Unreported / Non-Citable
Background
Jaime Eladio Esquen-Rojas, his wife Katia Marilyn Rios-Villanueva, and their children N.F.E.-R. and M.E.-R., all citizens of Peru, petitioned for review of a Board of Immigration Appeals decision dismissing their appeal from an immigration judge's order denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture. Their claims arose from threats and physical attacks connected with their business manufacturing and selling shopping bags in Chiclayo, Peru. They described widespread extortion affecting all businesses throughout the market and supplied evidence describing extortion affecting small traders and other economic sectors.
Because the BIA affirmed the immigration judge, cited Matter of Burbano, and also provided its own review of the evidence and law, the court reviewed both the IJ's and BIA's decisions, reviewing factual findings for substantial evidence and legal questions de novo. The panel consisted of Circuit Judges Christen and Miller and the Honorable Sunshine Suzanne Sykes, United States District Judge for the Central District of California, sitting by designation. The panel unanimously concluded the case was suitable for decision without oral argument; it was submitted October 30, 2026, in Seattle, Washington, and the memorandum was filed November 4, 2026.
The Court’s Holding
The court agreed that the particular social group of "business owners in Chiclayo, Peru" was not cognizable. The immigration judge concluded that business ownership was not immutable because petitioners could cease operating the business, and the record did not establish that their ownership involved skills or a reputation extending beyond employment. Unlike the nurse's specialized training in Plancarte Sauceda, which remained with her even if she changed occupations, no comparable enduring characteristic remained with these petitioners after a change in occupation. Independently, substantial evidence supported the finding that the business-owner group lacked social distinction: the country reports established no societal recognition of business owners in Chiclayo as a group, and evidence of widespread extortion affecting small traders and other economic sectors did not compel the conclusion that Peruvian society recognizes business owners as a distinct group. Petitioners' failure to establish a cognizable PSG was dispositive of their asylum and withholding of removal claims.
The court declined to consider alternative family-based or retaliation-based social-group theories because even liberally construed pro se filings had not presented them to the BIA as distinct grounds for relief or as theories overlooked by the immigration judge. A separate claim that the immigration judge violated a statutory duty or due process by failing to develop the record regarding a family-based PSG was likewise unexhausted. Arguments about mixed motives, future persecution, and internal relocation could not overcome the dispositive nature of the PSG cognizability determination; a finding that harm rose to the level of persecution did not independently require the Government to rebut a regulatory presumption of future persecution because the presumption requires a nexus to a protected ground. Finally, even assuming petitioners preserved their CAT claim, substantial evidence supported denial of CAT protection. The immigration judge considered petitioners' individualized history of threats and physical attacks but found the record did not establish that future torture is more likely than not, noting that Esquen-Rojas's mother continued to operate a smaller business without harm and family members living in Chiclayo were unharmed. Generalized evidence of crime and violence in Peru did not suffice for CAT relief, so the court did not reach the question of government acquiescence. The motion to stay removal was denied and the petition was denied.
Key Takeaways
- A business-owner social group failed both immutability and social-distinction requirements on this record.
- Evidence that extortion affected many businesses did not compel a finding that Peruvian society recognized business owners as a distinct group.
- Family-based and retaliation-based theories, along with the record-development challenge, were not considered because they had not been adequately exhausted before the BIA.
- The absence of a cognizable protected group made the remaining asylum and withholding arguments non-dispositive.
- The CAT denial rested independently on insufficient proof that future torture was more likely than not, leaving government acquiescence unresolved.
Why It Matters
The memorandum illustrates how a dispositive particular-social-group defect can end asylum and withholding review without requiring the court to resolve every nexus, future-persecution, or internal-relocation argument. It also separates exhaustion from liberal construction: describing a family-operated business, attacks, and police inaction did not itself present distinct family or retaliation theories to the agency.
For CAT protection, the court emphasized the difference between documented threats and attacks and the required forward-looking likelihood of torture. Its resolution left government acquiescence unaddressed because the likelihood finding independently supported denial. The petition was denied, and the motion to stay removal was separately denied; the disposition is unpublished and nonprecedential except as permitted by Ninth Circuit Rule 36-3.