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Vega-Ayala v. Lynch

United States Court of Appeals, First Circuit

August 10, 2016

LORETTA E. LYNCH, Attorney General of the United States, Respondent.


          Kevin MacMurray and MacMurray & Associates on brief for petitioner.

          Colin J. Tucker, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, on brief for respondent.

          Before Lynch, Thompson, and Kayatta, Circuit Judges.

          LYNCH, Circuit Judge.

         Yesenia del Carmen Vega-Ayala petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of an immigration judge's ("IJ") denial of her application for asylum and withholding of removal. Vega-Ayala argued that she had suffered past persecution in El Salvador and that she had a well-founded fear of future persecution on account of her membership in a particular social group. She defined that group as "Salvadoran women in intimate relationships with partners who view them as property." The BIA held that Vega-Ayala failed to establish that her proposed social group shares immutable characteristics and has social distinction, and found her ineligible for asylum or withholding of removal. She now argues that a reasonable factfinder would be compelled to find she had proven that she is entitled to relief. We deny her petition.


         Vega-Ayala is a native and citizen of El Salvador. On March 10, 2010, she entered the United States at or near Naco, Arizona without admission or inspection and was detained by Department of Homeland Security ("DHS") officials. After an interview on April 7, 2010, a DHS asylum officer determined that Vega-Ayala had a credible fear of persecution in El Salvador. See 8 C.F.R. § 208.30(d). On April 13, 2010, DHS served Vega-Ayala with a Notice to Appear, which charged her with removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). See 8 C.F.R. §§ 208.30(f), 1003.14(a). An IJ issued an order of release on May 6, 2010, and Vega-Ayala has since lived with her sister in Chelsea, Massachusetts.

         In her written pleadings, filed on December 1, 2011, Vega-Ayala conceded removability and indicated her intent to seek asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). On February 26, 2013, Vega-Ayala and counsel appeared before an IJ in Boston, Massachusetts (after a transfer of venue from El Paso, Texas). At this hearing for her application for relief, Vega-Ayala testified as follows:

         In 2007, she met Juan Hernandez in El Salvador at a university and carried on a relationship with him for approximately eighteen months. The two never lived together during their relationship and saw each other approximately twice a week. She never visited his home, and he never prevented her from studying at the university.

         Hernandez grew violent as the relationship progressed. Both in public and private, he spoke "offensive" words to her and would grab her in such a way as to "cause black and blue marks . . . on [her] arms." In the spring of 2008, Hernandez took Vega-Ayala to a hotel and raped her. She did not tell her family members about the incident because she was ashamed. Nor did she notify the police because she believed that the Salvadoran police "don't really do anything with domestic violence." Vega-Ayala became pregnant as a result of the rape and gave birth to a daughter on January 14, 2009. Hernandez initially refused to recognize the daughter as his child.

         For the last year of their relationship, Hernandez was incarcerated on an unrelated kidnapping charge. There is no record evidence that Vega-Ayala visited him in jail, but she did ask him for financial assistance. In February 2009, Hernandez purchased a house in Vega-Ayala's name, and she and her daughter lived there for approximately one year between 2009 and 2010. A man, whom Vega-Ayala believed to be Hernandez's brother, came by the house once or twice a week.

         She testified that Hernandez would call and threaten her from jail every day. She said she continued to take his calls and reside at the house he purchased because she was ashamed of having his child out of wedlock and because she was afraid that he would hurt her or her family members. When Vega-Ayala left El Salvador in 2010, Hernandez was still incarcerated.

         Vega-Ayala further testified that Hernandez, after being released from jail, threatened her mother. He also contacted Vega-Ayala in the United States at some point in 2012, when she last heard from him. She was afraid to return to El Salvador because she believed that Hernandez would kidnap her and demand money from her siblings who reside in the United States. She left El Salvador alone and put her daughter in the care of her mother. She is unmarried and continues to live with her sister in Chelsea, Massachusetts. Her daughter remains in El Salvador with her mother. She admitted to telling immigration authorities, when she was initially detained in March 2010, ...

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