Veronica Alisseth Torres-De Hernandez and her three children, nationals of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) after facing threats in their home country. An Immigration Judge denied their applications, and the Board of Immigration Appeals affirmed the denial. The petitioners appealed to the Ninth Circuit, arguing that the threats they faced amounted to past persecution and that they belonged to a cognizable particular social group. The agency proceedings involved multiple proposed social groups, but the petitioners failed to consistently argue these groups through the administrative process.
The panel reviewed the agency's factual findings for substantial evidence and legal conclusions de novo. First, regarding asylum, the court held that the threats received by the petitioner did not amount to past persecution. Citing Lim v. INS, the court noted that threats standing alone constitute past persecution only in a small category of cases where they are so menacing as to cause significant actual suffering or harm. Second, the court addressed the particular social group claims. The petitioner proposed a group of 'El Salvadoran nationals who are known to be financially supported by their families while working in the United States' before the Immigration Judge but failed to defend or even mention this group in her opening brief, thereby forfeiting the claim. She proposed a different group, 'El Salvadoran women living alone with children,' before the BIA, which the BIA did not address because it was raised for the first time on appeal. In the petition for review, she proposed a third, distinct group. The court refused to review this claim because it was not first raised to the BIA, emphasizing the mandatory exhaustion requirement under 8 U.S.C. § 1252(d)(1). Third, regarding withholding of removal, the court found that because the petitioner failed to establish a reasonable possibility of future persecution for asylum, she necessarily failed the more stringent standard for withholding of removal. The court also noted that any misstatement of the nexus standard by the Immigration Judge did not require remand because the judge had determined there was no nexus at all between the harm and a protected ground. Finally, for CAT relief, the court found substantial evidence supported the denial. The petitioner failed to show it is more likely than not that she would be tortured if removed. The agency considered factors such as past torture and the ability to relocate, finding that criminal gangs would not have the ability or willingness to locate her if she relocated within El Salvador and that the police are making great efforts to combat gang violence.
The petition for review is denied, and the BIA's dismissal of the relief applications stands. The decision reinforces the strict forfeiture rule for asylum claims not argued in an opening brief and clarifies that mere threats, without significant actual suffering, do not constitute past persecution. It also confirms that a petitioner cannot raise a new particular social group for the first time in a petition for review. The dissent leaves open the possibility that the CAT claim might require further agency consideration if the evidence was not properly weighed.
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