Sandra Maritza Pena De Rivas; Maria Santana Mejia-Pena; Brittany Pamela Mejia-Pena, Petitioners,
Jefferson B. Sessions, III, Attorney General of the United States, Respondent.
Submitted: February 15, 2018
Petition for Review of an Order of the Board of Immigration
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
Maritza Pena de Rivas ("Rivas") and her two minor
children, Brittany Pamela Mejia-Pena and Maria Santana
Mejia-Pena, petition for review of an order of the Board of
Immigration Appeals. The Board denied their applications for
asylum, withholding of removal, and relief under the
Convention Against Torture. With respect to Rivas's
petition, we conclude that there was no legal error and that
substantial evidence supports the Board's decision, so we
deny the petition. As to the children, however, the record
shows that they presented independent applications, but the
Board failed to decide the applications separately from their
mother's. We therefore grant the petitions filed by the
children and remand their cases for further consideration.
is no challenge to the factual findings of the immigration
judge, so we report the facts accordingly. Rivas and her
daughters are citizens of El Salvador. In September 2013,
Rivas witnessed a member of the El Salvadoran gang called the
M-18 shoot her brother Carlos outside of her parents'
home after Carlos refused to join the gang. The gang member
pointed his gun at Rivas and told her to be careful about
what she said.
helped her brother inside the home, where Brittany and Maria
witnessed his injuries. Rivas's partner Juan then drove
Carlos, Rivas, and Rivas's mother to the hospital. To
obtain medical care for Carlos, a police officer at the
hospital required Rivas to answer questions about the
shooting, and Rivas complied. After Carlos received medical
treatment, Rivas and Juan took Carlos to see a relative who
could offer additional medical care. Thereafter, Carlos went
members of the M-18 could not find Carlos, they began to
question and threaten Juan and Rivas. Gang members stopped
Juan on his way home to ask where to find Carlos, but Juan
denied knowing Carlos's whereabouts. Juan fled to Mexico
in October 2013.
days after Juan left the country, two men from the M-18
approached Rivas in a store to ask where Carlos was hiding;
Rivas told them she did not know. About a week later, female
gang members visited Rivas at Juan's grandparents'
home to inform her that Saul Pineda, the leader of the M-18
and Rivas's relative, wanted to speak with her. The women
escorted Rivas to a nearby field where the M-18 frequently
beats or kills people, and handed Rivas a cellular phone so
that she could talk to Pineda. Pineda asked for Carlos's
location, but Rivas refused to tell him. When Rivas did not
disclose Carlos's whereabouts, the women beat her and
left her in the field.
and her children then fled to her sister's house, located
in a different city of El Salvador. Pineda called the house
in March 2014 to speak to Rivas, this time offering her
protection from the gang in exchange for her visiting him in
jail and having sex with him. Rivas refused, left El Salvador
with her children, and joined Juan in Mexico.
and her children entered the United States in December 2014.
They were arrested at the border and detained pending
deportation. In January 2015, the Department of Homeland
Security commenced removal proceedings.
Brittany, and Maria applied for asylum, withholding of
removal, and relief under the Convention Against Torture
("CAT"). Although Rivas's counsel initially
represented that the children would file as derivative
beneficiaries of Rivas's application, all three aliens
ultimately filed independent applications. Rivas also named
her daughters as derivative beneficiaries on her application
for asylum. An immigration judge conducted a two-day removal
hearing. Rivas was present and testified; counsel waived
appearances for the children.
immigration judge found Rivas credible, but denied her
application. The judge also denied the children's
applications. The judge reasoned that the children had not
submitted independent applications and that they were merely
derivative beneficiaries of Rivas's application. On
administrative appeal, the Board of Immigration Appeals found
no error in the immigration judge's denial of Rivas's
application. Although the Board noted that the two children
had submitted independent applications, the Board declined to
remand the children's claims to the immigration judge for