Luz Cantillano Cruz v. Jefferson Sessions III ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2511
LUZ MARINA CANTILLANO CRUZ; J.X.M.C.,
Petitioners,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 7, 2016 Decided: March 13, 2017
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Petition for review granted; remanded for further proceedings by published opinion.
Judge Keenan wrote the opinion, in which Judge Motz and Judge Thacker joined.
ARGUED: James Edward Tysse, AKIN GUMP STRAUSS HAUER & FELD LLP,
Washington, D.C., for Petitioners. Yanal Harbi Yousef, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Michelle A. Reed, Dallas, Texas, Steven H. Schulman, Matthew W. Kinskey, AKIN
GRUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Petitioners.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jamie M. Dowd,
Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
BARBARA MILANO KEENAN, Circuit Judge:
Luz Marina Cantillano Cruz (Cantillano Cruz), a citizen of Honduras, petitions for
review of a final order of removal entered by the Board of Immigration Appeals (BIA). 1
The BIA affirmed an immigration judge’s (IJ) conclusion that Cantillano Cruz was not
eligible for asylum, withholding of removal, or protection under the Convention Against
Torture (CAT). Cantillano Cruz argued before the BIA and IJ that she feared persecution
on account of her nuclear family ties to her husband Johnny Martinez (Martinez), whom
she suspected had been murdered by his employer. The BIA and IJ rejected this
argument and determined that any persecution suffered by Cantillano Cruz occurred
because she had threatened to report the employer to the police, an act that did not qualify
as a basis for her requested relief.
Upon our review, we conclude that Cantillano Cruz’s familial relationship with
Martinez necessarily was one central reason for the persecution and fear of future
persecution established by Cantillano Cruz, thereby meeting the statutory “nexus
requirement” for asylum provided in the Immigration and Nationality Act (INA) in 8
U.S.C. § 1158(b)(1)(B)(i). Accordingly, we grant Cruz’s petition and remand her case to
the BIA for further proceedings.
1
Cantillano Cruz’s minor son joins her petition for review. For ease of discussion,
we refer to Cantillano Cruz as the petitioner in this opinion. Our conclusions, however,
apply equally to her minor son’s derivative claims for relief from removal. See 8 U.S.C.
§ 1158(b)(3)(A).
2
I.
In July 2014, Cantillano Cruz and her minor son entered the United States without
authorization and presented themselves to immigration officials to request asylum.
Several days later, the Department of Homeland Security (DHS) served Cantillano Cruz
with a notice to appear charging her as an alien present in the United States without
admission, under the provisions of 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz
conceded removability but filed applications for asylum, withholding of removal, and
protection under the CAT.
At a hearing before the IJ, Cantillano Cruz claimed past persecution and fear of
future persecution based on her membership in a “particular social group,” namely, the
“nuclear family of Johnny Martinez.” See 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A).
She testified and presented other evidence in support of her claim. The evidence showed
that in 2003, Cantillano Cruz and Martinez began living together, and that, although they
were never married, were considered a married couple by members of their community.
The couple had two children together.
Between 2001 and 2007, Martinez worked for the Honduran government as a
border patrol agent. However, in 2007, he obtained new employment working as the
personal bodyguard to Danny Avila, who claimed to be a fisherman. For about five
years, Martinez accompanied Avila on extended “fishing trips.”
Martinez eventually learned that Avila worked with organized crime groups in
Honduras and Colombia that were engaged in the trafficking of drugs and firearms. In
May 2012, Martinez told Cantillano Cruz that because of Avila’s criminal conduct,
3
Martinez planned to quit his job and to return to his employment as a border patrol agent.
One week later, in June 2012, Martinez accompanied Avila on another “fishing trip,” but
Martinez did not return.
Cantillano Cruz and Martinez’s uncle, Calin Isaias Ramirez Meza (Isaias), later
visited the local boat dock to search for Martinez. Cantillano Cruz found Martinez’s
clothes and motorcycle abandoned there. When Cantillano Cruz and Isaias questioned
Avila about Martinez’s whereabouts, Avila told them to stop asking questions. After
Isaias stated that he and Cantillano Cruz would “put [in] a police report,” Avila
threatened that they would suffer the same fate as Martinez. Cantillano Cruz and Isaias
visited the dock a few more times to ask about Martinez, and encountered Avila there
more than one year after their first encounter. Avila told them not to come back, and
further warned “that there were dangerous people around.”
After Cantillano Cruz returned home from her final visit to the dock, Avila
contacted her and instructed her to “go to a certain place” to retrieve money owed to
Martinez. Based on Avila’s earlier threats, Cantillano Cruz declined his offer.
During a telephone call initiated by Avila, Cantillano Cruz assured Avila that she
had no intention of contacting the police regarding Avila or her husband’s disappearance.
Nevertheless, on different occasions in 2013 and 2014, Cantillano Cruz observed Avila
and his associates loitering outside her home. During these incidents, they brandished
and fired weapons, and threatened to kill Cantillano Cruz and her children. Also, Avila
and his associates killed Cantillano Cruz’s dogs.
4
In July 2014, two days after the last threatening encounter, Cantillano Cruz fled
Honduras with her younger child. Because she could not afford to bring both children
with her, she left her older child with Martinez’s mother. After Cantillano Cruz left
Honduras, Avila continued to inquire about her whereabouts. Cantillano Cruz testified
that Avila focused his threats on her because he knew that Martinez probably had told her
about Avila’s criminal conduct.
Upon considering Cantillano Cruz’s testimony and the other evidence, the IJ
concluded that she was credible. The IJ also credited the testimony of Dr. Thomas
Boerman, an expert on the subject of organized crime in Honduras. Among other things,
Dr. Boerman testified that Avila likely targeted Cantillano Cruz because he suspected
that Martinez had told her about Avila’s criminal activities.
In addressing Cantillano Cruz’s claim for asylum, the IJ concluded that Cantillano
Cruz was a member of a cognizable particular social group, namely, the “nuclear family
members of Johnny Martinez.” Even though the two never married, the IJ concluded that
they lived together as domestic partners and were considered a married couple.
However, the IJ further found that Cantillano Cruz failed to show that she had
experienced persecution and feared future persecution “on account of her membership in
the nuclear family” of Martinez.
The IJ instead determined that the “main reason” Avila had threatened Cantillano
Cruz was to deter her from contacting the police. The IJ stated that “although family ties
likely motivated” her search for Martinez and her decision to confront Avila, “that
concern for [Martinez’s] well-being could exist outside their familial relationship.” The
5
IJ further observed that the only other family member who had been threatened was
Isaias, who also had confronted Avila at the dock, and that neither Martinez’s mother nor
Cantillano Cruz’s older child had received such threats. Additionally, the IJ found that
the evidence was insufficient to conclude that Avila threatened Cantillano Cruz because
she had learned about his criminal activities from Martinez. The IJ accordingly denied
Cantillano Cruz’s application for asylum, as well as her application for withholding of
removal. 2
The IJ also rejected Cantillano Cruz’s request for protection under the CAT. Even
though the IJ assumed that Avila had killed Martinez and would find Cantillano Cruz
upon her return to Honduras, the IJ concluded that Avila had threatened Cantillano Cruz
only about two times per year, and that the “situation never escalated to violence.” The IJ
further determined that Avila had threatened to harm Cantillano Cruz only if she reported
Avila to police, which she had not done and did not intend to do if she returned to
Honduras. Thus, the IJ concluded that Cantillano Cruz failed to show that she likely
would be tortured if she returned to Honduras.
Cantillano Cruz appealed the IJ’s ruling to the BIA. The BIA dismissed her
appeal, adopting and supplementing the IJ’s conclusions. According to the BIA, Avila’s
2
To establish eligibility for withholding of removal, an applicant must
demonstrate the required statutory nexus between the persecution she suffered and her
membership in a particular social group, but she bears a higher burden than that required
to show eligibility for asylum. Tang v. Lynch, 840 F.3d 176, 183 (4th Cir. 2016). Thus,
an applicant who is ineligible for asylum necessarily is ineligible for withholding of
removal. Id.; Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
6
threats constituted “[h]arm meted out by a private actor for personal reasons or solely on
general levels of crime and violence in Honduras,” which were insufficient bases to
demonstrate eligibility for asylum and withholding of removal. The BIA also affirmed
the IJ’s denial of Cantillano Cruz’s request for protection under the CAT.
Cantillano Cruz petitioned this Court for review. We granted her unopposed
motion for stay of removal proceedings pending our review.
II.
Cantillano Cruz contends that the BIA and IJ erred in concluding that she was not
persecuted because of her membership in the particular social group of the nuclear family
of Johnny Martinez. Citing our decision in Hernandez-Avalos v. Lynch, 784 F.3d 944
(4th Cir. 2015), Cantillano Cruz submits that her familial relationship with Martinez was
“intertwined” with her actions resulting in Avila’s threats toward her. Cantillano Cruz
also submits that the BIA and IJ erred in their factual findings, contending that the record
conclusively demonstrates that her nuclear family ties to Martinez were “at least one
central reason” she was targeted and threatened by Avila.
In response, the government argues that the BIA and IJ applied the correct legal
standard in concluding that Cantillano Cruz failed to establish the required nexus between
her membership in a particular social group and persecution by Avila. According to the
government, the record does not show that Cantillano Cruz was “singled out” by Avila
based on her familial ties to Martinez, and that any interested party, even those outside
the nuclear family of Martinez, could have investigated Martinez’s whereabouts and
7
threatened to contact the police. The government contends that, therefore, substantial
evidence supports the BIA’s and IJ’s conclusion that Avila did not threaten Cantillano
Cruz based on her family relationship with Martinez. We disagree with the government’s
arguments.
Under the INA, the Secretary of DHS or the United States Attorney General has
the discretion to grant asylum to any alien who establishes eligibility for such relief. 8
U.S.C. § 1158(b). An applicant seeking asylum must show that she is unable or
unwilling to return to her home country “because of persecution or a well-founded fear of
persecution on account of” a protected ground, namely, “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Membership in “a particular social group” is a protected ground if that group
consists of people who “share a common, immutable characteristic.” Crespin-Valladares
v. Holder, 632 F.3d 117, 124 (4th Cir. 2011). Here, the BIA and IJ properly concluded,
and the government does not dispute, that by virtue of her domestic partnership with
Martinez, Cantillano Cruz was a member of a cognizable particular social group, namely,
“the nuclear family of Johnny Martinez.” 3 See Hernandez-Avalos, 784 F.3d at 949
(“[M]embership in a nuclear family qualifies as a protected ground for asylum
purposes.”).
3
A “nuclear family” is “a family group consisting of a father, mother, and
children.” Webster’s Third New International Dictionary 1547 (2002).
8
Persecution occurs “on account of” membership in an immediate family when that
relationship is “‘at least one central reason for’ the feared persecution.” Crespin-
Valladares, 632 F.3d at 127 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). This statutory nexus
requirement is not limited to situations in which the applicant’s proposed group
membership constitutes the sole or dominant motivation for her persecution. Oliva v.
Lynch, 807 F.3d 53, 59 (4th Cir. 2015); Quinteros-Mendoza v. Holder, 556 F.3d 159, 164
(4th Cir. 2009). Instead, more than one central reason may, and often does, motivate a
persecutor’s actions. See Hernandez-Avalos, 784 F.3d at 950; Cordova v. Holder, 759
F.3d 332, 338-39 (4th Cir. 2014). However, when membership in the proposed group is
merely “incidental, tangential, superficial, or subordinate to another reason” for the
persecution, the statutory nexus requirement is not satisfied. Quinteros-Mendoza, 556
F.3d at 164. After all, not “every threat that references a family member is made on
account of family ties.” Hernandez-Avalos, 784 F.3d at 950 n.7.
When, as in the present case, the BIA “adopts the IJ’s opinion and supplements it
with its own reasoning,” we consider both rulings. 4 Hernandez-Avalos, 784 F.3d at 948.
4
The BIA here issued a non-precedential opinion by a single BIA member, which
opinion is entitled only to Skidmore deference. See Cordova, 759 F.3d at 337 n.3. This
level of deference allows us to “rely on the agency’s opinions as a ‘body of experience
and informed judgment’ to which we may ‘properly resort for guidance.’” Id. (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)) (citation omitted). However, the
extent of our deference “depends upon ‘the thoroughness evident in [the BIA's]
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade.’” Id. (citation
omitted). As explained below, we conclude that the BIA’s analysis here is not
persuasive.
9
We review de novo the question whether the BIA and the IJ applied the correct legal
standard in assessing the applicant’s proof of the statutory nexus requirement. See
Cordova, 759 F.3d at 337. In contrast, the assessment of a persecutor’s motivation
presents a “classic factual question.” Crespin-Valladares, 632 F.3d at 127-28; see also
Temu v. Holder, 740 F.3d 887, 891-92 (4th Cir. 2014) (no rational factfinder could
simultaneously credit facts showing that applicant was “singled out” for his mental illness
yet conclude that there is no nexus between his mental illness and his mistreatment).
Thus, our review of the BIA’s and IJ’s determination of this factual question is limited to
considering whether their conclusion is “supported by reasonable, substantial, and
probative evidence.” Ngarurih v. Ashcroft, 371 F.3d 182, 188 (4th Cir. 2004).
We treat the IJ’s factual findings as conclusive, unless a reasonable adjudicator
would be compelled to reach a contrary conclusion. Cordova, 759 F.3d at 337.
Accordingly, on a petition for review of a decision by the BIA and IJ holding that an
applicant is ineligible for asylum, we may vacate the denial of asylum only if that
decision is “manifestly contrary to law and an abuse of discretion.” See id.; 8 U.S.C. §
1252(b)(4)(D).
Although this standard is stringent, we have been compelled to disagree with
several of the BIA’s recent decisions holding that an applicant failed to meet the statutory
nexus requirement for obtaining relief from removal. See Oliva, 807 F.3d at 59;
Hernandez-Avalos, 784 F.3d at 949–50; Temu, 740 F.3d at 892; see also Cordova, 759
F.3d at 340 (remanding for further consideration of the nexus requirement). We are
compelled to do so again here.
10
Our decision in Hernandez-Avalos is particularly instructive in the present case.
There, the BIA denied asylum to a petitioner who fled El Salvador after gang members
threatened to kill her because she prevented her son from joining the gang. 784 F.3d at
946-47. The petitioner had argued that at least one central reason for her persecution was
her nuclear family relationship with her son. Id. at 949. The BIA disagreed, holding that
she actually was targeted because she did not consent to her son’s criminal activity. Id.
We held that this application of the nexus requirement by the BIA was
“excessively narrow,” and explained that there was no meaningful distinction between
the existence of a maternal relationship and a mother’s decision to forbid her son from
participating in a gang. Id. at 949–50. We held that the record compelled a factual
conclusion that the petitioner’s relationship with her son was a central reason for her
persecution, because that relationship was the reason “why she, and not another person,
was threatened.” Id. at 950.
We likewise conclude in the present case that the BIA and IJ applied an improper
and excessively narrow interpretation of the evidence relevant to the statutory nexus
requirement. The BIA and IJ shortsightedly focused on Avila’s articulated purpose of
preventing Cantillano Cruz from contacting the police, while discounting the very
relationship that prompted her to search for her husband, to confront Avila, and to
express her intent to contact the police. See Oliva, 807 F.3d at 59-60 (although the
applicant’s refusal to pay the gang rent was the “immediate trigger” for an assault, the
applicant’s membership in the social group of individuals who left the gang led to threats,
and thus the two reasons were linked). The BIA’s and IJ’s focus on the explanation
11
Avila gave for his threats, while failing to consider the intertwined reasons for those
threats, manifests a misapplication of the statutory nexus standard.
The full record before us compels a conclusion that Avila’s threats were
motivated, in at least one central respect, by Cantillano Cruz’s membership in Martinez’s
nuclear family. Although, as the IJ observed, any person interested in Martinez’s
disappearance may have confronted Avila concerning Martinez’s whereabouts, this fact
does not adequately explain the ongoing threats Avila made against Cantillano Cruz and
her children over a period of two years at her home. See Cordova, 759 F.3d at 339-40
(although the applicant was first attacked by the persecutor to force the applicant to join
the gang, the BIA failed to consider evidence showing that later attacks were motivated
by family ties). Avila persisted in threatening Cantillano Cruz after she promised him
that she would not contact the police. Avila placed threatening telephone calls to
Cantillano Cruz at her home, the center of life for Martinez and his nuclear family. Also
at the Martinez family’s home, Avila and his associates killed the family’s dogs,
brandished and fired weapons, and threatened to harm Cantillano Cruz and her children.
In their failure to identify the nuclear family relationship as a central reason for
Cantillano Cruz’s persecution, the BIA and IJ further erred by giving weight to the fact
that Avila did not threaten additional family members other than Martinez’s uncle, Isaias.
Neither Isaias nor Martinez’s mother are members of Martinez’s immediate, nuclear
family, the only relevant social group. And Avila in fact threatened to harm all nuclear
12
family members of Johnny Martinez, specifically, his wife and children. 5 Thus, the fact
that other members of Martinez’s extended family were not targeted “does not
undermine” Cantillano Cruz’s own fear of persecution. See Cordova, 759 F.3d at 339;
Crespin-Valladares, 632 F.3d at 127 n.6.
The record also unequivocally demonstrates that Cantillano Cruz knew about
Avila’s involvement with drugs and firearms trafficking as a result of her husband’s
communications with her. Although Cantillano Cruz could not verify that Avila knew
that Martinez had revealed this information to her, circumstantial evidence compels a
conclusion that Avila at least suspected that Cantillano Cruz had such knowledge based
on her marital relationship with Martinez.
This circumstantial evidence included the suspicious timing of the events
surrounding Avila’s threats. Martinez informed Cantillano Cruz just one week before he
left for his last “fishing trip” that he planned to stop working for Avila because of Avila’s
criminal activities. After Martinez disappeared, Avila’s threats against Cantillano Cruz
began. Cantillano Cruz testified repeatedly that Avila feared she would report “him” to
police, not simply that she would alert authorities about Martinez’s suspicious
disappearance. Additionally, Dr. Boerman opined that Cantillano Cruz was targeted
5
With respect to the threats against Martinez’s children, the IJ’s findings were
internally inconsistent. See Temu, 740 F.3d at 891-92. The IJ credited Cantillano Cruz’s
testimony, which included her repeated assertions that Avila threatened to harm her
children. However, the IJ also concluded that “the only other member” of Martinez’s
family who was threatened was Isaias.
13
because “Avila either knew or suspected that she had information about his criminal
activities.”
Without accounting for this extensive evidence, the BIA and the IJ essentially
required that Cantillano Cruz prove that Avila’s threats were based exclusively on her
status as Martinez’s wife. Such a requirement defies common sense.
In view of the above analytical deficiencies in the BIA’s and IJ’s reasoning, we
conclude that that the record compels a conclusion that Cantillano Cruz’s evidence
satisfied the statutory nexus requirement. She conclusively has demonstrated that she
was not threatened “for personal reasons or solely on general levels of crime and
violence,” as the BIA held. Instead, the record compels a finding that because of
Cantillano Cruz’s relationship with her husband, she was more likely than others to
search for him and to contact the police based both on her knowledge of Avila’s criminal
activities and her husband’s suspicious disappearance. Accordingly, we hold that any
reasonable adjudicator would have been compelled to conclude that Cantillano Cruz’s
membership in Martinez’s nuclear family was a central reason why she, and not another
person, repeatedly was persecuted by Avila over a two-year period. See Hernandez-
Avalos, 784 F.3d at 950. And, based on this determination, we further hold that the
BIA’s and IJ’s conclusion that Cantillano Cruz failed to establish the statutory nexus
requirement is manifestly contrary to law and an abuse of discretion. See id.
14
III.
In sum, we conclude that Cantillano Cruz established that any past persecution by
Avila was “on account of” her membership in the nuclear family of Martinez. We
therefore grant Cantillano Cruz’s petition for review, reverse the BIA’s determination
that she failed to meet the statutory nexus requirement, and remand the case to the BIA
for further proceedings regarding Cantillano Cruz’s requests for relief from removal. 6
PETITION FOR REVIEW GRANTED;
REMANDED FOR FURTHER PROCEEDINGS
6
Based on our conclusion, we do not address the question whether Cantillano
Cruz and her minor son separately have met the burden for CAT relief by demonstrating
it is more likely than not they would be tortured if returned to Honduras. See Ilunga v.
Holder, 777 F.3d 199, 214 n.5 (4th Cir. 2015). If the BIA declines to grant asylum or
withholding of removal on remand, the BIA should reconsider her CAT claim in a
manner consistent with the conclusions set forth in this opinion. See id.
15