Carlos Mauricio Arevalo-Montano and his three minor children, natives and citizens of El Salvador, sought asylum and withholding of removal after facing threats from the MS-13 gang. The gang members threatened to harm his wife and daughters to coerce him into driving them for free. The Immigration Judge and the Board of Immigration Appeals denied their applications, concluding that the petitioners failed to establish a valid particular social group or a sufficient connection between the harm and a protected ground. The petitioners appealed to the Ninth Circuit, arguing that their proposed groups—Uber drivers in El Salvador and the Arevalo-Montano family—qualified for protection.
The Ninth Circuit applied the substantial evidence standard to factual findings and de novo review to legal questions regarding the cognizability of particular social groups. The court analyzed two proposed groups. First, regarding 'Uber Drivers in El Salvador,' the court held that driving is not an immutable characteristic. Citing Plancarte Sauceda v. Garland, the court explained that an immutable characteristic must be fundamental to identity and cannot be changed. The court noted that Arevalo-Montano could avoid the harm by changing jobs and conceded at his hearing that he could pursue other work. Additionally, the skills required to drive are common and do not make the group distinct. Second, regarding the 'Arevalo-Montano family' group, the court found no evidence of animosity toward the family itself. The record showed that the gang threatened the family only as an instrumental means to obtain a free ride. As the court stated in Rodriguez-Zuniga v. Garland, threats used to coerce an individual for a specific purpose do not constitute persecution on account of family membership. The court further noted that other family members in El Salvador had not faced similar threats, undermining the claim of a family-based nexus.
The petition for review is denied, and the Board of Immigration Appeals' decision stands. The petitioners remain ineligible for asylum and withholding of removal based on the current record. The motion to stay removal is denied, though a temporary stay remains in effect until the mandate issues. The decision reinforces the strict requirement that a particular social group must be defined by an immutable characteristic and that threats must be motivated by the group membership itself, not merely used as a tool to achieve a separate objective.
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