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De Abarca v. Holder

United States Court of Appeals, First Circuit

July 9, 2014

RITA NELLY CONSTANZA DE ABARCA, Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Stephen M. Born on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, William C. Peachey and Lindsay Corliss, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Chief Judge, Stahl and Lipez, Circuit Judges.

OPINION

Page 335

LIPEZ, Circuit Judge.

Rita Nelly Constanza de Abarca, a citizen of El Salvador, entered the United States without being admitted or paroled. Detained after an Immigration and Customs Enforcement raid at her place of employment, she subsequently filed applications for asylum, withholding of removal, and relief under the Convention Against Torture. An Immigration Judge denied Constanza's applications for relief; the Board of Immigration Appeals subsequently dismissed her appeal. Constanza now petitions for review of the BIA's order. Applying the deferential standard of review that we must accord to the agency's factfinding, we deny the petition.

I.

We briefly recount the facts as alleged by petitioner and credited by the Immigration Judge.[1] Rita Nelly Constanza de Abarca (" Constanza" ) is a citizen of El Salvador who has three sons -- Jairo (approximately 14 years old at the time she left El Salvador), Marlon (12), and Francisco (11). On March 23, 2006, she entered the United States without inspection, seeking economic opportunity that would allow her to bring her sons, left behind with their grandparents, to the United States. As her eldest son Jairo was getting older, he was facing increasing pressure to join one of the prominent gangs, or " maras," in El Salvador. She wanted to remove her sons from those dangerous conditions.

On March 6, 2007, agents from United States Immigration and Customs Enforcement raided a factory where Constanza worked. She was arrested and detained for nine days. During her detention, Constanza contacted her sons in El Salvador and learned that while she had been in the United States, one of the maras (specifically the MS-13 gang) had been aggressively recruiting Jairo. He had resisted their efforts. As a result, the gangmembers had threatened him and his brothers with violence.

In February 2008, Constanza applied for asylum, as well as withholding of removal and relief under the Convention Against Torture (" CAT" ), relying on the perceived threat of violence from the maras against her if she returned to El Salvador and her son continued to resist joining them. That same year, after MS-13 attempted to frame Jairo for a murder, he fled to the United States. In response, MS-13 threatened to kill Constanza's other children if they did not reveal Jairo's whereabouts. Marlon and Francisco stopped attending school to avoid the maras. Constanza believes that Jairo's absence would make her the primary target of the maras' violence if she were to return to El Salvador.

On March 7, 2011, the Immigration Judge (" IJ" ) held a hearing on Constanza's case. Though the IJ determined that her application for asylum was time-barred,[2] she assumed arguendo that Constanza timely filed her asylum application or established

Page 336

an exception to the time bar, and proceeded to the merits. Constanza was the only person to testify in support of her application, recounting the events and circumstances described above. The IJ found Constanza to be a credible witness, but nonetheless found her ineligible for asylum. Specifically, the IJ concluded that the particular social group to which she belonged (" mother[s] of [] individual[s] who resisted gang activity" ) was overly broad and lacking in the requisite social visibility to be the basis for persecution, that she had not experienced past persecution, and that she had failed to prove a well-founded ...


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