Argueta-Hernandez v. Garland, 87 F.4th 698

Background

Samuel de Jesus Argueta-Hernandez, a Salvadoran national and evangelical church leader, was repeatedly threatened by MS-13 after refusing extortion and collaboration; a gang hitman followed and attempted to kill his son.
Argueta-Hernandez reported threats to four Salvadoran government offices (National Civil Police, Anti-Gang Unit, Human Rights Office, Prosecutor’s Office), which told him he could not be protected and assisted in placing him temporarily in a safehouse and facilitating his departure.
An asylum officer and the Immigration Judge (IJ) found Argueta-Hernandez credible and corroborated by police reports and country-conditions evidence; the IJ nonetheless denied withholding of removal and CAT relief, concluding threats were verbal (not physical) and the government could protect him.
The Board of Immigration Appeals (BIA) affirmed, emphasizing extortion motives, lack of physical harm, and that government actions (safehouse/assistance leaving the country) showed protection.
On rehearing, the Fifth Circuit held it has jurisdiction, concluded the BIA misapplied law and failed to consider key evidence, vacated the BIA decision, and remanded for further consideration of past persecution, nexus, and CAT acquiescence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction over petition challenging BIA denial following reinstated removal	Petition timely filed from BIA order; Nasrallah/Johnson do not strip jurisdiction over withholding-only proceedings affirmed with reinstatement	Government argued prior precedent and timing bar; initial panel previously dismissed for lack of jurisdiction	Court held it has jurisdiction: 30-day rule not jurisdictional (Santos-Zacaria) and Nasrallah/Johnson do not overrule circuit precedent requiring review of withholding proceedings with reinstatement; rehearing granted
Past persecution — whether verbal threats and attempted hit on son suffice	Threats, surveillance, hit attempt on son, corroborated by officials and country reports amount to persecution; physical injury not required	BIA/IJ: harms were verbal or isolated, insufficient for persecution without physical harm; motive was extortion, not protected ground	Court held BIA erred to require physical harm; sustained, repeated credible death threats and attempts constitute persecution; vacated and remanded for proper analysis
Nexus — whether persecution was "because of" religion/particular social group; consideration of mixed motives and proposed group "Salvadoran informants against gang members"	Evidence shows religion and church leadership were at least one central reason; motives can be mixed and extortion does not negate nexus; BIA/IJ failed to analyze proposed group	BIA/IJ: extortion/personal reasons were central; no explicit statements tying actions to religious exercise; one-or-the-other analysis suffices	Court held BIA wrongly applied an either-or approach and failed to analyze mixed motives and the proposed social group; remand required for proper nexus and group analysis
CAT — whether Salvadoran government would acquiesce to torture / unable to protect	Multiple agencies told him he could not be safe; government asked him to sign liability waiver and facilitated exit — evidence of acquiescence or willful blindness	BIA/IJ: temporary safehouse and assistance to leave shows government willingness/ability to protect; insufficient evidence of acquiescence	Court held the BIA/IJ failed to consider all relevant evidence and underexplained why assurances/waivers did not show acquiescence; vacated and remanded for full CAT analysis

Key Cases Cited

Santos- Zacaria v. Garland, 598 U.S. 411 (2023) (30-day filing deadline is not jurisdictional)
Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (denial of CAT relief is not itself a final order but may be reviewed with final removal orders)
Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (distinguishing finality for detention purposes under §1231 from judicial-review provisions)
Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016) (reinstatement orders deemed final only after reasonable-fear/withholding proceedings)
Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (repeated threats and targeted violence can constitute persecution)
Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (threats of death and other credible threats can be persecution)
Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021) (CAT claims require separate analytical attention and consideration of all evidence relevant to future torture)