FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS April 5, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ ANA RUTH ORELLANA-RECINOS; KEVIN AMILCAR ROSALES- ORELLANA, Petitioners, No. 19-9596 v. MERRICK B. GARLAND, United States Attorney General,* Respondent. _________________________________ Petition for Review of an Order from the Board of Immigration Appeals _________________________________ Sharon L. Preston of Preston & Brar, LLC, Salt Lake City, Utah, for Petitioners. Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation (Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Margot Carter, Senior Litigation Counsel, Office of Immigration Litigation, with him on the brief), United States Department of Justice, Washington, D.C., for Respondent. _________________________________ Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges. _________________________________ HARTZ, Circuit Judge. _________________________________ * Merrick B. Garland, United States Attorney General, has been substituted for William P. Barr as the respondent. See Fed. R. App. P. 43(c)(2). Petitioners Ana Orellana-Recinos and her son, Kevin Rosales-Orellana, natives and citizens of El Salvador, seek review of the decision of the Board of Immigration Appeals (BIA) dismissing their appeal of the denial by the immigration judge (IJ) of their applications for asylum. They contend that they were persecuted because of their membership in a particular social group: namely, Kevin’s immediate family. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny review. Even assuming that Kevin’s immediate family qualifies as a particular social group under the Immigration and Nationality Act, the BIA properly found that Petitioners were not persecuted “on account of” their membership in that group. In addition, we reject the government’s argument that we lack jurisdiction to review Petitioners’ challenge to the BIA’s decision. I. BACKGROUND Four incidents prompted Petitioners to flee El Salvador for the United States. Twice, members of the MS-13 gang approached Kevin at school and pressured him to sell drugs for the gang. The third incident was a phone call in which someone who Ms. Orellana-Recinos “believed was a gang member” called Petitioners’ home phone and told Ms. Orellana-Recinos that she should convince her son to sell drugs for the gang. App. at 50. Before she ended the call the gang member threatened her, saying that “[i]f your son refuses, the two of you will pay.” Id. at 54 (internal quotation marks omitted). The fourth incident occurred at Petitioners’ home. Five gang members “stood outside and held weapons for approximately a half an hour.” Id. at 50. 2 Apparently there are three members of Kevin’s immediate family. In addition to him and his mother, he has a married adult sister who lived in the same area as Petitioners during these incidents. The MS-13 gang has not threatened or harmed the sister. After entering the United States, Petitioners were charged with being removable and appeared before the IJ. They conceded removability but sought asylum, with Ms. Orellana-Recinos filing her own asylum application and Kevin, who was 16 years old at the time of the IJ’s decision in March 2018, joining his mother’s …
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