Sonia Perez Vasquez v. Merrick GarlandSonia Perez Vasquez v. Merrick Garland
Sonia Araceli Perez Vasquez (“Petitioner“) and her minor daughter, natives and citizens of Honduras, appeal from the Board of Immigration Appeals’ final order affirming the denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture.1 The central issue on appeal is whether the immigration judge and the Board of Immigration Appeals erred in concluding that Petitioner failed to demonstrate that she was persecuted on account of her membership in her proposed particular social group, namely her nuclear family.
For the reasons explained below, we answer that question in the affirmative. Accordingly, we grant the petition in part and remand for further proceedings.
I.
A.
In June 2016, Petitioner was living with her eleven-year-old daughter and her parents in Villanueva, Honduras.2 Early that month, a young man called Petitioner; claimed to “represent[] a gang group“; and demanded that she begin paying the gang a monthly fee of 1,000 lempiras (roughly $43.00). A.R. 226.3 The man informed Petitioner that the gang,
True to the young man‘s word, at the end of June and every month that followed, gang members came to Petitioner‘s house with “guns and caps that almost covered their eyes” to collect the extortion fee. Id. On every visit, the gang members “threaten[ed] [Petitioner] and brandish[ed] their guns,” reminding her that she “knew what was going to happen to [her and her] daughter if [she] did not pay them or obey their demands.” Id. Indeed, she did know—she averred that she was aware of other individuals the gang had killed as an “example” after they failed to pay. A.R. 227. The gang also warned Petitioner that if she “said something to anyone” or “made a complaint,” “they would kill [her] and [her] daughter.” A.R. 72, 74.
Despite the gang‘s warnings, Petitioner made a report to the police, but the police never took any action. So, fearful for her and her daughter‘s safety, Petitioner paid the extortion fee to the gang for five months, with her husband sending her the demanded 1,000 lempiras every month. During those five months, Petitioner “was unable to sleep,” “suffered from nightmares and depression,” and became “so terrified” for her daughter‘s safety that she took her out of school. A.R. 226–27.
While Petitioner believed that paying the gang‘s fee was the only thing that would “stop [the gang] from hurting [her] and [her] daughter,” her ability to pay it rested
B.
Because Petitioner did not possess valid entry documents at the time of entry, the Government issued a Notice to Appear and instituted removal proceedings against her. Petitioner conceded removability as charged, but she applied for asylum, withholding of removal, and protection under the Convention Against Torture.
In her application (Form I-589), Petitioner relayed the account summarized above and described that she was “certain that [the gang members] [we]re looking for [her], and [that] if [she] returned they would find [her] and hurt . . . or kill [her].” A.R. 219. Her application indicated that she was seeking asylum and withholding of removal based on political opinion and membership in a particular social group. At the individual hearing, however, Petitioner (through her counsel) decided not to pursue a political-opinion claim. She instead relied solely on her membership in a particular social group, which she defined as her nuclear family comprised of herself, her husband, and her daughter.
Though the immigration judge fully credited Petitioner‘s testimony, he nevertheless denied all of her claims for relief and ordered that she and her daughter be removed to Honduras. Regarding her claims for asylum and withholding of removal, the immigration
On appeal to the Board of Immigration Appeals, Petitioner challenged the immigration judge‘s finding that she had failed to demonstrate a causal connection between her membership in her nuclear family and the persecution she suffered. She also raised two additional particular social groups for the first time—her “[e]xtended family” and “[m]embers of [a] nuclear family opposed to gangs.” A.R. 15. Finally, Petitioner challenged the immigration court‘s jurisdiction based on the Supreme Court‘s intervening decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018).
The Board of Immigration Appeals denied all of Petitioner‘s claims for relief and dismissed her appeal in an unpublished opinion issued by a single member. Specifically, it affirmed the immigration judge‘s determination that Petitioner had failed to show that she was persecuted because of her membership in her nuclear family. Citing its precedent, including Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018), the Board of Immigration Appeals declined to consider the two new particular social groups that
Petitioner timely petitioned for this Court‘s review.
II.
Where, as here, the Board of Immigration Appeals has adopted and supplemented an immigration judge‘s decision, we review both decisions. Hernandez-Cartagena v. Barr, 977 F.3d 316, 319 (4th Cir. 2020). We review factual findings for substantial evidence, treating them as conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Chen v. Holder, 742 F.3d 171, 178 (4th Cir.), as amended (May 30, 2014) (quoting
As an initial matter, Petitioner contends that under the Supreme Court‘s decision in Pereira v. Sessions, her Notice to Appear was defective because it failed to include the date or time of her removal hearing, and that this defect deprived the immigration court of jurisdiction. See Pereira, 138 S. Ct. at 2110, 2113–14 (holding that a Notice to Appear that fails to state the time or place of the hearing does not terminate a noncitizen‘s period of continuous physical presence in the U.S. for purposes of cancellation of removal). But we have already rejected the same argument in United States v. Cortez, holding that a Notice to Appear‘s failure to include the date or time of the hearing does not implicate the immigration court‘s jurisdiction or adjudicative authority. 930 F.3d 350, 358–66 (4th Cir. 2019). Therefore, we readily dismiss Petitioner‘s jurisdictional argument.
IV.
Turning to the merits, Petitioner argues that she has established that she was persecuted in Honduras on account of her membership in her proposed particular social group—her nuclear family.6 We agree. In concluding otherwise, the immigration judge and
Under well-established precedent in this Circuit, and based on the unrebutted, substantial evidence in the record, we hold that any reasonable adjudicator would be compelled to conclude that Petitioner‘s membership in her nuclear family was at least one central reason for her persecution. Therefore, we grant the petition and reverse the agency‘s determination as to this issue.
A.
Under the Immigration and Nationality Act, an applicant for asylum “must establish that [they] ha[ve] been ‘subjected to past persecution’ or ‘ha[ve] a well-founded fear of future persecution’ ‘on account of’ . . . ‘race, religion, nationality, membership in a particular social group, or political opinion.‘”7 Alvarez Lagos v. Barr, 927 F.3d 236, 245 (4th Cir. 2019) (quoting Tairou v. Whitaker, 909 F.3d 702, 707 (4th Cir. 2018)); see also
Importantly, the protected ground need not be ”the central reason or even a dominant central reason” for the applicant‘s persecution. Id. (quoting Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009)). Rather, the applicant must demonstrate that their protected status was or would be “more than an incidental, tangential, superficial, or subordinate reason” for their persecution. Id. (internal quotation marks omitted) (quoting Quinteros-Mendoza, 556 F.3d at 164).
While a persecutor‘s motivation is a “classic factual question” reviewed for substantial evidence, Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (quoting Crespin-Valladares, 632 F.3d at 128), we review de novo “whether the [Board of Immigration Appeals] and the [immigration judge] applied the correct legal standard” in their nexus analysis. Cruz, 853 F.3d at 128.
B.
Here, the immigration judge and the Board of Immigration Appeals erred by misapplying the statutory nexus requirement. In fact, they committed the same legal errors for which we have repeatedly admonished the agency. See, e.g., Hernandez-Cartagena, 977 F.3d at 321–23; Salgado-Sosa, 882 F.3d at 457–59; Zavaleta-Policiano, 873 F.3d at 249–50; Cruz, 853 F.3d at 129–30; Oliva v. Lynch, 807 F.3d 53, 56, 59–61 (4th Cir. 2015);
The agency first erred by incorrectly focusing on why the gang targeted Petitioner‘s family, rather than on why they targeted Petitioner herself. It further erred by failing to consider the intertwined reasons for the persecution Petitioner suffered.
1.
As to the first error, our precedent makes clear that in cases involving family-based particular social groups, “identifying why [the] [p]etitioner‘s family was targeted is not the relevant question” for nexus. Hernandez-Cartagena, 977 F.3d at 322 (emphasis added). Rather, the “operative question” is “whether [the petitioner‘s] membership [in their family] is ‘a central reason why [they], and not some other person’ [were] targeted.” Id. at 321–22 (quoting Alvarez Lagos, 927 F.3d at 249); see also Salgado-Sosa, 882 F.3d at 458–59 (“[T]he BIA‘s decision improperly focused on whether [the petitioner]‘s family was persecuted on account of a protected ground, rather than on whether [the petitioner] was persecuted because of a protected ground—here, his relationship to his family.“); Hernandez-Avalos, 784 F.3d at 949–50.
Our decision in Hernandez-Cartagena v. Barr is instructive. See 977 F.3d at 321–22. Hernandez-Cartagena was a Salvadoran woman who, like Petitioner, had immediate family living in the United States—in Hernandez-Cartagena‘s case, her parents—and was targeted by a gang for extortion. Id. at 318. When the gang initially contacted Hernandez-Cartagena, they demanded that her parents send them money. Id. The gang warned Hernandez-Cartagena that if her family did not meet their demands, they would kill one of
The facts of this case align almost perfectly with those of Hernandez-Cartagena. In both cases, the petitioner had family members in the United States. A gang demanded money from those U.S.-based family members by threatening the petitioner back in the family‘s home country. The family complied with the gang‘s demands for some time, but eventually, the petitioner fled to the United States and sought asylum, raising her membership in her family as a protected ground.8
We reversed, holding that the immigration judge “erred by focusing narrowly” on why the gang targeted Hernandez-Cartagena‘s family, rather than on why they targeted Hernandez-Cartagena herself, and not some other person. Id. at 321–22 (quoting Salgado-Sosa, 882 F.3d at 458). And “once the right question [was] asked,” we explained, “the conclusion [was] quite clear: ‘whatever [the gang]‘s motives for targeting [her] family, [Hernandez-Cartagena herself] was targeted because of [her] membership in that family.‘” Id. at 322 (third, fourth, and sixth alterations in original) (quoting Salgado-Sosa, 882 F.3d at 459). That is, the gang specifically targeted Hernandez-Cartagena, and not some other person, because they believed that her family had the “ability . . . to pay the extorted demands.” Id. at 321. Thus, we held that “substantial evidence in the record compel[led] the conclusion that at least one central reason [Hernandez-Cartagena] was targeted was her membership in [her] family,” and that the immigration judge had erred in finding otherwise. Id. at 322.
For its part, the Board of Immigration Appeals compounded the immigration judge‘s error by failing to recognize it—which, as we have held, is an error of law that “necessarily constitute[s] an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 725 (4th Cir. 2011). The agency‘s legal error requires us to at least vacate its decision.
2.
The immigration judge and the Board of Immigration Appeals also erred when they concluded that the gang was simply motivated by a desire for monetary gain, without properly considering other intertwined reasons for Petitioner‘s persecution. As we have “repeatedly emphasized, it is enough that the protected ground be at least one central reason for the persecution—that is, one central reason, perhaps intertwined with others, why the applicant, and not another person was threatened.” Hernandez-Cartagena, 977 F.3d at 320 (second emphasis added) (quoting Alvarez Lagos, 927 F.3d at 250); see also Salgado-Sosa, 882 F.3d at 458; Zavaleta-Policiano, 873 F.3d at 248; Hernandez-Avalos, 882 F.3d at 949–50.
Generally, when the agency legally errs as it did here, “the proper course” is “to remand . . . for additional investigation or explanation.” Id. at 321 (quoting Alvarez Lagos, 927 F.3d at 249). But when the “relevant record evidence, . . . [properly] considered, would compel any reasonable adjudicator to reach” a conclusion opposite to that reached by the agency, “then a remand is unnecessary, and we will reverse the [agency]‘s finding.” Id. (alteration modified) (quoting Alvarez Lagos, 927 F.3d at 249). Specifically, in cases where the record evidence conclusively demonstrated that the applicant‘s protected status was at least one central reason why they, and not some other person, were targeted, we have reversed the agency‘s determination that the applicant failed to meet the nexus requirement. See, e.g., id. 321–23; Alvarez Lagos, 927 F.3d at 249–52; Salgado-Sosa, 882 F.3d at 457–59; Cruz, 853 F.3d at 130; Zavaleta-Policiano, 873 F.3d at 249–50; Oliva, 807 F.3d at 59–61; Hernandez-Avalos, 784 F.3d at 950. We conclude that the same relief is warranted here.
Just as in Hernandez-Cartagena, the record evidence in this case compels only one reasonable conclusion: the gang targeted Petitioner, and not some other person, because of her familial relationship to her husband, who sent her money from the United States every month. At her individual hearing, Petitioner credibly testified that when the gang first contacted her to demand extortion payments, they told her that they knew she traveled to San Pedro Sula every month to withdraw money that her husband sent to her from the United States. The gang‘s mention of this fact clearly suggested that they believed she had the means to pay the demanded fee by virtue of her familial relationship to her husband who regularly sent her money.
None of the agency‘s reasons for declining to find a nexus—several of which the Government echoes on appeal—are persuasive. First, the immigration judge and the Board of Immigration Appeals found it significant that other members of Petitioner‘s family in Honduras, including her parents and her husband‘s mother, were never harmed or threatened with harm. That was legal error.
At her individual hearing, Petitioner alleged that she was persecuted on account of her membership in her nuclear family, which she defined as being comprised only of herself, her husband, and her daughter. Notably, that construction is supported by this Court‘s precedent as well as the dictionary definition of “nuclear family.” See Cruz, 853 F.3d at 129 (noting that an asylum applicant‘s nuclear family consisted only of the applicant, her husband, and their children); Nuclear Family, Oxford English Dictionary Online, https://www.oed.com/view/Entry/128926?redirectedFrom=nuclear+family#eid34375747 (defining “nuclear family” as “the basic family group consisting typically of father, mother, and their dependent children“). And here, the gang “in fact threatened to
Second, the immigration judge reasoned, and the Government asserts, that no nexus exists between Petitioner‘s persecution and her membership in her nuclear family because she may have faced the same harms from the gang had it been another relative or a friend, rather than her husband, who sent her money every month. But such counterfactuals are of little value or relevance. The actual, undisputed facts in this case indicated that Petitioner‘s familial relationship to her husband—that is, her membership in her nuclear family—was at least one central reason why the gang targeted her for extortion. Indeed, we previously rejected a similar, hypothetical musing in Cruz v. Sessions, where the immigration judge improperly relied on a finding that the alleged persecutor—who was likely responsible for the sudden disappearance of the petitioner‘s husband—may well have targeted any person interested in investigating the husband‘s whereabouts, even those outside the petitioner‘s nuclear family. See 853 F.3d at 129.
Moreover, the immigration judge‘s view of Petitioner‘s husband as a fungible source of money for Petitioner was fundamentally misplaced. As we have explained in prior cases, individuals are generally more vulnerable to threats and persecution based on family relationships than those based on other relationships, given the “innate,” special,
Here, the unrebutted evidence demonstrates that the gang leveraged Petitioner‘s familial relationship to her husband, as well as their familial relationships to their daughter, to incentivize payment. Again, the gang extorted money from Petitioner and threatened her and her daughter with death, while explicitly stating that they knew she received money every month from her husband in the United States. And the gang‘s threats had just the intended effect. After learning of those threats, Petitioner‘s husband sent additional money every month for the specific purpose of paying the gang so “they wouldn‘t kill [his wife and his daughter].” A.R. 71. Thus, just as in Hernandez-Cartagena, it was “unreasonable” for the agency to conclude that Petitioner‘s status as her husband‘s spouse was “not at least one central reason for [Petitioner‘s] persecution.” Hernandez-Cartagena, 977 F.3d at 323.
Third, the immigration judge and the Board of Immigration Appeals made much of the fact that Petitioner had already been receiving money from her husband for eleven years by the time the gang first approached her. Yet we have previously held that “while the timing of threats can be relevant in determining a persecutor‘s motivation, . . . it is not
Finally, while the immigration judge emphasized—as does the Government—that Petitioner herself testified that she did not know why she was targeted, that fact is hardly dispositive. As we recently recognized in Arevalo Quintero v. Garland, it is not uncommon for an asylum applicant to be unaware of the reasons for the persecution they suffered or fear suffering. Arevalo Quintero v. Garland, 998 F.3d 612, 625 n.12 (4th Cir. 2021). Further, even when the applicant knows the reasons, “[o]bstacles like language barriers, past trauma, limited legal knowledge, and restricted access to basic social services often impede asylum seekers from effectively telling their stories.” Id. at 632 n.21 (quoting Sabrineh Ardalan, Access to Justice for Asylum Seekers: Developing an Effective Model of Holistic Asylum Representation, 48 U. MICH. J. L. REFORM 1001, 1013 (2015)).
In light of this reality, we have held—as has the Board of Immigration Appeals—that under both international and U.S. refugee law, immigration adjudicators have a “duty to ascertain and evaluate all the relevant facts” and to “ensur[e] that refugee protection is provided where such protection is warranted by the circumstances of an asylum applicant‘s claim.” Id. at 625 (quoting Matter of S-M-J-, 21 I. & N. Dec. 722, 723, 729 (BIA 1997)). And here, because the unrebutted evidence in the record would compel any reasonable
* * *
In sum, we hold that Petitioner has established a nexus between her membership in her proposed particular social group and the persecution she suffered, and that the agency erred in holding otherwise. Our precedent regarding how nexus should be analyzed in asylum and withholding-of-removal cases is well-established. Thus, we have made it clear that all immigration adjudicators must evaluate each asylum or withholding application in a manner faithful to the applicable precedent and must carry out their “affirmative duty” under domestic and international refugee law to assist and “work with asylum seekers to ensure that protection is granted to those whose factual circumstances warrant it.” Id. at 631 (emphasis omitted).
For the foregoing reasons, we reverse the agency‘s determination as to nexus, vacate the final order of removal as well as the denial of Petitioner‘s application for asylum and withholding of removal, and remand for further proceedings consistent with this opinion.11
Petitioner also contends that she is entitled to relief under the Convention Against Torture. However, we conclude that she has failed to exhaust all available administrative remedies as to this claim. Thus, we lack jurisdiction to consider it.
Under
That being said, as “no statute defines what constitutes ‘exhaustion’ for purposes of
Applying these principles here, we hold that Petitioner failed to exhaust all administrative remedies as to her Convention Against Torture claim. Quite plainly, her counsel did not adequately raise the claim before the Board of Immigration Appeals. Petitioner‘s brief before the Board did not reference the Convention Against Torture beyond merely mentioning in the procedural history section that Petitioner had applied for
Because Petitioner failed to adequately raise her Convention Against Torture claim before the Board of Immigration Appeals, and because the Board deemed the issue waived and declined to address it on the merits, we conclude that the claim has not been administratively exhausted as required by
VI.
In conclusion, we grant the petition for review as to Petitioner‘s asylum and withholding-of-removal claims, reverse the agency‘s nexus determination, vacate the final order of removal, and remand for further proceedings consistent with this opinion. As to her Convention Against Torture claim, we dismiss the petition for lack of jurisdiction.
PETITION GRANTED IN PART AND DISMISSED IN PART; REMANDED
Notes
Moreover, while the Board of Immigration Appeals also seemed to question—again, without deciding—whether the harm Petitioner suffered amounted to “persecution,” we have held that “[e]xtortion itself can constitute persecution, even if the targeted individual will be physically harmed only upon failure to pay.” Oliva, 807 F.3d at 59. And “this Court has repeatedly and expressly held that the threat of death qualifies as persecution.” Zavaleta-Policiano, 873 F.3d at 247 (internal quotation marks omitted) (quoting Hernandez-Avalos, 784 F.3d at 949).