925 F.3d 222
5th Cir.2019Background
- Martinez, a former volunteer auxiliary police officer from San Isidro, Honduras, alleged he was threatened and shot at by Edwin "Edis" after arresting him in 2009; incidents resumed in 2014 and prompted Martinez to flee to the U.S. in May 2014.
- He applied for asylum, withholding of removal, and CAT protection, asserting persecution based on membership in proposed particular social groups tied to his ex-law-enforcement role and to having participated in Edis’s capture.
- The IJ found the proposed groups not cognizable and, in any event, concluded Martinez was targeted for his role in arresting a particular individual (a personal vendetta), not because of group membership, and denied relief.
- The BIA affirmed, holding Martinez failed to show social distinction, nexus to a protected ground, and that Honduran authorities acquiesced to torture; it also found the harm did not rise to persecution.
- The Court remanded at the parties’ joint request for clarification; on remand the BIA reissued its decision and again denied relief; Martinez petitioned this Court for review and the Fifth Circuit denied the petition.
Issues
| Issue | Martinez's Argument | Government's Argument | Held |
|---|---|---|---|
| Cognizability of proposed particular social groups | Proposed groups (ex-law enforcement broadly and subgroups tied to Edis’s capture) are immutable and socially distinct | Groups are not socially distinct or sufficiently particular (one proposed group may be effectively a group of one) | Court doubts groups qualify; at least the group tied to Edis’s capture is not cognizable |
| Nexus (persecution "on account of" a protected ground) | Martinez was targeted because of his status/role as an ex-officer who arrested Edis | Harm was motivated by personal revenge against Martinez, not his group membership | Substantial evidence supports BIA: harm was personal vendetta, not persecution on account of group; no asylum/withholding |
| Persecution severity (past/future) | Incidents (threats, shooting) constituted persecution or at least future risk | Harm did not rise to persecution; relocation within Honduras possible | BIA reasonably found harm did not amount to persecution and relocation was feasible |
| CAT eligibility / state acquiescence or willful blindness | Honduran mayor’s comments and police failure show willful blindness/acquiescence to torture by Edis | Authorities detained Edis previously and there is no record of governmental acquiescence; inability to protect ≠ acquiescence | Substantial evidence supports denial of CAT: no showing "more likely than not" torture with state acquiescence |
Key Cases Cited
- Nunez v. Sessions, 882 F.3d 499 (5th Cir.) (standards for reviewing BIA decision)
- Qorane v. Barr, 919 F.3d 904 (5th Cir.) (government inability to protect does not equal acquiescence for CAT)
- Hernandez-De La Cruz v. Lynch, 819 F.3d 784 (5th Cir.) (particular social group requirements: immutability, social distinction, particularity)
- Fatin v. INS, 12 F.3d 1233 (3d Cir.) (particular social group requires more than one person)
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir.) (criminal incentives vs. persecution for PSG analysis)
- Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir.) (CAT requires likelihood of torture and state involvement)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir.) (distinguishable: revenge plus gang intent to intimidate group can show nexus)
- Shaikh v. Holder, 588 F.3d 861 (5th Cir.) (protected ground must be a central reason for persecution)