Erika Lopez-Diaz v. Jefferson Sessions, III
697 F. App'x 414
5th Cir.2017Background
- Lopez-Diaz, a Mexican national, applied for asylum and withholding of removal after being kidnapped, drugged, beaten, burned, and repeatedly raped by multiple men.
- She alleged perpetrators targeted her as a member of a proposed particular social group: "young, recently deported women with children" vulnerable to gang abuse.
- Immigration Judge denied relief; the Board of Immigration Appeals (BIA) dismissed her appeal. Lopez-Diaz petitioned this court for review of the BIA decision (CAT relief was not appealed).
- Record included that she had been in Sonora and Tamaulipas without further threats and that kidnappers took her Mexican ID card.
- The BIA found no cognizable particular social group claim, no nexus to a protected ground, and no showing the government caused or could not control the harm; Lopez-Diaz did not contest the government-control finding on appeal.
Issues
| Issue | Lopez-Diaz | Government | Held |
|---|---|---|---|
| Cognizability of proposed particular social group | Group of young, recently deported women with children qualifies | Proposed group not a cognizable particular social group | Group not cognizable under asylum law |
| Nexus between membership and harm | Kidnapping/sexual violence was because of her membership | Violence was criminal/nonpolitical, not on account of protected ground | No compelled finding of nexus; criminal motives defeat asylum claim |
| Government involvement or inability/unwillingness to control perpetrators | Implicit claim government failed to control perpetrators | Government argued Lopez-Diaz waived challenge to BIA finding on this point | Issue waived for failure to brief; BIA determination stands |
| Fear of future persecution based on loss of ID card | Kidnappers taking ID means future risk if returned to Mexico | Evidence shows no ongoing threat while she stayed in Mexican states | Evidence does not compel reasonable fear of future persecution |
| Withholding of removal (derivative) | Entitled if asylum standard met or higher fear shown | Denied because asylum standard not met | Withholding not warranted because asylum standard not met |
Key Cases Cited
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir.) (discusses cognizability and nexus for particular social groups)
- Thuri v. Ashcroft, 380 F.3d 788 (5th Cir.) (criminally motivated violence lacks protected-ground nexus)
- Sama v. Hannigan, 669 F.3d 585 (5th Cir.) (issue waiver for failure to brief)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir.) (withholding denial follows asylum failure)
- Wang v. Holder, 569 F.3d 531 (5th Cir.) (standard for withholding review)
- Vasquez-De Lopez v. Lynch, [citation="620 F. App'x 293"] (5th Cir.) (no recognition of similar particular social group)
- Lareynaja-Cruz v. Holder, [citation="551 F. App'x 222"] (5th Cir.) (similar conclusion on proposed social group)