Varela-Chavarria v. Garland, 86 F.4th 443

Background

Lilian Eugenia Varela‑Chavarria (from El Salvador) entered the U.S. without inspection in 2013, conceded removability, and applied for asylum, withholding of removal, and CAT protection.
As a teenager (about age 12–15, clearer at 14), she and her family were subject to gang extortion: gang members threatened to rape and hurt her to coerce her mother to pay and to pressure her brother to join. Threats were repeated and followed her to/from school; no physical rape occurred. She left El Salvador at 19.
Her amended asylum application checked political opinion and membership in a particular social group but did not delineate the social group. At the merits hearing she testified and was represented by counsel; the IJ found the written application unsatisfactory initially and permitted amendment.
The IJ denied asylum, concluding the threats were verbal (not rising to persecution) and that Varela‑Chavarria had not articulated a particular social group or political opinion. The BIA affirmed, finding (inter alia) that proposed groups were waived because not raised before the IJ.
On appeal Varela‑Chavarria argued (1) the IJ violated due process by not clarifying her proposed social group, (2) the BIA/IJ applied the wrong legal standard by not evaluating teenaged mistreatment from a child’s perspective, and (3) her mistreatment had nexus to a protected ground (familial particular social group). The petition for review was denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ's failure to clarify a particular social group violated due process	IJ should have helped delineate proposed groups; BIA could have remanded to clarify record	BIA had authority to address procedural errors but petitioner failed to raise the due‑process claim to the BIA	Not reached on the merits—petitioner failed to administratively exhaust the due‑process claim before the BIA, so appellate review is precluded
Whether IJ/BIA applied correct legal standard for whether past mistreatment by gangs constituted persecution	IJ/BIA should have applied the ‘‘childhood standard’’ and assessed threats from a teen’s perspective	IJ/BIA found threats verbal and insufficient; government conceded the childhood standard issue for purposes of argument	Court agreed the IJ/BIA erred by not applying the childhood standard, but error did not require remand because outcome-independent (see nexus discussion)
Whether petitioner established nexus to a protected ground (particular social group: immediate family or women)	Persecution was on account of membership in the immediate family (mother Tomasa) or as a woman	BIA held Varela‑Chavarria waived particular‑social‑group claims by failing to delineate the groups before the IJ	Held for respondent—petitioner failed to delineate a cognizable particular social group before the IJ, so nexus to a protected ground not established; asylum and withholding denied
Whether CAT relief was improperly denied	(Not argued on appeal)	BIA denied CAT; government sought affirmance	CAT claim deemed waived on appeal and not considered

Key Cases Cited

Barnica‑Lopez v. Garland, 59 F.4th 520 (1st Cir. 2023) (reviews BIA and IJ decisions together; standard of review)
Ravindran v. INS, 976 F.2d 754 (1st Cir. 1992) (BIA may address procedural errors framed as due‑process claims)
Bernal‑Vallejo v. INS, 195 F.3d 56 (1st Cir. 1999) (administrative exhaustion rule for BIA issues)
Ordonez‑Quino v. Holder, 760 F.3d 80 (1st Cir. 2014) (persecution requires more than ordinary harassment; childhood perspective can be critical)
White v. INS, 17 F.3d 475 (1st Cir. 1994) (remand appropriate only when agency error likely affected outcome)
Villalta‑Martinez v. Sessions, 882 F.3d 20 (1st Cir. 2018) (egregious sexual threats can constitute persecution)
Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) (familial units can form a particular social group)
Santos‑Guaman v. Sessions, 891 F.3d 12 (1st Cir. 2018) (remand for failure to apply childhood standard in some cases)
Sanchez‑Vasquez v. Garland, 994 F.3d 40 (1st Cir. 2021) (standard for withholding of removal)
Santos‑Zacaria v. Garland, 598 U.S. 411 (2023) (administrative‑exhaustion rule is non‑jurisdictional)