Hilda Sanchez-Diaz v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 20, 2023
• Docket: 21-1348
• Status: Unpublished

Opinion

USCA4 Appeal: 21-1348 Doc: 36 Filed: 04/20/2023 Pg: 1 of 5

UNPUBLISHED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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-1348 Doc: 36 Filed: 04/20/2023 Pg: 2 of 5

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

2 USCA4 Appeal: 21-1348 Doc: 36 Filed: 04/20/2023 Pg: 3 of 5

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

3 USCA4 Appeal: 21-1348 Doc: 36 Filed: 04/20/2023 Pg: 4 of 5

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

4 USCA4 Appeal: 21-1348 Doc: 36 Filed: 04/20/2023 Pg: 5 of 5

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