80 F.4th 71
1st Cir.2023Background:
- Petitioner Evelin Raquel Montoya-Lopez, a Salvadoran national, worked at her sister’s produce stand in San Miguel and was subjected to MS-13 extortion demands that escalated from weekly payments to $75, with implicit death threats if payments stopped.
- She paid extortion from business profits and personal earnings; when payments became unaffordable she left El Salvador for the United States in March 2016 out of fear for her and her sister’s safety.
- Montoya-Lopez applied for asylum, withholding of removal, and CAT relief; the IJ found her credible but denied relief; the BIA adopted and affirmed the IJ’s decision.
- The IJ/BIA held there was no past persecution (threats were general and no physical harm occurred) and that neither proposed particular social group was legally cognizable.
- The BIA affirmed denial of withholding; Montoya-Lopez did not meaningfully challenge the BIA’s denial of CAT relief on appeal to this court and thus waived the CAT claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution — did extortion/threats rise to persecution? | Montoya-Lopez: sustained threats and escalating extortion, plus fear of death, constitute persecution. | Garland: threats were general, no violence, and economic harm did not deprive essentials of life. | Court: Denied — substantial evidence supports IJ that threats/economic harm fell below persecution. |
| Cognizability — "family members of business owners perceived as wealthy" | Montoya-Lopez: familial relation/past association is an immutable characteristic or will be imputed by persecutors. | Garland: group is amorphous/overbroad and not defined with sufficient particularity or immutability. | Court: Denied — group fails immutability/particularity; too diffuse. |
| Cognizability — "people who have fled the gangs instead of continuing to pay extortion" | Montoya-Lopez: shared experience of resisting extortion creates an identifiable social group. | Garland: group lacks social distinctiveness and is premised on generalized crime/economic motive. | Court: Denied — group lacks social visibility/distinctiveness; based on generalized criminal risk. |
| Withholding of removal and CAT | Montoya-Lopez: same facts support withholding and CAT relief. | Garland: withholding requires higher "more likely than not" standard; CAT not shown; BIA denial stands. | Court: Withholding denied for failure to meet higher standard; CAT claim waived on appeal. |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (framework for asylum claimant’s burden and nexus requirement)
- Javed v. Holder, 715 F.3d 391 (1st Cir. 2013) (distinguishing vague threats from credible, specific threats that may constitute persecution)
- Kadri v. Mukasey, 543 F.3d 16 (1st Cir. 2008) (economic persecution requires severe deprivation of essentials or employment)
- Mayorga-Vidal v. Holder, 675 F.3d 9 (1st Cir. 2012) (large, diffuse groups lack particularity for PSQ claims)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (social visibility requirement focuses on societal recognition of the group)
- Perez-Trujillo v. Garland, 3 F.4th 10 (1st Cir. 2021) (gang-resistance based groups fail social distinctiveness)
- Dorce v. Garland, 50 F.4th 207 (1st Cir. 2022) (standard of review — substantial evidence review of IJ/BIA factual findings)
- Hernandez-Martinez v. Garland, 59 F.4th 33 (1st Cir. 2023) (adopting the three-part PSQ test and deferring to BIA interpretations)
- Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009) (immutability requirement for particular social groups)