would be on account of their particular

social group consisting that of nuclear family or

family.

D. UNABLE OR UNWILLING

The Court finds that the Respondents have failed

to show that any persecution or a well-founded fear is

inflicted either by the Government of El Salvador, or

by persons or an organization of the Government of a

Salvador, or by persons or an organization that the

Government of El Salvador was unable or unwilling

to control. See Matter of Acosta, 19 I&N Dec. 211, 222

(BIA 1985). As the First Circuit has held, failure to

inform law enforcement of threats or attacks a noncitizen claims to have suffered is material to the

[indiscernible]rejection of claims the government

participation or complicity in past persecution. See,

e.g., Castillo-Diaz v. Holder, 562 F.3d 23, 27-28 (1st

Cir.

2009)

(upholding

Immigration

Judge’s

determination that petitioner’s failure to report a

rape that occurred when she was 15 years old

precluded her claim of government involvement in the

attack,

while

noting

Immigration

Judge’s

consideration of evidence “that the Government of El

Salvador has the power to prosecute rape cases and

attaches a significant penalty to a conviction for

rape”). In this case, the Court notes that the

Respondents never reported any of the threats or a

40a

single attack, physical attack that is, to the police

because they believe that the police were corrupt,

ineffective, or otherwise were somehow in cahoots

with the gangs or criminal organizations.

Nevertheless, a failure by the Respondents to make a

report to the police is not necessarily fatal to

Respondent’s case if they can show “that reporting

private abuse to government authorities would have

been futile.” Morales-Morales v. Sessions, 857 F.3d

130, 135 (1st Cir. 2017). Nevertheless, the subjective

belief that authorities are “corrupt” is insufficient “to

show that the mistreatment was attributive to the

government, whether through action or inaction.” Id.

at 135. In this case, in reviewing the country

conditions evidence record, the Court does not find

that a police report would have been futile. Indeed,

Exhibit 5, page 30, the Country Conditions Report for

-- from the U.S. Department of State from 2020

certainly presents a mixed picture considering the

efforts to combat organized crime in El Salvador. The

Court is certainly not blind to the fact that organized

criminal elements, including local and transnational

gangs and narcotics traffickers, were significant

perpetrators of violent crimes committing extortion,

kidnapping, human trafficking, intimidation, and

other threats and violence. See Exhibit 5 at page 31.

Balancing that out is the fact that the National

Civilian Police overseen by the Ministry of Justice

and Public Security is responsible for maintaining

public security, and that in November 2019 President

Bukele signed a decree authorizing military

involvement in police duties, which took effect

December 31, 2019, authorizing the National Civilian

Police to control and identify areas with the highest

incidents of crimes to target peacekeeping operations,

41a

conduct joint patrols with the police to prevent, deter,

and apprehend members of organized crime and

common criminal networks, carryout searches of

individuals, vehicles, and property and help persons

in cases of accidents or emergencies, make arrests,

and hand over detainees to the police, prevent

trafficking or goods of persons unauthorized national

borders, and strengthen perimeter security at prisons

and other detention centers and school. While the

Court certainly notes that at times civilian

authorities did not maintain effective control over

security forces, including instances where the

security forces committed abuses, sometimes acting

overzealously against criminal elements, including

gangs, the Court also notes that the government did

take steps to dismit [phonetic] dismiss and prosecute

abusers in the security forces.

In some cases

authorities investigated and prosecuted persons

accused of committing crimes and human rights

abuses. See id. at pages 30 through 31. The Court

also notes that the record evidence at Exhibit 6, pages

20 through 23, do indicate that the type of crimes that

the lead Respondent testified to do occur at a higher

incidence in El Salvador. Nevertheless, while often

the police suffer from inadequate funding during due

to limited resources and because of perceived or

actual corruption, they do not enjoy the full

competence and cooperation of much of El Salvadoran

citizenry. The Department of State Report said the

police’s investigative units have shown great promise,

including routine street-level patrol techniques, antigang work, and crime suppression, but the efforts

remain a difficult challenge with often lack of

cooperation between police, prosecutors, and

corrections. See Exhibit 6 at page 24. The Court

42a

certainly notes that the country conditions evidence

present a mixed picture of sometimes impunity,

sometimes

corruption,

and

sometimes

overzealousness on behalf of the law enforcement

apparatus. The Court also notes that the higher

echelons of policy makers have moved the military to

secure public safety and otherwise have moved to

dismiss those who act beyond the control of laws.

While the efforts to bring in line unruly police force or

to increase public security have not always been

completely effectual, the Court is not able to find that

this record evidence shows that it would have been

futile to report the threats to the police, especially

where there are a lot of resources being devoted to this

problem. As the First Circuit has held where a

government is, “making every effort to combat”

violence by private actors and its “inability to stop the

problem” is not distinguishable “from any other

government struggles,” the private violence has no

government nexus and does not constitute

persecution. See Kahn v. Holder, 727 F.3d 1, 7 (1st

Cir. 2013). Because the lead Respondents or the

Respondents never reported any of the threats or

attack to the police and where the Court notes that

the record evidence, while certainly mixed, would

reflect they would not have been futile, the Court

shows that the Respondents have failed to show that

the government would not be unable or unwilling to

protect them if they were to return to El Salvador.

III. WITHHOLDING OF REMOVAL UNDER

INA § 241(b)(3)

Because the Respondents were unable to establish

eligibility for asylum, they were necessarily unable to

meet the higher standard required to succeed on their

43a

claim for withholding removal under INA § 241(b)(3).

See 8 C.F.R. § 1208.16(b)(1)(i).

IV. WITHHOLDING OF REMOVAL UNDER

ARTICLE THREE OF THE U.N. CONVENTION

AGAINST TORTURE

The Court finds that the Respondents have failed

to meet their burden of proof to show that it is more

likely than not that a public official or other person

acting in an official capacity would instigate, consent,

acquiesce, or remain willfully blind to the

Respondent’s torture. The Court certainly notes the

threats and one beating that the lead Respondent

endured on his chest. However, the lead Respondent,

nor any of the other family members ever reported

this to the police. And as noted above, the Court notes

that this would not have been futile based on the

country conditions evidence. While the Respondent’s

reliance on generalized State Department Country

Reports and other country conditions evidence at

Exhibits 5 and 6 are sometimes helpful to their claim,

“their generic nature is such that they are rarely

dispositive.” See Ramirez-Perez v. Barr, 934 F.3d 47,

52-53 (1st Cir. 2019). While gang activity and

organized crime in El Salvador is certainly a serious

problem, they are insufficient to establish that the El

Salvador Government is a mere bystander to gang

violence, or that it would acquiesce or turn a blind eye

to the Respondent’s possible torture. See MayorgaVidal v. Holder, 675 F.3d 9, 20 (1st Cir. 2012). Hence,

the Court finds that the Respondents have failed to

show eligibility for relief under the Convention

Against Torture.

44a

ORDERS

Based upon the above, the following orders will

enter:

It is hereby ORDERED the Respondents’

Applications for Asylum under INA § 208 be in and

hereby are DENIED.

It is FURTHER ORDERED the Respondents’

Applications for Withholding of Removal under INA

§ 241(b)(3) be in and hereby are DENIED.

It is FURTHER ORDERED that the Respondents’

Applications for Withholding of Removal under

Article Three of the U.N. Convention Against Torture

be and hereby are DENIED.

It is FURTHER ORDERED the Respondents be

REMOVED from the United States to El Salvador.

Please see the next page for

electronic signature

Sturla, Mario J.

U.S. Immigration Judge

Digitally signed by

Sturla, Mario J. Immigration Judge

July 11, 2023 4:26 PM

45a

Name: Douglas Urias-Orellana

A208-691-512

Sayra Gamez-Mejia

A216-663-245

[G.E.U.G.]

A216-663-246

Date of Decision: March 14, 2022

Exhibit No. 8

Standard Language Addendum: Asylum

The following statements of law are hereby

incorporated into the Immigration Judge’s oral

decision. These statements are not the sole legal

basis for the decision and are meant to be read in

conjunction with any law cited in the oral decision

itself.

I. Asylum

The Court may grant asylum to an applicant who

timely files an application and establishes that he or

she is a refugee within the meaning of section

101(a)(42)(A) of the Act. INA § 208(b)(1)(A); 8 C.F.R.

§ 1208.13(a); see INS v. Cardoza-Fonseca, 480 U.S.

421, 423 (1987). An applicant is a “refugee” within

the meaning of INA § 101(a)(42)(A) if he or she is

unwilling or unable to return to his or her country of

nationality because of persecution or a well-founded

fear of future persecution on account of race, religion,

nationality, membership in a particular social group,

or political opinion.

An applicant for asylum also has the burden of

establishing that he or she merits a favorable exercise

of discretion. INA § 208(b)(1)(B); Matter of Pula, 19

I&N Dec. 467, 473-74 (BIA 1987) (superseded by

46a

regulation on other grounds).

In exercising

discretion, the Court must examine the totality of the

circumstances. Matter of Pula, 19 I&N Dec. at

473-74.

A. One Year Filing Deadline

An asylum applicant must prove by clear and

convincing evidence that he or she filed the

application within one-year of his or her most recent

arrival in the United States or that he or she qualifies

for an exception to the one-year deadline. INA

§ 208(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(2)(i)-(ii). To

qualify for an exception to the filing deadline, the

applicant must demonstrate either: (1) changed

circumstances that materially affect his or her

eligibility for asylum; or (2) extraordinary

circumstances relating to the delay in filing

the application.

INA § 208(a)(2)(D); 8 C.F.R.

§ 1208.4(a)(4)-(5). In either case, the applicant must

apply for asylum within a reasonable period following

the changed or extraordinary circumstances. 8 C.F.R.

§ 1208.4(a)(4)(ii).

B. Past Persecution

To establish past persecution, an asylum applicant

must demonstrate that he or she suffered persecution

in his or her country of nationality on account of a

protected ground, and that he or she is unable or

unwilling to return to, or avail himself or herself of

the protection of, that country because of such

persecution.

INA §§ 101(a)(42)(A), 208(b)(1)(B);

8 C.F.R. § 1208.13(b)(1). Persecution is “a threat to

the life or freedom of, or the infliction of suffering or

harm upon, those who differ in a way regarded as

offensive Matter of Acosta, 19 I&N Dec. 211, 222 (BIA

1985), overruled on other grounds by Matter of

47a

Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

Persecution does not encompass general conditions of

violence shared by many others in a country or the

harm an individual may experience as a result of civil

strife. See Tay-Chan v. Holder, 699 F.3d 107, 112-13

(1st Cir. 2012). Rather, to qualify as persecution, a

person’s experience must “rise above unpleasantness,

harassment, and even basic suffering” and consist of

systemic mistreatment rather than a series of isolated

events. See Rebenko v. Holder, 693 F.3d 87, 92 (1st

Cir. 2012) (quoting Nelson v. INS, 232 F.3d 258, 263

(1st Cir. 2000)).

The “severity, duration, and

frequency of physical abuse” are relevant factors to

this determination. Topalli v. Gonzales, 417 F.3d 128,

133 (1st Cir. 2005); see Vasili v. Holder, 732 F.3d 83,

89 (1st Cir. 2013) (“Infrequent beatings, threats, or

periodic detention . . . do not rise to the level of

persecution, and the nature and extent of an

applicant’s injuries are relevant to the ultimate

determination.”).

An applicant who has suffered past persecution on

account of a statutorily protected ground is presumed

to have a well-founded fear of future persecution on

account of that same protected ground. 8 C.F.R.

§ 1208.13(b)(1).

This presumption may only be

rebutted if the government establishes, by a

preponderance of the evidence: (1) that the applicant

can reasonably relocate within his or her country of

origin; (2) or there has been a “fundamental change in

circumstances” in the country at issue, such that the

applicant’s fear is no longer well-founded. 8 C.F.R.

§ 1208.13(b)(1)(i)(A).

48a

C. Well-Founded Fear of Future Persecution

An applicant who has not suffered past persecution

may be granted asylum if he or she demonstrates a

well-founded fear of future persecution on account of

race, religion, nationality, membership in a particular

social group, or political opinion. Id. § 1208.13(b)(2).

An applicant’s fear is well-founded if it is both

subjectively genuine and objectively reasonable.

Toloza-Jimenez v. Gonzales, 457 F.3d 155, 161 (1st

Cir. 2006).

Generally, the subjective component of this inquiry is

satisfied by the applicant’s credible testimony that he

or she fears persecution. See Cordero-Trejo v. INS,

40 F.3d 482, 491 (1st Cir. 1994). An applicant may

satisfy the objective prong if he or she demonstrates a

“reasonable possibility” that he or she will be “singled

out individually for persecution,” or alternatively, if

the applicant establishes a widespread “pattern or

practice” in his or her country of persecuting “a group

of persons similarly situated to the applicant on

account of a protected ground.” Cardoza-Fonseca,

480 U.S. at 440; Sugiarto v. Holder, 586 F.3d 90, 97

(1st Cir. 2009); 8 C.F.R. § 1208.13(b)(2)(i)(B), (iii).

Evidence concerning treatment of the applicant’s

family or similarly situated friends or colleagues may

be probative of such a pattern or practice. See

Sugiarto, 586 F.3d at 97-98; Matter of Villalta, 20

I&N Dec. 142, 147 (BIA 1990).

An individual generally cannot establish a wellfounded fear of persecution if he or she could avoid a

future threat by relocating to another part of the

proposed country of removal.

8 C.F.R.

§ 1208.13(b)(2)(ii).

Where the persecutor is a

government or a government-sponsored actor,

49a

however, there is a presumption that relocation is not

reasonable. Id. at § 1208.13(b)(3)(ii).

D. Basis and Nexus

The applicant must also establish that a statutorilyprotected ground – race, religion, nationality,

membership in a particular social group, or political

opinion – is “at least one central reason” for the

applicant’s persecution.

INA §§ 101(a)(42)(A),

208(b)(i); see Sugiarto, 586 F.3d at 95; Matter of

J-B-N- & S-M-, 24 I&N Dec. 208, 212-15 (BIA 2007).

Persecution on account of the statutorily protected

grounds refers to persecution motivated by the

victim’s traits, not the persecutor’s. INS v. EliasZacarias, 502 U.S. 478, 482 (1992). While the

applicant need not identify the persecutors with

certainty or prove that the alleged persecutors

targeted him or her solely because of a protected

characteristic, the applicant must provide some

evidence, direct or circumstantial, to establish “that

the persecution was based, ‘at least in part,’ on an

impermissible motivation.” Ivanov v. Holder, 736

F.3d 5, 12 (1st Cir. 2013) (quoting Sompotan v.

Mukasey, 533 F.3d 63, 69 (1st Cir. 2008)); see Matter

of J-B-N- & S-M-, 24 I&N Dec. at 215-17.

An applicant for asylum or withholding of removal

seeking relief based on “membership in a particular

social group” must establish that the group is:

(1) composed of members who share a common

immutable

characteristic;

(2)

defined

with

particularity; and (3) socially distinct within the

society in question. Matter of M-E-V-G-, 26 I&N Dec.

227, 237 (BIA 2014).

The characteristic may be innate or based upon a

shared past experience. Matter of Acosta, 19 I&N Dec.

50a

at 233; see also Matter of C-A-, 23 I&N Dec. 951, 958

(BIA 2006). The “common, immutable characteristic”

is determined on a case-by-case basis and “must be

one that the members of the group either cannot

change, or should not be required to change because

it is fundamental to their individual identities or

consciences.” Matter of Acosta, 19 I&N Dec. at 233.

The particularity requirement is “definitional in

nature” and focuses on delineation—whether the

particular social group definition is sufficiently

discrete and precise as opposed to amorphous. Matter

of M-E-V-G-, 26 I&N Dec. at 239-41; Matter of

W-G-R-, 26 I&N Dec. 208, 214 (BIA 2014). The

proposed particular social group should address the

“outer limits” of the group’s boundaries and “provide

a clear benchmark for determining who falls within

the group.” Matter of M-E-V-G-, 26 I&N Dec. at 23941. In making this determination, the definition

should be analyzed in the context of the society in

question and focus on whether members of the society

“generally agree on who is included in the group.” Id.;

Matter of W-G-R-, 26 I&N Dec. at 221.

Lastly, “social distinction” requires that members of

the proposed group would be perceived as a separate

or distinct group by society. Matter of M-E-V-G-,

26 I&N Dec. at 242 (clarifying that the perception of

the society, and not the persecutor, is determinative

for social distinction purposes). In other words, the

society in question must meaningfully distinguish

those with the common, immutable characteristic

from those who do not have it. Id. at 238.

The First Circuit and the Board of Immigration

Appeals (“BIA” or “Board”) have found that fear of

gang violence, recruitment, or extortion does not

51a

constitute a cognizable particular social group for

asylum purposes under the Act. See Beltrand-Alas v.

Holder, 689 F.3d 90, 93 (1st Cir. 2012) (affirming that

precedent establishes that opposition to gangs is not

a cognizable particular social group); Mendez-Barrera

v. Holder, 602 F.3d 21, 27 (1st Cir. 2010) (finding that

the particular social group of “‘young women recruited

by gang members who resist such recruitment’—is

not socially visible” to anyone but the alleged

persecutors and as such is not a legally cognizable

particular social group); Larios v. Holder, 608 F.3d

105, 109 (1st Cir. 2010) (holding that “young

Guatemalan men recruited by gang members who

resist such recruitment” was not socially visible nor

was it sufficiently particular to constitute a particular

social group); see also Matter of E-A-G-, 24 I&N Dec.

591. 594-95 (BIA 2008) (holding that a young

Honduran male failed to establish membership in

particular social group of “persons resistant to gang

membership,” as evidence failed to establish that

Honduran society, including gang members

themselves, would perceive those opposed to gang

membership as members of a social group); Matter of

S-E-G-, 24 I&N Dec. 579, 587-88 (BIA 2008) (holding

that “young Salvadorans who have been subject to

recruitment efforts by criminal gangs, but who have

refused to join for personal, religious, or moral

reasons, fails the ‘social visibility’ test and does not

qualify as a particular social group.”); see, e.g.; PaizMorales v. Lynch, 795 F.3d 238, 242 (1st Cir. 2015);

Mayora-Vidal v. Holder, 675 F.3d 9 (1st Cir. 2012)

(young Salvadoran males who were vulnerable to

gangs from lack of parental or family protection is not

a legally cognizable social group); Villalta-Martinez v.

Sessions, 882 F.3d 20, 24 (1st Cir. 2018) (threats to

52a

extort money, “albeit terrifying, do not satisfy the

statutory requirements for asylum”) (citing Escobar v.

Holder, 698 F.3d 36, 38 (1st Cir. 2012) (internal

citations omitted)); Vanchurina v. Holder, 619 F.3d

95, 99 (1st Cir. 2010) (criminal extortion and threats

are not grounds for asylum); Chikkeur v. Mukasey,

514 F.3d 1381, 1383 (1st Cir. 2008) (citing Hincapie v.

Gonzales, 494 F.3d 213, 219-20 (1st Cir. 2007)

(distinguishing between “a desire to extort money”

and “any motive connected to a statutorily protected

ground”)).

Moreover, violence at the hands of gangs is a “large

societal problem” in many countries that affects a

broad range of the population. Matter of M-E-V-G-,

26 I&N Dec. at 250-51. Gang members “may target

one segment of the population for recruitment,

another for extortion, and yet others for kidnapping,”

or other crimes, and “certain segments of a population

may be more susceptible to one type of criminal

activity than another.” Id. However, these victims of

gang violence generally are not targeted on a

protected basis, but “suffer from the gang’s criminal

efforts to sustain its enterprise in the area.” Id. at

251. “A national community may struggle with

significant societal problems resulting from gangs,

but not all societal problems are bases for asylum.”

Id. at 250-51; see also Tay-Chan, 699 F.3d at 112-13

(“[F]ear of harm from general conditions of violence

and civil unrest does not even establish a wellfounded fear of persecution, the asylum standard,

much less a clear probability of persecution, the

withholding standard”; “mere vulnerability to

criminal predations cannot define a cognizable social

group”) (internal quotation marks omitted); ArévaloGirón v. Holder, 667 F.3d 79, 83 (1st Cir. 2012)

53a

(“Fairly viewed, greed – not social group membership

– is the apparent trigger for gangs’ interest . . . and

mere vulnerability to criminal predations cannot

define a cognizable social group”) (internal citations

omitted).

E. Government Action

Additionally, the persecution that the applicant

experienced or fears must be the direct result of

government action, government-supported action, or

the government’s unwillingness or inability to control

private conduct. Ivanov, 736 F.3d at 12 (quoting Sok

v. Mukasey, 526 F.3d 48, 54 (1st Cir. 2008)). “Action

by non-governmental actors can undergird a claim of

persecution only if there is some showing that the

alleged persecutors are in league with the

government or are not controllable by the

government.” Da Silva v. Ashcroft, 394 F.3d 1, 7 (1st

Cir. 2005); see also Rosales Justo v. Sessions, 895 F.3d

154, 162-64 (1st Cir. 2018) (explaining the unwilling

or unable standard in light of its misapplication).

Where an asylum applicant reports persecution to the

government and the government provides a prompt

response, the quick response is strong evidence of the

government’s willingness to protect the applicant.

Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir.

2007).

II. Withholding of Removal Under Section

241(b)(3) of the Act

Section 241(b)(3) of the Act is a non-discretionary

provision requiring the Court to withhold removal of

an individual if his or her life or freedom would be

threatened in that country on account of one of the

five protected grounds. 8 C.F.R. § 1208.16(b). To

qualify for withholding of removal, an applicant must

54a

establish a “clear probability” of persecution, meaning

that it is “more likely than not” that he or she would

be subject to persecution on account of a protected

ground. Cardoza-Fonseca, 480 U.S. at 430 (citing INS

v. Stevic, 467 U.S. 407 (1984)). The applicant may

establish eligibility for withholding of removal by

demonstrating either that he or she has suffered past

persecution on the basis of one such statutory ground

or that “it is more likely than not” that he or she

“would be persecuted” in the future on account

of a protected ground. INA § 241(b)(3); 8 C.F.R.

§ 1208.16(b)(1)-(2).

A withholding of removal

applicant must establish that a protected ground “was

or will be at least one central reason” for the

persecution he or she will face. Matter of C-T-L-,

25 I&N Dec. 341, 348 (BIA 2010).

III. Protection Under the Convention Against

Torture

Under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment, as implemented by

sections 1208.16–1208.18 of Title 8 of the Code of

Federal Regulations, an applicant is eligible for

withholding or deferral of removal if he or she

establishes that it is “more likely than not” that he or

she would be tortured in the proposed country of

removal by, or at the instigation of, or with the

consent or acquiescence of a public official. 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1); see also Convention

Against Torture, art. 3, Dec. 10, 1984, S. Treaty Doc.

No. 100–20 (1988). “Torture” is defined, in part, as

the intentional infliction of severe pain or suffering. 8

C.F.R. § 1208.18(a)(1).

55a

To establish a prima facie claim under the Convention

Against Torture, the “applicant must offer specific

objective evidence showing that he or she will be

subject to: ‘(1) an act causing severe physical or

mental pain or suffering; (2) intentionally inflicted;

(3) for a proscribed purpose; (4) by or at the

instigation of or with the consent or acquiescence of a

public official who has custody or physical control of

the victim; and (5) not arising from lawful sanctions.’”

Rashad v. Mukasey, 554 F.3d 1, 6 (1st Cir. 2009)

(quoting Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.

2004)).

An applicant who establishes that he or she is entitled

to protection under the Convention Against Torture

shall be granted withholding of removal unless he or

she is subject to mandatory denial of that relief, in

which case he or she shall be granted deferral

of removal. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). An

applicant is subject to mandatory denial of

withholding of removal under the Convention Against

Torture if he or she participated in the persecution of

others, if he or she was convicted of a particularly

serious crime, if there are serious reasons to believe

he or she committed a serious nonpolitical crime

outside of the United States, or if there are reasonable

grounds to believe he or she is a danger to the security

of the United States. 8 C.F.R. § 1208.16(d)(2); see also

INA § 241(b)(3)(B).

An applicant’s criminal

convictions, no matter how serious, are not a bar to

deferral of removal under the Convention Against

Torture. See 8 C.F.R. § 1208.17(a); Matter of G-A-,

23 I&N Dec. 366, 368 (BIA 2002).

56a

Order of the Immigration Judge

/s/ Mario J. Sturla

Immigration Judge:

Mario 03/14/2022

Surla,

Certificate of Service

This document was served:

Via:

[M]

Mail

[P]

[ E ] Electronic Service

Personal

Service

To: [ ] Noncitizen | [ ] Noncitizen c/o custodial

officer | [ E ] Noncitizen’s atty/rep. | [ E ] DHS

By: Sturla, Mario, ◻ Court staff ☒ Immigration

judge

Date: 03/14/2022

57a

8 U.S.C. § 1101

§ 1101. Definitions

(a) As used in this chapter—

***

(42) The term “refugee” means (A) any person who

is outside any country of such person’s nationality or,

in the case of a person having no nationality, is

outside any country in which such person last

habitually resided, and who is unable or unwilling to

return to, and is unable or unwilling to avail himself

or herself of the protection of, that country 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, or (B) in

such special circumstances as the President after

appropriate consultation (as defined in section

1157(e) of this title) may specify, any person who is

within the country of such person’s nationality or, in

the case of a person having no nationality, within the

country in which such person is habitually residing,

and who is persecuted or who has a well-founded fear

of persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion. The term “refugee” does not include any

person who ordered, incited, assisted, or otherwise

participated in the persecution of any person on

account of race, religion, nationality, membership in

a particular social group, or political opinion. For

purposes of determinations under this chapter, a

person who has been forced to abort a pregnancy or to

undergo involuntary sterilization, or who has been

persecuted for failure or refusal to undergo such a

procedure or for other resistance to a coercive

58a

population control program, shall be deemed to have

been persecuted on account of political opinion, and a

person who has a well founded fear that he or she will

be forced to undergo such a procedure or subject to

persecution for such failure, refusal, or resistance

shall be deemed to have a well founded fear of

persecution on account of political opinion.

***

59a

8 U.S.C. § 1158

§ 1158. Asylum

***

(b) Conditions for granting asylum

(1) In general

(A) Eligibility

The Secretary of Homeland Security or the

Attorney General may grant asylum to an alien

who has applied for asylum in accordance with

the requirements and procedures established by

the Secretary of Homeland Security or the

Attorney General under this section if the

Secretary of Homeland Security or the Attorney

General determines that such alien is a refugee

within the meaning of section 1101(a)(42)(A) of

this title.

(B) Burden of proof

(i) In general

The burden of proof is on the applicant to

establish that the applicant is a refugee, within

the meaning of section 1101(a)(42)(A) of this

title. To establish that the applicant is a

refugee within the meaning of such section, the

applicant must establish that race, religion,

nationality, membership in a particular social

group, or political opinion was or will be at least

one central reason for persecuting the

applicant.

(ii) Sustaining burden

The testimony of the applicant may be

sufficient to sustain the applicant’s burden

without corroboration, but only if the applicant

satisfies the trier of fact that the applicant’s

60a

testimony is credible, is persuasive, and refers

to specific facts sufficient to demonstrate that

the applicant is a refugee. In determining

whether the applicant has met the applicant’s

burden, the trier of fact may weigh the credible

testimony along with other evidence of record.

Where the trier of fact determines that the

applicant should provide evidence that

corroborates otherwise credible testimony,

such evidence must be provided unless the

applicant does not have the evidence and

cannot reasonably obtain the evidence.

(ii) Credibility determination

Considering the totality of the circumstances,

and all relevant factors, a trier of fact may base

a credibility determination on the demeanor,

candor, or responsiveness of the applicant or

witness, the inherent plausibility of the

applicant’s

or

witness’s

account,

the

consistency between the applicant’s or

witness’s written and oral statements

(whenever made and whether or not under

oath, and considering the circumstances under

which the statements were made), the internal

consistency of each such statement, the

consistency of such statements with other

evidence of record (including the reports of the

Department of State on country conditions),

and any inaccuracies or falsehoods in such

statements, without regard to whether an

inconsistency, inaccuracy, or falsehood goes to

the heart of the applicant’s claim, or any other

relevant factor. There is no presumption of

credibility, however, if no adverse credibility

determination is explicitly made, the applicant

61a

or witness shall have a rebuttable presumption

of credibility on appeal.

***

62a

8 U.S.C. § 1252

§ 1252. Judicial review of orders of removal

(a) Applicable provisions

(1) General orders of removal

Judicial review of a final order of removal (other

than an order of removal without a hearing

pursuant to section 1225(b)(1) of this title) is

governed only by chapter 158 of title 28, except as

provided in subsection (b) and except that the court

may not order the taking of additional evidence

under section 2347(c) of such title.

(2) Matters not subject to judicial review

(A) Review relating to section 1225(b)(1)

Notwithstanding any other provision of law

(statutory or nonstatutory), including section

2241 of title 28, or any other habeas corpus

provision, and sections 1361 and 1651 of such

title, no court shall have jurisdiction to review—

(i) except as provided in subsection (e), any

individual determination or to entertain any

other cause or claim arising from or relating to

the implementation or operation of an order of

removal pursuant to section 1225(b)(1) of this

title,

(ii) except as provided in subsection (e), a

decision by the Attorney General to invoke the

provisions of such section,

(iii) the application of such section to

individual aliens, including the determination

made under section 1225(b)(1)(B) of this title,

or

63a

(iv) except as provided in subsection (e),

procedures and policies adopted by the

Attorney General to implement the provisions

of section 1225(b)(1) of this title.

(B) Denials of discretionary relief

Notwithstanding any other provision of law

(statutory or nonstatutory), including section

2241 of title 28, or any other habeas corpus

provision, and sections 1361 and 1651 of such

title, and except as provided in subparagraph (D),

and regardless of whether the judgment, decision,

or action is made in removal proceedings, no court

shall have jurisdiction to review—

(i) any judgment regarding the granting of

relief under section 1182(h), 1182(i), 1229b,

1229c, or 1255 of this title, or

(ii) any other decision or action of the

Attorney General or the Secretary of Homeland

Security the authority for which is specified

under this subchapter to be in the discretion of

the Attorney General or the Secretary of

Homeland Security, other than the granting of

relief under section 1158(a) of this title.

(C) Orders against criminal aliens

Notwithstanding any other provision of law

(statutory or nonstatutory), including section

2241 of title 28, or any other habeas corpus

provision, and sections 1361 and 1651 of such

title, and except as provided in subparagraph (D),

no court shall have jurisdiction to review any final

order of removal against an alien who is

removable by reason of having committed a

64a

criminal offense covered in section 1182(a)(2) or

1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or

any offense covered by section 1227(a)(2)(A)(ii) of

this title for which both predicate offenses are,

without regard to their date of commission,

otherwise covered by section 1227(a)(2)(A)(i) of

this title.

(D) Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any

other provision of this chapter (other than this

section) which limits or eliminates judicial

review, shall be construed as precluding review of

constitutional claims or questions of law raised

upon a petition for review filed with an

appropriate court of appeals in accordance with

this section.

***

(b) Requirements for review of orders of

removal

With respect to review of an order of removal under

subsection (a)(1), the following requirements apply:

***

(4) Scope and standard for review

Except as provided in paragraph (5)(B)—

(A) the court of appeals shall decide the

petition only on the administrative record on

which the order of removal is based,

(B) the administrative findings of fact are

conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary,

65a

(C) a decision that an alien is not eligible for

admission to the United States is conclusive

unless manifestly contrary to law, and

(D) the Attorney General’s discretionary

judgment whether to grant relief under section

1158(a) of this title shall be conclusive unless

manifestly contrary to the law and an abuse of

discretion.

No court shall reverse a determination made by a

trier of fact with respect to the availability of

corroborating evidence, as described in section

1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of

this title, unless the court finds, pursuant to

subsection (b)(4)(B), that a reasonable trier of fact

is compelled to conclude that such corroborating

evidence is unavailable.

(5) Treatment of nationality claims

(A) Court determination if no issue of fact

If the petitioner claims to be a national of the

United States and the court of appeals finds

from the pleadings and affidavits that no

genuine issue of material fact about the

petitioner’s nationality is presented, the court

shall decide the nationality claim.

(B) Transfer if issue of fact

If the petitioner claims to be a national of the

United States and the court of appeals finds

that a genuine issue of material fact about the

petitioner’s nationality is presented, the court

shall transfer the proceeding to the district

court of the United States for the judicial

district in which the petitioner resides for a new

hearing on the nationality claim and a decision

66a

on that claim as if an action had been brought

in the district court under section 2201 of title

28.

(C) Limitation on determination

The petitioner may have such nationality

claim decided only as provided in this

paragraph.

(6) Consolidation with review of motions to

reopen or reconsider

When a petitioner seeks review of an order

under this section, any review sought of a motion

to reopen or reconsider the order shall be

consolidated with the review of the order.

(7) Challenge to validity of orders in certain

criminal proceedings

(A) In general

If the validity of an order of removal has not

been judicially decided, a defendant in a

criminal proceeding charged with violating

section 1253(a) of this title may challenge the

validity of the order in the criminal proceeding

only by filing a separate motion before trial.

The district court, without a jury, shall decide

the motion before trial.

(B) Claims of United States nationality

If the defendant claims in the motion to be a

national of the United States and the district

court finds that—

(i) no genuine issue of material fact about

the defendant’s nationality is presented, the

court shall decide the motion only on the

67a

administrative record on which the removal

order is based and the administrative

findings of fact are conclusive if supported by

reasonable, substantial, and probative

evidence on the record considered as a whole;

or

(ii) a genuine issue of material fact about

the defendant’s nationality is presented, the

court shall hold a new hearing on the

nationality claim and decide that claim as if

an action had been brought under section

2201 of title 28.

The defendant may have such nationality claim

decided only as provided in this subparagraph.

(C) Consequence of invalidation

If the district court rules that the removal

order is invalid, the court shall dismiss the

indictment for violation of section 1253(a) of this

title. The United States Government may

appeal the dismissal to the court of appeals for

the appropriate circuit within 30 days after the

date of the dismissal.

(D) Limitation

review

on

filing

petitions

for

The defendant in a criminal proceeding under

section 1253(a) of this title may not file a

petition for review under subsection (a) during

the criminal proceeding.

68a

(8) Construction

This subsection—

(A) does not prevent the Attorney General,

after a final order of removal has been issued,

from detaining the alien under section 1231(a)

of this title;

(B) does not relieve the alien from complying

with section 1231(a)(4) of this title and section

1253(g)1 of this title; and

(C) does not require the Attorney General to

defer removal of the alien.

(9) Consolidation of questions for judicial

review

Judicial review of all questions of law and fact,

including interpretation and application of

constitutional and statutory provisions, arising

from any action taken or proceeding brought to

remove an alien from the United States under this

subchapter shall be available only in judicial

review of a final order under this section. Except

as otherwise provided in this section, no court

shall have jurisdiction, by habeas corpus under

section 2241 of title 28 or any other habeas corpus

provision, by section 1361 or 1651 of such title, or

by any other provision of law (statutory or

nonstatutory), to review such an order or such

questions of law or fact.

***

1

See References in Text note below.