United States Court of Appeals For the First Circuit

No. 22-1780

LILIAN EUGENIA VARELA-CHAVARRIA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Kayatta, Howard, and Rikelman, Circuit Judges.

Denise Acevedo Perez for petitioner. Allison Frayer, with whom Shannon J. Murphy, United States Department of Justice, Office of Immigration Litigation, Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jennifer Levings, Assistant Director, were on brief, for respondent.

November 9, 2023 RIKELMAN, Circuit Judge. After the Board of Immigration

Appeals ("BIA") affirmed the Immigration Judge's ("IJ") denial of

her application for asylum and withholding of removal, Lilian

Eugenia Varela-Chavarria filed a petition for review. She makes

two arguments in her petition. First, she argues that the BIA's

failure to address a procedural error in her hearing before the IJ

violated her right to due process under the Fifth Amendment.

Second, she contends that the BIA erred by concluding that she had

not established past persecution or a well-founded fear of future

persecution on account of a statutorily protected ground. Because

Varela-Chavarria failed to raise her first argument to the BIA, we

are precluded from addressing it now. And although we agree with

Varela-Chavarria that the BIA erred by failing to evaluate the

severity of her mistreatment as a teenager through the eyes of a

child, we conclude that we still must reject her second argument

because she failed to establish a connection between her

mistreatment and any protected ground. Accordingly, we deny the

petition.

I. BACKGROUND

Varela-Chavarria, now twenty-nine years old, came to the

United States from El Salvador in 2013. She entered the country

without inspection through Hidalgo, Texas, where the Department of

Homeland Security charged her as removable under the Immigration

and Nationality Act and served her with a Notice to Appear.

- 2 - Varela-Chavarria appeared before an IJ in Texas and conceded

removability. She then requested that her removal proceedings be

transferred to the immigration court in Boston, Massachusetts.

In Boston, Varela-Chavarria submitted an application for

asylum, withholding of removal, and protection under the

Convention Against Torture ("CAT"). The IJ informed her that the

application was unsatisfactory (because it did not explain why she

was afraid to return to El Salvador) and gave her additional time

to find an attorney to assist her with revising it. Varela-

Chavarria filed an amended application on September 9, 2015, in

which she indicated that she sought asylum based on her "political

opinion" and "membership in a particular social group." However,

she did not identify the social group.

In an affidavit filed in support of her application,

Varela-Chavarria explained that she was afraid to return to El

Salvador because of pervasive gang violence. She recounted how

gangs controlled many areas of the country and "obliged people to

pay a tax, demanding that you pay them a monthly fee for

'protection.'" As a teenager, Varela-Chavarria had experienced

the effects of this extortion firsthand. In El Salvador, she lived

with her mother, Tomasa, and two brothers. Tomasa worked outside

the home so the family could survive economically. Gangs began to

request a "tax" from Tomasa, which they called a fee for the

"protection" of her children. By the time Varela-Chavarria was

- 3 - around fourteen years old, gang members were directly threatening

her to motivate Tomasa to pay the tax.1 When Varela-Chavarria

would walk to and from school with her younger brother, gang

members -- sometimes as many as six -- threatened to sexually abuse

her and otherwise hurt her if her mother refused to pay the tax.

They also pressured Varela-Chavarria's brother to join the gang by

threatening to rape her if he did not. These threats continued

"month after month," until Varela-Chavarria eventually left for

the United States at the age of nineteen.

The IJ held a hearing on the merits of Varela-Chavarria's

asylum application on May 30, 2019, at which Varela-Chavarria was

represented by counsel. Her testimony added further color to her

affidavit. Varela-Chavarria explained that Tomasa owned a small

bakery with her siblings. Gang members extorted Tomasa, and not

her siblings, because Tomasa was "the one in charge of the bakery."

They pressured Tomasa into paying by telling her they "could do to

[Varela-Chavarria] whatever they wanted to." Gang members

repeated these rape threats to Varela-Chavarria herself.

Fortunately, the threats never escalated to physical violence for

Varela-Chavarria or anyone in her family. Although her older

brother was beaten up by a group of people at some point, Varela-

1 The precise age at which the gang's abuse of Varela- Chavarria began is unclear. Varela-Chavarria "began to feel fear of the[] gang members" when she was "about 12," but the direct threats may not have started until she was fourteen or fifteen.

- 4 - Chavarria testified that her brother was unable to see the

perpetrators, and thus he could not say whether the incident was

related to the gang's threats.

At the conclusion of Varela-Chavarria's testimony, the

IJ issued an oral decision denying the asylum application. The IJ

held that Varela-Chavarria had failed to establish past

persecution because the mistreatment she suffered was verbal, not

physical, and therefore was insufficient to constitute

persecution. The IJ also explained that Varela-Chavarria had

failed to prove a well-founded fear of future persecution on

account of a protected ground because, although she had indicated

in her written application that she sought asylum based on her

political opinion and membership in a particular social group, she

had neither "advanced a claim as to being in any particular social

group . . . [nor] demonstrated or expressed any particular

political opinion."

The BIA affirmed the IJ's decision on appeal. Relying

on our case law establishing that threats alone rarely constitute

persecution, it agreed with the IJ that Varela-Chavarria "did not

relate any harm rising to the level of past persecution." Although

Varela-Chavarria argued to the BIA that the IJ should have

discerned that she was asserting membership in two particular

social groups -- "immediate family members of Tomasa" and "women"

-- the BIA declined to address these groups because they had not

- 5 - been raised to the IJ. The BIA also agreed that "the record [did]

not indicate that [Varela-Chavarria] and her mother were

threatened by gang members outside of the context of a demand for

extortion payments."

Varela-Chavarria seeks review of this decision, arguing,

first, that the IJ's failure to ensure that the record reflected

a clearly delineated particular social group violated her right to

due process; second, that the BIA applied the wrong legal standard

when it determined that her mistreatment in El Salvador did not

amount to persecution; and third, that the record compels the

conclusion that she was persecuted on account of a protected

ground.2

II. DISCUSSION

A. Standard of Review

To qualify for asylum, an applicant must establish that

she suffered in the past or has a well-founded fear of suffering

in the future "persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion."

(a)(42)(A). To carry this burden, the

2Varela-Chavarria also argues that the IJ relied on outdated precedent in denying her application, such that the BIA should have remanded to the IJ to consider her application anew. However, neither the IJ nor the BIA cited to any vacated case law, and the BIA expressly relied only on current law in affirming the IJ's decision. Varela-Chavarria does not explain why the BIA nonetheless erred by failing to remand. Accordingly, we reject this argument.

- 6 - applicant must show that one or more of these five protected

grounds "was or will be at least one central reason" for her

persecution.

§ 1158(b)(1)(B)(i). To obtain withholding of

removal, the burden is even higher: The applicant "must establish

a clear probability that, if returned to [her] homeland, [s]he

will be persecuted on account of a statutorily protected ground."

Sanchez-Vasquez v. Garland,

(1st Cir. 2021); see

also

(b)(3)(A).

When the BIA "adopts and affirms" an IJ's conclusion

that an applicant has failed to meet this burden but adds its own

gloss, we review both opinions as a unit. Barnica-Lopez v.

Garland,

(1st Cir. 2023) (quoting Gómez-Medina

v. Barr,

(1st Cir. 2020)); see also Sanchez-

Vasquez,

. In doing so, we review legal conclusions

de novo and factual findings under the "substantial evidence"

standard. Barnica-Lopez,

. Under this standard,

we "only disturb the agency's [factual] findings if, in reviewing

the record as a whole, 'any reasonable adjudicator would be

compelled to conclude to the contrary.'"

(quoting Gómez-

Medina,

).

- 7 - B. Due Process

We begin with Varela-Chavarria's due process argument.

On her application, Varela-Chavarria indicated that she sought

asylum based on two enumerated grounds: her political opinion and

membership in a particular social group. The IJ rejected the

application after finding that Varela-Chavarria did not claim to

belong to any particular social group. The BIA then found that

Varela-Chavarria's claim to belong to two particular social groups

-- "immediate family members of Tomasa" and "women" -- was waived

by her failure to raise these groups to the IJ in the first

instance. Varela-Chavarria now argues that the IJ's failure to

help her clearly delineate these particular social groups during

her hearing violated her right to due process under the Fifth

Amendment.

The doctrine of administrative exhaustion governs

whether we can reach the merits of this argument. Issues "not

raised before the BIA may not be raised for the first time on a

petition for review." Bernal-Vallejo v. INS,

(1st

Cir. 1999); see also

(d)(1). We have recognized

one exception to this rule: If the BIA does not "have the power to

address the matter as to which exhaustion is claimed," then the

petitioner need not raise the issue to the BIA before presenting

it to us. Bernal-Vallejo,

. Whether we can address

- 8 - Varela-Chavarria's due process argument therefore depends upon

whether the BIA would have had the power to do so.

Although "[t]he BIA is without jurisdiction to

adjudicate purely constitutional issues," it can adjudicate

procedural errors in IJ proceedings, even if such errors are

characterized as due process concerns. Ravindran v. INS,

(1st Cir. 1992). This rule prevents petitioners from

obtaining review of "procedural errors in the administrative

process that were not raised before the agency merely by alleging

that every such error violates due process."

at 762 (quoting

Reid v. Engen,

(9th Cir. 1985)).

Here, Varela-Chavarria raises a due process error of

precisely the type the BIA is empowered to address under Ravindran.

She argues that the IJ "failed to utilize procedural mechanisms

available to ensure [p]etitioner was afforded due process" and

that the BIA "could have exercised its . . . authority to remand

the case to the IJ with instructions to clarify the record."

Accordingly, Varela-Chavarria concedes that the BIA could have

remedied the alleged procedural error and does not attempt to frame

her argument as implicating "the constitutionality of the

statutes, regulations, or formal procedures" governing her

underlying hearing -- issues which the BIA would have been

powerless to adjudicate. Ravindran,

. We therefore

conclude that the BIA had the power to address Varela-Chavarria's

- 9 - due process argument. In turn, because Varela-Chavarria failed to

raise this due process argument to the BIA, her failure to

administratively exhaust the issue prevents us from reaching its

merits in a petition for review.3

C. Persecution

In addition to this procedural argument, Varela-

Chavarria lodges two substantive objections to the IJ and BIA's

conclusion that she did not suffer past persecution on account of

a protected ground. As an initial matter, she argues that the BIA

used the wrong legal standard to determine whether her past

mistreatment rose to the level of persecution. On this point, we

agree.

Whether past mistreatment is sufficient to constitute

persecution depends upon the factual circumstances of each case.

To constitute persecution, "the sum of [a petitioner’s]

experiences must add up to more than ordinary harassment,

mistreatment, or suffering." Ordonez-Quino v. Holder,

(1st Cir. 2014) (quoting Lopez de Hincapie v. Gonzales,

(1st Cir. 2007)). Although no exact formula exists

for determining whether a petitioner's experiences rise to this

3 It does not, however, divest us of jurisdiction over the matter. See Santos-Zacaria v. Garland,

(2023) (holding that

(d)(1) is a "non-jurisdictional rule 'merely prescrib[ing] the method by which the jurisdiction granted the courts by Congress is to be exercised.'" (alteration in original) (quoting Kontrick v. Ryan,

(2004))).

- 10 - level, we have previously explained that "age can be a critical

factor."

(quoting Liu v. Ashcroft,

(7th

Cir. 2004)). For this reason, when a petitioner's claim is based

upon mistreatment that she endured when she was a child, "the fact-

finder must look at the events from the child's perspective, and

measure the degree of [her] injuries by their impact on a child of

[her] age."

(cleaned up) (quoting Hernandez-Ortiz v. Gonzales,

(9th Cir. 2007)).

Here, Varela-Chavarria was fourteen years old when the

gang began to threaten her, but neither the IJ nor BIA acknowledged

its obligation to apply the childhood standard, mentioned Varela-

Chavarria's age, or explained why the facts described did not

amount to persecution under that standard. Thus, the IJ and BIA's

conclusion that Varela-Chavarria's harm was insufficient to

constitute persecution was infected by legal error.4

Although ordinarily we would remand to allow the BIA to

evaluate Varela-Chavarria's harm through the proper lens, this

course of action is appropriate only if we believe that the error

4 The government all but concedes this point. In its brief, the government does not counter Varela-Chavarria's argument that the IJ and BIA were required to apply the childhood standard yet failed to do so. Instead, it asks us to find that the record does not compel reversal "[e]ven assuming the threats Varela-Chavarria experienced as a teenager, when considered from a child's perspective, rose to the level of past persecution." And at oral argument, the government expressly declined to defend the IJ and BIA's failure to apply the childhood standard.

- 11 - affected the outcome of her application. See White v. INS,

(1st Cir. 1994); see also Santos-Guaman v.

Sessions,

(1st Cir. 2018) (remanding to the BIA

for failure to apply the childhood standard). Because we conclude

that Varela-Chavarria failed to link her mistreatment to a

statutorily protected ground, the error does not warrant remand.

We note, however, that the record is more than sufficient

to conclude that Varela-Chavarria's experiences amounted to

persecution. We have no doubt that a young teenager faced with

relentless rape threats -- and with them, the specter of forced

pregnancy -- would experience these threats as something more than

ordinary harassment. See Villalta-Martinez v. Sessions,

(1st Cir. 2018) (suggesting that a gang member's threat,

after holding a pregnant woman at gunpoint in the past, of raping

that woman and killing her unborn child if she failed to meet the

demands of the gang would constitute persecution); Dubravka

Šimonović (Special Rapporteur on Violence Against Women, Its

Causes and Consequences), Rape as a Grave, Systematic and

Widespread Human Rights Violation, a Crime and a Manifestation of

Gender-Based Violence Against Women and Girls, and Its Prevention,

U.N. Doc. A/HRC/47/26, at 3 (Apr. 19, 2021) ("[T]he international

human rights framework and jurisprudence recognizes rape as a human

rights violation and a manifestation of gender-based violence

against women and girls that could amount to torture."). Because

- 12 - the gang members followed her to and from school, Varela-Chavarria

could not escape these threats without giving up her education.

And the fear these threats generated in Varela-Chavarria

eventually led her to separate from her family and flee her

country. Under these circumstances, we struggle to imagine how

Varela-Chavarria's mistreatment could be classified as anything

other than persecution.

D. Nexus

Proving persecution, though, does not suffice to obtain

asylum. An applicant must also prove nexus: that the persecution

was on account of race, religion, nationality, membership in a

particular social group, or political opinion. Varela-Chavarria

argues that the BIA erred when it found no nexus between her

mistreatment and a statutorily protected ground. She contends

that the BIA should have recognized that she was persecuted on

account of her relationship with her biological mother, Tomasa.

Because we have previously recognized that a familial unit can

constitute a particular social group, see, e.g., Gebremichael v.

INS,

(1st Cir. 1993), she argues that her

persecution occurred on account of a protected ground.5

Varela-Chavarria also briefly argues that the BIA erred by 5

failing to find a nexus between her persecution and her imputed political opinion of being unwilling to comply with the gang's demands. She points to no evidence to support this theory and does not explain why the BIA's conclusion was in error. We therefore find that she has abandoned this argument on appeal.

- 13 - The BIA's nexus analysis was truncated by its conclusion

that Varela-Chavarria waived the right to assert membership in any

particular social group, including her immediate family.

Accordingly, we begin -- and end -- with the question of whether

the BIA erred by declining to address Varela-Chavarria's proposed

social groups as grounds for her asylum claim.

"Where an applicant raises membership in a particular

social group as the enumerated ground that is the basis of her

claim, she has the burden to clearly indicate 'the exact

delineation of any particular social group(s) to which she claims

to belong.'" Matter of W-Y-C- & H-O-B-,

(B.I.A. 2018) (quoting Matter of A-T-,

(B.I.A. 2009)). Whether a particular social group is cognizable

is a "fact-based inquiry made on a case-by-case basis, depending

on whether the group is immutable and is recognized as particular

and socially distinct in the relevant society."

(quoting

Matter of L-E-A-,

(B.I.A. 2017)). For this

reason, the BIA, which cannot engage in fact-finding, will not

address social groups delineated for the first time on appeal.

Here, Varela-Chavarria concedes that she failed to

clearly delineate the contours of her proposed social groups to

the IJ through her application and testimony. This concession

forms the basis of Varela-Chavarria's due process argument: She

- 14 - contends that, if an applicant neglects to clearly delineate their

proposed group to the IJ, as she did, the IJ violates the

applicant's due process rights by failing to seek clarification.

Thus, the parties do not dispute that Varela-Chavarria's proposed

social groups were not properly delineated to the IJ. By

extension, we must find that the BIA did not err when it declined

to address these social groups on appeal.6 See Barnica-Lopez,

.

Our analysis must end here. Because Varela-Chavarria

did not delineate a particular social group to which she claimed

to belong, she failed to link her asylum claim to any protected

6 We recognize that, in asking various tribunals to address the merits of her arguments, Varela-Chavarria has been thwarted repeatedly -- first by waiver, and second by administrative exhaustion. Accordingly, we take this opportunity to remind applicants -- and their counsel -- that they have a duty to delineate any legitimate grounds for their asylum claim in the first instance to the IJ. We further note, however, that it is an IJ's statutory duty to assist in developing a sufficient record at the merits hearing to permit meaningful review on appeal, including by clarifying the record on the delineation of a particular social group. This statutory duty should be fulfilled in every case regardless of whether the petitioner is pro se. See 8 U.S.C. § 1229a(b)(1) ("The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses." (emphasis added)); Mekhoukh v. Aschroft,

, 129 n.14 (1st Cir. 2004) (explaining that this statutory provision obliges an IJ to not only act as "the fact finder and adjudicator but also . . . establish the record" (quoting Yang v. McElroy,

, 162 (2d Cir. 2002))); Matter of W-Y-C- & H-O-B-, 27 I. & N. at 191 ("While it is an applicant's burden to specifically delineate her proposed social group, . . . [i]f an applicant is not clear as to the exact delineation of the proposed social group, the Immigration Judge should seek clarification . . . .").

- 15 - ground. Accordingly, the BIA appropriately denied the application

for asylum, and, by extension, withholding of removal.7

III. CONCLUSION

For all these reasons, we deny the petition.

7 The BIA also affirmed the IJ's denial of Varela-Chavarria's application for protection under CAT. Varela-Chavarria did not argue in her opening brief that the CAT claim was improperly denied, nor does she offer any reason to depart from our longstanding practice of deeming waived any issues raised for the first time in a reply brief. See United States v. Casey,

(1st Cir. 2016). We therefore consider any CAT claim waived.

- 16 -