Irias-Amaya v. Garland ( 2023 )

Case: 22-60179 Document: 00516737174 Page: 1 Date Filed: 05/03/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
May 3, 2023
No. 22-60179 Lyle W. Cayce
____________ Clerk
Merlyn Roxana Irias-Amaya; Wilmer Astul Irias-Amaya,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Appeal from the Board of Immigration Appeals
Agency Nos. A206 444 380,
A206 444 381
______________________________
Before Clement, Graves, and Higginson, Circuit Judges.
Per Curiam: *
Merlyn Roxana Irias-Amaya and Wilmer Astul Irias-Amaya, siblings
who are natives and citizens of Honduras, timely petition this court for
review of a BIA decision denying asylum and withholding of removal. The
petition is DENIED in part and DISMISSED in part.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60179 Document: 00516737174 Page: 2 Date Filed: 05/03/2023
No. 22-60179
Standard of Review
On petition for review of a BIA decision, this court reviews factual
findings for substantial evidence and questions of law de novo. Lopez-Gomez
v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). The substantial evidence
standard applies to review of decisions denying asylum and withholding of
removal. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). “We review
the BIA’s findings of facts under the substantial evidence standard, which
requires that the decision of the BIA be based on the evidence presented and
that the decision be substantially reasonable.” Orellana-Monson v. Holder,
685 F.3d 511, 517–18 (5th Cir. 2012). Under this standard, reversal is
improper unless the evidence compels a contrary conclusion. Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). “The petitioner has ‘the
burden of showing that the evidence is so compelling that no reasonable
factfinder could reach a contrary conclusion.’” Orellana-Monson, 685 F.3d at
518 (quoting Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.2006)). Normally,
this court looks only to the BIA’s decision but when the BIA adopts the IJ’s
decision, without assigning reasons, as it did here, this court reviews the IJ’s
decision. Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006).
Discussion
To qualify for asylum, an applicant must demonstrate “either past
persecution or a reasonable, well-founded fear of future persecution on
account of” race, religion, nationality, membership in a particular social
group, or political opinion. Milat v. Holder, 755 F.3d 354, 360 (5th Cir. 2014);
see also 8 U.S.C. § 1101(a)(42)(A). Here, the IJ found that Merlyn was
persecuted in the past, but that Wilmer was not and that neither faced harm
on account of a protected ground. Both siblings argue that they were
persecuted on account of a membership in a particular social group,
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specifically, their family. 1 The proposed particular social group must be “at
least one central reason” for the alleged persecution. 8 U.S.C. §
1158(b)(1)(B)(i). The IJ found that the siblings failed to establish a nexus
between the siblings’ claims of persecution and their membership in their
family group.
1. Merlyn Irias Amaya’s Asylum Claim
Merlyn Irias-Amaya testified that her uncle tried to sexually abuse her
on several occasions when she was around 11 years old. She told her
grandmother and parents about the attempted abuse, and, as a result, she
never saw this uncle again. Additionally, Merlyn testified that when she was
12 or 13 years old, she was robbed by “[d]elinquents” while she was on her
way to school. 2
Merlyn Irias-Amaya does not offer a compelling argument that her
family was a central reason for her persecution. The IJ found that Merlyn
failed to show why she was abused and noted that the record showed that
other family members intervened to protect her. Merlyn now argues that the
persecution only happened because of her family relationship, and while “a
statutorily protected ground need not be the only reason for harm, it cannot
be incidental, tangential, superficial, or subordinate to another reason for
harm.” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (internal
quotations omitted). “A protected ground will likely be incidental when it is
but a means to an ultimate, unprotected end.” Berrios-Bruno v. Garland, No.
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1
Before the IJ, the siblings also argued that they were persecuted on account of
their memberships in groups of “young Honduran females” and “young Honduran
male[s].” Because they do not raise this argument on appeal, we need not consider it.
2
Merlyn offers no explanation why being robbed would entitle her to asylum.
3
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No. 22-60179
18-60276, 2021 WL 3624766, at *4 (5th Cir. Aug. 16, 2021) (citing Ramirez-
Mejia v. Lynch, 794 F.3d 485, 492 (5th Cir. 2015)).
The IJ concluded that the assault likely happened because Merlyn was
young and vulnerable and not because of any animosity her uncle held against
the family. Merlyn offers no legitimate argument against the finding except
for the conclusory statement that “[w]ere it not for that blood relation, [she]
would likely never have been persecuted.” This, however, is neither
sufficient nor evidence. There is no evidence in the record that the IJ’s
conclusion was not substantially reasonable, and, in fact, the only evidence
available is that the threatened abuse stopped when Merlyn informed her
parents and grandparents. Merlyn therefore fails to connect any past or future
persecution to any protected grounds. The IJ’s conclusion was substantially
reasonable.
2. Wilmer Irias-Amaya’s Asylum Claim
Wilmer argues that he experienced past persecution based on his
cousin threatening to kidnap him. Wilmer fails to show why this kidnapping
attempt was connected to the membership in his family as opposed to being
incidental, tangential, superficial, or subordinate to another reason for harm.
Wilmer, therefore, was not subject to past persecution.
Additionally, Wilmer testified that he never saw his cousin again after
this kidnapping attempt. The IJ found that there was no “reason to think that
the cousin gang member who grabbed [Wilmer] and threatened him with
kidnapping, and who lived elsewhere, would cause [Wilmer] any problems if
he were to return from Honduras.” Wilmer fails to show any problems if he
were to return to Honduras. Because of these reasons, the IJ’s conclusion was
substantially reasonable.
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3. Withholding of Removal
The Irias-Amaya siblings’ withholding of removal claims fails because
asylum is not established. Dayo v. Holder, 687 F.3d 653, 658 n3, 658–59 (5th
Cir. 2012). The siblings now argue that the standards for establishing nexus
have been relaxed for withholding claims. This argument is foreclosed by our
precedent. Vazquez-Guerra v. Garland, 7 F.4th 265, 271 (5th Cir. 2021).
Conclusion
The petition for review is DENIED in part and DISMISSED in
part. 3
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3
The BIA decision also denied CAT protection, but Petitioners fail to brief this
claim and it is waived. Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
5