2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-13-2011

Martha Ramirez-Alvarado v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4455

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-4455

____________

MARTHA RAMIREZ-ALVARADO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A094-981-221)

Immigration Judge: Susan G. Roy

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 15, 2010

Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges

(Opinion filed: January 13, 2011)

____________

OPINION

____________

PER CURIAM

Martha Ramirez-Alvarado petitions for review of the Board of Immigration 

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for 

review.
2

Ramirez-Alvarado is a 25 year-old native and citizen of El Salvador. The 

Department of Homeland Security issued her a Notice to Appear on May 23, 2007, about 

10 days after she crossed the border at Arizona, charging that she is removable under 

Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), 

as an alien present in the United States without being admitted or paroled. She applied 

for asylum, withholding of removal under INA § 241(b)(3), and for protection under the 

Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of 

persecution.

On October 15, 2008, Ramirez-Alvarado appeared for her merits hearing 

without her counsel. She testified that she was seeking relief and protection under the 

INA because a member of the gang La Mara Salvatrucha, Alex “El Candado,” threatened 

her in her home town of Ilobasco. She explained that she began dating Alex in

November, 2006. A.R. 107, 110. At that time, she was unaware that he was a gang 

member. When she discovered this fact after dating him for two weeks, she no longer 

wished to date him and told him so. See id. For four months Alex did not contact or 

bother her. A.R. 111. But, in February, 2007, she encountered him when she was going 

to class, and he attempted to force her to accompany him to a home where other gang 

members were present. A.R. 109. Alex threatened to kill her. See id. His plan to force 

her to accompany him was thwarted when “some people passed by and that’s why he let

me go.” A.R. 109. In response to questions posed by the IJ, Ramirez-Alvarado added 

that, during the episode, Alex was carrying a pistol in one hand and a knife in the other 
3

hand. A.R. 117-18. Alex told her that she had to “go out with [him] and . . . have sex” or 

he would harm her daughter. A.R. 112.

Following this incident, Ramirez-Alvarado filed a complaint with the 

police, but she claimed that “they didn’t do anything.” A.R. 112. Shortly thereafter, she 

moved to San Salvador to live with her aunt. See id. Alex did not harass or contact her 

during the month that she resided in San Salvador. A.R. 112. She testified that family 

members have told her that he has asked about her, and so she is afraid to return home. 

In support of her testimony, Ramirez-Alvarado submitted the 2007 State Department

Country Report on Human Rights Practices for El Salvador.

Following the merits hearing, the IJ rendered an Oral Decision, denying all 

relief. In pertinent part, the IJ concluded that Ramirez-Alvarado’s testimony was not 

credible on certain points because of inconsistencies concerning the date of Alex’s threat 

and the exact nature of the threat. See Oral Decision at 9-10, 12. There also were 

inconsistencies between her asylum application and testimony concerning the exact 

nature of the threat. See id. at 11. The IJ noted that Ramirez-Alvarado, in order to 

further support her claim, could have provided affidavits or testimony from her two 

brothers – they reside in the United States and allegedly knew about the incident – but 

she failed to do so. Assuming arguendo that she did testify credibly, the IJ alternatively 

addressed the harm that Ramirez-Alvarado suffered to determine whether she had met her 

burden of proof. Alex threatened her only once and the incident ended with no physical 

harm to her. Moreover, Alex did not seek her out in San Salvador when she moved. 

Accordingly, what happened to her did not rise to the level of persecution and the 
4

extreme conduct that term encompasses. In addition, under Matter of R-A-, 24 I. & N. 

Dec. 629, 630-31 (BIA 2008), in cases of asylum claims based on domestic violence, the 

agency may look to the specific facts of a case to determine whether an alien would 

qualify for protected status as a member of a particular social group, but the IJ concluded 

that Ramirez-Alvarado was not a member of a particular social group “merely by virtue 

of her rejection of the relationship with Mr. Alex El Candado.” A.R. 74. The IJ ordered 

Ramirez-Alvarado removed to El Salvador.1 

Ramirez-Alvarado appealed to the Board of Immigration Appeals through 

her counsel. In her brief she argued that she suffered past persecution and is fearful of 

returning to El Salvador on account of her membership in a particular social group based 

on her gender. On October 30, 2009, the Board dismissed her appeal. The Board 

determined that she failed to establish her eligibility for asylum and withholding of 

removal because the mistreatment she experienced did not rise to the level of past 

persecution. With respect to her fear of future persecution, the Board held that her claim 

was undermined by the fact that she lived in another area of El Salvador without any 

further trouble, and that her family members, who remain in El Salvador, have not been 

harmed by Alex “El Candado.” Given these determinations, the Board found it 

unnecessary to address Ramirez-Alvarado’s argument concerning that she is a member of 

a particular social group entitled to protection under the INA.

The Board additionally held that, because Ramirez-Alvarado failed to 

sustain her burden of establishing past persecution or a well-founded fear of future

 

1 The IJ decided the claims on additional grounds not relevant here.
5

persecution, she necessarily failed to satisfy the higher standard of a “clear probability” 

of persecution as required for withholding of removal. Last, the Board found that the 

record evidence did not show that it was more likely than not that Ramirez-Alvarado 

would face torture by or with the acquiescence of a member of the Salvadoran 

government upon her return home.

Ramirez-Alvarado timely petitions for review. We previously denied her a 

stay of removal. 

We will deny the petition for review. We have jurisdiction under 8 U.S.C. 

§ 1252(a)(1), (b)(1). Ramirez-Alvarado contends on appeal that the IJ applied the wrong 

standard to her asylum application; the Board did nothing more than summarily recite the 

IJ’s decision without conducting any further analysis; the IJ did not take into 

consideration the State Department’s Human Rights Report; and the mistreatment she 

suffered when considered with the country conditions evidence establishes past 

persecution. See Petitioner’s Brief, at 3-4.

To qualify for asylum, an applicant must establish that she has a wellfounded fear that she will be persecuted if removed to her home country on account of 

race, religion, nationality, membership in a particular social group, or political opinion. 8 

U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). The alien bears the burden of proof of 

establishing that she is a refugee and that she has suffered past persecution or has a wellfounded fear of persecution. See id.; 8 C.F.R. § 1208.13(a). Persecution is defined as 

“threats to life, confinement, torture, and economic restrictions so severe that they 

constitute a threat to life or freedom.” Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 
6

(3d Cir. 2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 

(3d Cir. 1993)). It refers only to “severe” conduct and “does not encompass all treatment 

our society regards as unfair, unjust or even unlawful or unconstitutional.” Id. In the 

absence of evidence of past persecution, the applicant must demonstrate a subjective fear 

of persecution through credible testimony that her fear is genuine, Zubeda v. Ashcroft, 

333 F.3d 463, 469 (3d Cir. 2003), and the applicant must show that a reasonable person 

in her circumstances would fear persecution if returned to the country in question, see id.

Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of 

removal is not discretionary: “The Attorney General may not remove an alien to a 

country if the Attorney General decides that the alien’s life or freedom would be 

threatened in that country because of the alien’s race, religion, nationality, membership in 

a particular social group or political opinion.” But the test for relief is more demanding 

than the asylum test and requires the alien to show by a “clear probability” that her life or 

freedom would be threatened on account of a protected ground in the proposed country of 

removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). See also

Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987) 

(“would be threatened” standard has no subjective component). 

The agency’s factual determinations are upheld if they are supported by 

reasonable, substantial, and probative evidence on the record considered as a whole. 

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under 

this deferential standard, the petitioner must establish that the evidence does not just 

support a contrary conclusion but compels it. See id. at 481 n.1; Gao v. Ashcroft, 299 
7

F.3d 266, 272 (3d Cir. 2002). When the Board issues a separate opinion, we review the 

Board’s disposition and look to the IJ’s ruling only insofar as the Board deferred to it. 

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Here, the Board issued a 

separate decision, which, contrary to Ramirez-Alvarado’s argument, was not merely a 

summary affirmance without opinion. The Board’s decision contains legal analysis and 

citations to the record. The Board decided the appeal on one basis only – a failure of 

proof – and substantial evidence supports the Board’s determination that the February, 

2007 incident involving Alex “El Candado” does not rise to the level of persecution. See

Chavarria, 446 F.3d at 518 (“[W]e have refused to extend asylum protection for threats 

that, while sinister and credible in nature, were not highly imminent or concrete or failed 

to result in any physical violence or harm to the alien.”). 

Ramirez-Alvarado’s entire claim is based on one incident in which she was 

menaced but not physically harmed. Neither the IJ nor the Board applied an incorrect

legal standard in determining that what happened to her did not rise to the level of 

persecution. Moreover, although the Country Report states that violence against women, 

including domestic violence, is a widespread and serious problem in El Salvador, A.R. 

140, there is no support in the report for Ramirez-Alvarado’s assertion that once a woman 

is chosen by a member of La Mara Salvatrucha as his girlfriend “there is literally nothing 

she can do to break free from that targeting,” see Petitioner’s Brief, at 6.

Because Ramirez-Alvarado failed to establish past persecution, she does 

not benefit from a presumption of future persecution. See Lukwago v. Ashcroft, 329 

F.3d 157, 174 (3d Cir. 2003). Substantial evidence supports the Board’s determination 
8

that she does not have a well-founded fear of persecution. She was not even contacted by 

Alex “El Candado” when she relocated to San Salvador, and her family has not been 

harmed by him even though they continue to live in the town where he resides. In light 

of these facts, her fear of returning to El Salvador cannot be said to be objectively 

reasonable. See Zubeda, 333 F.3d at 469-70.

Because Ramirez-Alvarado failed to show past persecution or a reasonable 

fear of future persecution under the lower burden of proof required for asylum, she is 

necessarily ineligible for withholding of removal. See Cardoza-Fonseca, 480 U.S. at 

430-32. She has failed completely to challenge in her brief the Board’s denial of her

request for protection under the CAT. Accordingly, we deem the issue abandoned and 

waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (absent extraordinary 

circumstances, failure to develop arguments in opening briefs results in waiver of those 

arguments).

For the foregoing reasons, we will deny the petition for review.