Mercy A. Perez Aviles; M.E.H.P.; V.M.P.P. v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 21-2237
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Mercy A. Perez Aviles; M.E.H.P.; V.M.P.P.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 13, 2024
Filed: August 1, 2024
[Unpublished]
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Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.
Mercy Perez Aviles and her sons petition for review of an order of the Board
of Immigration Appeals denying their motion to reopen removal proceedings based
upon new evidence of persecution relating to their asylum applications. Having
jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the petition.

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In 2016, Perez and her sons, natives and citizens of El Salvador, unlawfully
entered the United States without valid entry documents. The Department of
Homeland Security subsequently commenced removal proceedings and served the
family with Notices to Appear, charging them as inadmissible aliens under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Perez conceded removability but filed an application for
asylum, withholding of removal, and relief under the United Nations Convention
Against Torture, claiming that she and her family had been, and would continue to
be, threatened by the Mara-18 gang in El Salvador.1 Following a merits hearing, the
Immigration Judge (IJ) denied the application and ordered Perez and her sons
removed from the United States.
As relevant to the instant petition, the IJ rejected the asylum application on
three grounds, first determining that Perez failed to establish past persecution or a
well-founded fear of future persecution. Specifically, the IJ found that the threats
Perez and her family had received from the gang “appear[ed] exaggerated and
lacking in immediacy” and stemmed from the family’s presence in certain
neighborhoods, leaving open the possibility that they could seek refuge in a safer
part of the country. He also noted that several relatives remained in El Salvador who
had never been harmed or even contacted by the gang, which undermined the
reasonableness of Perez’s fear of persecution. Second, the IJ determined that even
if Perez had satisfied the persecution element, she nonetheless failed to show that
she belonged to a cognizable social group, finding that that the first group she
proposed—“business owners”—failed to satisfy the immutability requirement. The
IJ further found that the second proposed group, “family relationship,” did not meet
the requirements of particularity and social distinction, as it was “impossible for the
court to determine the group’s scope given its vague wording” and Perez’s failure to
elaborate on the nature and degree of her familial relationships. Third, the IJ
determined that even if he were to accept the proposed social groups as legally
sufficient, Perez had failed to establish a nexus between the gang’s threatening
1 Perez’s sons also filed applications that are identical in substance.
Accordingly, we only address Perez’s application.

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behavior and her membership in one of those groups, as the gang was primarily
motivated by a desire for financial gain and targeted the Salvadoran population writ
large.
Notably, Perez did not directly appeal to the Board or seek reconsideration of
the IJ’s decision. However, she filed a motion to reopen the removal proceedings to
allow for further consideration of her asylum claim following an event in which gang
members beat her daughter on a public bus in El Salvador, stating that Perez “owed
them.” Perez argued that this attack served as evidence that she was a member of a
particular social group, namely, “family members who are recognized.” The IJ
acknowledged the new evidence but ultimately denied the motion, concluding that
the proposed social group “family members who are recognized” suffered from the
same deficiencies that plagued the proposed social group articulated in the original
application for asylum. Perez appealed to the Board, which adopted and affirmed
the IJ’s denial of her motion to reopen and dismissed the appeal. In doing so, the
Board rejected as untimely a supplemental brief from Perez that it received after the
applicable deadline had passed due to a snowstorm in the Washington, D.C.
metropolitan area.
Perez now appeals the Board’s dismissal of her appeal. “We review the
Board’s decision as the final agency action, including the IJ’s findings and reasoning
to the extent that the Board expressly adopted them.” Gutierrez-Vargas v. Garland,
42 F.4th 877, 881 (8th Cir. 2022) (citation omitted). We apply a highly deferential
substantial-evidence standard when reviewing a determination that an alien is
ineligible for asylum. Pascual-Miguel v. Garland, 89 F.4th 657, 659 (8th Cir. 2023).
Moreover, as a general matter, motions to reopen are disfavored. Arroyo-Sosa v.
Garland, 74 F.4th 533, 541 (8th Cir. 2023). Thus, to prevail on a motion to reopen,
“the new evidence must have been ‘neither available nor discoverable at the prior
hearing’ and must be ‘material to the outcome of the proceeding.’ To meet this
standard, the ‘new facts “must be such that they would likely change the result in the
case.”’” Id. (citations omitted).

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Here, Perez asserts that the IJ impermissibly refused to consider her nuclear
family when analyzing the sufficiency of the proposed social group and that the
Board employed an erroneous standard of review. She also argues that the Board
abused its discretion in declining to consider the arguments raised in her late-filed
brief, thus warranting remand pursuant to SEC v. Chenery Corp., 318 U.S. 80
(1943). See Omondi v. Holder, 674 F.3d 793, 800 (8th Cir. 2012) (“Under
the Chenery doctrine, ‘the BIA must consider the issues raised and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.’” (citation omitted)).
Each of these arguments, however, is ultimately immaterial, as Perez did not
appeal the IJ’s decision identifying three independent bases for denying her asylum
claim on the merits. By failing to do so, the IJ’s findings are now final and
unreviewable. See 8 C.F.R. §§ 1003.3(a)(1), .39. At bottom, Perez’s appeal to the
Board and before this Court turns on the legal sufficiency of the particular social
group that she raised in her asylum claim, and her rejected supplemental brief to the
Board would have necessarily been limited to this subject given the finality of the
IJ’s findings. But the fact remains that even if “family members who are recognized”
constitutes a cognizable social group, contrary to the conclusions of the IJ and the
Board, Perez’s claim still fails on two alternative, independent bases; namely, her
failure to prove past persecution or a well-founded fear of future persecution, and
her inability to establish a nexus between her particular social group and the gang’s
threats. See Pacheco-Moran v. Garland, 70 F.4th 431, 435 (8th Cir. 2023) (“To be
eligible for asylum, an applicant must show that he is a refugee, defined in the
Immigration and Nationality Act as a person unable or unwilling to return to his
native country due to past persecution or a well-founded fear of future persecution
‘on account of race, religion, nationality, membership in a particular social group,
or political opinion.’”) (emphasis omitted) (citation omitted). Stated otherwise, the
new facts that Perez presented as part of her motion to reopen would not change the
result in this case given the other deficiencies in her claim. See Romero-Larin v.
Sessions, 733 F. App’x 847, 851 (8th Cir. 2018) (per curiam) (denying a petition to
review the Board’s denial of a motion to reopen where new evidence purportedly

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demonstrating a reasonable fear of persecution would not have changed the outcome
because the Board “independently grounded its decision” to deny asylum on other
bases).
For the foregoing reasons, Perez’s petition for review is denied.
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