Unreported / Non-Citable
Background
Julio Cardenas Choque, his wife Sara Cruz Vidaurre, and their three daughters, all 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 Convention Against Torture relief. The family had fled threats and extortion by the Tren de Aragua gang, which targeted Cardenas Choque's small business in Lima and once physically beat him. The gang indirectly referenced Cruz Vidaurre and the daughters in its threats but never directly threatened or harmed them.
Before the agency, the petitioners advanced multiple theories of relief. Cardenas Choque proposed a particular social group of Peruvian small business owners who refused extortion demands by Venezuelan gangs. Cruz Vidaurre and the daughters relied on immediate-family PSGs and a pattern-or-practice theory of persecution against Peruvian women. The IJ rejected all claims, and the BIA affirmed. On petition to the Ninth Circuit, the family raised challenges to several of the agency's determinations, though a number of arguments were either unexhausted before the agency or forfeited on appeal.
The Court’s Holding
The panel first declined to consider several arguments the petitioners had not exhausted before the agency, including challenges to the IJ's findings on past persecution, the cognizability of three proposed PSGs, whether women are a disfavored group in Peru, and persecution based on A.C.C.'s feminist political opinion. Turning to the merits, the court held that substantial evidence supported the agency's conclusion that Cardenas Choque's proposed PSG of Peruvian small business owners who refused extortion demands was not cognizable. Business ownership alone is not an immutable characteristic, and Cardenas Choque had ceased being a small business owner in 2022 with no evidence of specialized knowledge rendering the trait unchangeable. He also forfeited any challenge to the agency's particularity finding by failing to develop an argument in his opening brief. Because the lack of a cognizable PSG was dispositive of his asylum and withholding claims, the court did not reach his remaining arguments.
For Cruz Vidaurre and the daughters, the court found no nexus between their feared persecution and their family-based PSGs. The record showed the gang threatened the family to extort money from Cardenas Choque, and there was no evidence the gang was motivated by anything other than financial gain. The court also upheld the agency's determination that the petitioners failed to establish an objectively reasonable well-founded fear based on a pattern or practice of persecution against Peruvian women, noting the agency had reasonably found the country-conditions evidence insufficient to show systematic violence. Finally, substantial evidence supported the denial of CAT relief because the evidence did not compel a conclusion that the petitioners would more likely than not be tortured with government acquiescence if returned to Peru, and they failed to show they could not safely relocate outside Lima. The court denied the petition and denied the motion to stay removal.
Key Takeaways
- Arguments not exhausted before the immigration agency will not be considered on petition for review, and the Ninth Circuit declined to reach multiple challenges the petitioners raised for the first time in court.
- A proposed particular social group based on small business ownership is not cognizable when the petitioner has ceased that activity and possesses no specialized knowledge making the characteristic immutable.
- Failing to develop an argument in an opening brief results in forfeiture, which the court applied to both the particularity challenge and A.C.C.'s nationality-and-gender nexus theory.
- Gang extortion motivated by financial gain does not establish the required nexus to a protected ground for asylum or withholding of removal, even when family members are indirectly referenced in threats.
- Country-conditions evidence of gender-based violence must demonstrate systematic persecution in light of the overall population to support a pattern-or-practice claim, and general statistics that may encompass lesser harms are insufficient.
Why It Matters
This unpublished memorandum reinforces the Ninth Circuit's demanding standards for asylum claims arising from gang extortion in Latin America. It underscores that petitioners must exhaust all arguments before the agency, develop every challenge in their opening brief, and present evidence that persecution is motivated by a protected ground rather than ordinary criminal profit-seeking. The decision also illustrates how the immutability requirement for particular social groups can defeat claims based on occupational or economic status, particularly when the petitioner has already left the activity that defines the proposed group.