United States Court of Appeals 

For the First Circuit 

No. 15-1752 

ELENA GRANADA-RUBIO; GERSON ELIAS MEJIA-GRANADOS; 

C.M.M.G., a minor, 

Petitioners, 

v. 

LORETTA E. LYNCH, 

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Howard, Chief Judge, 

Stahl and Lynch, Circuit Judges. 

 Hans J. Bremer and Bremer Law & Associates, LLC on brief for 

petitioners. 

 Alexander J. Lutz, Trial Attorney, Office of Immigration 

Litigation, Civil Division, United States Department of Justice, 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, 

Civil Division, and Anthony C. Payne, Assistant Director, Office 

of Immigration Litigation, on brief for respondent. 

February 24, 2016 
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Per curiam. Elena Granada-Rubio1 and two of her sons, 

Gerson Elias Mejia-Granados and "C.M.M.G.," a minor, all natives 

and citizens of El Salvador, petition for review of a May 29, 2015, 

order of the Board of Immigration Appeals ("BIA"). The BIA order 

affirmed an Immigration Judge's ("IJ") decision to deny GranadaRubio's asylum application, of which her sons were derivative 

beneficiaries, as well as her requests for withholding of removal 

and protection under the Convention Against Torture ("CAT"). We 

deny the petition. 

I. 

Granada-Rubio, Mejia-Granados, and C.M.M.G. illegally 

entered the United States, as admitted in responses to Notices to 

Appear served in December 2011. Granada-Rubio applied for asylum 

for herself and her two sons, as well as withholding of removal 

and protection under the CAT.2 In the application, Granada-Rubio 

described receiving phone calls in October 2011, while she was 

living in El Salvador, from a member of the Mara Salvatrucha ("MS13") gang who asked for money and "said he knew that [her] husband 

was living in the United States and that if [she] did not cooperate 

 1 On her asylum application, her name appears as "Elena 

Isabel Granados de Mejia." We refer to her as "Granada-Rubio" to 

maintain consistency with the petition for review filed with this 

court. 

2 Granada-Rubio has a third son who was not included in 

the application. 
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with him he was going to kill [her] and [her] three children." 

The application stated that Granada-Rubio is "afraid to return to 

[her] country because [she] honestly believe[s] that [she] will be 

either injured or tortured or killed by this gang and the 

government will do nothing to protect [her]." 

At a November 8, 2013, hearing before an IJ, GranadaRubio testified to the following events.3 On October 25, 2011, 

someone who identified himself as being from the MS-13 gang called 

Granada-Rubio at her house, said that he knew her husband and her 

children, and said that he knew her husband was in the United 

States. The caller demanded $500 a month "as rent" and threatened 

to kill her or her children if she did not comply. Granada-Rubio 

said that she could not give him that amount of money. The caller 

replied by asking if she loves her children and said that if she 

did not comply she "knew what was going to happen to them." The 

caller also said that if Granada-Rubio told the police, "things 

would get even worse." Granada-Rubio did not call the police 

"because sometimes the police are even part of the same thing . . . 

[and] [s]ometimes they will report things that have been said to 

them because they're also afraid." Granada-Rubio disconnected her 

 3 Granada-Rubio's case was consolidated with those of her 

two sons; they are included on her I-589 Application for Asylum 

and for Withholding of Removal as "Asylum Derivative[s]." The 

sons remained outside the hearing room during the November 8, 2013, 

hearing. 
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phone, but the caller called again after she reconnected it. On 

November 10, 2011, Granada-Rubio left El Salvador with her children 

for the United States because "she was afraid for [her] life." 

She believes that if she returns to El Salvador, members of the 

MS-13 gang will torture or target her. 

The IJ issued an oral decision denying Granada-Rubio's 

application for relief and ordering her and her sons removed to El 

Salvador. The IJ concluded that Granada-Rubio had failed to 

establish past persecution based on a protected ground and that 

Granada-Rubio's "fear of victimization by gang members for 

economic reasons will not support a claim of persecution as members 

of a particular social group because there is nothing to 

differentiate members of such a group from other persons in the 

general populace who have been or might become victims of crime." 

The IJ also explained that Granada-Rubio fails to qualify for CAT 

protection "because the record does not establish a clear 

likelihood that a public official in El Salvador would likely 

acquiesce in or exhibit willful blindness toward any torture 

inflicted by gang members that the respondent fears." 

The BIA affirmed the IJ's determinations and dismissed 

Granada-Rubio's appeal on May 29, 2015. This petition for review 

followed. We discuss the BIA's reasoning below. 
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II. 

"Where the BIA affirms the IJ's ruling but adds its own 

discussion, we review both decisions." Panoto v. Holder, 770 F.3d 

43, 46 (1st Cir. 2014). "We will uphold a decision so long as it 

is 'supported by reasonable, substantial, and probative evidence 

on the record considered as a whole.'" Id. (quoting Thapaliya v. 

Holder, 750 F.3d 56, 59 (1st Cir. 2014)). "That the record 

supports a conclusion contrary to that reached by the BIA is not 

enough to warrant upsetting the BIA's view of the matter; for that 

to occur, the record must compel the contrary conclusion." Lopez 

de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007). We 

review questions of law de novo. Ziu v. Gonzales, 412 F.3d 202, 

204 (1st Cir. 2005) (per curiam). 

A. Asylum and Withholding of Removal 

To qualify for asylum, an alien must establish, inter 

alia, that she is unwilling or unable to return to her home country 

"because of persecution or a well-founded fear of persecution on 

account of race, religion, nationality, membership in a particular 

social group, or political opinion." 8 U.S.C. § 1101(a)(42); see 

8 U.S.C. § 1158(b)(1). The BIA agreed with the IJ's conclusions 

that (a) Granada-Rubio did not establish persecution, and (b) 

Granada-Rubio did not establish that she was part of "a particular 

social group for asylum purposes." Either of these conclusions 

would be sufficient to support a denial of Granada-Rubio's asylum 
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application. See 8 U.S.C. § 1101(a)(42). Assuming, arguendo, 

that Granada-Rubio established that she has faced or will face 

persecution, the IJ and the BIA were warranted in finding that 

Granada-Rubio has not been persecuted based on her membership in 

a legally cognizable particular social group. 

"To prove persecution on account of membership in a 

particular social group, an alien must show at a bare minimum that 

she is a member of a legally cognizable social group." MendezBarrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010). "[A]n 

applicant seeking asylum or withholding of removal 'based on 

"membership in a particular social group" must establish that the 

group is: (1) composed of members who share a common immutable 

characteristic, (2) defined with particularity, and (3) socially 

distinct within the society in question.'" Paiz-Morales v. Lynch, 

795 F.3d 238, 244 (1st Cir. 2015) (quoting Matter of M–E–V–G–, 26 

I. & N. Dec. 227, 237 (BIA 2014)). 

Granada-Rubio, as lead respondent, argued to the BIA 

that "the MS-13 is targeting her because they know that she is 

married to a man who is living and working in the United States 

and therefore, has the capacity to pay the $500 monthly. [GranadaRubio] is a target because she is a member of a particular 

group . . . ." Granada-Rubio4 argues to us that she is "a member 

 4 Here and going forward, we use "Granada-Rubio" to refer 

to Granada-Rubio, Mejia-Granados, and C.M.M.G., unless specified 
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of a particular social group of women with children whose 

husband[s] live and work in the U.S. and it is known to society as 

a whole that the husbands live in the U.S." To the extent the 

social group proposed now was not proposed to the BIA, it is 

unexhausted. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 

2004) ("[T]heories not advanced before the BIA may not be surfaced 

for the first time in a petition for judicial review of the BIA's 

final order."). 

Addressing the extent of Granada-Rubio's claim that is 

exhausted, the BIA supportably found that she has not presented 

evidence that such a proposed group is socially distinct. See 

Matter of M-E-V-G-, 26 I. & N. Dec. at 238 ("[T]he 'social 

distinction' requirement considers whether those with a common 

immutable characteristic are set apart, or distinct, from other 

persons within the society in some significant way. In other 

words, if the common immutable characteristic were known, those 

with the characteristic in the society in question would be 

meaningfully distinguished from those who do not have it."); Matter 

of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014) ("To have the 

'social distinction' necessary to establish a particular social 

 

otherwise, as all three have petitioned for review. The government 

maintains that Granada-Rubio's sons are derivative beneficiaries 

of only her asylum claim, not of her withholding of removal and 

CAT protection claims. Because we deny the petition, we need not 

reach this question. 
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group, there must be evidence showing that society in general 

perceives, considers, or recognizes persons sharing the particular 

characteristic to be a group."). 

Indeed, court precedent supports the BIA's conclusion. 

See Beltrand-Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012) 

(rejecting petitioner's "argument that he would likely be subject 

to persecution because he may be deemed wealthy because of his 

status as a returning expatriate from the United States," and 

explaining that "we have rejected proposed social groups 'based 

solely on perceived wealth, even if signaling an increased 

vulnerability to crime,' . . . regardless of why one is perceived 

as wealthy" (quoting Garcia–Callejas v. Holder, 666 F.3d 828, 830 

(1st Cir. 2012) (per curiam))); Sicaju-Diaz v. Holder, 663 F.3d 1, 

4 (1st Cir. 2011) ("[A] class of persons identified partly based 

on comparative wealth could be the subject of persecution on the 

basis of that status. . . . But being part of a landowning class 

is quite different than happening to be wealthy or perceived to be 

wealthy because of owning a large house, belonging to a well known 

family or 'returning to Guatemala after a lengthy residence in the 

United States.'"). 

Because Granada-Rubio does not qualify for asylum, she 

also does not qualify for withholding of removal. See Ang v. 

Gonzales, 430 F.3d 50, 58 (1st Cir. 2005); Makhoul, 387 F.3d at 82 

("A claim for withholding of deportation demands that the alien 
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carry a more stringent burden of proof than does an asylum 

claim. . . . Thus, if an alien cannot establish asylum eligibility, 

his claim for withholding of deportation fails a fortiori." (citing 

8 U.S.C. § 1231(b)(3)(A))). 

B. Protection Under the CAT 

Granada-Rubio's claim for protection under the CAT fails 

as well. The IJ and the BIA noted, with support in the record, 

that Granada-Rubio has not shown that she will be subject to 

torture through the acquiescence or willful blindness of a public 

official. See Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir. 

2014) ("A petitioner seeking CAT protection must show 'it is more 

likely than not' that he would be subject to torture 'by or with 

the acquiescence of a government official.'" (quoting Nako v. 

Holder, 611 F.3d 45, 50 (1st Cir. 2010))); 8 C.F.R. § 1208.18(a)(1) 

(explaining that under the CAT, "[t]orture is defined as any act 

by which severe pain or suffering, whether physical or mental, is 

intentionally inflicted on a person . . . when such pain or 

suffering is inflicted by or at the instigation of or with the 

consent or acquiescence of a public official or other person acting 

in an official capacity"). 

Neither Granada-Rubio's testimony, that "sometimes the 

police are even part of the same thing . . . . Sometimes they 

will report things that have been said to them because they're 

also afraid. . . . Sometimes they just don't help you," nor the 
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country report she submitted is sufficient to support a claim of 

government acquiescence. The country report she submitted 

includes that there have been complaints of torture and "cruel, 

inhumane, or degrading treatment or punishment perpetrated by 

public officials," and that the government of El Salvador has not 

effectively implemented the criminal penalties for public 

corruption. However, this report does not compel the conclusion 

that Granada-Rubio will have "pain or suffering . . . inflicted by 

or at the instigation of or with the consent or acquiescence of a 

public official or other person acting in an official capacity," 

8 C.F.R. § 1208.18(a)(1); see also Makieh v. Holder, 572 F.3d 37, 

44 (1st Cir. 2009) (evaluating a claim for CAT protection and 

explaining that "the administrative record does not . . . support 

a conclusion contrary to that reached by the agency, much less 

compel a contrary conclusion").5

The petition for review is denied. 

 5 Granada-Rubio also argues that "[e]quity, fairness, and 

the spirit behind our immigration laws call this Honorable Court 

to grant [Granada-Rubio] asylum." However, Congress has specified 

that there are only certain conditions under which the Secretary 

of Homeland Security or the Attorney General can grant asylum. 

See 8 U.S.C. § 1158(b).