United States Court of Appeals For the First Circuit

No. 21-1313

BRENDA BARNICA-LOPEZ; ASHLEY NICOLE LOPEZ-BARNICA,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Selya, Lynch, and Howard, Circuit Judges.

Kevin P. MacMurray, Daniel T. Welch, and MacMurray & Associates LLC on brief for petitioners. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Alexander J. Lutz, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

February 8, 2023 HOWARD, Circuit Judge. Petitioners Brenda Barnica-Lopez

("Barnica") and her daughter, Ashley Nicole Lopez-Barnica

("Ashley"), both natives and citizens of Honduras, petition for

review of a final order of the Board of Immigration Appeals

("BIA"), which upheld an immigration judge's ("IJ") denial of their

request for asylum, withholding of removal, and protection under

the Convention Against Torture ("CAT"). The agency denied their

requests for asylum and withholding of removal based on a finding

that they had failed to demonstrate a well-founded fear of future

persecution "on account of" their membership in a protected social

group consisting of their nuclear family. Because we conclude

that this finding is supported by substantial evidence and that

the petitioners' CAT claim was not administratively exhausted, we

deny the petition in part and otherwise dismiss it for lack of

jurisdiction.

I.

From 2010 to 2013, Barnica and her long-time life partner

and now husband, Leslie Rene Lopez ("Rene"), were engaged in

business buying gold jewelry in Guatemala and reselling it for

profit in Honduras.1 As part of this venture, Rene drove back and

forth between Guatemala and Honduras two to three times per month

1 We draw the relevant facts from the administrative record. See Adeyanju v. Garland,

(1st Cir. 2022). This includes testimony before the IJ from Barnica and her husband, which the IJ found to be credible and corroborated.

- 2 - to buy and transport the jewelry. He testified that he travelled

the same route each time and was often accompanied by Barnica or

other associates. For approximately two years, Rene completed

these trips without incident.

While carrying a large amount of jewelry during one of

these trips in June 2012, Rene and Barnica were closely followed

by a truck for about 30 minutes. They eventually shook the tail,

but the event left them frightened. Nevertheless, the couple

continued the periodic trips to Guatemala over the next several

months. In April 2013, however, a similar incident occurred that

escalated into a violent attack involving gunfire and at least one

of the attackers being shot and perhaps killed by one of Rene and

Barnica's two traveling companions. Rene and Barnica reported

this incident to two separate police agencies, at least one of

which conducted an immediate if perhaps incomplete investigation.

Following this incident, Rene and Barnica discontinued

their gold re-sale business, fearing that the attack was an

attempted robbery and that any future trips to Guatemala would

invite similar trouble. About one month later, Rene began

receiving death threats over the phone from the assailants,

including many text messages stating, e.g., that "this isn't over"

and "what you've done will not be left unpunished." The callers

told Rene that they would kill him and his family because of "what

[Rene's associate] had done to their partner." The associate

- 3 - received similar threats. Rene eventually changed his phone

number, and the threats temporarily stopped. Sometime thereafter,

however, Rene and Barnica received a "crumpled-up note" at their

home stating that, "no matter how much [they] hide," these men

would find them "to take revenge." It further stated that the

authors of the note "already knew that [Rene and Barnica] had a

daughter" -- who was Ashley, an infant at the time -- and that

they "were going to start off with [her]." The couple did not

report these threats to the police, believing that doing so would

be futile. They feared that Ashley would be killed if they stayed

in Honduras and so decided to leave.

In December 2013, Barnica and Ashley (together, the

"Barnicas") entered the United States without inspection and were

placed in removal proceedings for unlawful entry, pursuant to

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act

("INA"),

(a)(6)(A)(i)). The Barnicas conceded

removability and, with the aid of counsel, applied for asylum,

withholding of removal, and protection under CAT. As grounds for

asylum and withholding of removal under the INA, the Barnicas

claimed that the series of death threats they received amounted to

past persecution due to their family relationship to Rene and that,

if returned to Honduras, they would suffer further persecution on

that protected ground. They did not separately articulate a basis

for CAT protection. An IJ denied the Barnicas' asylum and

- 4 - withholding of removal applications upon finding that they had

failed to demonstrate that a protected ground was "one central

reason" for past or future persecution. The IJ denied their

request for CAT protection on the ground that the Barnicas had

failed to prove a clear probability that they would be tortured

with the acquiescence of the Honduran government if repatriated.

The BIA affirmed that determination, largely adopting the IJ's

reasoning, although the BIA deemed certain essential aspects of

the petitioners' CAT claims to be waived on appeal.2 This timely

petition followed.

2 We agree that the Barnicas failed to administratively exhaust their challenges to the agency's denial of CAT protection, as the administrative record contains no developed argumentation to the BIA specifically about the Barnicas' purported entitlement to protection on this basis. In their brief to us, the Barnicas contend that the IJ erred in implicitly finding that the "[m]ental pain or suffering" resulting from the death threats did not amount to past torture, see

(a)(4), and they also contend that the "[i]nadequate [r]esponsive [a]ction and [p]rotection" from the Honduran police compelled a finding that they were and would be subjected to torture "by" or "with . . . the acquiescence of" the Honduran police, see

§ 1208.18(a)(1). But neither of these arguments was presented in the Barnicas' appeal to the BIA. Rather, their appellate brief to the BIA focused exclusively on their asylum and withholding of removal claims and the elements necessary to qualify for those distinct forms of relief. We have repeatedly held that "[a] petitioner's 'failure to present developed argumentation to the BIA on a particular theory [of relief] amounts to a failure to exhaust administrative remedies as to that theory.'" Yong Gao v. Barr,

(1st Cir. 2020) (quoting Avelar Gonzalez v. Whitaker,

(1st Cir. 2018)); see, e.g., De Lima v. Sessions,

(1st Cir. 2017); Pérez Batres v. Lynch,

(1st Cir. 2015). Accordingly, we dismiss their petition insofar as it seeks review of the denial of CAT relief.

- 5 - II.

In their challenge to the agency's denial of their

requests for asylum and withholding of removal under the INA, the

Barnicas contend that the agency erred in finding that they failed

to establish that they have been or would be persecuted "on account

of" a statutorily protected ground. We disagree.

A.

Our review "typically focuses on the final decision of

the BIA," Loja-Tene v. Barr,

(1st Cir. 2020), but

"[w]here, as here, the BIA 'adopts and affirms the IJ's ruling'

but nevertheless 'examines some of the IJ's conclusions,' we review

both the BIA and IJ opinions as a unit," Gómez-Medina v. Barr,

(1st Cir. 2020) (quoting Perlera-Sola v. Holder,

(1st Cir. 2012)). In so doing, we review the agency's

legal conclusions de novo, "with some deference to [its] reasonable

interpretation of statutes and regulations that fall within its

purview," and its factual findings under "the substantial evidence

rule." Loja-Tene,

(quoting Pulisir v. Mukasey,

(1st Cir. 2008)). Under the substantial evidence

standard, we will only disturb the agency's findings if, in

reviewing the record as a whole, "any reasonable adjudicator would

be compelled to conclude to the contrary." Gómez-Medina, 975 F.3d

at 31 (quoting

(b)(4)(B)).

To qualify for asylum relief, an applicant bears the

- 6 - burden of proving that she is a refugee within the meaning of the

INA.

(b)(1);

(a). A "refugee"

is someone "who is unable or unwilling to return to" her country

of origin "because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion."

(a)(42)(A); Al Amiri v. Rosen,

(1st Cir. 2021).

"Persecution" in this context requires proof of "a certain level

of serious harm (whether past or anticipated), a sufficient nexus

between that harm and government action or inaction, and a causal

connection to one of the statutorily protected grounds" enumerated

above. Martínez-Pérez v. Sessions,

(1st Cir. 2018)

(quoting Carvalho-Frois v. Holder,

(1st Cir.

2012)).

Applicants may satisfy this burden under one of two

approaches. Marín-Portillo v. Lynch,

(1st Cir.

2016); see

(b). First, if they can prove that

they "suffered from past persecution on account of one or more of

the five [protected] grounds," they are entitled to "a rebuttable

presumption that their fear of future persecution is well-

founded." Marín-Portillo,

(quoting Butt v.

Keisler,

(1st Cir. 2007)). Alternatively, they

may prove a well-founded fear of future persecution by presenting

"record evidence demonstrat[ing] that they genuinely harbor such

- 7 - a fear, and that it is objectively reasonable."

(quoting Butt,

).

Similarly, "[t]o obtain relief in the form of

withholding of removal [under the INA], an alien must establish a

clear probability that, if returned to his homeland, he will be

persecuted on account of a statutorily protected ground." Sanchez-

Vasquez v. Garland,

(1st Cir. 2021) (citing

(b)(3)(A)). Like asylum, establishing persecution

for withholding of removal purposes requires an applicant to prove

"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" enumerated above.

The difference between

the two claims lies only in the requisite likelihood of future

persecution and the relevance of subjective fear. See Aguilar-

Escoto v. Sessions,

(1st Cir. 2017). That

is, "[w]ithholding of removal requires . . . a clear probability

of persecution, rather than merely [the] well-founded fear of

persecution" required for asylum, Sanchez-Vasquez,

(first alteration in original) (quoting Ang v. Gonzales,

(1st Cir. 2005)), and subjective fear is only relevant for

the latter, Aguilar-Escoto,

. Accordingly,

"asylum precedents may be helpful in analyzing withholding-of-

removal cases," and vice versa. Sanchez-Vasquez,

.

- 8 - B.

The Barnicas' petition concerns only the third of these

burdens, i.e., whether they established a causal relationship

between a statutorily protected ground and the death threats they

received in Honduras.

1.

For both asylum and withholding of removal purposes,

"[a] causal connection exists only if the statutorily protected

ground . . . was 'one central reason' for the harm alleged."

at 47 (quoting Singh v. Mukasey,

(1st Cir. 2008)

(quoting

(b)(1)(B)(i))). "In many cases, of course,

persecutors may have more than one motivation." Singh,

. Where such a "mixed motive" is asserted, "the statutorily

protected ground need not be the sole factor driving the alleged

persecution" and "the presence of a non-protected motivation does

not render an applicant ineligible for [relief]." Loja-Tene,

(internal quotes and cites omitted). Nevertheless, "to

qualify as [one] 'central reason,' for the harm, the [protected]

ground cannot be 'incidental, tangential, superficial, or

subordinate to another reason for [the] harm.'" Sanchez-Vasquez,

(quoting Singh,

(quoting In re J-B-

N- & S-M-,

(BIA 2007))). And, "[i]n all

events, the applicant retains the burden" of proving this element

of their claim. Loja-Tene,

.

- 9 - The Barnicas' principal claim before the agency was that

"their family relationship" to Rene was a protected ground and

that it was (or would be) at least one central reason for the past

(or well-founded fear of future) persecution against them. To

support this contention, the Barnicas argued that the death threats

they received were "solely because of their familial ties to

[Rene,] who was a successful businessman." Put differently, they

argued that Rene had been "targeted for violence and menacing

threats" after he "refused to give in to his assailants" and that

the Barnicas "faced the same danger of retaliation by virtue of

their relationship to him." At the hearing before the IJ, however,

both Barnica and Rene testified that the assailants' threats were

motivated by a desire both to extort their money and to exact

revenge for their associate having shot one of the assailants.

In an oral decision, the IJ rejected the Barnicas' asylum

and withholding of removal claims after finding that they had

failed to establish that a protected ground was "one central

reason" for the shooting incident and death threats. First, the

IJ agreed with the petitioners that Barnica's and Rene's status as

"business owners and gold dealers" was a reason they were

"targeted" by the assailants, but determined that "this occupation

is not an immutable characteristic and therefore" failed to meet

- 10 - the applicable test for a particular social group.3

Second, the IJ found that, although the Barnicas' family

relationship could constitute a particular social group, the

evidence failed to establish that "their family membership is one

central reason that they were shot at or threatened with death" in

the past or reasonably feared they would be in the future. Rather,

the IJ found that the Barnicas were victims of criminal violence

and threats "due to transporting cash and gold and the revenge

that the criminals sought to extract once [their associate] shot

back and killed one of the assailants."

The BIA affirmed the IJ's findings in a written decision,

noting that neither "general violence and civil strife" nor

"personal disputes based on revenge" ordinarily demonstrate a

nexus to a protected ground, citing Marín-Portillo v. Lynch,

(1st Cir. 2016) and Escobar v. Holder,

(1st Cir. 2012). The BIA further noted that, here, the IJ

supportably found that "the only allusion to the [Barnicas'] family

was that the criminals, in making one of the threats, stated that

they knew [Barnica] had a daughter," but that Barnica had not

"otherwise provided evidence demonstrating that one central reason

3The Barnicas do not challenge this determination in their petition for review, so we do not consider it here. See Perez Vasquez v. Garland,

, 220 n.4 (4th Cir. 2021).

- 11 - for the shooting incident or the subsequent death threats was the

criminals' desire to overcome this protected ground."

2.

In their petition for review, the Barnicas essentially

advance three interrelated claims of error: 1) that the agency

committed legal error by failing to recognize "that there may be

more than one central reason for past persecution" and by ignoring

certain evidence of family targeting; 2) that the agency erred in

finding that their family membership was not at least one central

reason for their past persecution; and 3) that the BIA erroneously

deemed other proposed social groups reformulated in their appeal

to be waived. None of these claims of error is availing.

i.

The Barnicas' contention that the agency erred as a

matter of law by failing to "consider[] . . . the idea that there

may be more than one central reason for past persecution" and

overlooking certain evidence "suggest[ing] specific targeting of

the family" is belied by the record.

While we have remanded agency decisions that incorrectly

concluded "that a family cannot qualify as a particular social

group" without more, Aldana-Ramos v. Holder,

(1st

Cir. 2014) (emphasis added), as well as agency decisions that

failed to "utilize[] a mixed-motive or 'at least one central

reason' analysis, as the statute requires," Enamorado-Rodriguez

- 12 - v. Barr,

(1st Cir. 2019), the agency's

decision in this matter suffers from neither infirmity. The agency

accepted the Barnicas' family relationship as a cognizable social

group and repeatedly cited to and correctly applied the "one

central reason" standard in examining the nexus between that

protected ground and the harm they suffered. In so doing, the

agency necessarily "acknowledged the possibility of a mixed-motive

case, but based on the evidence presented, made a fact-specific

determination that [the Barnicas] had not shown that the

persecution was motivated by a family relationship." Villalta-

Martinez v. Sessions,

(1st Cir. 2018).

Accordingly, the Barnicas' first claim of legal error comes up

dry. Cf. Loja-Tene,

(holding that "the agency

did not improperly preclude the possibility of mixed-motive

persecution" where, as here, the agency properly applied the "one

central reason" standard (citing Villalta-Martinez,

(same))).

Nor can we agree with the Barnicas' contention that the

agency ignored any evidence relevant to the causation inquiry. In

arguing otherwise, the Barnicas point to written statements

submitted by Barnica, Rene, and an associate, recounting the

roadway attack and the apparent motivation behind the subsequent

death threats received by Rene. Specifically, they contend that

the IJ ignored Barnica's statement that she believed the threats

- 13 - were motivated by the assailants' desire to "make a public

statement about what happens to people who attempt to defend

themselves." Similarly, the associate stated his belief that

"[w]hen [the assailants] were unsuccessful in their pursuits, they

became enraged and their goal is now to kill Rene, [Barnica, and

their two associates] to demonstrate how powerful they are."

But the IJ explicitly stated that she considered these

submissions and accepted them into the record. Although the IJ

did not specifically discuss these statements in her analysis,

that failure is not fatal. Although "an IJ may not simply ignore

substantial testimonial and documentary proof, she need not

discuss ad nauseam every piece of evidence." Pan v. Gonzales,

(1st Cir. 2007). "So long as the IJ has given reasoned

consideration to the evidence as a whole, made supportable

findings, and adequately explained its reasoning, no more is

exigible."

Here, the IJ did so. Indeed, the evidence

discussed above is consistent with the IJ's ultimate finding that

the threats were due to "the revenge that the criminals sought to

extract" in retaliation for resistance to the attempted robbery.

Thus, we cannot conclude that this evidence was ignored. Cf. Sok

v. Mukasey,

(1st Cir. 2008).

ii.

Next, the Barnicas broadly contend that the agency erred

in finding that their family relationship to Rene was not "one

- 14 - central reason for [their] past persecution." This is a factual

finding that we review under the "'highly deferential' substantial

evidence rule." Loja-Tene,

(quoting Lopez de

Hincapie v. Gonzales,

(1st Cir. 2007)); see also

Ordonez-Quino v. Holder,

(1st Cir. 2014).

Accordingly, we consider whether the record considered as a whole

"compel[s] [a] contrary conclusion" to that reached by the agency,

Sompotan v. Mukasey,

(1st Cir. 2008) (quoting Lopez

de Hincapie,

), and conclude that it does not.

"In order for family membership to serve as 'the linchpin

for a protected social group,' it 'must be at the root of the

persecution, so that family membership itself brings about the

persecutorial conduct.'" Ruiz-Escobar v. Sessions,

(1st Cir. 2018) (quoting Ruiz v. Mukasey,

(1st

Cir. 2008)); see also Perlera-Sola,

("This

'kinship' criterion, it should be stressed, applies only where the

motivation for persecution is kinship and not because multiple

family members happen to be persecuted for a common reason but the

animus is not kinship."). Here, the record evidence does not

compel a finding that the Barnicas made this demonstration.

Indeed, the IJ's finding that "[t]he only [a]llusion to

the [Barnicas'] family from the criminals" was the final letter's

mention that Barnica and Rene had a daughter is supported by the

- 15 - record. 4

No other evidence concerning the death threats suggested

any kinship-motivated targeting, and the Barnicas concede that the

criminals' "initial" motivation in attempting to rob Rene and

Barnica was due to the gold they were carrying rather than any

animosity towards their nuclear family. Moreover, the record amply

supports the agency's finding that the subsequent death threats

were motivated by "revenge." Although the "at least one central

reason" standard does "not require an asylum applicant to

demonstrate that he was singled out only due to his protected

trait," Enamorado-Rodriguez,

(quoting Ordonez-

Quino,

), the protected ground must be more than

"incidental, tangential, superficial, or subordinate to another

reason for [the] harm" to qualify as "one central reason."

Sanchez-Vasquez,

(quoting Singh,

).

Substantial evidence supports the agency's implicit

4 The Barnicas also contend that the IJ's characterization of this reference as an "illusion" demonstrates that the agency "only briefly acknowledge[d]" their argument about their family membership being a central reason for their persecution. But this apparent transcription error was corrected to "allusion" by the BIA, and both agency decisions treated the Barnicas' family membership as lying at the heart of their claims. In any event, and as previously discussed, "the body of the BIA's opinion (like the IJ's [oral decision]) makes clear that [the agency] understood that actions may be driven by more than one central motive." Loja- Tene, 975 F.3d at 61 n.2. Thus, even if the IJ meant "illusion," rather than "allusion," we have regularly declined to give dispositive weight to such an "isolated lapsus linguae." Id. The agency plainly considered the death threats directed at the family.

- 16 - finding that the Barnicas' family ties to Rene were incidental or

subordinate to the assailants' vengeful purpose, rather than "at

the root of [the death threats]." Ruiz-Escobar,

(quoting Ruiz,

). It is well established that

"[e]vents that stem from personal disputes are generally not enough

to show the required nexus" between past harm and a protected

ground, Sompotan,

, and we have long "viewed disputes

motivated by revenge as personal in nature," Marín-Portillo,

(citing Costa v. Holder,

(1st Cir.

2013)). In acknowledging this precedent, the agency supportably

found that the death threats at issue were motivated by revenge,

as both Barnica and Rene consistently testified that they believed

they were threatened because an associate had shot one of the

assailants. Indeed, Rene succinctly stated that "it was revenge"

that the men were after. His credited testimony was further

bolstered by evidence of the content of some of these threats --

which were described as saying "this isn't over" and "what you've

done will not be left unpunished" -- as well as evidence that a

non-family member also received similar threats. Cf. Villalta-

Martinez,

(testimony supporting finding that

gang members targeted all employees of petitioner's partner's

store for extortion contributed to substantial evidence that

petitioner's family relationship with the store owner was not one

central reason for the threats directed at her).

- 17 - The mere fact that the Barnicas received threats as a

family unit, without more, "does not convert the non-protected

criminal motivation into persecution on the basis of family

connections." Loja-Tene,

(quoting Aldana-Ramos,

). Rather, "family membership itself [must] bring[]

about the persecutorial conduct" to constitute one central reason.

Ruiz-Escobar,

(quoting Ruiz,

); see

also Perlera-Sola,

. The agency's determination

that evidence of such a kinship-centered animus was lacking is

supported by substantial evidence, as we cannot say that "a

reasonable adjudicator would be compelled to conclude to the

contrary." Villalta-Martinez,

; cf. Loja-Tene,

(holding that substantial evidence supported agency's

finding that "family ties did not motivate the petitioner's

persecution, even though those ties may have brought him into

proximity with his persecutor"); Marín-Portillo,

("The mere fact that [the persecutor] . . . targeted members of

[the petitioner's] family does not . . . mean that the only

logical inference is that kinship ties, rather than the desire for

retaliation or deterrence, prompted [the persecutor's] threats."

(internal quotes omitted)).

iii.

Lastly, the Barnicas contend that the BIA erred in

finding that they had waived two other proposed social groups by

- 18 - failing to raise them before the IJ. The two groups were described

in briefing to the BIA as (i) "recognizable immediate family

members of successful and highly-targeted individuals," and (ii)

"individuals who are targeted after refusing to be victimized by

criminals." The BIA declined to address these groups on appeal,

relying on agency precedent requiring an applicant to "clearly

indicate" on the record before the IJ "the exact delineation" of

any proposed social group and noting that the BIA will generally

not consider "a new social group that is substantially different

from the one delineated below." Matter of W-Y-C- & H-O-B-,

(BIA 2018). The Barnicas argue that this

was legal error. We review questions of law de novo. Loja-Tene,

; see also Cantarero-Lagos v. Barr,

(5th Cir. 2019) (applying de novo review to whether the BIA

erred by refusing to consider a reformulated social group).

The Barnicas contend that they preserved these social

groups by arguing before the IJ that they "suffered persecution

due to their membership in a social group as the family of a

successful business owner who refused to be victimized." (Emphasis

added). But the two groups presented on appeal to the BIA are, on

their face, linguistically and logically different from this group

proposed to the IJ. Cf. Cantarero-Lagos,

. And

the Barnicas have failed to advance any explanation or argument

for how they are not "substantially different" under Matter of W-

- 19 - Y-C-. We therefore deem any such argument waived and do not find

that the BIA erred by not considering the proposed social groups.

See United States v. Zannino,

(1st Cir. 1990).

III.

For the forgoing reasons, the Barnicas' petition is

denied in part and otherwise dismissed for lack of jurisdiction.

- 20 -