Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 23-2027

GEOVANNY ALEXANDER MARTINEZ-DIAZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Barron, Chief Judge, Lynch, and Rikelman, Circuit Judges.

Robert M. Warren on brief for petitioner. Jennifer P. Williams, Attorney, Office of Immigration Litigation, Song Park, Assistant Director, Office of Immigration Litigation, and Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, on brief for respondent.

November 13, 2024 LYNCH, Circuit Judge. Geovanny Alexander Martinez-Diaz

petitions for review of portions of a decision of the Board of

Immigration Appeals ("BIA") dated October 31, 2023, which affirmed

an immigration judge's ("IJ") order denying his applications for

asylum and withholding of removal under sections 208 and

241(b)(3)(A) of the Immigration and Nationality Act ("INA"),

, 1231(b)(3)(A). The IJ denied his applications for

relief on multiple grounds. The BIA reached only one of the

grounds and found no errors of law or fact in the determination

that Martinez-Diaz had not met his burden to show a nexus between

his alleged persecution and any statutorily protected ground.

Because there were no errors of law and the record does not compel

a contrary conclusion on the dispositive issue of nexus, we deny

the petition for review.

I.

Petitioner Martinez-Diaz, of El Salvador, entered the

United States on November 22, 2014 without being "admitted or

paroled after inspection by an Immigration Officer." On the same

day, the Department of Homeland Security ("DHS") charged him as

being subject to removal under § 212(a)(6)(A)(i) of the Immigration

and Nationality Act.

(a)(6)(A)(i). On June 3,

2015, Martinez-Diaz, roughly fifteen-years old at the time and

assisted by a preparer, filed his applications for asylum and

withholding of removal, with an affidavit asserting that he had

- 2 - been "harassed by [gang members] asking [him] to join them," "that

the gang members had threatened him with knives," and that he had

not gone to the police because he had been afraid of the gang

threats. He requested asylum and withholding of removal based on

membership in a particular social group but did not specify the

particular social group claimed. In response to the question of

whether he or his family or colleagues or close friends had "ever

experienced harm or mistreatment or threats in the past by anyone,"

he wrote: "When I would leave my school three or four [gang

members] []would threaten me with knives to force me to join them.

This began in July[] 2014. In November 2014, [a gang member] held

a knife to my throat saying [i]f I did not join them, they would

kill me."

Martinez-Diaz, then aged twenty-one-years old and

represented by present counsel, appeared before an IJ at a merits

hearing in Boston, Massachusetts on August 31, 2020. He conceded

removability and requested asylum and withholding of removal.1

Martinez-Diaz testified that he came to the United States in

November 2014 because gang members had started to threaten him in

1 He also sought relief under the Convention Against Torture ("CAT") and Other Cruel Inhuman or Degrading Treatment or Punishment,

(c)(2), 1208.18(a)(1); see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 114, but abandoned that claim before the BIA. In any event, he presented no evidence to the IJ of any likelihood of torture.

- 3 - October 2014. They had asked him to "bring drugs into school

because . . . [he] looked innocent." He had also been "beaten one

time by gang members" and on a different occasion had had a knife

held to his throat. Martinez-Diaz testified that after he left El

Salvador, gang members had "beat[en] up his brother trying to

ascertain [Martinez-Diaz's] whereabouts," and his "mother's cousin

[had] disappeared," but he did not "know the story." He never

reported any incident to law enforcement. He said he feared the

gang would harm him because he had refused to join them, and that

they would perceive him as wealthy and target him if he were to

return from the United States. This was the basis for his claim

of past and future persecution.

Martinez-Diaz asserted to the IJ he had been persecuted

"on account of" what he alleged were two particular social groups:

"1) the Martinez-Diaz family and 2) a popular youth who the gangs

wanted to recruit to distribute drugs."2

The IJ denied Martinez-Diaz's applications for relief

and protection, finding that he had failed to establish either

past persecution or a well-founded fear of future persecution on

account of a statutorily protected ground. See INA

§ 101(a)(42)(A);

(b)(1). As to the nexus

2 On appeal, Martinez-Diaz proposes a different particular social group: "a person refusing to be recruited into a criminal gang." Because he did not present this argument to either the BIA or to the IJ, we do not consider it. See

(d)(1).

- 4 - requirement, the IJ held that Martinez-Diaz had provided no

evidence he had been targeted because of his family. Martinez-

Diaz's own testimony established that "the only reason he [had

been] targeted was because the gang members wanted him to join

them and bring drugs into the school." The IJ held that "being

subjected to gang recruitment d[id] not constitute persecution on

account of a protected ground." Martinez-Diaz's second claimed

particular social group -- "popular youth who the gangs wanted to

recruit to distribute drugs" -- also failed because it lacked

particularity, in that "[a]s defined the group could consist of

people of any gender and background." As to petitioner's claim

that he "fear[ed] returning to El Salvador because he w[ould] be

targeted as having been perceived wealthy because he was in the

United States," the IJ noted that BIA precedent "flatly" precluded

this argument.

The IJ also found that Martinez-Diaz was not eligible

for withholding of removal, which requires a more stringent showing

than relief in the form of asylum. The IJ rejected the claim for

protection under the CAT because there was no evidence in the

record that it was more likely than not that he would be tortured

with the acquiescence or willful blindness of the government if

removed to El Salvador. The IJ ordered that Martinez-Diaz be

deported.

- 5 - Martinez-Diaz timely appealed to the BIA. His primary

argument was that he was and will be persecuted on account of a

particular social group. The BIA affirmed the finding that

Martinez-Diaz had failed to establish the requisite nexus between

his alleged persecution and any statutorily protected ground,

because the "harm and threats received by [him] from gang members

[had been] motivated by a desire to increase their criminal

enterprise," and not by "a protected ground under the INA." As he

failed to meet his burden of proving the requisite nexus for

asylum, the BIA determined that Martinez-Diaz was also not eligible

for withholding of removal. Because Martinez-Diaz had not

challenged the IJ's denial of his claim under the CAT, the BIA

found that he had "abandoned" that claim.

Martinez-Diaz timely petitioned this court for review.

II.

We review the agency's factual findings under the

deferential "substantial evidence standard," which "requires us to

accept" these findings "unless the record is such as to compel a

reasonable factfinder to reach a contrary conclusion." Dorce v.

Garland,

, 212 (1st Cir. 2022) (quoting Mazariegos-

Paiz v. Holder,

(1st Cir. 2013)). The BIA's

conclusions of law are reviewed de novo. Romilus v. Ashcroft,

(1st Cir. 2004).

- 6 - To receive asylum, Martinez-Diaz must demonstrate that

he is "unable or unwilling to return to" El Salvador 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." INA § 101(a)(42)(A),

(a)(42); see also

(a)-(b); I.N.S. v. Cardoza-

Fonseca,

(1987); Esteban-Garcia v. Garland,

, 191 (1st Cir. 2024). "Establishing persecution requires

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," also often referred to as a nexus.

(quoting Sanchez-Vasquez v. Garland,

, 46 (1st Cir.

2021)). We focus, as did the BIA, on the last requirement.

"'To meet th[e] "nexus" requirement,' the petitioner

must have provided 'sufficient evidence of an actual connection

between the harm [he] suffered and [his] protected trait.'"

(cleaned up) (quoting Ivanov v. Holder,

(1st

Cir. 2013)); See also Ramos-Gutierrez v. Garland,

, 6

(1st Cir. 2024). The petitioner "bear[s] the burden of

establishing facts on which a reasonable person would fear that

the danger arises on account of" a protected ground. Matter of

Fuentes,

(BIA 1988); see also Esteban-

Garcia, 94 F.4th at 192; Ruiz-Escobar v. Sessions,

,

- 7 - 259 (1st Cir. 2018); Mendez-Barrera v. Holder,

(1st Cir. 2010) ("There must be evidence that the would-be

persecutors knew of the [statutorily protected characteristic] and

targeted the [petitioner] for that reason."); Barnica-Lopez v.

Garland,

, 528 (1st Cir. 2023) (explaining that "the

statutorily protected ground need not be the sole factor driving

the alleged persecution" but it "cannot be 'incidental,

tangential, superficial, or subordinate to another reason for

[the] harm'" (alteration in original) (first quoting Loja-Tene v.

Barr,

, 61 (1st Cir. 2020); then quoting Sanchez-Vasquez

v. Garland,

, 47 (1st Cir. 2021))).

The IJ and the BIA found, based on Martinez-Diaz's own

testimony, that the gang members' motivation for trying to recruit

him was a desire to "increase their criminal enterprise." As the

IJ noted, Martinez-Diaz "stated that the only reason he was

targeted was because the gang members wanted him to join them" to

help them in their criminal activities, in particular to help sell

drugs. Martinez-Diaz does not identify any evidence in the record

that would compel a finding that there was any other motive. As

our caselaw makes clear, when gang members target individuals for

recruitment in order to expand their criminal enterprise for the

purpose of financial gain, they are not engaging in persecution on

a protected ground. See Esteban-Garcia, 94 F.4th at 192 (upholding

finding of no nexus where petitioner's "own statements" showed

- 8 - that her alleged persecutors "had wanted her to become a prostitute

and drug seller 'so that [they] could enjoy the money,'" and not

on account of a protected ground); Sanchez v. Garland,

,

7 (1st Cir. 2023) ("The record contains substantial evidence to

support the conclusion that financial gain, not family membership,

was 'at the root of' the threats petitioners received."); Lopez-

Lopez v. Sessions,

(1st Cir. 2018) (upholding

finding of no nexus where petitioner's alleged persecutors had

been "centrally motivated by a desire [for] profit"); Hernandez–

Lima v. Lynch,

(1st Cir. 2016) (upholding BIA's

conclusion that any harm was not on account of a protected ground

because "Hernandez–Lima's relatives were victims of extortion by

criminal gangs who sought money rather than to harm them because

of their family membership"); Arévalo-Girón v. Holder,

(1st Cir. 2012) (rejecting argument that petitioner had

been targeted on account of a particular social group where

"greed -- not social group membership -- [wa]s the apparent trigger

for the [alleged persecutors'] interest").3 Accordingly, we are

3 Martinez-Diaz asserts for the first time on appeal that the IJ was required to consider whether he had established a "pattern or practice" of persecution on account of "membership in a particular social group . . . of young persons targeted for recruitment by the gangs in El Salvador." See

(b)(2)(iii)(A). Martinez-Diaz did not present this argument to the IJ or to the BIA and thus cannot rely on this newly claimed ground now. Jani v. Garland,

, 39 (1st Cir. 2024). Although Martinez-Diaz did argue to the agency that he had been persecuted based on his family membership, because his

- 9 - not persuaded by Martinez-Diaz's contention that the record

compels a finding that he was persecuted on account of a protected

ground.4

Because Martinez-Diaz failed to show that the record

compels a finding of the requisite nexus between his alleged

persecution and any statutorily protected ground, his claim for

withholding of removal under

(b)(3) necessarily

fails as well. "To petition successfully for withholding of

removal, an alien must show that, if returned to his homeland, he

would more likely than not be subjected to persecution on account

of a statutorily protected ground." Amouri v. Holder,

(1st Cir. 2009); see also

(a), (b)(1)-

(2). "[A] noncitizen who cannot meet the lower asylum standard

will necessarily fail to make out a counterpart claim under the

higher standard for withholding of removal." López-Pérez v.

Garland,

, 111 (1st Cir. 2022).5

briefing to this court does not challenge the agency's determination of that issue, the argument has been waived. See United States v. Cheveres-Morales,

, 40 (1st Cir. 2023). Accordingly, we focus only on the BIA's nexus ruling. 4 To the extent that Martinez-Diaz advances other arguments concerning the statutorily protected grounds claimed before the agency, we do not address them because the no-nexus determination is dispositive. 5 With respect to Martinez-Diaz's request for relief under the CAT, we agree with the BIA that the claim was abandoned by his failure to challenge the IJ's denial of it.

- 10 - The petition for review of the decision of the BIA is

denied.

- 11 -