United States Court of Appeals For the First Circuit

No. 20-1661

HÉCTOR EDGARDO SÁNCHEZ-VÁSQUEZ,

Petitioner,

v.

MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge, Selya and Barron, Circuit Judges.

William Keefe on brief for petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Jeffrey R. Leist, Senior Litigation Counsel, on brief for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the respondent. April 7, 2021 SELYA, Circuit Judge. The petitioner, Héctor Edgardo

Sánchez-Vásquez, is a Salvadoran national. He seeks judicial

review of a decision of the Board of Immigration Appeals (BIA),

which upheld an adverse decision by an immigration judge (IJ)

denying, inter alia, his application for withholding of removal.

Relatedly, he seeks review of the BIA's rulings with respect to an

evidentiary proffer made for the first time before that body.

Concluding, as we do, that the BIA's rejection of the petition was

supported by substantial evidence and that its rulings with respect

to the evidentiary proffer (including its decision not to remand

for further proceedings) were within the compass of its discretion,

we deny the petition.

I

The petitioner entered the United States without

inspection on September 3, 2008. More than a decade later, the

Department of Homeland Security commenced removal proceedings

against him, charging that he was subject to removal as an alien

present in the United States without having been lawfully admitted

or paroled. See

(a)(6)(A)(i). The petitioner, a

non-English speaker, was detained pending a bond hearing. He

appeared pro se, and the IJ continued the proceedings. When the

petitioner's case came up again, the IJ found him removable, but

explained the various kinds of relief that might nonetheless be

available.

- 3 - The third time around, the petitioner appeared with pro

bono counsel, and the IJ granted another continuance at the

lawyer's request. When the petitioner next appeared, standby

counsel asked for time to help the petitioner prepare his

application for relief from removal. The court granted a further

continuance.1 The fifth hearing was marked by the IJ's review of

the petitioner's application for asylum, withholding of removal,

and protection under the United Nations Convention Against Torture

(CAT). In support, the petitioner testified that, while in El

Salvador, gang members (belonging to the El Salvador-based MS-13

gang) twice told him that if he refused to join their ranks, they

would kill him. Specifically, the petitioner testified that

"[t]hey told me that if I didn't participate with them, that they

were going to kill me. They said what they always say, which is,

if you're not with us, you're against us." The gang members did

not mention the petitioner's religion during either encounter.

To be sure, the petitioner testified that the gang

members referred to his distribution of anti-gang pamphlets. He

stated that he had distributed these pamphlets as part of his

affiliation with a Christian youth group. Even so, the petitioner

in no way alleged to the IJ that the gang members associated his

1 We note that at both the second and fourth hearings, the IJ told the petitioner that he was allowed to submit additional documents and described the procedure for furnishing such documents.

- 4 - pamphlet distribution with his Christian youth group affiliation.

It was after his second encounter with the gang members that the

petitioner decided to flee to the United States.

Among other things, the IJ questioned the petitioner

about the additional documents that he did obtain and asked the

petitioner, "[i]s there anything else you want to tell me?" The

petitioner replied in the negative.

A sixth hearing was held approximately ten days

thereafter. Before rendering her bench decision, the IJ again

inquired of the petitioner: "[i]s there anything else . . . you

want to tell me that you haven't already told me about why you're

afraid to go back to your home country?" The petitioner once more

replied in the negative, and the IJ proceeded with her decision.

In that decision, the IJ rejected the petitioner's

asylum claim as time-barred because the petitioner had not applied

for asylum within the statutorily prescribed period. See

(a)(2)(B) (requiring — with exceptions not relevant here —

that applications for asylum be filed within one year of an alien's

entry into the United States). She also rejected the petitioner's

CAT claim because the petitioner had not shown a sufficient nexus

between the asserted harm and any government official. See Chhay

v. Mukasey,

(1st Cir. 2008) (indicating that

successful CAT claim must have nexus linking government official

to torture inflicted or to be inflicted upon petitioner). The

- 5 - petitioner does not challenge either of these rulings, and we

therefore treat both claims as abandoned. See Zaruma-Guaman v.

Wilkinson,

(1st Cir. 2021); Ahmed v. Holder,

(1st Cir. 2010); see also United States v. Zannino,

(1st Cir. 1990). The IJ also denied the petitioner's

claim for withholding of removal, explaining that the harm the

petitioner allegedly suffered was not on account of either his

religion or any other statutorily protected ground. See

(b)(3)(A).

The petitioner appealed this decision to the BIA.

Represented by counsel, he proffered a sheaf of documents, asked

the BIA to take administrative notice of facts that he claimed

were evidenced by those documents, and sought an order remanding

to the IJ for further consideration of both the extent to which

Christians were persecuted in El Salvador and the causes of such

persecution. As part of his argument, he noted that he had

proceeded pro se before the IJ and — due to a language barrier and

his custody status — was unable to submit the documents earlier.

The BIA affirmed the IJ's decision, declined the invitation to

take administrative notice of the proffered documents, eschewed

any remand, and dismissed the appeal. See In re Sanchez-Vasquez,

No. A201-582-862, at *1 (BIA Jun. 2, 2020). This timely petition

for judicial review followed.

- 6 - II

In this venue, the petitioner's asseverational array can

be separated into three buckets. First, he contends that the

agency's denial of withholding of removal cannot stand because he

presented enough facts to establish persecution on account of his

religious affiliation and activities. Second, he contends that

the BIA erred in concluding that he had not raised certain

arguments before the IJ and, therefore, erred in refusing to

consider those arguments. Third, he contends that the BIA's

mishandling of the "administrative notice" issue and/or its

refusal to remand the case to the IJ for perscrutation of the

proffered documents comprised an abuse of discretion. We discuss

these asseverations sequentially, noting that when reviewing an

order denying both a withholding-of-removal claim and a related

refusal to remand, "[t]he statutory framework permits us to

consider both [rulings] in a single proceeding." Morgan v. Holder,

(1st Cir. 2011) (citing

(b)(6)).

We caution, however, that these rulings "remain legally distinct."

A

We begin by addressing the petitioner's contention that

he established all the necessary elements of a withholding-of-

removal claim. "Where, as here, the BIA embraces the IJ's decision

but adds its own gloss, we review both decisions as a unit."

- 7 - Miranda-Bojorquez v. Barr,

(1st Cir. 2019). Our

review of the factual findings of the agency proceeds pursuant to

the substantial evidence standard. See Perez-Rabanales v.

Sessions,

(1st Cir. 2018). "Under this highly

deferential standard, we must accept the [agency's] findings so

long as they are supported by reasonable, substantial, and

probative evidence on the record considered as a whole."

(quoting Nikijuluw v. Gonzales,

(1st Cir. 2005)).

This means that "the agency's factual findings will not be

disturbed unless 'the record is such as to compel a reasonable

factfinder to reach a contrary determination.'"

(quoting

Jianli Chen v. Holder,

(1st Cir. 2012)).

To obtain relief in the form of withholding of removal,

an alien must establish a clear probability that, if returned to

his homeland, he will be persecuted on account of a statutorily

protected ground. See

(b)(3)(A); Rodríguez-Villar

v. Barr,

(1st Cir. 2019); Villafranca v. Lynch,

(1st Cir. 2015). In the case at hand, the

petitioner's primary claim before the IJ was that his religious

affiliation and activities were the cause of the persecution that

he allegedly suffered. We hasten to add that "'[p]ersecution' is

a term of art in immigration law." Carvalho-Frois v. Holder,

(1st Cir. 2012) (citing Lopez Perez v. Holder,

(1st Cir. 2009)). Establishing persecution requires

- 8 - proof of three discrete elements: a threshold level of past or

anticipated serious harm, a nexus between that harm and government

action or inaction, and a causal connection to one of the five

statutorily protected grounds.2 See

If an alien cannot carry

the devoir of persuasion on all three of these elements, his claim

of persecution fails. See Aguilar-De Guillen v. Sessions,

(1st Cir. 2018).

Of course, an alien must establish the same three

elements in order to secure asylum. See, e.g., Sosa-Perez v.

Sessions,

(1st Cir. 2018); Carvalho-Frois,

. This is pertinent for present purposes because much

of the relevant case law analyzes persecution claims in the asylum

context. See, e.g., Xian Tong Dong v. Holder,

, 125-

27 (1st Cir. 2012); Singh v. Mukasey,

(1st Cir.

2008); Romilus v. Ashcroft,

(1st Cir. 2004). And

even though a withholding-of-removal claim requires a higher level

of proof than an asylum claim — "[w]ithholding of removal requires

that an alien establish a clear probability of persecution, rather

than merely a well-founded fear of persecution," Ang v. Gonzales,

(1st Cir. 2005) — asylum precedents may be helpful

in analyzing withholding-of-removal cases.

2 These statutorily protected grounds are race, religion, nationality, membership in a particular social group, and political opinion. See

(b)(3)(A).

- 9 - In the interest of expedition, we turn directly to the

third element of the petitioner's tripartite burden: whether the

petitioner has established a causal relationship between his

religious affiliation and activities and the harm that he alleges.

A causal connection exists only if the statutorily protected ground

(here, the petitioner's faith) was "one central reason" for the

harm alleged. Singh,

(quoting

(b)(1)(B)(i)). In order to qualify as a "central reason"

for the harm, the ground cannot be "incidental, tangential,

superficial, or subordinate to another reason for harm."

(quoting In re J-B-N- & S-M-,

(BIA 2007)).

Clearly, perpetrators' statements may be "a crucial factor" for

determining the central reason for harm. Id. at 7.

On this record, the agency's determination that the

petitioner's unwillingness to join the gang — not his Christian

faith or his faith-related activities — was the central reason for

the claimed harm is supported by substantial evidence. See, e.g.,

INS v. Elias-Zacarias,

(1992); Singh,

. The gang members' statements, as recounted by the petitioner

himself, are consistent with the IJ's conclusion that the

harassment that the petitioner endured stemmed from the

petitioner's failure to join the gang, facilitate its recruitment

efforts, and participate in its criminal activities. The

petitioner's testimony confirmed that gang membership was the

- 10 - driving force (that is, the central reason) behind the harassment.3

As the IJ noted, he also testified that the members who targeted

him did not mention his religious affiliation or beliefs (above

and beyond the fact that he was discouraging youth from joining

the gang). The dialogue between the petitioner and the gang

members thus buttresses the IJ's conclusion that gang recruitment

was the raison d'être for the confrontations and the threatened

harm.

The petitioner has a fallback position. He argues that

"intense religious faith aligned with an equally firm political

belief in non-violence and respect for the rule of law made it so

he was an easy target [for] the MS-13." This argument misses the

mark: it incorrectly focuses on the petitioner's reasons for

refusing to join MS-13 rather than the motivation behind the harm

allegedly inflicted by the gang members. It is the latter, not

the former, that necessarily guides the persecution inquiry. See

Romilus,

(holding that petitioner had failed to

establish persecution on account of a statutorily protected ground

because he did not furnish sufficient evidence of alleged

persecutors' motive).

3 The petitioner testified that the gang members "told [him] that if [he] didn't participate with them, that they were going to kill" him. He also testified that the gang members "said what they always say," warning him that if he was not with them, that he was against them.

- 11 - The petitioner also suggests that the IJ failed to

account for potential future harm. The record, though, belies

this suggestion. The IJ supportably found that the petitioner's

professed fear of future harm was undercut by the fact that his

father and siblings, who share the petitioner's religious

affiliation, continue to live in El Salvador without experiencing

religious persecution of any sort at the hands of gang members.

See Sela v. Mukasey,

(1st Cir. 2008) (concluding

that the fact that the petitioner's family members had remained in

his homeland without incident detracted from his claim that he was

likely to face future persecution there on account of his

religion); Budiono v. Mukasey,

(1st Cir. 2008)

(same).

That ends this aspect of the matter. The agency's

determination that the petitioner failed to show an entitlement to

withholding of removal based on a clear probability of either past

or future religious persecution is supported by substantial

evidence in the record, and we uphold it.

B

Before the BIA, the petitioner shifted gears and

attempted to argue that he faced persecution in El Salvador because

of his membership in a cognizable social group. See

(b)(3)(A); see also Vega-Ayala v. Lynch,

(1st Cir. 2016) (explicating multifactor test for determining

- 12 - existence of cognizable social group). In this court, he contends

that the BIA erred in concluding that he had not properly raised

this argument before the IJ and, thus, that it was foreclosed on

appeal. Specifically, he says that he articulated his membership

in a variety of Christian-based social groups before the IJ but

that the IJ failed to conduct a "meaningful inquiry" into these

activities.

The government's response is twofold. First, it insists

— consistent with one of the BIA's holdings — that the petitioner

failed to raise a "social group" argument with sufficient

specificity before the IJ. Second, it insists that, in his

briefing to this court, the petitioner has failed to develop any

argument that fairly challenges the BIA's alternate holding: that,

in all events, the petitioner failed to show that he was a victim

of persecution on account of his membership in a cognizable social

group.

The record is less than pellucid as to whether and to

what extent the petitioner alleged his membership in a particular

social group as a ground for persecution before the IJ. Here,

however, we need not attempt to mine that uncertain terrain. When,

as in this case, an agency premises a decision on alternate

grounds, each of which is independently sufficient, we may uphold

its decision if either ground is supportable. See Lee v. Barr,

(1st Cir. 2020); Wiratama v. Mukasey, 538 F.3d

- 13 - 1, 6-7 (1st Cir. 2008). Because the BIA — in an alternate holding

— rejected the "social group" claim on its merits, see In re

Sanchez-Vasquez, at *2, and the petitioner has not challenged that

alternate holding, we reject the petitioner's claim of error.

We need not tarry. The BIA's decision clearly held, in

the alternative, that:

[W]ith respect to the proposed social groups, the [petitioner] does not highlight evidence of record indicating that Salvadoran society views any of the alleged groups as a socially distinct segment of society. He therefore has not shown that any of the belatedly raised groups could be cognizable for purposes of establishing his eligibility for withholding of removal.

(internal citation omitted). Nowhere in his brief does the

petitioner attempt either to contest this holding or to explain

how any of the groups that he mentioned — "Christian Youth Group

members in El Salvador," "Evangelical Salvadoran religious Youth

Group members," "Evangelical Christian Salvadoran men," and

"Christian Salvadoran men who believe in the rule of law" — satisfy

the multifactor test necessary to establish a cognizable social

group. In other words, the petitioner's brief in this court —

like his brief before the BIA — does not explain how any of the

putative social groups satisfy the statutory definition. Indeed,

the brief does not so much as acknowledge that the BIA addressed

the merits of the "social group" claim in its decision.

- 14 - We have long held "that issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." Zannino,

. This

doctrine is fully applicable in the immigration context, see, e.g.,

Zaruma-Guaman,

; Olmos-Colaj v. Sessions,

(1st Cir. 2018); Ahmed,

, and this case

falls squarely within the heartland of the doctrine. Consequently,

we deem the "social group" argument waived.

C

The petitioner's last assignment of error relates to the

BIA's refusal to accord decretory significance to his newly

proffered evidence. This assignment of error has several strands,

and some stage-setting is useful.

When the petitioner appealed to the BIA, he proffered a

slew of documents. These documents — all of which were available

at the time of the hearing before the IJ and none of which were

offered into evidence at that hearing — were in the nature of

country conditions reports. They were submitted to the BIA in

support of the petitioner's contention that the IJ should have

taken administrative notice that Evangelical Christians in El

Salvador are targeted for harm by Salvadoran gangs.

The BIA treated this proffer as a motion to remand. It

then denied the motion, finding that administrative notice was

unwarranted because the fact in dispute — whether and to what

- 15 - extent Salvadoran gangs targeted Christians — was not a commonly

known fact about which the IJ appropriately could have taken

administrative notice.

Before us, the petitioner makes a number of interrelated

points. At the start, the petitioner repeats his assertion that

the IJ should have taken administrative notice that Evangelical

Christians are targeted by gang members in El Salvador. The BIA

rejected this contention, concluding that the petitioner "has not

shown that this is a commonly known fact about which the [IJ] could

appropriately take administrative notice." In re Sanchez-Vasquez,

at *1. The proffered documents do nothing to fill this void.

After all, they were submitted for the first time to the BIA and

were never submitted to the IJ. The IJ cannot either have erred

or abused her discretion in failing to take administrative notice

of evidence that was neither presented to her nor called to her

attention. Cf. Shah v. Holder,

(1st Cir. 2014)

("[T]he BIA could not have, as petitioner argues, abused its

discretion in overlooking details of the Country Report where the

report was not even in the administrative record.").

Next, the petitioner — in a variation on this theme —

argues that the BIA erred by declining to remand the case to the

IJ for consideration of the proffered documents. The petitioner

does not object to the BIA's characterization of his proffer as a

motion to remand, and for purposes of judicial review, we "treat

- 16 - a motion to remand as a motion to reopen." Morgan,

. Judicial review of an order denying a motion to reopen is for

abuse of discretion. See Perez v. Holder,

(1st

Cir. 2014). "To 'prevail under this standard, the movant must

carry the heavy burden of establishing that the BIA made an error

of law or acted in a manifestly arbitrary or capricious manner.'"

Nantume v. Barr,

(1st Cir. 2019) (quoting Roberts

v. Gonzales,

(1st Cir. 2005)).

Here, the petitioner does not claim an error of law and,

thus, our inquiry reduces to whether the BIA acted arbitrarily or

capriciously in declining to remand. This inquiry starts with the

petitioner's second "administrative notice" argument — an argument

suggesting that the BIA itself should have taken administrative

notice of the proffered documents. Such an argument runs headlong

into the settled principle that the BIA has wide discretion in

deciding whether to take administrative notice of certain facts.

See Yang Zhao-Cheng v. Holder,

(1st Cir. 2013).

When it elects to exercise this discretion affirmatively, "the BIA

can take 'administrative notice of commonly known facts such as

current events or the contents of official documents.'" Perera v.

Holder,

(1st Cir. 2014) (quoting

(d)(3)(iv)). It is, however, not required to do so. See

Yang Zhao-Cheng,

.

- 17 - In all events, we do not think that the BIA's refusal to

take administrative notice of the petitioner's proffered documents

— documents never submitted to the IJ despite their availability

and unrelated to the petitioner's particular circumstances — can

plausibly be termed arbitrary or capricious. See Mazariegos v.

Lynch,

(1st Cir. 2015); Hang Chen v. Holder,

(1st Cir. 2012). This is particularly true

because (as we explain below) the proffered documents do nothing

to further the petitioner's claim of religious persecution.

The last strand of the petitioner's overall argument

posits that the BIA abused its discretion by not remanding the

case to the IJ for further proceedings. The BIA grounded its

decision not to remand in its determination that the documents had

been available to the petitioner all along. It stated that:

The [petitioner]'s contention that as a non- English speaker he could not timely submit the evidence attached to his appellate brief because he was detained and proceeding pro se does not persuade us that the information provided in the late-filed documentation was previously unavailable or could not have been discovered or presented before the [IJ] prior to the [petitioner]'s final removal hearing.

In re Sanchez-Vasquez, at *2 (internal citation omitted).

The supportability of this determination presents a

close call. On the one hand, the petitioner was — as he asserts

— a non-English speaker, proceeding pro se, and in custody during

the period in which hearings were held before the IJ. On the other

- 18 - hand, the IJ displayed considerable solicitude toward the

petitioner, appointed standby counsel for him, explained the

procedure for obtaining additional documents to him, and continued

the proceedings several times to allow the petitioner a fair

opportunity to assemble such documents.

In the end, the deference due under the commodious abuse-

of-discretion standard dictates the outcome — especially since the

petitioner fails to grapple with any of the continuances he was

granted, with the assistance his standby counsel provided in

preparing his application for relief, or with the fact that the IJ

made available to him a list of organizations that provide free

and/or low-cost legal advice to individuals in removal

proceedings. In the absence of any meaningful explanation from

the petitioner as to why the proffered documents were unavailable

to him in light of those resources, we cannot say that the BIA

abused its discretion in finding "not persua[sive]," on the record

before it, his contentions about why he could not have submitted

the documents in a timely manner.

III

We need go no further. For the reasons elucidated above,

the petition for judicial review is

Denied.

- 19 -