United States Court of Appeals For the First Circuit

No. 24-1042

DOUGLAS HUMBERTO URIAS-ORELLANA; SAYRA ILIANA GAMEZ-MEJIA; G.E.U.G.,

Petitioners,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

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

Before

Gelpí, Lynch, and Montecalvo, Circuit Judges.

Kevin P. MacMurray and MacMurray and Associates, on brief for petitioners. Brooke M. Maurer, Trial Attorney, Bryan M. Boynton, Principal Deputy Assistant Attorney General, and Nancy E. Friedman, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.

November 14, 2024 GELPÍ, Circuit Judge. Petitioner Douglas Humberto

Urias-Orellana ("Urias-Orellana") is a thirty-three-year-old

native and citizen of El Salvador. He -- along with his wife,

Sayra Iliana Gamez-Mejia ("Gamez-Mejia"), and their minor child,

G.E.U.G. -- petition for review of a final order of the Board of

Immigration Appeals ("BIA") affirming the Immigration Judge's

("IJ," together with the BIA, "the Agency") denial of their

requests for asylum. Urias-Orellana also petitions for review of

the denial of his application for protection under the Convention

Against Torture ("CAT").1 The Agency premised its denials on

several grounds, including that Petitioners did not meet their

burden to (1) demonstrate harm rising to the level of persecution

to qualify for asylum or withholding of removal, or (2) show that

they could not reasonably relocate in El Salvador. As to CAT

relief, Urias-Orellana did not show there was error in the factual

finding that it is "[un]likel[y] [Urias-Orellana] will face

torture by or with the consent or acquiescence (including willful

1 Where necessary, we refer to the trio collectively as "Petitioners." Although Gamez-Mejia and G.E.U.G. can seek asylum as Urias-Orellana's derivative beneficiaries, they cannot assert derivative claims for CAT protection or withholding of removal. That is because those forms of relief do not carry derivative benefits, and Gamez-Mejia and G.E.U.G. did not file separate applications. See

(b), (c). The upshot is that our denials of Urias-Orellana's petitions for review of the asylum and withholding of removal determinations apply to their asylum application. Only Urias-Orellana brought a CAT claim. See Cabrera v. Garland,

, 315 n.1 (1st Cir. 2024).

- 2 - blindness) of any public official or persona acting in an official

capacity." We deny the petition for review.

I. BACKGROUND

"We draw our background 'from the administrative record,

including [Urias-Orellana's] testimony before the IJ, which the IJ

found credible.'" Gonzalez-Arevalo v. Garland,

(1st Cir. 2024) (quoting Chun Mendez v. Garland,

(1st Cir. 2024)).

A. Underlying Facts

On or about June 28, 2021, Petitioners entered the

United States without authorization. The Department of Homeland

Security ("DHS") served them on August 10 with Notices to Appear

in immigration court. DHS charged Petitioners with removability

for being present in the United States without being admitted or

paroled, Immigration and Nationality Act ("INA")

§ 212(a)(6)(A)(i),

(a)(6)(A)(i). Petitioners

conceded proper service and admitted their removability. In so

doing, Petitioners noted that they would seek asylum, while

Urias-Orellana indicated that he would also seek protection under

the CAT.2

2He also indicated his intent to seek withholding of removal. But Petitioners' brief is devoid of any argument mentioning withholding of removal. Accordingly, any challenge to the denial of withholding of removal has been waived. See Jimenez-Portillo v. Garland,

(1st Cir. 2022).

- 3 - In his asylum application, Urias-Orellana explained that

he feared harm because his half-brothers, Juan and Remberto, had

been shot and severely injured, and he believed that similar harm

would befall him and his family.

Urias-Orellana expanded on these concerns during his

testimony before the IJ at a hearing on March 14, 2022, and through

an affidavit filed in immigration court. Urias-Orellana,

represented by counsel, explained that he feared persecution in El

Salvador on the basis of his particular social group:

Urias-Orellana's family. Specifically, Urias-Orellana feared

returning to El Salvador because of Wilfredo, a "sicario" (which

roughly translates to "hitman") for a local drug lord in El

Salvador. Wilfredo's mother and the father of Urias-Orellana's

half-brothers3 were involved in a relationship of which Wilfredo

did not approve. Around February 2016, Wilfredo's disapproval

turned to violence when, after an argument with Juan at a cantina,

he shot Juan six times. Juan suffered severe injuries from the

shooting -- he is now wheelchair-bound -- and moved away to Cara

Sucia (a forty-minute drive from where he was shot).

The shooting apparently did not placate Wilfredo's

anger. So he vowed to kill Juan's entire family. He turned his

crosshairs next on Remberto in August 2016. Wilfredo ambushed

3 Juan and Remberto have the same mother as Urias-Orellana but a different father.

- 4 - Remberto in a secluded alley, shooting him nine times. Remberto

survived the encounter. Urias-Orellana feared for his and his

family's safety, and they fled to Cojutepeque, El Salvador, where

they remained in peace for about one year.

Believing the worst to be over, Petitioners moved in

February or March 2017 to live with Gamez-Mejia's family to another

town in El Salvador, Colonia Claudia Lara -- about a thirty-minute

drive from Sonsonate, where Urias-Orellana used to live. But,

according to Urias-Orellana, Wilfredo must have learned of this

move because two masked men approached Urias-Orellana in Claudia

Lara a few months after. They demanded money and, when

Urias-Orellana refused, warned him that they would "leave [him]

like" his half-brothers and possibly kill him if he did not cave

to their demands.

About six months later, Urias-Orellana again was

threatened at gunpoint by masked men in August 2017. They

threatened to kill him if he did not pay up the next time that

they saw him.4

Petitioners then moved, again within El Salvador, to

Cara Sucia to stay with Juan. They lived there without any

Urias-Orellana testified that he and his family moved to 4

Cara Sucia after the threats in February or March 2017. He explained that he was not approached again after that incident. But his affidavit indicates that he was targeted in August 2017. The IJ also analyzed the August 2017 encounter. Accordingly, we shall consider the August 2017 encounter in our analysis.

- 5 - harassment or complaints or threats for two-and-a-half years. In

December 2020, Urias-Orellana and Gamez-Mejia returned to visit

his family in Sonsonate, and while there, he was confronted by two

masked men on a motorcycle demanding money. They threatened him,

assaulted him by striking him three times in the chest, and warned

him that they would kill him if he did not pay them.

Urias-Orellana and Gamez-Mejia returned to Cara Sucia

thereafter. But, on their journey, Urias-Orellana noticed two men

on a motorcycle -- whom he believed to be the same men who beat

him -- following him to Cara Sucia. Fearful that Cara Sucia was

unsafe, Petitioners took a taxi to San Salvador before ultimately

returning to Claudia Lara.

Upon their return, Urias-Orellana noticed that the same

men who assaulted him were patrolling Claudia Lara apparently in

search for him. And, while shopping in Claudia Lara around

February or March 2021, he overheard two men asking a store

employee if there were any newcomers to the area and where they

were located.

The IJ asked Urias-Orellana questions once he finished

recounting this narrative. He asked if Urias-Orellana's mother

had ever been harmed or mistreated while living in El Salvador.

Urias-Orellana answered that she had not, besides a threat from

individuals "from Guatemala." The IJ asked the same question about

Urias-Orellana's siblings, who also lived in El Salvador. Neither

- 6 - his sister nor his half-sister (nor his half-sister's children)

were ever harmed or mistreated while in El Salvador. The IJ asked

about Urias-Orellana's other siblings besides Juan and

Remberto -- Jaime, Celina, Rosabel, and Elmer. Although

Urias-Orellana explained that some unknown assailants had

"grabbed" and placed Jaime "in a room for [three] hours" at some

point, he did not recall any of his other siblings facing harm or

harassment in El Salvador.

The IJ further asked Urias-Orellana if he had been able

to live without being harmed or threatened when he moved to

Cojutepeque and Claudia Lara. Urias-Orellana admitted that he had

been.

B. Procedural History

The IJ denied the application after considering

Urias-Orellana's testimony, the submissions in support of

Petitioners' claims, and the entire record. We focus on the facets

of the IJ's decision that are relevant to this petition for review.

First, the IJ concluded that Urias-Orellana's testimony

was credible, and that the recounted harm did not rise to the level

of past persecution. The IJ acknowledged the death threats and

assault, and found that the death threats were not so menacing as

to qualify as past persecution. Further, the December 2020 assault

did not require Urias-Orellana to receive medical treatment, and

so was not past persecution.

- 7 - Beyond that, the IJ found that Petitioners did not meet

their burden to show that a reasonable person would fear returning

to El Salvador. The IJ so concluded, reasoning (1) Urias-

Orellana's relatives lived throughout El Salvador without

suffering any harm or mistreatment at Wilfredo's hands, and

(2) Petitioners were able to successfully relocate in El Salvador

without facing any harassment or mistreatment. Indeed, the IJ

noted, Urias-Orellana only encountered danger after he returned to

his hometown.

Third, the IJ found that Urias-Orellana's CAT claim

failed. The IJ noted that Urias-Orellana neither reported his

harassment to the police nor demonstrated that doing so would be

futile. The IJ acknowledged that a 2020 U.S. Department of State

Country Conditions Report for El Salvador "present[ed] a mixed

picture" on the country's efforts to combat organized crime. That

mixed picture included the limited resources available to and

corruption in the Salvadoran police and judiciary. The IJ also

noted that the Report stated that the police had developed new

techniques to combat gang violence and made efforts to root out

corruption in the police force. The IJ concluded it would not be

futile for Urias-Orellana to report any threats to the authorities,

and he had not shown that, if there were further harassment, the

Salvadoran government would acquiesce to it.

- 8 - Petitioners appealed to the BIA, attacking the IJ's

finding that the Petitioners had not shown that they (1) faced

past persecution due to the threats and December 20 assault; or

(2) had a well-founded fear of future persecution due to internal

relocation and unharmed family members. Petitioners also appealed

the IJ's finding that Urias-Orellana had not shown he qualified

for CAT relief.

The BIA affirmed. It adopted the IJ's reasoning and

added its views as to the denials of Petitioners' asylum claim and

Urias-Orellana's CAT claim. The BIA agreed with the IJ that the

threats and assault did not amount to persecution. And, after

recognizing that Petitioners' failure to prove past persecution

meant that they bore the burden of showing that relocation would

be unreasonable, the BIA concluded that Petitioners had not met

this burden. Moreover, the BIA noted that Urias-Orellana's mother

and sisters were never threatened or harmed in El Salvador, and

that Jaime was held by someone unaffiliated with Wilfredo.

Finally, the BIA noted, inter alia, as to Urias-Orellana's CAT

claim, that he never attempted to report his mistreatment to the

police -- and that it would not have been futile to do so, in light

of the country conditions evidence.

This timely petition for judicial review, over which we

have jurisdiction, followed.

(a)(1).

- 9 - II. DISCUSSION

A. Legal Standards

"Where, as here, 'the BIA adopts and affirms an IJ's

decision, we review the IJ's decision "to the extent of the

adoption, and the BIA's decision as to [any] additional ground."'"

López-Pérez v. Garland,

(1st Cir. 2022)

(alteration in original) (quoting Sunoto v. Gonzales,

(1st Cir. 2007)).

"We review the [A]gency's legal conclusion de novo. But

we review its factual findings under the substantial evidence

standard." Gonzalez-Arevalo,

(citation omitted).

Under this standard, we must "accept the findings 'as long as they

are supported by reasonable, substantial and probative evidence on

the record considered as a whole.'" Gomez-Abrego v. Garland,

(1st Cir. 2022) (quoting Aguilar-De Guillen v.

Sessions,

(1st Cir. 2018)). Thus, "we will only

disturb the [A]gency's findings if, in reviewing the record as a

whole, 'any reasonable adjudicator would be compelled to conclude

to the contrary.'" Gonzalez-Arevalo,

(quoting

Barnica-Lopez v. Garland,

(1st Cir. 2023)).

"That the record supports a conclusion contrary to that reached by

the [Agency] is not enough to warrant upsetting the [Agency's]

view of the matter; for that to occur, the record must compel the

contrary conclusion." Santos Garcia v. Garland,

,

- 10 - 460-61 (1st Cir. 2023) (quoting Hincapie v. Gonzales,

(1st Cir. 2007)). It is through this lens that we consider

Petitioners' asylum claim and Urias-Orellana's CAT claim.

The INA requires a petitioner for asylum to prove that

he is a "refugee," meaning someone "who is unable or unwilling to

return to" his 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). "Persecution in this sense

'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

those statutorily protected grounds."'" Gonzalez-Arevalo,

(quoting Barnica-Lopez,

). If a

petitioner fails to meet any of these requirements, then so too

must his past or future persecution claim fail. See

B. Asylum Claim

We consider Petitioners' arguments concerning asylum.

In so doing, we cabin our review to whether the Agency conclusion

they had not demonstrated past persecution or a well-founded fear

of future persecution was supported by substantial evidence.

i. Past Persecution

Part of Petitioners' past persecution burden was to

prove that Urias-Orellana suffered "a certain level of serious

- 11 - harm." Gonzalez-Arevalo,

(quoting Barnica-Lopez,

). Persecution transcends "unpleasantness,

harassment, and even basic suffering." Santos Garcia,

(quoting Nelson v. INS,

(1st Cir. 2000)).

While "'[c]redible, specific threats can amount to persecution if

they are severe enough' -- particularly if they are death

threats," Montoya-Lopez v. Garland,

(1st Cir.

2023) (quoting Aguilar-Escoto v. Garland,

(1st

Cir. 2023)) -- to qualify as past persecution, these threats must

be "so menacing as to cause significant actual suffering or harm,"

Santos Garcia,

(quoting Lobo v. Holder,

(1st Cir. 2012)).

Petitioners argue that the record compelled a finding

that the threats and assault experienced by Urias-Orellana met

this burden. They emphasize that Urias-Orellana's assailants were

armed, assaulted him on one occasion, and promised to leave him

like his half-brothers if he did not comply.

Unfulfilled death threats rarely prove past persecution

unless they are "so menacing as to cause significant actual

suffering or harm."

The Agency reasonably concluded that the

threats experienced by Urias-Orellana do not meet that threshold.

As an initial matter, Urias-Orellana did not testify "about the

'immediate impact, if any, that these threats had on him,'" so we

cannot say that the record compels a conclusion that they caused

- 12 - significant actual suffering or harm.

(quoting Rodriguez v.

Lynch,

(1st Cir. 2016)). Here, "there [was]

no finding that [] threats [against the petitioner] were 'credible'

threats of death as opposed to threats intended to frighten him

into paying, especially given the lack of severity of the one

assault." Vargas-Salazar v. Garland,

(1st Cir.

2024) (alterations in original) (quoting Santos Garcia,

. Indeed, the Agency considered how, over a four-year

period, Urias-Orellana was threatened only three times by unknown

assailants who demanded money and, on one occasion, struck him in

the chest, three times -- an attack that did not result in

hospitalization. That the assault "did not require

hospitalization bears on the 'nature and extent' of [a

petitioner's] injuries and is certainly 'relevant to the ultimate

determination'" of persecution. Jinan Chen v. Lynch,

(1st Cir. 2016) (quoting Vasili v. Holder,

(1st

Cir. 2013)).

Because this sequence of events did not involve threats

or actions "so menacing as to cause significant actual suffering,"

Santos Garcia,

, substantial evidence supports the

Agency's no-past-persecution finding.

Petitioners highlight the assailants' striking the chest

of Urias-Orellana and the assailants' mentioning of Juan and

Remberto's fates as proof that they could make good on their

- 13 - threats. But these circumstances do not present a case distinct

from our precedents. Previously, we have upheld Agency decisions

concluding that nearly identical -- or even more

egregious -- circumstances did not rise to the level of

persecution. Vargas-Salazar,

(concluding that

multiple extortionate death threats and an injury that did not

require hospitalization did not compel a finding of past

persecution); Santos Garcia,

(three

extortionate threats and a beating by armed assailants did not

constitute persecution); Jinan Chen,

(upholding

the Agency's no-persecution finding when the petitioner "was

beaten and subsequently taken to the police station where he was

placed in custody, interrogated, further assaulted, and threatened

with forced sterilization"); Cabas v. Holder,

(1st Cir. 2012) (upholding no-persecution finding where the

petitioner was kidnapped, beaten, and left unconscious and

received threats after a break-in at his parents' home); Bocova v.

Gonzales,

(1st Cir. 2005) (upholding

no-persecution finding based on two death threats and a beating

that left the petitioner unconscious and hospitalized). It follows

that the record here did not compel a finding of past persecution.

ii. Well-Founded Fear of Future Persecution

Because Petitioners did not establish past persecution,

they are not entitled to a presumption of future persecution.

- 14 - Santos Garcia,

. The Agency ruled that Petitioners

did not establish future persecution, finding that they had no

reasonable fear of future persecution on the basis that they could

internally relocate. We thus examine the merits of that

conclusion.

Even if a petitioner proves that "[he has] suffered past

persecution or [has] a well-founded fear of future persecution,

[the] application for asylum will be denied if the adjudicator

determines that [he] could avoid persecution by internally

relocating within the country of removal and, under all the

circumstances, it would be reasonable to do so." Caz v. Garland,

(1st Cir. 2023). For a petitioner "to be able to

internally relocate safely, there must be an area of the country

where he or she has no well-founded fear of persecution." Matter

of M-Z-M-R-,

(B.I.A. 2012). To determine

this, the Agency considers "the totality of the relevant

circumstances" for relocation, such as "the size of the country of

nationality or last habitual residence, the geographic locus of

the alleged persecution, the size, numerosity, and reach of the

alleged persecutor, and the [petitioner's] demonstrated ability to

relocate to the United States in order to apply for asylum."

(b)(3). Other relevant factors to the analysis

include whether the petitioner previously had success relocating

internally and his family's "continued safe residence . . . in the

- 15 - country of removal." Caz,

. After all, a

petitioner's unimpeded movement "demonstrates that [he] can

relocate safely," Chen Qin v. Lynch,

(1st Cir.

2016), and that "close relatives continue to live peacefully in

the [petitioner's] homeland undercuts the [petitioner's] claim

that persecution awaits his return," López-Pérez, 26 F.4th at 112

(quoting Aguilar-Solis v. INS,

(1st Cir. 1999)).

Because Petitioners have not shown past persecution, they bear the

burden "to establish that relocation would be unreasonable."

Camara v. Holder,

, 15 n.3 (1st Cir. 2013).

Substantial evidence supports the Agency's conclusion

that internal relocation in El Salvador would be reasonable.

Urias-Orellana testified that he avoided harm, harassment, and

threats twice successfully: first by moving to Cojutepeque and

staying for one year, and then by moving to Cara Sucia and staying

there for two and a half years. See Chen Qin,

(considering the petitioner's successful internal relocation to a

relative's house). Likewise, as he has admitted, Urias-Orellana's

relatives live throughout El Salvador undisturbed. See, e.g.,

López-Pérez, 26 F.4th at 112 (considering that the petitioner's

sister and cousin still resided in Guatemala without being

persecuted). Evidence of "prior successful internal relocation

and the continued safe residence of [Petitioners'] family members

in" El Salvador supports the Agency's conclusion. Caz, 84 F.4th

- 16 - at 28 (first citing López-Pérez, 26 F.4th at 112; and then citing

Chen Qin,

).

Petitioners contend that Urias-Orellana did not

internally relocate with success because, upon returning to

Claudia Lara, he was confronted by the men who threatened him.

They also note that El Salvador has a high per-capita murder rate;

is full of criminal gangs dispersed throughout the country; and is

so small as to make it impossible to avoid Wilfredo.

Petitioners' complaints falter against the substantial

evidence standard. As we have stated, we do not consider whether

the record contains any evidence suggesting that relocation might

not be reasonable -- only "whether a reasonable factfinder, having

considered all the evidence, would be compelled to conclude that

[Urias-Orellana] could not safely relocate within" El Salvador.

Id. at 29. A reasonable factfinder would not be so compelled here.

Urias-Orellana was able to live in towns across El Salvador for

years without harassment and only encountered difficulties once he

returned to his hometown. And his relatives -- members of his

family who Wilfredo would presumably also want dead -- have lived

across El Salvador unscathed. Therefore, substantial evidence

supports the Agency's conclusion that Urias-Orellana did not

establish that relocation was unreasonable.

- 17 - C. CAT Claim

To succeed on his CAT claim, Urias-Orellana "must show

that 'it is more likely than not that he will be tortured if

returned to his home country.'" Lafortune v. Garland,

(1st Cir. 2024) (quoting Bonnet v. Garland,

(1st Cir. 2021)). In doing so, he must show that "he would be

subject to torture 'by or with the acquiescence of a government

official.'" Perez-Trujillo v. Garland,

(1st Cir.

2021) (quoting Aldana-Ramos v. Holder,

(1st Cir.

2014)). "Acquiescence" requires that a "public official, prior to

the activity constituting torture, have awareness of such activity

and thereafter breach his or her legal responsibility to intervene

to prevent such activity."

(a)(7).

Urias-Orellana argues that the record compels the

conclusion that the Salvadoran government lacked the resources to

protect him from torture at the hands of criminal gangs. He

stresses that the 2020 country conditions report demonstrates

corruption in the judicial system and government, along with

impunity for those officials, undermining the rule of law. In

turn, he contends that this led to the government's inability to

halt gangs.

Urias-Orellana's argument fails, as the Agency held, for

a fundamental reason: The 2020 country conditions report does not

"supplant the need for particularized evidence." Amouri v. Holder,

- 18 -

(1st Cir. 2009) (noting that country conditions

reports "do not necessarily override petitioner-specific facts").

He is "oblig[ated] to point to specific evidence indicating that

he, personally, faces a risk of torture." Alvizures-Gomes v.

Lynch,

(1st Cir. 2016).

That he does not do. Urias-Orellana never even attempted

to report his harassment, which did not rise to the level of

persecution and certainly not torture, to the police. He only

speculates here -- as he did before the Agency -- about its

inability to protect him. See, e.g., Ramírez Pérez v. Barr,

(1st Cir. 2019) (rejecting petitioner's argument of

government acquiescence where he never attempted to report his

mistreatment to the police); Gomez-Abrego,

(rejecting petitioner's arguments where she only pointed to "her

belief that the police were 'in cahoots' with gang members and [a]

country report showing widespread violence and police corruption

in El Salvador," and the Agency properly considered and rejected

this as evidence of acquiescence to torture).

And "even where 'efforts at managing gang activity [are

not] completely effectual,' that is insufficient to sustain a CAT

claim unless the record 'compel[s] a conclusion that the government

has acquiesced in gang activities.'" Perez-Trujillo,

(alteration in original) (quoting Mayorga-Vidal v. Holder,

(1st Cir. 2012)). The record does not compel such a

- 19 - conclusion. The IJ explicitly considered the 2020 country

conditions report, and noted that report described how the

Salvadoran police's investigative units "have shown great promise"

in managing gangs. See

(holding that substantial

evidence supported the Agency's no-acquiescence finding where

country conditions evidence stated, in part, that the Salvadoran

police had made efforts to crack down on gang violence);

Mayorga-Vidal,

(holding similarly).

III. CONCLUSION

For these reasons, we deny the petition for judicial

review.

- 20 -