NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2234
___________
NERYS YAMILETH GARAY;
Y. A. G.H.; E. D. G.H.,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
BIA Nos. A208-201-757, A208-201-758, A208-201-759
(U.S. Immigration Judge: John B. Carle)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 15, 2021
Before: CHAGARES, JORDAN, and SCIRICA, Circuit Judges.
(Filed: August 31, 2021)
________________
OPINION*
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
Nerys Garay and her two minor children (“Petitioners”) petition for review of the
Board of Immigration Appeals’s order affirming the Immigration Judge’s denial of their
applications for asylum. Petitioners contend they are eligible for asylum because they
suffered past persecution and have a well-founded fear of future persecution based upon
their religion and anti-gang sentiment. But the Administrative Record before us provides
substantial evidence favoring the BIA’s conclusion that Petitioners have not
demonstrated past persecution or a well-founded fear of future persecution on account of
a protected ground. Accordingly, we will deny the petition for review.
I.
Garay and her two minor children are citizens of El Salvador. They applied for
admission to the United States in 2015 and were later placed into removal proceedings
through the issuance of Notices to Appear before an immigration judge. Petitioners
sought withholding of removal and protection under the Convention Against Torture and
filed an I-589 application for asylum. Garay and her children sought asylum based on her
religion as a Jehovah’s Witness, her membership in the social group of those who resist
gangs, and her anti-gang political opinion.
The IJ heard Garay’s testimony at an individual hearing. Garay testified that she
became a Jehovah’s Witness in 2014 and has been proselytizing—a tenet of the
religion—in both El Salvador and the United States. She also said that the children
preach along with her. Garay testified that, upon a return to El Salvador, she would be
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unable to preach freely, as she would need to avoid preaching in areas where the gangs
had a stronger presence and “gave more resistance.” Garay testified that, when she
preached near gang territories, gang members shouted obscene words, but never bothered
her or other congregants meeting at religious gatherings. She said she was once stopped
by gang members and asked to identify herself but had never been assaulted while
preaching. Her fellow congregants from El Salvador have continued to preach without
being harmed but have had to change their routines for preaching.
Garay also stated she is afraid to return to El Salvador because of increased
pressure the gangs may place on her teenage sons. Garay added that her husband’s
nephew was killed at the age of sixteen for refusing to join a gang. Garay stated that her
husband’s brother was killed for visiting his daughter in an area controlled by a different
gang than the one in which he lived. Garay testified that gangs dislike anyone who
“actually takes a stand against them” and that even non-religious people who oppose
gangs face repercussions.
The IJ found Garay provided credible testimony but ordered Petitioners’ removal
to El Salvador. The IJ rejected Petitioners’ request for withholding of removal, claims
under the CAT, and application for asylum. On the issue of past persecution, the IJ
concluded that Garay had not experienced past persecution because she had not
experienced physical harm, threats of violence, or witnessed any harm. On whether a
well-founded fear of future persecution was established, the IJ concluded the
mistreatment was not motivated by a protected ground because Petitioners produced no
evidence they were targeted on account of their religion or “were politically active or
3
made any anti-gang political statements.” Accordingly, the IJ concluded that petitioners
did not establish their eligibility for asylum and, therefore, had not met their burden of
proving eligibility for withholding of removal.
Petitioners appealed their removal orders to the BIA. The BIA adopted and
affirmed the IJ’s decision while adding comments of its own. This petition for review
followed.1
II.2
Under the INA, an alien who enters the United States without permission is
removable. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A). A removable alien may be
eligible for asylum if he demonstrates that he is “unable or unwilling to return to, and is
unable or unwilling to avail himself . . . of the protection of, [the country to which he
would be removed] because of persecution or a well-founded fear of persecution on
account of . . . religion . . .[or] membership in a particular social group, or political
opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). Thus, an applicant may establish
1
Petitioners only raised issues related to asylum eligibility in their opening brief, so the
denial of their motion to terminate and their requests for protection under the CAT were
forfeited.
2
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) & 1240.15. We have
jurisdiction under 8 U.S.C. § 1252. We review matters of law de novo. McNary v.
Haitian Refugee Center, 498 U.S. 479, 493 (1991). Agency factual findings involving
claims to asylum are reviewed for substantial evidence, Chavarria v. Gonzalez, 446 F.3d
508, 515 (3d Cir. 2006), and “are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Agency conclusions
regarding evidence of past persecution and the well-founded fear of persecution are
findings of fact. Chavarria, 446 F.3d at 515. When the BIA adopts and affirms the IJ’s
decision with a few comments of its own, as it did here, this Court has authority to review
both decisions. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d. Cir. 2009).
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eligibility for asylum by showing past persecution or a well-founded fear of future
persecution. Doe v. Att’y Gen., 956 F.3d 135, 141 (3d Cir. 2020). The IJ and BIA
concluded Petitioners failed to show that they suffered past persecution or that they will
likely suffer future persecution based upon their religion and resistance to gang
membership. We consider these two bases for asylum in turn.
A.
To establish that an applicant is a refugee based on past persecution, the applicant
must show, inter alia, (i) that the incident or incidents of mistreatment rise to the level of
persecution, and (ii) that he or she was targeted for mistreatment on account of one of the
statutorily protected grounds. Doe, 956 F.3d at 141–42. The agency found neither of
these requirements were met. We believe that conclusion is supported by substantial
evidence.
Persecution does not encompass all treatment that may be deemed unfair, unjust,
or even unlawful or unconstitutional in our society. Fatin v. INS, 12 F.3d 1233, 1240 (3d
Cir. 1993). Persecution encompasses grave harms, such as, “threats to life, confinement,
torture, and economic restrictions so severe they constitute a threat to life or freedom.”
Id. “[I]solated incidents that do not result in serious injury do not rise to the level of
persecution.” Voci v. Gonzales,409 F.3d 607, 615 (3d Cir. 2005). Whether a verbal threat
suffices to establish persecution requires considering whether the threat is “concrete and
menacing.” Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 110 (3d Cir. 2020). On appeal,
Petitioners contend threats levied by gangs and gang-imposed territorial restrictions on
proselytizing constitute past persecution.
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In Herrera-Reyes v. Attorney General, a Nicaraguan national received death
threats from members of the governing Sandinista Party after her home was burned
down, came under gunfire in a convoy she was traveling with, and was robbed at
gunpoint at a political meeting she was organizing. 952 F.3d at 104. We held that the
death threat to Petitioner was “concrete” because it was substantiated by an escalating
pattern of mistreatment encompassing property damage, verbal threats of violence
directed at the petitioner, and actual violence against her and her compatriot. Id. at 112.
We held the death threat was menacing because the Sandinistas had murdered her
political compatriot, demonstrating their willingness “to add murder to the abuse they
inflicted on her.” Id.
Garay’s mistreatment by the gangs was not sufficiently concrete and menacing to
constitute persecution. Garay testified that she had been verbally mistreated and mocked
while proselytizing. But Garay acknowledged that neither her nor her sons have been
physically harmed or personally threatened in the process of practicing their religion or
otherwise. Though Garay is aware of several people who were murdered by the gangs,
she has not personally witnessed any violence.3
3
Relying largely on Muhur v. Ashcroft, 355 F.3d 958, 960 (7th Cir. 2004), Garay
contends that gang members’ curtailment on her ability to preach in certain territories
rises to the level of persecution. But her reliance on Muhur is misplaced because she is
not forced to conceal her religion in El Salvador. In Muhur, the Seventh Circuit held the
agency improperly held an applicant could avoid persecution by concealing her religion.
355 F.3d at 960. But Garay did not suggest she would need to conceal her religion—she
testified that she would continue to preach in non-gang territories upon her return to El
Salvador. Although the leader of the Petitioner’s preaching activities in El Salvador was
told to not proselytize in gang territories, congregants continue to proselytize openly in
other territories.
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Even if the gang members’ mistreatment of Petitioners could qualify as harm that
rises to the level of persecution, substantial evidence supports the agency’s conclusion
that a protected ground did not motivate the mistreatment. See 8 U.S.C. §§ 1101, 1158
(listing the protected grounds). “[A] demonstration of past persecution alone is not
sufficient to qualify an applicant for asylum.” Gomez-Zuluaga v. Att'y Gen., 527 F.3d
330, 343 (3d Cir. 2008). “We must also ‘look beyond the applicant’s conduct to the
persecutor’s motives.’” Id. Petitioners contend the record demonstrates their mistreatment
was motivated by their religion and anti-gang political sentiment. The BIA concluded the
IJ did not clearly err in concluding otherwise.
We see nothing in the record that contradicts the agency’s findings. We cannot
consider anti-gang sentiment as the motivation for mistreatment because Petitioners
produced no evidence that they “were politically active or made any anti-gang political
statements.”; see also Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 609 (3d Cir.
2011) (stating that mere refusal to join a gang was insufficient to demonstrate gang
members knew the alien held an anti-gang political opinion); Guzman Orellana v. Att’y
Gen., 956 F.3d 171, 180-81 (3d Cir. 2020) (observing that petitioners must show that
they expressed a political opinion or that the perpetrators attributed them with one and
acted upon it). Garay’s own testimony does not support Petitioners’ contention that
gangs’ mistreatment of them was motivated by a protected ground. Garay believed that
gang members may be aware that her religion does not approve of their behavior. But
Garay also testified that gang members do not limit their abuse to Jehovah’s Witnesses or
those who oppose gangs. See AR 208 (testifying that the gangs target “the whole
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citizenry. If anybody says something to them, they threaten them.”). Accordingly,
substantial evidence favors the agency’s finding that Petitioners did not sufficiently
establish past persecution on account of a protected ground.
B.
Petitioners also claim the BIA erred in its determination that they did not establish
a likelihood of future prosecution on a protected ground. “An alien who has not suffered
past persecution can establish eligibility for asylum by showing a ‘reasonable possibility’
of future persecution on account of a protected ground. Thayalan v. Att'y Gen., 997 F.3d
132, 138 (3d Cir. 2021). A sufficient threat of future persecution may be established “by
showing either that it is more likely than not that he will be ‘singled out individually’ for
persecution on account of a protected basis, or that ‘there is a pattern or practice of
persecution of a group of persons similarly situated’ to him on account of a protected
basis.” Gonzalez-Posadas v. Att'y Gen., 781 F.3d 677, 687 (3d Cir. 2015). An applicant
must also demonstrate that his protected characteristic “was or will be at least one central
reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see Gonzalez-Posadas, 781 F.3d
at 684–85holding that the “one central reason” standard applies in the context of
withholding of removal). “For a protected characteristic to qualify as ‘one central reason’,
it must be an essential or principal reason for the persecution . . . .” Id. at 685. The
characteristic cannot play “only an incidental, tangential, or superficial role in
persecution.’” Id.
Petitioners did not establish that their religion and anti-gang opinions serve as
central reasons for their past mistreatment, as discussed in Section II(a), or prospective
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mistreatment. Religion appears to be a tangential basis for Petitioners’ mistreatment
because the record suggests gangs sought primarily to control and expand their territory.
See Gonzalez-Posadas, 781 F.3d at 686 (explaining that gangs may utilize mistreatment
as a means to an end—payment or gang expansion). Petitioners also fail to demonstrate
that their anti-gang political opinion is the central reason for gang mistreatment. Mere
refusal to join a gang is insufficient to demonstrate a political opinion or to convey to
gang members that the Petitioners (the two boy) held an anti-gang political opinion.
Valdiviezo-Galdamez, 663 F.3d at 609. “Holding a political opinion, without more, is not
sufficient to show persecution on account of that political opinion.” Id. Here, there is no
evidence that Petitioners have sufficiently expressed anti-gang sentiments to the gang.
Though there is more than one way to view the record before us, we conclude the
agency’s determination that Petitioners failed to establish they would be subjected to
future persecution on account of a protected ground is supported by substantial evidence.
III.
For the foregoing reasons, we will deny the petition for review.
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