Hernandez Alvear v. Garland

Case: 21-60954 Document: 00516531367 Page: 1 Date Filed: 11/02/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60954
FILED
November 2, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Maria Santos Hernandez Alvear; Maria Isabel
Hernandez Alvear,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A094-899-866, Agency No. A209-164-273
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Lead petitioner Maria Santos Hernandez Alvear and her minor
daughter Maria Isabel Hernandez Alvear seek review of a Board of
Immigration Appeals decision affirming the denial of the lead petitioner’s
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60954 Document: 00516531367 Page: 2 Date Filed: 11/02/2022
No. 21-60954
application for asylum and withholding of removal. We DENY the petition
for review.
Maria Santos Hernandez Alvear (“Hernandez Alvear”) and Maria
Isabel Hernandez Alvear, natives of Mexico, unlawfully entered the United
States on July 27, 2016. 1 The Department of Homeland Security (“DHS”)
served them with Notices to Appear charging them as subject to removal
pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Hernandez Alvear then applied
for asylum and withholding of removal.
In support of her application, Hernandez Alvear testified to the
following facts. Around May 2016, Hernandez Alvear’s brother, Heliodoro
Hernandez Alvear (“Heliodoro”), 2 was taking care of a relative’s cattle.
Members of the La Familia Michoacana (“La Familia”) drug cartel
approached Heliodoro and asked him for money. Heliodoro refused; some
time afterwards, La Familia members again approached Heliodoro, tried to
kill him, and threatened him by saying that La Familia would “finish with the
whole family” if he did not pay La Familia. Heliodoro did not report these
incidents to the police due to suspected police corruption. He then went into
hiding and, along with Hernandez Alvear, escaped to the U.S. Nine of
Hernandez Alvear’s siblings and her mother remain in Mexico.
Based on these facts, Hernandez Alvear applied for asylum and
withholding of removal based on her membership in the particular social
group (“PSG”) of the family of Heliodoro. The immigration judge (“IJ”)
denied Hernandez Alvear’s application. The IJ held that her proffered PSG
1
Maria Santos Hernandez Alvear is the lead petitioner, and Maria Isabel is her
minor daughter.
2
We use Heliodoro Hernandez Alvear’s first name for clarity without intending
any disrespect or familiarity.
2
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No. 21-60954
was not a cognizable social group and, even if said group were cognizable,
that Hernandez Alvear had not established the requisite nexus between (1)
the persecution suffered and feared and (2) her membership in her proffered
social group. The Board of Immigration Appeals (“BIA”) agreed and
dismissed Hernandez Alvear’s appeal. Hernandez Alvear timely filed a
petition for review.
We review the BIA’s factual findings, including a nexus
determination, under a substantial evidence standard and consider the IJ’s
decision only to the extent it influenced the BIA. Qorane v. Barr, 919 F.3d
904, 909 (5th Cir. 2019); Martinez Manzanares v. Barr, 925 F.3d 222, 226
(5th Cir. 2019). Under this standard, we reverse factual findings only when
the evidence is “so compelling that no reasonable fact finder could fail to find
the petitioner statutorily eligible for relief.” Qorane, 919 F. 3d at 909 (quoting
Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004)). We review the BIA’s legal
determinations de novo. Martinez Manzanares, 925 F.3d at 226.
“Under 8 U.S.C. § 1231(b)(3)(A), withholding of removal is a
mandatory form of relief if an alien’s life or freedom would be threatened in
the country of removal because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” Revencu v.
Sessions, 895 F.3d 396, 402 (5th Cir. 2018) (quoting Shaikh v. Holder, 588
F.3d 861, 864 (5th Cir. 2009)). The REAL ID Act further requires that an
applicant establish that at least one of these statutorily protected grounds
“was or will be at least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i). This nexus requirement necessitates that 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, 588 F.3d at 864 (internal quotations omitted).
3
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Thus, assuming arguendo that Hernandez Alvear has proffered a
cognizable PSG, she must show that her alleged protected trait—her
membership in her brother’s family—is a central reason for persecution. She
cannot make this showing for two reasons. 3
First, her familial membership is subordinate to another reason for La
Familia’s targeting of Hernandez Alvear: its desire to extort money from
Heliodoro. Per Hernandez Alvear’s testimony, the La Familia cartel
demanded money from Heliodoro when its members first approached him,
and the cartel continued to demand money from him afterwards. When
Heliodoro refused, La Familia attempted to “persuade” him using threats to
his family’s safety. These facts suggest that La Familia was motivated by its
criminal ends when it initially targeted Heliodoro for money. When he
refused to pay, La Familia subsequently threatened Heliodoro’s family
members as a threat to get him to do so; such threats were thus also made
primarily to further the same extortionary ends. See Ramirez-Mejia v. Lynch,
794 F.3d 485, 492–93 (5th Cir. 2015) (declining to find nexus because primary
purpose of threats to individual’s sister was to elicit information from
individual). Economic extortion is not a form of persecution under asylum
law. Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012). Thus,
although La Familia may have threatened Hernandez Alvear because threats
to family are often particularly effective, the BIA reasonably found that her
familial relationship is ultimately “subordinate” to the cartel’s ultimate
extortionary motive. Shaikh, 588 F.3d at 864. And such an extortionary
motive—while condemnable—is outside the scope of PSG protections.
3
Accordingly, we need not decide whether Hernandez Alvear’s proffered social
group is a cognizable PSG for asylum law purposes.
4
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Second, some of Hernandez Alvear’s family members continue to live
safely in Mexico. 4 While such a fact is not necessarily determinative standing
alone, it bolsters our finding of a lack of nexus. Vazquez-Guerra v. Garland, 7
F.4th 265, 270 (5th Cir. 2021) (citing Ramirez-Mejia, 794 F.3d at 493 (finding
“no persecution on account of family status where, inter alia, other members
of petitioner’s family, who have remained in her native country, have not
faced persecution on the basis of their membership in the family” (internal
quotations and alteration omitted))).
Given the extortionary motive as well as the continued safety of some
of Hernandez Alvear’s family members in Mexico, we cannot say that the
record compels a conclusion other than that La Familia was motivated by its
desire to extort money from Heliodoro. Id. Consequently, the record
suggests that a reasonable factfinder could find that Hernandez Alvear failed
to establish the requisite nexus showing that her proffered social group was
the central reason for the harm she experienced. Hernandez Alvear thus
cannot satisfy the standard for asylum eligibility. Because withholding for
removal eligibility is governed by a higher standard of proof, Hernandez
Alvear also necessarily fails to establish eligibility for withholding of removal.
See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
For the foregoing reasons, the petition for review is DENIED.
4
Although Hernandez Alvear testified that her mother “never goes out,”
presumably for fear of threats from La Familia, she does not suggest the same is true of her
nine siblings in Mexico.
5