Unreported / Non-Citable
Background
Dietz Anderson Vega-Castillo, Lucero Aracely Lovera-Reyes, and their two minor children, A.M.V.-L. and Y.A.V.-L., natives and citizens of Peru, petitioned for review of a Board of Immigration Appeals decision affirming an Immigration Judge's denial of asylum, withholding of removal, and protection under the Convention Against Torture. Each family member separately applied for relief, with the children also listed as derivative beneficiaries on the parents' applications. Vega-Castillo testified that unknown extortionists threatened him and his family for money because he was earning a big salary from his job, and the threats escalated over time.
The family proposed particular social groups of Peruvian citizens who oppose criminal organizations and, for Lovera-Reyes and the children, immediate relatives of Vega-Castillo. The agency found that the persecutors were motivated solely by financial gain, not by any protected ground, and denied all forms of relief. The family sought review in the Ninth Circuit, which had jurisdiction under 8 U.S.C. § 1252. The panel, consisting of Circuit Judges Christen and Miller and District Judge Sykes sitting by designation, submitted the case without oral argument.
The Court’s Holding
The court denied the petition, applying the substantial-evidence standard to factual findings and de novo review to legal questions. For Vega-Castillo's asylum and withholding claims, the court held that substantial evidence supported the agency's finding that he failed to establish a nexus between his fear of persecution and his proposed particular social group. Both forms of relief require showing that persecution bears a nexus to a protected ground—one central reason for asylum and a reason for withholding. The record did not compel a conclusion contrary to the agency's finding that the extortionists were motivated solely by financial gain. Because the absence of nexus was dispositive, the court declined to reach Vega-Castillo's remaining arguments.
For Lovera-Reyes and the children, the court held they failed to exhaust any challenge to the IJ's nexus finding before the BIA, as required by 8 U.S.C. § 1252(d)(1), and therefore declined to consider the argument. On the CAT claim, the court held that even assuming Vega-Castillo would more likely than not be tortured upon return to Peru, the record did not compel the conclusion that public officials would acquiesce in that torture. While the record reflected some government complicity in organized crime, it showed the Peruvian government was taking affirmative, if imperfect, steps to combat such activity. The court also noted that the IJ's and BIA's CAT analysis addressed only Vega-Castillo's application, and any CAT claim by Lovera-Reyes raised to the BIA was forfeited when not argued in the opening brief. The court denied the motion to stay removal.
Key Takeaways
- Extortion motivated solely by financial gain, even when threats escalate, does not establish the required nexus to a particular social group of citizens who oppose criminal organizations for asylum or withholding of removal.
- Family members who fail to challenge the agency's nexus finding before the BIA forfeit that argument on petition for review under the exhaustion requirement of 8 U.S.C. § 1252(d)(1).
- Evidence of some government complicity in organized crime does not compel a finding of official acquiescence in torture when the record shows the government is taking affirmative steps to combat criminal activity, even if those steps are imperfect.
- Claims raised to the BIA but not argued in the opening brief on petition for review are forfeited, including derivative or separate CAT claims by family members.
- When the absence of a nexus to a protected ground is dispositive of asylum and withholding claims, the court need not reach other arguments raised by the petitioner.
Why It Matters
This unpublished memorandum reinforces the Ninth Circuit's application of the nexus requirement in cases involving extortion by criminal organizations, confirming that financial motivation alone defeats claims based on opposition to criminal groups. The decision illustrates the dispositive effect of failing to establish nexus and the court's willingness to decline review of unexhausted or forfeited arguments.
The ruling also clarifies the standard for CAT acquiescence claims, emphasizing that even imperfect government efforts to combat organized crime can defeat a claim that officials would consent to or acquiesce in torture. Practitioners should note the importance of exhausting all nexus challenges before the BIA and preserving separate claims for each family member in the opening brief.