Maria Velasquez v. Jefferson Sessions III
2017 U.S. App. LEXIS 13826
| 4th Cir. | 2017Background
- Maria Suyapa Velasquez, a Honduran national, entered the U.S. unlawfully in 2014 with her minor son D.A.E.V.; she conceded removability and sought asylum and withholding of removal, listing her nuclear family as the "particular social group."
- Velasquez alleges long-running conflict with the child’s grandmother, Maria Estrada, who repeatedly attempted to take the child, kidnapped him on occasions, threatened Velasquez’s life, and whose son Oscar murdered Velasquez’s sister.
- An Immigration Judge (IJ) denied asylum and withholding, finding the dispute was a private intra-family custody conflict and not persecution "on account of" membership in a protected social group; the Board of Immigration Appeals (BIA) affirmed.
- Velasquez later argued to the court that the persecution was on account of her nuclear-family membership and alternatively suggested (for the first time in litigation) possible gang (MS-13) involvement as the motive.
- The Fourth Circuit reviewed for substantial evidence the factual findings and denied the petition, holding the record supports the BIA/IJ finding that the motive was a private custody dispute rather than persecution because of a protected ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Velasquez’s harm was "on account of" membership in a particular social group (nuclear family) | Velasquez: threats and violent acts by Estrada and Oscar targeted her because of her maternal/familial relationship to the child, qualifying as persecution on account of family membership | Govt/BIA: evidence shows a private custody dispute among family members with no outside persecutor or anti-family animus; therefore no nexus to a protected ground | Held: substantial evidence supports BIA/IJ — motive was personal custody dispute, not persecution on account of family membership; asylum denied |
| Whether Hernandez-Avalos or Cruz control (i.e., familial nexus suffices) | Velasquez: Hernandez-Avalos and Cruz show family ties can establish nexus where persecutor targets the family relation | Govt/BIA: those cases involved non-familial third-party persecutors (gangs/organized crime) whose motive was tied to the familial relationship; present case is intra-family and personal | Held: Distinguished Hernandez-Avalos and Cruz; those involved outside actors with motives tied to family relation, unlike this private custody dispute; precedent does not require relief here |
| Whether Velasquez’s late theory that MS-13 was involved is reviewable/exhausted | Velasquez: asserts Estrada/Oscar had gang ties and persecution was gang-related (aligning with Hernandez-Avalos) | Govt: theory was not pursued before BIA (failure to exhaust); record lacks evidence tying Estrada’s motive to gang recruitment | Held: Court likely lacks jurisdiction to consider unexhausted theory; even if considered, record does not support gang-nexus — substantial evidence supports the BIA finding of personal motive |
| Withholding of removal claim (higher standard) | Velasquez: seeks withholding as alternative relief | Govt: withholding requires higher showing and cannot be derivative for the child | Held: Because asylum was denied for lack of nexus, applicant necessarily fails withholding (higher standard); withholding denied |
Key Cases Cited
- Abdel-Rahman v. Gonzales, 493 F.3d 444 (4th Cir. 2007) (standard of review: BIA factual findings upheld if supported by substantial evidence)
- Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) (nexus found where gang threatened mother to recruit her son — familial connection was central reason)
- Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) (reversed BIA where petitioner was targeted by organized-crime actor because of relationship with deceased husband)
- Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) (applicant ineligible for asylum is necessarily ineligible for withholding of removal)
- Huaman-Cornelio v. Bd. of Immigration Appeals, 979 F.2d 995 (4th Cir. 1992) (personal disputes and private retribution do not establish persecution on account of a protected ground)
- Tiscareno-Garcia v. Holder, 780 F.3d 205 (4th Cir. 2015) (failure to raise an issue before the BIA bars federal-court review for lack of administrative exhaustion)