"El Salvadoran Business Owners" is Not a Cognizable PSG
The procedural history, facts of record, holding and rationale in Zelaya v. Garland (September 12, 2023) No. 22-60505 are as follows:
Case History
The Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) to the Petitioners and their family, charging that they were subject to removal from the United States.
The Petitioners (Guerrero, the husband, and Munoz-de Zelaya, the wife) applied for asylum and withholding of removal with his wife, including their children as derivative beneficiaries of and riders on the wife’s application.
An immigration judge denied the asylum and withholding of removal applications.
The Petitioner filed an appeal to the Board of Immigration Appeals (“BIA”).
The BIA dismissed the Petitioners’ appeal.
The Petitioners then filed a petition for review of the decision the BIA.
Facts
- The two adult Petitioners and their two children are all natives and citizens of El Salvador who arrived in the United States at various times between 2015 and 2016.
- The DHS charged that the Petitioners and their children were all subject to removal from the United States for being present in the United States without permission. See section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) (i.e. an alien who is “present in the United States without being admitted or paroled . . .”).
- The Petitioners filed applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the Act, including their two children and derivative beneficiaries.
- According to Guerrero:
On multiple occasions, gang members intimidated him and extorted ever-increasing amounts of money from him at his business selling bicycle parts.
When Guerrero could not pay the rising extortion fees after several months, a gang member threatened to kill him, and put a gun to his head.
Guerrero did not report the attack to the police, because he believed that reporting would get him killed.
Guerrero then left El Salvador for the United States. But because the family lacked the funds to travel together, Munoz-De Zelaya and the children temporarily remained in El Salvador.
- According to Munoz-de Zelaya:
After Guerrero departed from El Salvador and she had moved to a new town, three gang members began extorting her for money every month while she was selling bicycle parts in her new town’s market.
On one occasion, when she could not meet the gang’s demands, gang members threatened to initiate her son into the gang, and to take her children to a home next door that the gang used to torture people. A gang member pointed a gun at her head during this incident.
The gang members then searched her home for money, pulled Munoz-De Zelaya by her hair, and beat her, leaving her unconscious. Gang members also threatened to kill a neighbor who witnessed the attack.
The next day, Munoz-De Zelaya fled the country with her children.
She did not report the incident to the authorities, because she believed that the police forces were corrupt and passed information to the gangs.
- The Immigration Judge denied the asylum and withholding of removal applications, in part, based on the conclusion that “extorted business owners” does not constitute a particular social group (PSG), and that extortion is not persecution.
- The BIA dismissed the Petitioners’ appeal, agreeing with the Immigration Judge’s ruling that the family had not asserted a cognizable PSG.
- The Petitioners filed a timely petition for review of the BIA decision.
Held
Petition for Review DENIED
Rationale
The Petitioners challenged the dismissal of their appeal by the BIA.
The Fifth Circuit Court of Appeal reasoned as follows:
- A particular social group is cognizable only if it is “(i) characterized by an immutable trait; (ii) definable with reasonable particularity; and (iii) socially distinct.” Garcia-Gonzalez v. Garland, __ F.4th __, No. 22-60501, 2023 WL 5009266, at p. 3 (5th Cir. Aug. 7, 2023).
- The Fifth Circuit Court of Appeal agreed with the BIA that “[e]mployment, including business ownership, can be changed and is not fundamental to an individual’s identity or conscience as an immutable characteristic.” See Rivera Alvarez v. Garland, No. 22-60595, 2023 WL 4235548, at p.1 (5th Cir. June 28, 2023); Alvarado-Velasquez v. Garland, No. 20-60930, 2022 WL 2072860, at p.1 (5th Cir. June 9, 2022) (“The BIA concluded petitioner’s proposed social group ‘Honduran business owners’—is not cognizable under the INA. We agree.”); Penado-Hernandez v. Barr, 795 F. App’x 283, at 285 (5th Cir. 2020) (“[B]usiness owners, wealthy Salvadorans, and persons subject to economic extortion are not protected groups.”).
- Since a PSG is an essential element of claims for asylum and withholding of removal, the Petitioners cannot succeed on either asylum claim.
- The Petitioners did not submit their alternative PSG (family status) for consideration by the BIA as required under section 242(d)(1) of the Act (i.e. a final order of removal may be reviewed “only if . . . the alien has exhausted all administrative remedies available to the alien as of right”).
- Therefore, the Fifth Circuit Court of Appeal declined to consider the Petitioners’ alternative PSG.
Commentary
In Zelaya v. Garland, (September 12, 2023) No. 22-60505, the Fifth Circuit Court of Appeal endorsed a long standing BIA interpretation relating to “immutable characteristic” as an essential element of a cognizable PSG.
In 1985, the BIA declared that:
The members of a particular social group must share a common, immutable characteristic, which may be an innate one, such as sex, color, or kinship ties, or a shared past experience, such as former military leadership or land ownership, but is must be one that the members of the group either cannot change, or should not be required to change, because it is fundamental to their individual identities or consciences.
Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); followed in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006).
The facts underlying Matter of Acosta are as follows:
In 1976 Acosta, along with several other taxi drivers, founded COTAXI, a cooperative organization of taxi drivers of about 150 members. COTAXI was designed to enable its members to contribute the money they earned toward the purchase of their taxis. It was one of five taxi cooperatives in the city of San Salvador and one of many taxi cooperatives throughout the country of El Salvador.
Between 1978 and 1981, the respondent held three management positions with COTAXI, the duties of which he described in detail, and his last position with the cooperative was that of general manager. He held that position from 1979 through February or March of 1981. During the time he was the general manager of COTAXI, the respondent continued on the weekends to work as a taxi driver.
Starting around 1978, COTAXI and its drivers began receiving phone calls and notes requesting them to participate in work stoppages. The requests were anonymous but the respondent and the other members of COTAXI believed them to be from antigovernment guerrillas who had targeted small businesses in the transportation industry for work stoppages, in hopes of damaging El Salvador's economy. COTAXI’s board of directors refused to comply with the requests because its members wished to keep working, and as a result COTAXI received threats of retaliation. Over the course of several years, COTAXI was threatened about 15 times. The other taxi cooperatives in the city also received similar threats.
Beginning in about 1979, taxis were seized and burned; or used as barricades, and COTAXI drivers were assaulted or killed. Ultimately, five members of COTAXI were killed in their taxis by unknown persons. Three of the COTAXI drivers who were killed were friends of the respondent and, like him, had been founders and officers of COTAXI. Each was killed after receiving an anonymous note threatening his life. One of these drivers, who died from injuries he sustained when he crashed his cab in order to avoid being shot by his passengers, told his friends before he died that three men identifying themselves as guerrillas had jumped into his taxi, demanded possession of his car, and announced they were going to kill him.
During January and February 1981, Acosta received three anonymous notes threatening his life. The first note, which was slipped through the window of his taxi and was addressed to the manager of COTAXI, stated: "Your turn has come, because you are a traitor." The second note, which was also put on the respondent's car, was directed to "the driver of Taxi No. 95," which was the car owned by the respondent, and warned: "You are on the black list." The third note was placed on the respondent's car in front of his home, was addressed to the manager of COTAXI, and stated: "We are going to execute you as a traitor."
In February 1981, the respondent was beaten in his cab by three men who then warned him not to call the police and took his taxi. Acosta was of the opinion that the men who threatened his life and assaulted him were guerrillas who were attempting to disrupt transportation services in the city of San Salvador.
After being assaulted and receiving the three threatening notes, Acosta left El Salvador because he feared for his life.
Acosta declared at his asylum hearing that he would not work as a taxi driver if he returned to El Salvador because he understands that there is little work for taxi drivers now. He explained that the people are too poor to call taxis. Additionally, he stated that the terrorists are no longer active.
The BIA reasoned that:
The characteristics defining the group of which the respondent was a member and subjecting that group to punishment were being a taxi driver in San Salvador and refusing to participate in guerrilla-sponsored work stoppages. Neither of these characteristics is immutable because the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would have had to change his means of earning a living or cooperate with the guerrillas in order to avoid their threats. However, the internationally accepted concept of a refugee simply does not guarantee an individual a right to work in the job of his choice.
Matter of Acosta, at 234.
Also, the BIA has rejected extortion (without more) as a ground for a persecution claim:
Criminal extortion efforts do not constitute persecution “on account of” political opinion where it is reasonable to conclude that those who threatened or harmed the respondent were not motivated by her political opinion.
Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997).
The Fifth Circuit Court of Appeal seems to have taken the same view, holding that economic extortion and conduct driven by purely personal or criminal motives do not constitute persecution on account of a protected ground. See, for example, Ramirez-Mejia v. Lynch, 794 F.3d 485, at 493 (5th Cir. 2015) (noting that the gang’s desire to extort the alien’s family was irrelevant to the persecution analysis); Garcia v. Holder, 756 F.3d 885, at 890 (5th Cir. 2014) (“This court does not recognize economic extortion as a form of persecution under immigration law.”); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, at 350 (5th Cir. 2002) (holding that the requisite nexus was not shown where persecutors’ motive was private economic gain).
All of that being said, extortion would justify a persecution claim if it is sufficiently egregious and race, religion, nationality, membership in a particular social group or political opinion forms a central reason in the mind of the persecutor for targeting the claimant with extortion. See generally sections 101(a)(42) and 208(b)(1)(B) of the Act.