Hilda Sanchez-Diaz v. Merrick Garland ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1348
HILDA ESTEL SANCHEZ-DIAZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 24, 2023 Decided: April 20, 2023
Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Remanded by unpublished per curiam opinion.
ARGUED: Abdoul Aziz Konare, KONARE LAW, Frederick, Maryland, for Petitioner.
Abigail Evelyn Leach, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant
Attorney General, Anthony C. Payne, Assistant Director, Liza S. Murcia, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Petitioner Hilda Estela Sanchez-Diaz entered the United States via Hidalgo, Texas,
in 2014. On June 11, 2015, the Department of Homeland Security commenced removal
proceedings against her, charging her with removability as an immigrant who, at the time
of application for admission, was not in possession of valid travel documents, in violation
of the Immigration and Nationality Act (INA) § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). In November 2016, Sanchez-Diaz, through her attorney, admitted
to this charge and conceded removability before an immigration judge (IJ). She then
applied for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). She submitted that, after she erased MS-13 gang graffiti from the outside
wall of her home, gang members began extorting and threatening her. She asserted that
the gang’s threats and extortion were retribution for her perceived anti-gang political
opinion. Additionally, she contended that she possessed a well-founded fear of future
persecution based on her membership in a particular social group consisting of her mother’s
family members.
On March 18, 2019, the IJ found Sanchez-Diaz removable as charged and denied
her application for asylum, withholding of removal, and CAT protection. It found that
Sanchez-Diaz did not allege past persecution or a well-founded fear of future persecution
on a protected ground. Rather, it explained, MS-13 only sought to extort money from her
to enhance its financial status. As a result, the IJ concluded that she did not qualify for
asylum or withholding of removal. It also denied CAT relief, explaining that the record
did not demonstrate that she would more likely than not experience torture with the consent
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or acquiescence of a Salvadoran official if she returned to El Salvador. Sanchez-Diaz
appealed this decision, and on March 10, 2021, the BIA affirmed the IJ’s decision and
dismissed the appeal. Like the IJ, the BIA explained that Sanchez-Diaz did not
demonstrate past persecution or a well-founded fear of future persecution on account of an
anti-gang political opinion or family membership. Further, it agreed with the IJ that
Sanchez-Diaz did not establish that she would more likely than not experience torture with
the acquiescence of a Salvadoran government official. It added that Sanchez-Diaz never
reported MS-13’s threats to the Salvadoran police, and therefore, “[t]here [was] insufficient
evidence [that] the authorities knew of or turned a blind eye to the gang’s criminal activities
perpetrated against [her].” A.R. 4.
Sanchez-Diaz timely sought this Court’s review of the BIA and IJ’s decisions. On
August 10, 2021, the government moved to remand the case to the BIA. It did not concede
error on the agency’s part, instead arguing only that remand would provide the BIA an
opportunity to better explain its findings. Sanchez-Diaz opposed the motion, contending
that the Court should permit the parties to fully brief and argue the appeal. We
subsequently denied the motion.
Now, Sanchez-Diaz asks us to reverse and remand the agency’s final order of
removal. She asserts that the BIA and IJ erred in denying her application for asylum,
withholding of removal, and CAT relief, and she requests that we vacate these decisions
and remand for further proceedings. For its part, the government—without confessing
error—again asks that the Court remand the case to the BIA for more detailed analysis and
explanation of its decision “in light of intervening precedent.” Resp. Br. 21. First, it argues
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that remand is warranted for the BIA to clarify and further explain its finding that Sanchez-
Diaz did not demonstrate a well-founded fear of future harm on account of her family
membership. Resp. Br. 22. It continues that remand would also enable the BIA to apply
Perez Vasquez v. Garland, 4 F.4th 213 (4th Cir. 2021), and Toledo-Vasquez v. Garland,
27 F.4th 281 (4th Cir. 2022), which we published after the BIA’s decision in this matter.
Resp. Br. 22–26. Both cases help to clarify the nexus analysis for family-based
persecution. Second, the government also asserts that the remand would permit the BIA
to further analyze and explain its conclusion that Sanchez-Diaz did not demonstrate that
MS-13 gang members threatened and extorted her on account of her actual or imputed anti-
gang political opinion. Resp. Br. 27. Third, it asserts that remand would enable the BIA
to further explain its denial of CAT relief on the ground that Sanchez-Diaz did not establish
that she would more likely than not be tortured by or with the acquiescence of a Salvadoran
government official if removed to El Salvador. Resp. Br. 31. In particular, it explains,
remand would allow the BIA an opportunity to address this Court’s intervening decision
in Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc). There, in relevant
part, we rejected a per se requirement that a petitioner seek police assistance to be eligible
for asylum. Portillo Flores, 3 F.4th at 636.
As a general matter, when the BIA errs, “the proper course . . . is to remand to the
agency for additional investigation or explanation.” INS v. Orlando Ventura, 537 U.S. 12,
16 (2002) (per curiam) (quotation omitted). And, although the government does not
concede agency error, the proper course in this instance is to remand to allow the agency
additional opportunity to analyze and clarify the issues. See id. at 16–17 (“Generally
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speaking, a court of appeals should remand a case to an agency for decision of a matter that
statutes place primarily in agency hands. This principle has obvious importance in the
immigration context.”); SKF USA Inc. v. United States, 254 F.3d 1022, 1028–29 (Fed. Cir.
2001) (describing remand as “generally required” when an intervening event may affect
the validity of an agency action and “usually appropriate” when an agency does not
concede error but nevertheless has a “substantial and legitimate” concern). After
considering the parties’ submissions and hearing oral argument in this matter, we remand
to the BIA for further consideration and analysis of Sanchez-Diaz’s asylum, withholding,
and CAT claims.
REMANDED
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