UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2163

LEYDIS ARELY RIVERA-JOVEL; E.D.C.R.,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: December 15, 2023 Decided: March 11, 2024

Before THACKER, HARRIS, and RUSHING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: Meghan M. Phillips, VANDERPOOL, FROSTICK & NISHANIAN P.C.,

IMMIGRANTS FIRST PRACTICE GROUP, Manassas, Virginia, for Petitioners. Brian 

Boynton, Principal Deputy Assistant Attorney General, Nancy Friedman, Senior Litigation 

Counsel, Gregory A. Pennington, Jr., Office of Immigration Litigation, Civil Division, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 1 of 11
2

PER CURIAM:

Leydis Rivera-Jovel (“Rivera”) and her son, E.D.C.R., (collectively, “Petitioners”) 

are natives and citizens of El Salvador. Petitioners seek review of the Board of Immigration 

Appeals’ (“BIA”) order affirming the decision of the immigration judge (“IJ”) denying 

their applications for asylum, withholding of removal, and protection pursuant to the 

Convention Against Torture (the “CAT”). 

Petitioners argue that the BIA erred in affirming the IJ’s rejection of their asylum, 

withholding of removal, and CAT claims. On their asylum claim, they make two 

arguments: (1) the IJ failed to develop the record; and (2) the IJ and BIA disregarded 

country condition reports in concluding Petitioners failed to establish a nexus between their 

protected grounds and alleged persecution. Petitioners argue they are entitled to 

withholding of removal because they presented sufficient evidence to succeed on their 

claim, particularly, that they establish nexus. And finally, they contend that they are 

eligible for CAT protection, asserting that the BIA erred in holding that their CAT claim 

was waived. The Attorney General (“Respondent”) argues that the BIA did not err in 

affirming the IJ’s rejection of Petitioners’ asylum, withholding of removal, and CAT 

claims. Respondent argues that Petitioners failed to exhaust their argument that the IJ 

failed to develop the record on their asylum claim, and they failed to exhaust their CAT 

claim by not raising it before the BIA. On asylum and withholding of removal, Respondent 

argues that the IJ and BIA did not err in holding that Petitioners failed to establish nexus 

to a protected ground, and therefore, their asylum and withholding of removal claims fail.

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 2 of 11
3

Having considered the arguments presented and reviewed the record, we conclude 

that the BIA did not err and that substantial evidence supports the denial of relief. 

Accordingly, we deny the petition for review.

I.

A.

Petitioners fled to the United States from El Salvador in June 2014 after receiving 

a death threat from members of the MS-13 gang. In 2013, Rivera opened a store selling 

grain. Sometimes, MS-13 gang members would come to the store and demand small items, 

which Rivera gave them. Gang members would make similar demands of other small 

businesses. 

Rivera’s store was successful, allowing her to buy a house in the area. In late April 

2014, MS-13 gang members painted graffiti on Rivera’s house, with the letters “MS” on 

the wall. J.A. 167.*

 Rivera tried to erase the graffiti. When the gang members saw her, 

they came to her house, and declared that the wall was theirs and that she should not touch 

the graffiti. Additionally, the gang members told Rivera that a jailed member of the gang 

wanted to speak with her, but she refused. Rivera was afraid of what the jailed gang 

member would say or ask her to do. 

The next day, three gang members came to Rivera’s house, again telling Rivera that 

a gang member wanted to speak with her from jail. Rivera refused. Later that afternoon, 

twelve armed gang members showed up at the corner across from Rivera’s house. Rivera 

* Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 3 of 11
4

called the police and told them she was afraid of the gang members because they were 

armed. Two hours later, a police patrol car drove by her house but did not stop to check 

on Rivera. 

Two days later, the gang members returned and again told Rivera to speak with the 

jailed gang member. Again, Rivera refused. The gang members became upset, and they 

explained to Rivera that she had to talk to the jailed member the next time they came back, 

“because if not, we’re going to kill you . . . .” J.A. 171. The gang members also threatened 

E.D.C.R.’s father, who similarly refused to speak to the jailed gang member. Rivera did 

not file a police report after this death threat. 

Fifteen days later, Rivera fled El Salvador with E.D.C.R., who was four years old 

at the time. 

B.

When Petitioners arrived in the United States, they were charged as inadmissible 

and put into removal proceedings. Petitioners conceded their removability but sought 

asylum, withholding of removal, and CAT protection. 

Rivera based her asylum claim on allegations that gang members persecuted her on 

account of her membership in a proposed particular social group (“PSG”) of “Salvadorian 

female heads of household who are raising a minor child.” J.A. 152. Her son E.D.C.R.

alleged past persecution on account of his membership in the nuclear family of Rivera. 

Rivera provided the sole testimony to support her and E.D.C.R’s applications.

The IJ denied Petitioners’ asylum, withholding of removal, and CAT claims. 

Despite finding Rivera’s testimony credible, the IJ concluded that the gang members’ 

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 4 of 11
5

single death threat did not amount to past persecution. The IJ also concluded that Rivera’s 

proposed PSG was too amorphous to be cognizable. The IJ further explained that Rivera 

failed to establish that the gang members were motivated on account of her or E.D.C.R.’s 

purported PSGs. In particular, the IJ highlighted that the gang members also threatened 

E.D.C.R.’s father, who was not a part of either alleged PSG. Finally, the IJ determined 

that Petitioners failed to demonstrate that the government of El Salvador was unwilling or 

unable to control the gang members. 

Petitioners appealed to the BIA. In their notice of appeal, they asserted that the IJ 

erred when it denied their asylum, withholding of removal, and CAT claims. That said, 

their brief only raised the asylum issue, arguing that Petitioners demonstrated past 

persecution, PSG cognizability and nexus, and that the Salvadoran government was unable 

or unwilling to protect them. Petitioners’ brief did not address withholding of removal or 

CAT protection.

A single member of the BIA dismissed Petitioners’ appeal. The BIA affirmed the 

IJ’s determination that Petitioners did not establish that their persecution was on account 

of their proposed PSGs. The BIA noted that Rivera’s testimony did not connect the gang

members’ threats with Rivera being a female head of household. Instead, the BIA 

highlighted Rivera’s attempt to remove the graffiti from her house and refusal to speak 

with the jailed gang member as potential reasons for the gang members’ threat. Thus, the 

BIA affirmed the IJ’s determination that Petitioners failed to meet their burden of proof for 

asylum and withholding of removal.

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 5 of 11
6

In a footnote, the BIA explained that because Petitioners had “not meaningfully 

challenged the [IJ’s] denial of their request for protection under the CAT,” the issue was 

“waived on appeal.” J.A. 3 n.2. Petitioners asked this court for review.

II.

We may not disturb the BIA’s determinations on asylum eligibility and withholding 

of removal if those determinations are “supported by reasonable, substantial, and probative 

evidence on the record considered as a whole.” Tassi v. Holder, 660 F.3d 710, 719 (4th 

Cir. 2011). Whether Petitioners have demonstrated a nexus between their protected 

grounds and alleged persecution is a factual question, which we review for substantial 

evidence. Madrid-Montoya v. Garland, 52 F.4th 175, 179 (4th Cir. 2022). Still, we have 

often explained that applicants for asylum and withholding of removal are “entitled to 

know that agency adjudicators reviewed all [of their] evidence, understood it, and had a 

cogent, articulable basis for its determination that [their] evidence was insufficient.” 

Orellana v. Barr, 925 F.3d 145, 153 (4th Cir. 2019) (internal quotation marks omitted). 

Additionally, we “review the denial of relief under the CAT for substantial evidence.” 

Lizama v. Holder, 629 F.3d 440, 449 (4th Cir. 2011). 

III.

A.

As to Petitioners’ asylum claim, we begin with Petitioners’ argument that the IJ 

failed to develop the record by not adequately clarifying the facts surrounding Petitioners’ 

PSG and nexus. Respondent argues that Petitioners failed to exhaust this argument by not 

arguing it before the BIA. Respondent is correct. Because Petitioners did not argue that 

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 6 of 11
7

the IJ failed to develop the record in their brief to the BIA, Petitioners failed to exhaust 

their claim and therefore waived it on appeal. 

A petitioner must exhaust all administrative remedies before petitioning for review 

of a final order of removal. 8 U.S.C. § 1252(d)(1). Although § 1251(d)(1)’s rule is no 

longer jurisdictional, it remains a “mandatory claim-processing rule” and when invoked by 

Respondent, the rule serves as a basis to deny review of an argument not raised before the 

BIA. Tepas v. Garland, 73 F.4th 208, 213–14 (4th Cir. 2023). When Petitioners did not

make this argument in their brief before the BIA, leading the BIA to not address the 

argument, they failed to exhaust their administrative remedies. Id. at 214. And because 

Respondent has properly invoked the exhaustion requirement, we decline to consider 

Petitioners’ argument. 

B.

Petitioners also challenge the denial of their asylum applications by arguing that the 

BIA’s nexus finding was not supported by substantial evidence because the BIA 

disregarded country condition evidence. To qualify for asylum, Petitioners must prove

they (1) have a “well-founded fear of persecution;” (2) “on account of a protected ground;” 

(3) “by an organization that the Salvadoran government is unable or unwilling to control.” 

Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). “Persecution occurs ‘on 

account of’ a protected ground if that ground serves as ‘at least one central reason for’ the 

feared persecution.” Toledo-Vasquez v. Garland, 27 F.4th 281, 286 (4th Cir. 2022) 

(quoting Hernandez-Avalos, 784 F.3d at 949). To establish nexus, the protected ground 

need not be the central reason for the persecution, but it must be more than an “incidental, 

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 7 of 11
8

tangential, superficial, or subordinate reason” for the persecution. Quinteros-Mendoza v. 

Holder, 556 F.3d 159, 164 (4th Cir. 2009) (internal quotation marks omitted). 

When analyzing whether Rivera met the nexus requirement, the BIA highlighted 

that the gang members first threatened Rivera because she tried to remove their graffiti 

from her house. When she refused to speak with the gang member in jail, they threatened 

her again. The BIA concluded that Rivera provided no other reason as to why she was 

being targeted by the gang. Thus, the BIA held that the record did not support that the 

gang was motivated by Rivera’s status as a Salvadoran female head of household raising a 

minor child -- her alleged PSG. In response, Petitioners point to country condition 

evidence that indicates gang members often threaten female heads of households when 

they disrespect the gangs. 

Along these same lines, Petitioners liken this case to Hernandez-Avalos. In 

Hernandez-Avalos, gang members threatened a mother who interfered with the gang 

recruiting her son. 784 F.3d at 947. The mother argued that the gang threatened her on 

account of her maternal relationship to her son. We agreed and held that the reason the 

gang threatened the mother “rather than another person, [was] because of her family 

connection to her son.” Id. at 950. Petitioners argue that the gang threatening the mother 

in Hernandez-Avalos demonstrates that gangs threaten female heads of households. But in 

Hernandez-Avalos, the gang members targeted the woman because she resisted the gang 

recruiting her son. And there, the proposed PSG was membership in her nuclear family --

which included her son. That is not the case here.

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 8 of 11
9

Here, per her own testimony, the gang targeted Rivera because she removed their 

graffiti from her home and refused to speak with a jailed gang member. Rivera’s testimony 

did not tie the gang targeting her to her proposed PSG of female heads of households with 

minor children. Despite Petitioners’ country condition reports, substantial evidence does 

not mandate reversal because Rivera’s testimony supports the conclusions of the IJ and 

BIA. See Toledo-Vasquez, 27 F.4th at 288 (upholding the IJ and BIA’s nexus finding when 

“[Petitioner’s] testimony support[ed] the conclusions of the [IJ] and the [BIA]”). 

As to whether E.D.C.R.’s persecution was on account of his proposed PSG --

members of Rivera’s family -- Petitioners argue that the BIA conflated the persecution 

prong with the nexus analysis. Specifically, Petitioners point to the BIA’s opinion which

concluded that the “record is devoid of any evidence that the gang member ever threatened 

[E.D.C.R.]” J.A. 4. On appeal, Petitioners do not explain how the record supports the 

conclusion that E.D.C.R. was threatened because he is Rivera’s son. Thus, the record does

not indicate, let alone compel, a nexus finding in E.D.C.R.’s case. 

Substantial evidence supports the BIA’s finding that Petitioners failed to meet their 

burden of proving that their persecution was on account of their proposed PSGs. And 

because the nexus finding disposes of Petitioners’ asylum claim, we need not address 

Petitioners’ remaining challenges to the IJ’s findings on past persecution, PSG 

cognizability, or El Salvador’s ability or willingness to control private actors. 

C.

Petitioners argue that they are entitled to withholding of removal based on the same 

ground they state in support of their asylum claim. In order to state a successful 

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 9 of 11
10

withholding of removal claim, a petitioner must present evidence demonstrating a clear 

probability of persecution -- a similar but higher burden of proof than that required to 

establish asylum eligibility. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). 

Therefore, an “applicant ‘who has failed to establish the less stringent well-founded fear 

standard of proof required for asylum relief is necessarily also unable to establish an 

entitlement to withholding of removal.’” Id. at 600 (quoting Anim v. Mukasey, 535 F.3d 

243, 253 (4th Cir. 2008)). Because Petitioners cannot meet their burden to establish nexus 

on their asylum claims, they necessarily fail to meet the heightened burden for withholding 

of removal. 

D.

Finally, Petitioners argue that the BIA abused its discretion in finding that they are 

ineligible for CAT protection. In their view, CAT protection is mandatory when there is 

evidence in the record of a likelihood of torture. Pet’rs’ Opening Br. 19. But see 8 C.F.R. 

§ 208.16(c)(2) (requiring an applicant to establish that it is “more likely than not that he or 

she would be tortured”). Respondent argues that Petitioners waived their CAT claim

because they failed to include their CAT argument in their brief before the BIA. In 

response, Petitioners maintain that by raising the CAT issue in their notice of appeal to the 

BIA, they did not waive it. 

As explained above, Petitioners must exhaust all administrative remedies before 

petitioning for review of a final order of removal. 8 U.S.C. § 1252(d)(1). And when 

invoked by Respondent, exhaustion serves as a basis to deny review of an argument not 

raised before the BIA. See Tepas, 73 F.4th at 213–14. Petitioners included their argument 

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 10 of 11
11

that the IJ erred in denying them CAT protection in the body of their notice of appeal to 

the BIA. However, in doing so, Petitioners checked the box indicating that they intended 

to file a “separate written brief or statement . . . .” J.A. 39. And in their brief to the BIA, 

they never addressed their CAT claim. The BIA then deemed their CAT claim waived on 

appeal. We agree. In failing to make the CAT argument in their brief, Petitioners failed 

to exhaust their administrative remedies. Tepas, 74 F.4th at 214. And because Respondent 

has properly invoked the exhaustion requirement, we decline to consider this argument.

IV.

We dispense with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and argument would not aid in the 

decisional process. For the foregoing reasons, the petition for review is

DENIED.

USCA4 Appeal: 22-2163 Doc: 29 Filed: 03/11/2024 Pg: 11 of 11