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Rivas-Duran v. Barr

United States Court of Appeals, First Circuit

June 17, 2019



          Ondine Galvez Sniffin and Law Office of Ondine G. Sniffin, on brief for petitioners.

          Jason Wisecup, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Chad A. Readler, Acting Assistant Attorney General, and Bernard A. Joseph, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.


         Appellant Karen Liliana Rivas Durán ("Rivas-Durán") fled her native El Salvador and entered the United States without inspection with her twin sons. After being detained, Rivas-Durán sought asylum, with her sons as derivative beneficiaries, claiming that the children's father threatened her on numerous occasions. The Immigration Judge ("IJ") granted Rivas-Durán's application for asylum, but the Board of Immigration Appeals ("BIA") vacated the IJ's decision and ordered her removal, holding that she was ineligible for asylum under 8 U.S.C. § 1158 or withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA found that Rivas-Durán failed to establish that she suffered persecution or that she was a member of her particular social group, "women in El Salvador unable to leave a domestic relationship." Rivas-Durán now appeals. After careful review, we deny her petition.

         I. Background

         On July 1, 2014, the Department of Homeland Security ("DHS") charged Rivas-Durán and her sons with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States who have not been admitted or paroled. Rivas-Durán sought asylum and withholding of removal, with her sons as derivative beneficiaries of her asylum application.

         In support of her I-589 Application for Political Asylum and Withholding of Removal, Rivas-Durán declared that when she was eighteen years-old she met Pedro Ernesto Burgos-Rivas ("Pedro"), and after dating him for six months she became pregnant with twins. After learning of her pregnancy, Pedro "became aggressive" and would "grab [Rivas-Durán] by her shoulders." "At that point," Rivas-Durán "told him [that they] needed to end [their] relationship[, ] but he insisted on calling [her]." During that time, she lived with her father.

         While Pedro visited Rivas-Durán in the hospital after she gave birth, she declared that she did not see him again until eight months later when he suddenly showed up at her father's house. During that visit, Pedro became aggressive towards Rivas-Durán after she received a phone call, slapping her and pushing her down on the sofa. After that incident, Rivas-Durán did not see Pedro for more than a year. She declared that Pedro, who was a gang member, continued to harass and threaten her intermittently until she moved to the United States. On one occasion, when the twins were three years-old, Pedro showed up at her father's house with "about 3 other gang members" and warned her that if she "didn't want to put [her] sons in danger," she should not let them wear t-shirts with the number eighteen on them as the number represented a rival gang. Rivas-Durán further declared that after she was in the United States, Pedro's mother tracked her address, visited her, and tried to see her grandsons.

         Following Rivas-Durán's merits hearing on January 6, 2016, the IJ granted her asylum claim. The IJ deemed Rivas-Durán's testimony credible and "consistent with the application she filed." The IJ concluded that Rivas-Durán had been the victim of past persecution. The IJ explained that despite the fact that "there [was] only one incident of physical harm that the respondent suffered at the hands of the father of her children," she suffered past persecution because, "although sporadic," this "was accompanied by threats and the knowledge that [Pedro] had the ability to act on these threats."

         As to the one incident of physical harm, the IJ recounted the time when Rivas-Durán received a phone call while Pedro was visiting at her father's house after the twins were born. As the IJ described it, Pedro

impulsively grabbed [Rivas-Durán] by the shoulders and threatened that, if she were not his, she would belong to no one. He slapped her across her face and pushed her down on the sofa . . . . He threatened that she was not to tell anyone that he had done so, not even her family.

         Furthermore, the IJ identified two other instances of threats: 1) "[o]n one occasion," Pedro "grabbed [Rivas-Durán] by the shoulders and told her that she could not leave the relationship"; and 2) "[s]everal years later," Pedro visited Rivas-Durán with gang-member friends and warned her that their kids could not wear either red shirts or the number eighteen as these were symbols of a rival gang. Regarding this last incident, the IJ found that Pedro "specifically brought the other gang members so that [Rivas-Durán] would be intimidated and threatened by their presence." Finally, the IJ highlighted that after Rivas-Durán left El Salvador, "Pedro's mother tracked down the twins in the United States . . ., lied to get into the building in which [Rivas-Durán] and the twins lived with [Rivas-Durán's] mother and step-father, and lied to get into the apartment." Based on these facts, the IJ concluded that "although the ...

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