100 F.4th 312
1st Cir.2024Background
- Ana Luisa Donis-Hernandez de Cabrera and her family fled Guatemala after being threatened with extortion and death by the Mara 18 gang targeting her small business.
- Cabrera applied for asylum (including her husband and two children as derivatives), withholding of removal, and protection under the Convention Against Torture (CAT), based on fear of gang violence and threats.
- The Immigration Judge (IJ) found her and her husband's testimony credible but denied all claims, ruling that Cabrera's proposed social group ("small business proprietors subjected to gang extortion threats") was not legally cognizable, and no protected ground was shown.
- The Board of Immigration Appeals (BIA) affirmed, additionally holding that "small business owners" are not an immutable or socially distinct group, and there was insufficient evidence of government acquiescence for CAT.
- Petitioners sought review by the First Circuit, challenging the denial of asylum, withholding of removal, and CAT protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Cabrera's proposed social group legally cognizable? | "Small business owners" should be protected as PSG due to extortion risk | Business ownership is neither immutable nor socially distinct | Not cognizable; group is neither immutable nor distinct |
| Was harm suffered past persecution warranting asylum? | Gang threats/extortion amounted to persecution on protected grounds | Threats/extortion do not amount to past persecution | Harm did not rise to level of past persecution |
| Was there nexus to a protected ground for asylum? | Cabrera targeted for being in PSG/opposing gangs | Harm was result of generalized violence, not PSG or political opinion | No nexus to protected ground |
| Did evidence support CAT protection? | Country reports show government allowed gang violence (‘acquiescence’) | Generalized reports insufficient; no showing of specific risk/acquiescence | No CAT relief; no evidence of individualized risk/acquiescence |
Key Cases Cited
- Martinez-Perez v. Sessions, 897 F.3d 33 (1st Cir. 2018) (discussing credibility and review of immigration claims)
- Hernandez-Martinez v. Garland, 59 F.4th 33 (1st Cir. 2023) (standards for particular social group cognizability)
- Espinoza-Ochoa v. Garland, 89 F.4th 222 (1st Cir. 2023) (particularity and social distinction for PSG)
- Paiz-Morales v. Lynch, 795 F.3d 238 (1st Cir. 2015) (PSG must be discrete and definable)
- Ramírez-Pérez v. Barr, 934 F.3d 47 (1st Cir. 2019) (social distinction in the relevant society)
- Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009) (withholding of removal requires showing of likely persecution on protected ground)