Jessica Murillo-Oliva v. Merrick B. Garland

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0436n.06
No. 21-3062
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Oct 26, 2022
) DEBORAH S. HUNT, Clerk
JESSICA ROSMERY MURILLO-OLIVA, )
)
Petitioner, ON PETITION FOR REVIEW
)
OF AN ORDER OF THE
)
v. BOARD OF IMMIGRATION
)
APPEALS
MERRICK B. GARLAND, Attorney General, )
)
Respondent. OPINION
)
)
Before: SUTTON, Chief Judge; BOGGS and KETHLEDGE, Circuit Judges.
BOGGS, Circuit Judge. In February 2014, two years after the gruesome killing of her
cousin in Honduras, Jessica Murillo-Oliva illegally entered the United States. She applied for asy-
lum and withholding of removal, claiming that she feared persecution as a member of a particular
social group (PSG) consisting of “females from Honduras whose family members have been
threatened or harmed by the gangs.” An immigration judge (IJ) denied her applications, and the
Board of Immigration Appeals (BIA) dismissed her appeal. The agency rejected Murillo-Oliva’s
proposed group under the Immigration and Nationality Act, a decision that Murillo-Oliva argues
is inconsistent with two recent decisions by the Attorney General. But the agency also found that
Murillo-Oliva failed to prove that she would be persecuted in Honduras because she was a female
family member of a victim of gang violence—the nexus requirement. Substantial evidence sup-
ports this second part of the agency’s decision, making a remand futile. Accordingly, we deny the
petition for review.
No. 21-3062, Murillo-Oliva v. Garland
I. BACKGROUND
A. Facts
Late in the summer of 2012, Luis Omar Garcia went missing. He had been living with the
family of his cousin, Jessica Murillo-Oliva, who was fourteen years old at the time, in Olancho,
Honduras. Before Garcia disappeared, he had taken care of a friend or colleague’s house and vis-
ited frequently, only to stop visiting, which Murillo-Oliva and her family found strange. When
Garcia went missing, Murillo-Oliva’s family thought that he might have gone somewhere else to
preach, as he had done in the past, but people in the community had not seen him.
Weeks later, the family found out through the news that Garcia was dead. According to
Murillo-Oliva, “you couldn’t recognize his face, blood was smeared on the walls, and his clothing
was just thrown on the floor.” The family reported Garcia’s killing to the authorities, but Murillo-
Oliva does not know whether they investigated and never found out who killed him. Soon after
Garcia’s death, Murillo-Oliva and her family relocated within Honduras. They did not experience
any threats or harassment at their new location.
Two years later, in February 2014, Murillo-Oliva illegally entered the United States at or
near Hidalgo, Texas.
B. Agency Proceedings
On February 28, 2014, DHS served a Notice to Appear on Murillo-Oliva, charging her with
inadmissibility. On September 28, 2015, at a hearing before an IJ, Murillo-Oliva conceded the
charge. That same day, she applied for asylum and withholding of removal.
On October 29, 2018, Murillo-Oliva appeared before an IJ in Memphis, Tennessee, where
she testified that she came to the United States because of her cousin’s killing. She was afraid that
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she, too, would be killed because “even if you don’t have any problems with someone else, [the
gangs] could do something to you.” Murillo-Oliva also stated that she thought that “maybe they
would either rape me and then they would kill me,” because “that’s what they do in Honduras,”
adding that “[y]ou couldn’t even go out at night anymore” because there are gang members in the
street.
The IJ found Murillo-Oliva to be credible, but decided that she had established neither past
persecution nor a well-founded fear of future persecution. The IJ rejected Murillo-Oliva’s proposed
particular social group, “females from Honduras whose family members have been threatened or
harmed by the gangs,” as insufficiently particular on the ground that Murillo-Oliva had failed to
establish which family members—hers or her cousin’s—her PSG encompassed.
The IJ also found that Murillo-Oliva had failed to establish a nexus between the harm she
feared and her membership in her proposed PSG. The IJ found no evidence that Garcia was killed
because of his family membership, and no evidence that there was any animus against Murillo-
Oliva because of her family-member circle. The IJ also concluded that Murillo-Oliva had failed to
establish that she could not reasonably relocate within Honduras. Accordingly, the IJ ordered Mu-
rillo-Oliva removed.
Murillo-Oliva appealed to the BIA, which dismissed her appeal on December 23, 2020.
The BIA agreed with the IJ that Murillo-Oliva’s proposed PSG was insufficiently particular and
not clearly defined. The BIA also affirmed the IJ’s conclusion on nexus, finding that Murillo-Oliva
had not identified any evidence that she would be harmed on account of her family membership
or relationship to her cousin. Finally, the BIA concurred with the IJ’s ruling on the possibility of
internal relocation.
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C. The Attorney General’s Vacaturs
Since the BIA’s decision in this case, Attorney General Garland has vacated two Trump-
administration decisions that had substantially limited PSG-based asylum claims. See Matter of L-
E-A-, 28 I. & N. Dec. 304 (AG 2021) (L-E-A- II); Matter of A-B-, 28 I. & N. Dec. 307 (AG 2021)
(A-B- III).
The first vacatur concerned family-based PSGs. In Matter of L-E-A-, Attorney General Barr
overruled a BIA decision that had recognized the immediate family of an applicant’s father as a
PSG. 27 I. & N. Dec. 581, 581 (AG 2019) (L-E-A- I). Despite Attorney General Barr’s acknowl-
edgment that several courts of appeals had recognized family-based social groups, L-E-A- I ruled
that “most nuclear families are not inherently socially distinct and therefore do not qualify as ‘par-
ticular social groups.’” Id. at 589. On June 16, 2021, Attorney General Garland directed that IJs
and the BIA should no longer follow L-E-A- I pending an ongoing rulemaking on the definition of
PSG. L-E-A- II, 28 I. & N. Dec. at 304.
The second vacatur dealt with PSGs based on non-governmental conduct. In Matter of A-
B-, 27 I. & N. Dec. 316 (AG 2018) (A-B- I), and Matter of A-B-, 28 I. & N. Dec. 199 (AG 2021)
(A-B- II), Attorney General Sessions and subsequently Acting Attorney General Rosen reviewed a
BIA decision concerning a proposed PSG of “Salvadoran women who are unable to leave their
domestic relationships where they have children in common with their partners.” A-B- I overruled
the BIA’s earlier decision in Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), which had
recognized as a PSG “married women in Guatemala who are unable to leave their relationship.”
27 I. & N. Dec. at 319. A-B- I also appeared to hold that victims of private criminal activity were
presumptively ineligible for asylum. See id. at 317, 320. A-B- II reaffirmed and clarified A-B- I’s
conclusions regarding the cognizability of private persecution that the government is “unable or
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No. 21-3062, Murillo-Oliva v. Garland
unwilling to control.” A-B- II, 28 I & N. Dec. at 200–07. On June 16, 2021, Attorney General
Garland directed that IJs and the BIA should no longer follow A-B- I or A-B- II pending forthcom-
ing rulemaking. A-B- III, 28 I. & N. Dec. at 307.
II. ANALYSIS
A. Legal Framework
This court reviews the BIA’s separate opinion as the final agency determination, but also
considers the IJ’s reasoning where the BIA has adopted it. Khalili v. Holder, 557 F.3d 429, 435
(6th Cir. 2009). We review de novo the agency’s legal determinations, such as the question of
whether a particular social group is cognizable under the INA. Sanchez-Robles v. Lynch, 808 F.3d
688, 692 (6th Cir. 2015). We review the agency’s factual determinations, such as the finding of a
nexus between persecution and a protected ground, under the substantial-evidence standard. See
Zometa-Orellana v. Garland, 19 F.4th 970, 976, 977–78 (6th Cir. 2021). Under that standard, we
may reverse only when the evidence “not only supports a contrary conclusion, but indeed compels
it.” Mandebvu v. Holder, 755 F.3d 417, 424 (6th Cir. 2014) (quoting Yu v. Ashcroft, 364 F.3d 700,
702–03 (6th Cir. 2004)).
To obtain asylum, Murillo-Oliva must prove that she is “unable or unwilling” to return to
Honduras “because of persecution or a well-founded fear of persecution on account of . . . mem-
bership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A). To qualify for withholding, she
must establish that her “life or freedom would be threatened” in Honduras “because of” her mem-
bership in a “particular social group.” 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 1208.13(b).
Murillo-Oliva’s burden of proof differs for her asylum and withholding-of-removal claims.
One difference concerns the required likelihood of future persecution. For asylum, she must prove
either past persecution or a well-founded fear of future persecution, which requires her to show a
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“reasonable possibility” that she will suffer persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. §
1208.13(b)(2)(i)(B); Pilica v. Ashcroft, 388 F.3d 941, 950–51 (6th Cir. 2004). Her burden is higher
for withholding: she must prove a “clear probability” of future persecution. Al-Ghorbani v. Holder,
585 F.3d 980, 993–94 (6th Cir. 2009) (quoting INS v. Stevic, 467 U.S. 407, 413 (1984)). Another
distinction is that, whereas asylum applicants must show that a protected ground is “at least one
central reason” for persecution, 8 U.S.C. § 1158(b)(1)(B)(i), withholding applicants need only
show that a protected ground is “a reason” for persecution, § 1231(b)(3)(C); Guzman-Vazquez v.
Barr, 959 F.3d 253, 272 (6th Cir. 2020).
But to receive either kind of relief, Murillo-Oliva must prove (1) that she is a member of a
particular social group and (2) that she fears persecution because of her membership in that group.
See, e.g., Bi Xia Qu v. Holder, 618 F.3d 602, 606–08 (6th Cir. 2010) (engaging in a two-step anal-
ysis for asylum); Al-Ghorbani, 585 F.3d at 994 (same for withholding of removal).
In this case, the second step—nexus—is “where the rubber meets the road.” See Cece v.
Holder, 733 F.3d 662, 673 (7th Cir. 2013). The agency’s determination that Murillo-Oliva failed
to establish nexus is supported by substantial evidence. Accordingly, we affirm the BIA’s decision
and deny Murillo-Oliva’s petition for review without reaching the question of whether her claimed
social group is cognizable.
B. Nexus
To satisfy the nexus requirement, Murillo-Oliva must establish that she is likely to be per-
secuted, at least in part, because of her membership in her claimed social group. See Bi Xia Qu,
618 F.3d at 608. Pointing to widespread gang violence alone is insufficient. See Umana-Ramos v.
Holder, 724 F.3d 667, 671 (6th Cir. 2013) (citing Gomez-Romero v. Holder, 475 F. App’x 621, 624
(6th Cir. 2012)). Instead, Murillo-Oliva must connect the persecution that she fears to her
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membership in her claimed social group. Cruz-Guzman v. Barr, 920 F.3d 1033, 1037 (6th Cir.
2019). We may reverse the agency’s decision only if Murillo-Oliva has provided proof—direct or
circumstantial—that compels the conclusion that the gangs are likely to persecute her because she
is a female from Honduras whose family members have been threatened or harmed by the gangs.
See id.; INS v. Elias-Zacharias, 502 U.S. 478, 483 (1992).
Substantial evidence supports the agency’s finding on nexus. The record contains little di-
rect or circumstantial evidence that supports Murillo-Oliva’s claim that she will be targeted be-
cause of her relationship to her cousin. Murillo-Oliva does not know who killed Garcia, and neither
she nor other members of her family were harmed or threatened by the gangs in the two years after
Garcia’s death during which they remained in Honduras. Indeed, Murillo-Oliva’s testimony sug-
gests that she fears generalized gang violence and violence against women in Honduras rather than
persecution as a female family member of a victim of gang violence.
Murillo-Oliva’s brief on appeal suggests that her situation represents a mixed-motive case,
and that she fears persecution both because of her cousin’s killing and because of her status as a
woman. It is true that Murillo-Oliva need not show that she fears persecution based on her group
membership alone. See Bi Xia Qu, 618 F.3d at 608; Guzman-Vazquez, 959 F.3d at 270. But Murillo-
Oliva cannot dodge the nexus requirement by breaking up her proposed social group into its con-
stituent elements, without claiming that either of those elements—her cousin’s killing or her status
as a woman—independently entitles her to protection under the INA. She must show that she is
likely to be persecuted because she is a member of her claimed social group, the statutory ground
upon which she relies for relief. See Al-Ghorbani, 585 F.3d at 994–98. Substantial evidence sup-
ports the agency’s conclusion that she has not satisfied the nexus requirement.
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C. Futility of Remand
Because the record does not compel the conclusion that Murillo-Oliva is likely to be per-
secuted because of her membership in her claimed social group, we need not remand for consid-
eration of whether her proposed group is cognizable.
In general, when a reviewing court concludes that the agency has failed to consider a legal
issue, “the proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007) (quoting
Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam)); see also Xin Mao Wu v. Gonzales,
214 F. App’x 592, 595 (6th Cir. 2007) (per curiam) (citing Orlando Ventura, 537 U.S. 12, 16–17
(2002)). Accordingly, if a decision on which the agency relied has been vacated or abrogated, this
change in law “counsels remand.” Zometa-Orellana, 19 F.4th at 979 (quoting Antonio v. Barr, 959
F.3d 778, 790 n.3 (6th Cir. 2020)). This court has remanded other cases to the BIA following the
two vacaturs that Murillo-Oliva cites in her briefs. See id.; Corea v. Garland, 860 F. App’x 397
(6th Cir. 2021); Palma-Ulloa v. Garland, 854 F. App’x 42 (6th Cir. 2021). In Zometa-Orellana, we
also suggested that changes in the agency’s interpretation of “particular social group” might affect
the nexus analysis. 19 F.4th at 979 (“And to the extent that [the agency’s] analysis regarding a
particular social group changes on remand, it should then reassess the nexus requirement.”).
But remand is not required where it would be futile. Karimijanaki v. Holder, 579 F.3d 710,
721 (6th Cir. 2009) (citing Chen v. United States, 471 F.3d 315, 339 (2d Cir. 2006)). More con-
cretely, in cases where applicants had failed to establish nexus, this court and others have declined
to decide whether a particular social group was cognizable and refused to remand to the agency
for that purpose. See Santana v. Lynch, 627 F. App’x 447, 451 (6th Cir. 2015); Kanagu v. Holder,
781 F.3d 912, 919 (8th Cir. 2015); Gjura v. Holder, 502 F. App’x 91, 92 (2d Cir. 2012).
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Here, though the Attorney General’s vacaturs arguably affect the cognizability of Murillo-
Oliva’s claimed social group, they do not change the agency’s nexus analysis and cannot lead to a
different outcome on remand. For example, Murillo-Oliva could have argued that the BIA relied
on L-E-A- I in dismissing Murillo-Oliva’s family-based group as insufficiently particular or that
the IJ relied on A-B- I in dismissing her fear of harm by non-governmental actors.1 But both the
BIA and the IJ analyzed nexus separately, apparently assuming, arguendo, that her group was cog-
nizable. Because the agency’s denial of relief rested on a ground independent of the cognizability
of Murillo-Oliva’s social group, a remand to the agency would be futile.
Zometa-Orellana is distinguishable. There, the BIA more explicitly relied on A-B- I by
categorically excluding victims of non-governmental actors from relief. Zometa-Orellana, 19 F.4th
at 978. Crucially, the court also found that the IJ and BIA’s determination that the nexus require-
ment had not been met “relied on their conclusion that there was no cognizable social group.” Id.
at 978. In other cases that this court has remanded to the agency, the BIA had similarly expressly
and repeatedly relied on the now-overruled decisions. See Corea, 860 F. App’x at 401; Palma-
Ulloa, 854 F. App’x at 43.
No such reliance is apparent from the record in this case. Neither the IJ nor the BIA men-
tioned A-B- I or L-E-A- I in their decisions or suggested that claims based on family membership
or harm by non-governmental actors were presumptively not cognizable. On the contrary, the IJ,
whose decision predated L-E-A- I, expressly acknowledged that family-based groups were
1
Murillo-Oliva does not make these arguments. She argues only that the vacaturs impact her eli-
gibility for relief, not that the agency relied on the vacated decisions. The IJ, at least, could not
have relied on L-E-A- I or A-B- II, which postdated its decision. While the legal addendum ap-
pended as an exhibit to the IJ’s decision does refer to A-B- I, that addendum does not characterize
that decision as changing the law.
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cognizable. Unlike in Zometa-Orellana, there is also no indication that the agency’s assessment of
Murillo-Oliva’s proposed group colored its nexus analysis.
III. CONCLUSION
A remand to the agency cannot change the outcome in this case. Even if Murillo-Oliva’s
proposed group—“females from Honduras whose family members have been threatened or
harmed by the gangs”—were cognizable under post-vacatur law, the agency’s findings on nexus
would still prevent her from obtaining asylum or withholding of removal.
The petition for review is DENIED.
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