Virginia Lawyers Weekly VA Lawyers Weekly
Where an immigrant from El Salvador failed to show that she was persecuted on account of her membership in a particular social group, the Board of Immigration Appeals, or BIA, did not err in denying her petition for asylum or withholding of removal.
Background
Maria Segunda Morales, a native of El Salvador, filed this petition for review of an order of the BIA denying her petition for asylum, withholding of removal and relief under the U.N. Convention Against Torture or CAT. She contends chiefly that the BIA and immigration judge, erred in rejecting her claim of persecution on account of “membership in a particular social group.
Group one
A “particular social group,” the Board has explained, must be (i) “composed of members who share a common immutable characteristic,” (ii) “defined with particularity” and (iii) “socially distinct within the society in question.” Morales’s first proposed social group is Salvadorean women who are witnesses to gang criminal activity and targeted because they filed a police report.
The problem for Morales is that the traits of her proposed group are “amorphous, overbroad, diffuse, [and] subjective.” The term, “witnesses,” for example, could plausibly refer to bystanders, informants or those who testify in court. This court thus held earlier in the year that an applicant’s proposed group, “prosecution witnesses,” lacked particularity.
Although Morales counters that her proposed group adds more limiting language, the “collection of traits” here does not sharpen the boundary lines. “Criminal activity” could span “offenses ranging in severity from petty theft to first-degree murder.” This court has, in fact, rejected “criminal history” as an insufficiently particular trait, reasoning that the term could “mean anything from a reputation for committing crimes to an actual criminal record.”
Similarly, the term, “targeted,” could refer to exposure to physical harm, verbal threats or some other kind of lesser attention. Morales’s medley of vague traits ultimately bleeds into those of the general Salvadorean population, thereby undermining the very “purpose” of the particularity requirement: “to avoid indeterminacy.”
Morales fares no better with the “socially distinct” criterion of the Board’s definition. Though this requirement does not mean that a group’s members must be identifiable “on sight,” it does necessitate evidence that society generally considers them to form a group. Morales has not, however, marshalled adequate evidence that Salvadorean society views her proposed group as “set apart … in some significant way.”
Group two
Morales’s next proposed social group is Salvadorean women who are in a domestic relationship that they are unable to leave. Morales has not demonstrated herself even to belong to this group. In her application and testimony, Morales alleged two relevant relationships: one with her cousin and one with her ex-partner. Even if these relationships were in fact “domestic,” Morales has not established that she was unable to leave them.
In any event, for factual determinations, this court’s review is limited to whether there was “substantial evidence” to support them. The court sees no basis to conclude, let alone be compelled to conclude, that Morales should be classified as a woman in a domestic relationship that she is unable to leave.
Group three
Morales’s third and final proposed social group, family, also runs into trouble. Morales still has the remaining burden of establishing a “nexus” between family membership and past or future persecution. Morales has not pointed to any evidence of nexus besides the identities of her alleged assailants.
That her cousin supposedly raped her, and not a stranger, does not mean that he did so on account of family membership. Indeed, the government rattles off a series of other plausible motives: “jealousy, possessiveness, and/or sexual desire.” The reasons for sexual interactions, even among family members, are varied and diverse.
Morales, moreover, did not point to any other persons that her supposed assailants abused on account of their status as members of her family. The court cannot declare that any reasonable adjudicator would—on this sparsely developed record—have arrived at a different conclusion as to nexus than the BIA did.
CAT
Morales’s notice of appeal to the BIA — to which no briefing was added — listed only one argument concerning her claim for CAT relief: that she had, in fact, “testified credibly and consistently.” That contention is different from what Morales now argues. Because the BIA rightly stated that Morales had not meaningfully presented her CAT claim, this court has no jurisdiction to evaluate arguments raised for the first time on review.
Petition denied in part, dismissed in part.
Morales v. Garland, Case No. 20-1305, Oct. 24, 2022. 4th Cir. (Wilkinson), from Board of Immigration Appeals. Ronald Darwin Richey for Petitioner. Jennifer A. Singer for Respondent. VLW 022-2-224. 12 pp.
