ERICA NOHEMI MANUEL-SOTO, ELFEGO ISMAEL ESTRADA-SIMON, D.E.E.-M., and E.I.E.-M. v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA On Petition for Review of a…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-1089
_______________
ERICA NOHEMI MANUEL-SOTO,
ELFEGO ISMAEL ESTRADA-SIMON,
D.E.E.-M., and E.I.E.-M.,
Petitioners
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency Nos. A216-974-950, A216-974-951,
A216-974-965, and A216-974-966)
Immigration Judge: Steve Mannion
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on November 8, 2024
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Filed: November 12, 2024)

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_______________
Stephanie M. Duque Isern
Jiana Lyn Paladino
DUQUE ISERN LAW LLC
4539 Bergenline Avenue
Union City, NJ 07087
Counsel for Petitioners
Alanna Thanh Duong
Margot P. Kniffin
Office of Immigration Litigation
Civil Division, U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Petitioners, two parents and their children, are citizens of
Guatemala. In 2021, the family entered the United States ille-
gally. The government started removal proceedings. The fam-
ily conceded removability but sought asylum, withholding of
removal, and Convention Against Torture protection.
The family’s troubles started back in Guatemala in 2014
when the mother, Erica Manuel-Soto, broke up with her vio-
lent boyfriend Axel and started dating the father, Elfego Estrada-
Simon. When Axel learned of the new relationship, he sent her

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threatening texts. Once, he hid behind a rock with a gun, lying
in wait for the mother and father, but a neighbor dissuaded him
from shooting at them. At the start of 2015, the mother and
father married. On their wedding day, Axel tried to come to the
wedding with a gun, but the same neighbor stopped him.
Because Axel belonged to a gang, the mother never reported
him to the police. She has not seen or heard from him since her
wedding day. The father has often seen Axel on the street; Axel
would glare at him but never tried to hurt him.
Unrelatedly, the family had problems with their businesses.
Once, when the father complained that suspected gang mem-
bers had given him a bad check, they threatened him, saying
they knew “where his family lived.” AR 147. And when the
family opened a store, apparently the same people repeatedly
called them and extorted money. Though at first police declined
to investigate because of the Covid pandemic, eventually in
June 2021 they took a report and investigated. But a month
later, after another extortion call, the family left for the
United States.
The immigration judge considered all this information, then
found the mother and father’s testimony credible but denied
relief and ordered the family removed. The Board of Immigra-
tion Appeals affirmed.
We review the agency’s factual findings for substantial ev-
idence, deferring “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);
Herrera-Reyes v. Att’y Gen. of U.S., 952 F.3d 101, 106 (3d Cir.
2020). We review legal issues de novo. Herrera-Reyes, 952
F.3d at 106.

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Neither of petitioners’ proposed particular social groups
works. First, they say they are “Guatemalan small business
owners, victims of extortion by gang members.” AR 4. But this
group is not defined with particularity; the criteria and limits
that qualify a business as “small” are fuzzy, if not subjective.
Nor, as the Board found and our sister circuits agree, is this
category immutable: one can stop owning a small business and
so leave this group for good. Canales-Rivera v. Barr, 948 F.3d
649, 657–58 (4th Cir. 2020); see also Macedo Templos v. Wil-
kinson, 987 F.3d 877, 882–83 (9th Cir. 2021). True, being a
former small-business owner might be immutable. See Garcia
v. Att’y Gen. of U.S., 665 F.3d 496, 504 (3d Cir. 2011);
Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir.
2022). Yet petitioners did not define their proposed social
group that way, and they offered no evidence that it would be
a lingering status inviting further persecution (as with kulaks
in the Soviet Union). That said, being small-business owners
would still be an immutable trait if—like a religion—it were so
fundamental to petitioners’ identity that they should not be re-
quired to change it. Escobar v. Gonzales, 417 F.3d 363, 367
(3d Cir. 2005). But there was no testimony or evidence that
raising farm animals was crucial to petitioners’ identity; coun-
sel simply asserted that. We thus join our sister circuits in hold-
ing that, as a general rule, small-business owners are not a cog-
nizable particular social group.
Petitioners’ inclusion of the phrase “victims of extortion by
gang members” does not cure this proposed group’s defects.
AR 4. A particular social group must “exist independently of
the persecution suffered by the applicant.” Lukwago v. Ash-
croft, 329 F.3d 157, 172 (3d Cir. 2003).

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Second, petitioners invoke the group of “Guatemalan
women viewed as property and unable to escape their violent
ex-partners.” AR 4, 56–57. Though that group may be cogniza-
ble, petitioners did not appeal the immigration judge’s finding
that they do not belong to it. And in any event, the immigration
judge’s finding was reasonable. The father and children are
not women. And the mother was able to escape Axel; after her
wedding in 2015, she never heard from him again.
Even if one of those groups were cognizable, that would not
be enough. Petitioners would still lose because the Guatemalan
government was willing and able to protect them. They never
reported Axel’s conduct to the police and never showed that
doing so would have been futile or dangerous. Indeed, local
police had arrested him for other crimes. And though there is
violence against women in Guatemala, the State Department’s
country-conditions report shows that the Guatemalan govern-
ment takes it seriously. Substantial evidence supported the
agency’s denial of asylum and withholding.
Petitioners’ Convention Against Torture claim likewise
fails. We review the agency’s findings of fact for substantial
evidence and its legal conclusion that those facts did not
amount to torture or government acquiescence de novo.
Nasrallah v. Barr, 590 U.S. 573, 586 (2020); Myrie v. Att’y
Gen. of U.S., 855 F.3d 509, 515–17 (3d Cir. 2017). As the immi-
gration judge found, the threats and extortion never rose to the
level of torture. And the country-conditions evidence shows
that the government would not acquiesce in any mistreat-
ment. On the contrary, when petitioners reported extortion
threats as the pandemic subsided, police responded and fol-
lowed up. Because the agency properly found the facts and

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correctly applied the law in denying this relief, we will deny
the petition.

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