United States Court of Appeals For the First Circuit

No. 23-1701

SARA ESTEBAN-GARCIA,

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 Gelpí, Circuit Judges.

Kristian Robson Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioner. Nancy Pham, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Corey L. Farrell, Senior Litigation Counsel, Office of Immigration Litigation, and Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for respondent.

February 29, 2024 LYNCH, Circuit Judge. Sara Esteban-Garcia petitions for

review of a decision of the Board of Immigration Appeals dated

July 24, 2023, which adopted and affirmed an immigration judge's

order denying her application for asylum and claim for withholding

of removal under sections 208 and 241(b)(3)(A) of the Immigration

and Nationality Act ("INA"),

, 1231(b)(3)(A). The

IJ determined that Esteban-Garcia had not met her burden to show

that she had suffered from past persecution for a number of

reasons, including that she had failed to establish a nexus between

the harm that she testified that she had suffered and a statutorily

protected ground. As to future persecution, the IJ also found she

had failed to meet her burden to establish a well-founded fear of

future persecution on account of a protected ground.

Because there was no error of law in the determination

that Esteban-Garcia had failed to meet her burden to show a nexus

to a protected ground and the record does not compel a contrary

conclusion, we deny the petition for review.

I.

A.

Esteban-Garcia is a twenty-nine-year-old native and

citizen of Guatemala. She is an indigenous woman of Mam descent

who grew up in a small village of indigenous people called Tuichán

in Guatemala. She entered the United States without inspection on

or about June 1, 2014, at or near Hidalgo, Texas, and was detained

- 2 - shortly thereafter. On June 19, 2014, an asylum officer conducted

a credible-fear interview of Esteban-Garcia and determined she had

established a credible fear of persecution.

On July 3, 2014, the Department of Homeland Security

initiated removal proceedings against Esteban-Garcia, filing a

Notice to Appear in immigration court charging her with

removability pursuant to section 212(a)(7)(A)(i)(I) of the INA,

(a)(7)(A)(i)(I), as a noncitizen not in possession of

a valid entry document at the time of her application for

admission. On July 21, 2014, Esteban-Garcia, proceeding pro se,

admitted the factual allegations contained in the Notice to Appear

and indicated her intent to file an application for asylum. She

later filed a written pleading through counsel admitting the

factual allegations and conceding the charge of removability. She

filed an application for asylum on August 1, 2014. On December

10, 2018, represented by counsel, she testified at a hearing before

the IJ and submitted written declarations from herself, her

brother, and two cousins in support of her asylum application.

In her credible-fear interview, declaration, and

testimony before the IJ, Esteban-Garcia stated that she had left

Guatemala and feared returning there because a man named Tito1,

1 At her credible-fear interview on June 19, 2014, Esteban-Garcia said that her alleged persecutor was named Tito Vasquez. Later, in her declaration in support of her applications on November 14, 2018, she wrote his name was Tito Sanchez. Due to

- 3 - with whom she had been romantically involved, told her that he

wanted her to become a prostitute or sell drugs to earn money for

him and his friends. She met and began dating Tito, who is also

indigenous, in April 2014, when she was nineteen years old.

Approximately one month later, Tito asked her to meet him in a

park in San Marcos -- a town that Esteban-Garcia frequented to see

Tito and shop at the local market -- so he could introduce her to

his friends. When she arrived, he was with several other men and

stated that he wanted her to prostitute herself or sell drugs. He

told her that he would become romantically involved with women and

then "put[] them in contact with these men" and that "this is how

we manipulate so that young girls will fall." The men stated that

"get[ting] women to do this" was "their business and job." The

men said that they wanted her to do this because "they wanted to

make money off of women who were able to sell their bodies." She

testified that she believed the reason Tito wanted to force her to

become a prostitute or drug seller was so that he could "have a

better life" from the money she would earn.

When Esteban-Garcia refused, Tito stated, "I have two

other male friends [here] and you cannot escape now." The men

threatened to kill her if she did not comply and insulted her with

"a mountain of bad names," including "you're going to be a slut."

this ambiguity in the record, we refer to Tito only by his first name.

- 4 - Tito also grabbed her arm hard enough to leave bruises, pulled her

hair, groped her breast, and "touch[ed] [her] body all over." She

stated she was "terrified" and that she was "not physically" harmed

during this incident. After she told Tito she would report him to

the police, he threatened to kill her and her family. She then

told him she would do what he asked, at which point he let her go

and she returned home. She stated at her credible-fear interview

that this was the only instance in which she was threatened to be

forced into prostitution.

Immediately after this encounter, Esteban-Garcia began

preparing to flee Guatemala. Although she had blocked his phone

number after the incident, Tito called her the next day from an

unknown number to ask if she was ready to begin working for him

and that he was "going to come and get [her]." After this call,

she destroyed her phone and contacted her brother, who lives in

the United States. Her brother told her he could help her leave

Guatemala and, soon after, sent her money and arranged her travel

to the United States. She left Guatemala within days of this

incident. Esteban-Garcia testified that her cousin informed her

that men in Guatemala then continued to ask about her; the latest

such inquiry occurred one month before her December 2018

immigration hearing. Her cousin's declaration stated that "they

have been asking for [Esteban-Garcia] in the streets [and]

markets."

- 5 - Upon questioning at her immigration hearing, Esteban-

Garcia testified that she did not report this incident to the

police because she was afraid of Tito's threats and because she

"d[id]n't know" if the police would help her because "they don't

do justice." She stated in her credible-fear interview that "the

[police] will kill people" and in her declaration that she "cannot

count on the military or the police in [her] country." She stated

in her declaration that there is no police station in her village

and that Tito told her "if the police arrest him, he has

connections on the outside that can harm [her]."

Esteban-Garcia testified that she fears that if she

returned to Guatemala, Tito "would look for [her]" and possibly

"grab [her] by force or maybe he would torture [her]." She stated

in her credible-fear interview that she fears they will force her

to become a prostitute and that "if I don't want to prostitute

myself, they will kill me." She does not know of any other girls

or women who were forced to become prostitutes, but she has heard

rumors that people "have started to manipulate girls into doing

this" and stated, "I think they have grabbed more around."

Before the IJ, Esteban-Garcia submitted evidence that

she was diagnosed with, and has received treatment for, major

depressive disorder and post-traumatic stress disorder ("PTSD")

while in the United States since at least February 2017, several

- 6 - years after the incident with Tito.2 In support of her asylum

application, she submitted a letter from her therapist regarding

her mental health diagnoses and general evidence concerning PTSD.

She also submitted general country conditions evidence regarding

indigenous persons, sex trafficking, and violence against women in

Guatemala.

B.

In a written decision on December 11, 2018, the IJ denied

Esteban-Garcia's application for asylum and claims for withholding

of removal and protection under the Convention Against Torture

("CAT") and ordered that she be removed from the United States to

Guatemala. The IJ found that Esteban-Garcia was a credible witness

and that she had timely filed her asylum application. The IJ also

found that Esteban-Garcia had failed to meet her burden to show

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

account of a protected ground" because (1) Esteban-Garcia's

experience in Guatemala did not rise to the level of persecution;

(2) she had not established that the harm she experienced was "on

account of a protected ground"; (3) she had not established that

the harm "was the direct result of government action,

2 In a letter dated November 7, 2018, Yolanda Rosa, a Licensed Mental Health Clinician ("LMHC") at Lynn Community Health Center, averred that she had been treating Esteban-Garcia for her mental health issues since February 15, 2017, and that Esteban-Garcia had previously been seen by another LMHC, Guillermina Montano, at the health center.

- 7 - government-supported action, or the government's unwillingness or

inability to control private conduct"; and (4) she had "failed to

establish that her life or freedom would be threatened in the

future in Guatemala on account of a protected ground." Because

Esteban-Garcia failed to meet her burden of proof for asylum, the

IJ determined that she had also failed to demonstrate eligibility

for withholding of removal and CAT protection.

On January 10, 2019, Esteban-Garcia timely appealed the

IJ's decision to the BIA. On July 24, 2023, the BIA adopted the

IJ's findings of fact and affirmed its legal conclusions,

dismissing Esteban-Garcia's appeal. The BIA noted that she had

waived her challenge to the denial of CAT protection because she

had "not meaningfully challenge[d] [the IJ's CAT] determination on

appeal."3 The BIA also addressed additional issues that Esteban-

Garcia had raised on appeal, holding that the IJ did not err by

not addressing the cognizable nature of Esteban-Garcia's proposed

particular social groups because her claim failed on other grounds

and affirming the IJ's determination that Esteban-Garcia "did not

submit sufficient evidence to establish that her harm rises to the

level of past persecution," after considering evidence that she

suffered from PTSD as of February 2017.

3 Since Esteban-Garcia also has not meaningfully raised this issue on appeal before this court, her request for CAT protection is waived for both reasons.

- 8 - II.

Where, as here, the BIA adopted the IJ's findings, "we

review both the IJ's and the BIA's decisions as a unit."

Mazariegos-Paiz v. Holder,

(1st Cir. 2013) (quoting

Chen v. Holder,

(1st Cir. 2012)). We evaluate

"the IJ's decision to the extent of the adoption, and the BIA's

decision as to [any] additional ground." López-Pérez v. Garland,

, 110 (1st Cir. 2022) (alteration in original) (quoting

Sunoto v. Gonzales,

, 59–60 (1st Cir. 2007)).

"Whether an applicant has met his or her burden for

proving eligibility is a question of fact." Villalta-Martinez v.

Sessions,

(1st Cir. 2018). We review the agency's

factual findings using the "substantial evidence standard," a

deferential standard that "requires us to accept" those 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,

); see

also INS v. Elias-Zacarias,

(1992) ("The BIA's

determination that [the petitioner] was not eligible for asylum

must be upheld if supported by reasonable, substantial, and

probative evidence on the record considered as a whole." (internal

quotations omitted)). We review the BIA's conclusions of law de

novo but provide "some deference to the agency's expertise in

interpreting both the statutes that govern its operations and its

- 9 - own implementing regulations." Cabrera v. Lynch,

(1st Cir. 2015).

III.

To qualify for asylum in the United States, Esteban-

Garcia must demonstrate that she meets the definition of a

"refugee," meaning that she is "unable or unwilling to return to"

Guatemala because of "persecution or a well-founded fear of future

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion." INA

§ 101(a)(42)(A),

(a)(42)(A); see also

(a)-(b); INS v. Cardoza-Fonseca,

(1987); Ye v. Lynch,

(1st Cir. 2017).

"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." Sanchez-Vasquez v. Garland,

, 46 (1st Cir.

2021).

An applicant who has demonstrated that she has suffered

from past persecution on account of a statutorily protected ground

is "presumed to have a well-founded fear of [future] persecution"

on account of that same protected ground.

(b)(1). If such demonstration has not been made, the

applicant must independently demonstrate a well-founded fear of

- 10 - future persecution that is "both subjectively genuine and

objectively reasonable." Sunarto Ang v. Holder,

(1st Cir. 2013).

We need address only one of the grounds on which

Esteban-Garcia was denied relief. For both past and future

persecution claims, "[a]n inability to establish any one of the

three elements of persecution will result in a denial of [the]

asylum application." Aguilar-De Guillen v. Sessions,

(1st Cir. 2018) (alterations in original) (quoting Carvalho-

Frois v. Holder,

(1st Cir. 2012)). Thus, "[i]f

the agency's findings on any one of [its] determinations [on these

elements] are supportable, the petitioner cannot prevail."

Carvalho-Frois,

.

The IJ and the BIA determined that, independently of

whether Esteban-Garcia had shown that the harm she experienced

constituted persecution, she failed to demonstrate a nexus, even

under a mixed-motive analysis, between such harm and a protected

ground. The evidence in the record does not compel a contrary

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

must have provided "sufficient evidence of an actual connection

between the harm [s]he suffered and h[er] protected trait." Ivanov

v. Holder,

(1st Cir. 2013). The petitioner need

not "establish[] the exact motivation of [her] 'persecutor,'" but

she "does bear the burden of establishing facts on which a

- 11 - reasonable person would fear that the danger arises on account of"

a protected ground. Matter of Fuentes,

(BIA 1988); see also Elias-Zacarias,

. Where the

evidence shows there are multiple motives for persecution, the

petitioner must provide some evidence to establish that a protected

ground was "at least one central reason." INA § 208(b)(1)(B)(i),

(b)(1)(B)(i); see also Aldana-Ramos v. Holder,

(1st Cir. 2014), as amended (Aug. 8, 2014); Aguilar-De

Guillen,

.

Here, the IJ and BIA concluded that Esteban-Garcia had

failed to show persecution on account of a protected ground largely

based on her own statements. She consistently stated that Tito

(and the other men) had wanted her to become a prostitute and drug

seller "so that [they] could enjoy the money." This motivation

does not implicate a protected ground, as the IJ correctly found.

Esteban-Garcia's brief to us acknowledges that "[c]learly, her

persecutors were motivated to make money" but contends that,

notwithstanding that conclusion, "the [BIA] and the [IJ] failed to

properly engage in a mixed motive analysis," citing Aldana-Ramos,

. In that regard, she argues the IJ and BIA "fail[ed]

to consider other motivations for why [Tito] chose to target her

. . . particularly [that Esteban-Garcia's] membership" in her

proposed particular social group of "[i]ndigenous, Guatemalan

women who are single and living in rural, indigenous communities"

- 12 - was "at least one central reason that motivated her mistreatment."4

This is so, she contends, because the agency "failed to consider

testimonial and documentary evidence that [her] status as a

vulnerable indigenous Guatemalan woman was not a subordinate

motivation, but rather a direct reason that these men targeted

her, due to her vulnerability within Guatemalan society." She

also argues that "[i]n failing to weigh this membership against

other motivations, the [IJ] further engaged in legal error." The

record does not support these arguments, and Aldana-Ramos provides

her no support.

In Aldana-Ramos, this court vacated the BIA's decision

as to the petitioner's asylum claim due to legal error "because it

did not allow for the possibility of mixed motives" and because it

"was not supported by substantial evidence because it neglected

the evidence in support of petitioners' claim."

.5

4 We need not reach Esteban-Garcia's other argument that the BIA and IJ erred insofar as neither considered whether her "proposed particular social group of 'Indigenous, Guatemalan women who are single and living in rural, indigenous communities' was legally cognizable." As the BIA held, it was unnecessary to reach this issue because she did not establish that she had suffered past persecution and thus "did not otherwise establish her eligibility for relief." See INS v. Bagamasbad,

(1976) (per curiam) ("As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.").

5 The BIA in Aldana-Ramos concluded that, since the petitioners' father had been targeted by a gang "because they believed he was a wealthy person," the gang was "motivated by criminal intent to misappropriate money from the respondents'

- 13 - Neither is true of the decisions here. In this case, the IJ, whose

decision the BIA adopted, explicitly recognized that an asylum

applicant like Esteban-Garcia could bring a mixed-motive claim:

"[w]hile [an] alien need not prove that the alleged persecutors

targeted her solely because of a protected characteristic, the

alien must provide some evidence, direct or circumstantial,

establishing that the protected ground was 'at least one central

reason' for the persecution."

The IJ acknowledged Esteban-Garcia's status as an

indigenous Guatemalan woman by stating that "[t]he [r]espondent is

indigenous. She is Mam," that "[s]he lived with her parents in

Tuich[á]n . . . an indigenous village," and that she testified

that "[she] was discriminated against in Guatemala because she is

an indigenous woman. She was insulted on the street, called

'Indian,' and mocked." The IJ then determined, based on Esteban-

Garcia's testimony, that Tito and his associates wanted her to

become a prostitute or drug seller for financial gain, which is

not a protected ground. The IJ's rulings are supported by and

consistent with our case law. See Villalta-Martinez,

(rejecting a petitioner's claim of error where "[t]he IJ and

father and not on account of a protected characteristic of respondents' father or of their family." Id. at 18. This determination was erroneous because there was "no legal authority supporting the proposition that, if wealth is one reason for the alleged persecution of a family member, a protected ground -- such as family membership -- cannot be as well." Id.

- 14 - thus the BIA explicitly acknowledged the possibility of a mixed-

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

specific determination that [the petitioner] had not shown that

the persecution was motivated by" her membership in a particular

social group); Barnica-Lopez v. Garland,

, 529-30 (1st

Cir. 2023) (holding the same); see also Lopez-Lopez v. Sessions,

(1st Cir. 2018) (upholding the agency's finding

that the petitioner had failed to establish a nexus between the

harm he had suffered and a statutorily protected ground where his

alleged persecutors were "centrally motivated by a desire [for]

profit"); Arevalo-Giron v. Holder,

(1st Cir. 2012)

(rejecting an argument that the petitioner was targeted on account

of a particular social group where "greed -- not social group

membership -- [wa]s the apparent trigger for the [alleged

persecutors'] interest").

The record clearly demonstrates that the BIA and IJ did

not "neglect[] the evidence in support of [Esteban-Garcia's]

claim." Aldana-Ramos,

. Substantial evidence

supports the agency's conclusion that her membership in a protected

group was not a central reason for the harm she experienced. She

repeatedly stated that the reason why Tito and his associates

wanted her to become a prostitute and drug seller was so that they

could benefit financially. When asked by an asylum officer at her

credible-fear interview if the men had explained to her why they

- 15 - wanted her specifically to enter into prostitution, rather than

someone else, she stated that "all they said is that they wanted

the money for women to be able to sell their bodies and make money

that way." At the same interview, she stated, "I understood that

all they wanted to do was make easy money" and "they like to make

money that way and take women in[to] prostitution," even when

asked, "[o]ther than the money, why did these men think they could

prostitute women?" She also stated that the men had said "you

have a good age to start prostitution, you are young." In her

declaration in support of her asylum application, she wrote that

"they wanted to make money off of women who were able to sell their

bodies" and that "get[ting] women to do this" was "their business

and job." In her testimony, she stated that Tito wanted her to

engage in prostitution or drug selling so that she would give him

the money she earned, and he could "have a better life." Her

cousin confirmed this in her declaration, writing that Tito

targeted Esteban-Garcia so that he "would have a lot of money."

Indeed, when specifically asked at her credible-fear

interview if the men "sa[id] anything about [Esteban-Garcia] being

a wom[a]n or being indigenous" while threatening her, she

responded, "[n]o they didn't say anything, about that."6 When

6At oral argument, Esteban-Garcia's counsel mistakenly argued that at her credible-fear interview, in response to the question, "what do you fear as an indigenous woman?" Esteban-Garcia stated, "if I'm indigenous and they can make me a

- 16 - asked at her immigration hearing how indigenous women are treated

in Guatemala, Esteban-Garcia testified that they faced

discrimination and harassment but not that they were targeted to

be forced into prostitution or drug selling. She also testified

that she did not know of any girls from her indigenous village who

were forced to become prostitutes, although she had heard rumors

of this occurring.

Other evidence to which Esteban-Garcia cites does not

compel the conclusion that she was harmed on account of her status

as an indigenous Guatemalan woman, her proposed particular social

group.7 The country conditions evidence focuses primarily on how

sex traffickers target women in general, young people, or otherwise

"vulnerable persons," but not specifically indigenous Guatemalan

women. Some of the country conditions evidence does state, for

prostitute." In fact, the record shows that, in response to the question, "[w]ould you have any problems in your country because you are indigenous?" she stated, "If I'm indigenous and they can make me a prostitute then yes." (Emphasis added). She then stated, if these conditions were met, that "[t]hey would not respect me, they would take me to jail, they would hurt me." Esteban-Garcia did not state that she would be forced to become a prostitute in Guatemala because she is indigenous.

7 Although Esteban-Garcia did argue to the agency that she was harmed on account of her gender, rather than on account of her gender and her status as an indigenous person, based on her membership in the proposed particular social group of "Guatemalan women," this argument is waived on her petition for review because she failed to develop it before this court. See United States v. Zannino,

(1st Cir. 1990).

- 17 - example, that "criminal structures exploit indigenous women,

trafficking them from rural areas to the capital." Yet, when

viewed as a whole, the evidence does not "point[] unerringly in

the opposite direction," see López-Pérez, 26 F.4th at 111, from

the agency's conclusion that Esteban-Garcia's membership in the

particular social group of "[i]ndigenous, Guatemalan women who are

single and living in rural, indigenous communities" was not a

central reason why Tito harmed Esteban-Garcia.

Because she failed to meet her burden to show past

persecution on account of a protected ground, Esteban-Garcia

enjoys no presumption of future persecution. Fear of future

persecution, like past persecution, must be on account of a

protected ground. Carvalho-Frois, 667 F.3d at 74 (citing

(a)(42)(A)). The IJ and the BIA separately concluded that

Esteban-Garcia had failed to demonstrate a well-founded fear of

future persecution because she had "not met her burden of

establishing that any fear of future harm is on account of a

protected ground for the reason state[d] above." (Emphasis added).

We find the record does not compel a contrary conclusion.

Esteban-Garcia argues that she has established a well-

founded fear of future persecution that is "both subjectively

genuine and objectively reasonable," see Sunarto Ang,

, and, repeating the arguments we have just rejected, that

she has met the nexus requirement. Because she has failed to

- 18 - demonstrate the necessary nexus between her fear and her membership

in a protected group, her argument that her fear is genuine misses

the point.

Her 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 [her] homeland, [she] 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, 26 F.4th at 111.

The petition for review is denied.

- 19 -