Devora Cordova-Monson Demartinez v. Merrick Garland ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1387
DEVORA ROCSANA CORDOVA-MONSON DEMARTINEZ; BRANDONLEE
OSEAS MARTINEZ-CORDOVA,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: February 17, 2023 Decided: May 17, 2023
Before AGEE and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Petition granted; vacated and remanded by unpublished per curiam opinion. Judge Agee
dissents.
ON BRIEF: Nash Fayad, FAYAD LAW, P.C., Richmond, Virginia, for Petitioners.
Brian M. Boynton, Principal Deputy Assistant Attorney General, Bernard A. Joseph,
Senior Litigation Counsel, Rodolfo D. Saenz, 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Unpublished opinions are not binding precedent in this circuit.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:
Devora Rocsana Cordova-Monson Demartinez (Cordova-Monson) and her son,
natives and citizens of Guatemala, petition for review of an order of the Board of
Immigration Appeals (Board) dismissing their appeal from the Immigration Judge’s denial
of Cordova-Monson’s applications for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). For the reasons discussed below, we grant
the petition for review, vacate the Board’s order, and remand for further proceedings.
Cordova-Monson testified that she lived in this country illegally from 2003 to 2010.
During that time, her family in Guatemala experienced two incidents of extortion with gang
members. In 2008, her father was kidnapped, beaten, and held for ransom, which was paid
by one of her brothers. In 2009, a man approached Cordova-Monson’s mother and asked
for money in exchange for not kidnapping Cordova-Monson’s other son, which she paid.
After Cordova-Monson returned to Guatemala in 2010, she experienced three incidents
involving extortion. In June 2010, a man called her on the phone, identified
Cordova-Monson as “Devora,” and asked for money, telling her they were going to kidnap
her family, the ones she loved the most. Cordova-Monson paid this demand. In 2011, two
masked men approached Cordova-Monson outside a restaurant, held her at knifepoint, and
took 500 Quetzales from her purse which she had recently withdrawn from the bank. She
was too afraid to report this incident to police, fearing danger to her family because it was
known that gang members went after people who reported crimes to law enforcement. In
November 2015, gang members called Cordova-Monson on the phone and demanded
25,000 Quetzales, threatening to kill her if she failed to pay. She refused. The next day,
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the same person called and asked about the money, reminding her that she had a “big and
pretty family.” She refused again and the person again threatened to kill her. Cordova-
Monson told the caller she was tired of them because they’d already kidnapped her father
and she wanted to be free from them, ultimately asking for more time to pay but intending
to leave the country. She left Guatemala in December 2015. In June 2016, Cordova-
Monson’s son, who had previously been extorted and threatened with death, was shot at on
his way home from school, the four bullets hitting a car instead of him.
Cordova-Monson disputes the Board’s finding, dispositive of her asylum and
withholding of removal claims, that she failed to demonstrate the requisite nexus between
the harm she experienced and fears and a protected ground, in this case her membership in
the Cordova family and anti-gang political opinion.
A protected ground advanced by the applicant “must be at least one central reason
for the feared persecution but need not be the only reason.” Oliva v. Lynch, 807 F.3d 53,
59 (4th Cir. 2015) (internal quotation marks omitted). As we recently emphasized, “the
protected ground need not be the central reason or even a dominant central reason for the
applicant’s persecution. 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.” Perez Vasquez v. Garland, 4 F.4th 213, 221 (4th Cir. 2021) (citation
and internal quotation marks omitted); see also Arita-Deras v. Wilkinson, 990 F.3d 350,
360 (4th Cir. 2021) (same) (concluding that applicant was targeted on account of her
husband’s family because the gang threatened to kill her if her husband did not return to
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Honduras). “[P]ersecution may be on account of multiple central reasons or intertwined
central reasons.” Oliva, 807 F.3d at 60.
To establish nexus to a family-based social group, the applicant is “required to
demonstrate that the alleged persecution he experienced was on account of his membership
in his nuclear family, which means his membership in his family had to be at least one
central reason for the persecution.” Portillo Flores v. Garland, 3 F.4th 615, 631 (4th Cir.
2021) (en banc) (internal quotation marks omitted). Significant to the nexus analysis is
whether the applicant can show that membership in the advanced group is “why she, and
not another person,” was threatened with persecution. Hernandez-Avalos v. Lynch, 784
F.3d 944, 950 (4th Cir. 2015). “[T]he relevant analysis is not whether the applicant’s
family was persecuted because of a protected ground, but rather whether the applicant
himself was persecuted because of a protected ground.” Hernandez-Cartagena v. Barr,
977 F.3d 316, 320 (4th Cir. 2020); see Madrid-Montoya v. Garland, 52 F.4th 175, 181 (4th
Cir. 2022).
As the Supreme Court has explained, an applicant is not required to provide direct
proof of the persecutor’s motive, but, because motive is “critical,” the applicant “must
provide some evidence of it, direct or circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478,
483 (1992). Whether the applicant is seeking asylum or withholding of removal, she must
demonstrate “a nexus between threatened persecution and a protected status.”
Salgado-Sosa v. Sessions, 882 F.3d 451, 456-57 (4th Cir. 2018).
“Whether a person’s persecution shares a nexus with his alleged protected ground
is a question of fact entitled to deference and reviewed for clear error.” Cortez-Mendez v.
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Whitaker, 912 F.3d 205, 209 (4th Cir. 2019); see also Perez Vasquez, 4 F.4th at 221 (noting
that persecutor’s motivation is a “classic factual question” (internal quotation marks
omitted)). Our review of the Board’s “determination of this factual question is limited to
considering whether [the Board’s] conclusion is supported by reasonable, substantial, and
probative evidence.” Cortez-Mendez, 912 F.3d at 209 (internal quotation marks omitted);
see also Cruz v. Sessions, 853 F.3d 122, 128 (4th Cir. 2017) (same).
Upon review, we find that the Board’s conclusion that Cordova-Monson failed to
establish the requisite nexus to a protected ground is not supported by substantial evidence.
The record reflects that Cordova-Monson’s membership in the Cordova family was one
central reason why she was targeted by gangs, as evidenced by them calling her by her first
name, targeting her various family members, threatening to kidnap her other son, and
referencing her “big and pretty” family when extorting and threatening her. These facts
demonstrate that Cordova-Monson’s family membership was not a tangential, subordinate,
incidental or superficial reason for her persecution; rather, they show that she was targeted
because she was a Cordova family member. Cordova-Monson, and other members of the
Cordova family, had paid up before and, the gangs were betting, would do so again.
Similarly, the facts call into question the Board’s finding that Cordova-Monson
failed to qualify for CAT protection. See 8 C.F.R. § 1208.16(c)(2) (2022). The Board held
that Cordova-Monson fears private actors but failed to show that she, individually, is more
likely than not to suffer torture by, or at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity. We agree
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with Cordova-Monson that a more detailed analysis of her CAT claim is warranted. See 8
C.F.R. § 1208.18(a) (2022).
Accordingly, we grant the petition for review, vacate the Board’s order, and remand
for further proceedings consistent with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
PETITION GRANTED;
VACATED AND REMANDED
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AGEE, Circuit Judge, dissenting:
I would deny the petition for review. Substantial evidence supports the denial of
asylum and withholding of removal because Cordova-Monson failed to establish the
requisite nexus to a protected ground. Likewise, she did not meet her burden to qualify for
CAT protection.
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