PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-1954
SONIA ARACELI PEREZ VASQUEZ; J.S.G.P.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: March 11, 2021 Decided: July 9, 2021
Before KING, WYNN, and HARRIS, Circuit Judges.
Petition for review granted in part and dismissed in part, and remand awarded by published opinion. Judge Wynn wrote the opinion, in which Judge King and Judge Harris joined.
ARGUED: Jonathan Westreich, WESTREICH LAW, Alexandria, Virginia, for Petitioners. Margot Lynne Carter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. WYNN, Circuit Judge:
Sonia Araceli Perez Vasquez (“Petitioner”) and her minor daughter, natives and
citizens of Honduras, appeal from the Board of Immigration Appeals’ final order affirming
the denial of their application for asylum, withholding of removal, and protection under
the Convention Against Torture. 1 The central issue on appeal is whether the immigration
judge and the Board of Immigration Appeals erred in concluding that Petitioner failed to
demonstrate that she was persecuted on account of her membership in her proposed
particular social group, namely her nuclear family.
For the reasons explained below, we answer that question in the affirmative.
Accordingly, we grant the petition in part and remand for further proceedings.
I.
A.
In June 2016, Petitioner was living with her eleven-year-old daughter and her
parents in Villanueva, Honduras. 2 Early that month, a young man called Petitioner; claimed
to “represent[] a gang group”; and demanded that she begin paying the gang a monthly fee
of 1,000 lempiras (roughly $43.00). A.R. 226. 3 The man informed Petitioner that the gang,
1 Because Sonia Araceli Perez Vasquez is the lead applicant/petitioner in this case, our opinion focuses on her claims. 2 “We detail th[e] [relevant] events as [Petitioner] described them in [her affidavit and] testimony, an account that the [immigration judge] found credible and that the [Board of Immigration Appeals] did not dispute.” Crespin-Valladares v. Holder, 632 F.3d 117, 119– 20 (4th Cir. 2011); see also 8 C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”). 3 Citations to “A.R. _” refer to the Administrative Record filed by the parties in this appeal.
2 which is unspecified in the record, was aware that she traveled to San Pedro Sula every
month to withdraw money that her common-law husband sent to her from the United
States. The man also told Petitioner that the gang knew where she lived and what school
her daughter attended, and he warned her that the gang would kill them both if Petitioner
did not comply with the gang’s demand for monthly payments.
True to the young man’s word, at the end of June and every month that followed,
gang members came to Petitioner’s house with “guns and caps that almost covered their
eyes” to collect the extortion fee. Id. On every visit, the gang members “threaten[ed]
[Petitioner] and brandish[ed] their guns,” reminding her that she “knew what was going to
happen to [her and her] daughter if [she] did not pay them or obey their demands.” Id.
Indeed, she did know—she averred that she was aware of other individuals the gang had
killed as an “example” after they failed to pay. A.R. 227. The gang also warned Petitioner
that if she “said something to anyone” or “made a complaint,” “they would kill [her] and
[her] daughter.” A.R. 72, 74.
Despite the gang’s warnings, Petitioner made a report to the police, but the police
never took any action. So, fearful for her and her daughter’s safety, Petitioner paid the
extortion fee to the gang for five months, with her husband sending her the demanded 1,000
lempiras every month. During those five months, Petitioner “was unable to sleep,”
“suffered from nightmares and depression,” and became “so terrified” for her daughter’s
safety that she took her out of school. A.R. 226–27.
While Petitioner believed that paying the gang’s fee was the only thing that would
“stop [the gang] from hurting [her] and [her] daughter,” her ability to pay it rested
3 precariously on conduct largely beyond her control—her husband continuing to send her
enough money to pay the fee every month. A.R. 226. She feared that one day her husband
might be unable to do so, and that she would not be able to meet the gang’s demands.
Petitioner eventually fled Honduras with her daughter. In November 2016, six months after
she was initially approached by the gang, Petitioner and her daughter arrived in the United
States and applied for admission at the port of entry in El Paso, Texas.
B.
Because Petitioner did not possess valid entry documents at the time of entry, the
Government issued a Notice to Appear and instituted removal proceedings against her.
Petitioner conceded removability as charged, but she applied for asylum, withholding of
removal, and protection under the Convention Against Torture.
In her application (Form I-589), Petitioner relayed the account summarized above
and described that she was “certain that [the gang members] [we]re looking for [her], and
[that] if [she] returned they would find [her] and hurt . . . or kill [her].” A.R. 219. Her
application indicated that she was seeking asylum and withholding of removal based on
political opinion and membership in a particular social group. At the individual hearing,
however, Petitioner (through her counsel) decided not to pursue a political-opinion claim.
She instead relied solely on her membership in a particular social group, which she defined
as her nuclear family comprised of herself, her husband, and her daughter.
Though the immigration judge fully credited Petitioner’s testimony, he nevertheless
denied all of her claims for relief and ordered that she and her daughter be removed to
Honduras. Regarding her claims for asylum and withholding of removal, the immigration
4 judge found that Petitioner’s nuclear family was a cognizable particular social group, and
that she had established her membership in that group. However, the immigration judge
held that Petitioner had failed to prove that she suffered persecution—i.e., the gang’s
extortion demands and death threats—on account of her membership in the proposed
particular social group. Curiously, he reached that conclusion despite expressly
acknowledging that it was “probably true” that “but for [Petitioner’s] husband being in the
United States and sending money back, she would not likely have been targeted or
threatened.” A.R. 49 (emphasis added). The immigration judge also denied Petitioner’s
claim under the Convention Against Torture.
On appeal to the Board of Immigration Appeals, Petitioner challenged the
immigration judge’s finding that she had failed to demonstrate a causal connection between
her membership in her nuclear family and the persecution she suffered. She also raised two
additional particular social groups for the first time—her “[e]xtended family” and
“[m]embers of [a] nuclear family opposed to gangs.” A.R. 15. Finally, Petitioner
challenged the immigration court’s jurisdiction based on the Supreme Court’s intervening
decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018).
The Board of Immigration Appeals denied all of Petitioner’s claims for relief and
dismissed her appeal in an unpublished opinion issued by a single member. Specifically, it
affirmed the immigration judge’s determination that Petitioner had failed to show that she
was persecuted because of her membership in her nuclear family. Citing its precedent,
including Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018), the Board of
Immigration Appeals declined to consider the two new particular social groups that
5 Petitioner raised for the first time on appeal. 4 Furthermore, it held that Petitioner had failed
to “meaningfully challenge” the immigration judge’s denial of her claim under the
Convention Against Torture and thus deemed the issue waived. A.R. 3 n.2. Finally, the
Board of Immigration Appeals rejected Petitioner’s jurisdictional challenge under Pereira.
Petitioner timely petitioned for this Court’s review.
II.
Where, as here, the Board of Immigration Appeals has adopted and supplemented
an immigration judge’s decision, we review both decisions. Hernandez-Cartagena v. Barr,
977 F.3d 316, 319 (4th Cir. 2020). We review factual findings for substantial evidence,
treating them as conclusive “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Chen v. Holder, 742 F.3d 171, 178 (4th Cir.), as amended (May
30, 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). Legal determinations are reviewed de novo.
Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). Further, single-member
decisions of the Board of Immigration Appeals—such as the one subject to review here—
are not entitled to Chevron deference. 5 Martinez v. Holder, 740 F.3d 902, 909–10 (4th
Cir.), as revised (Jan. 27, 2014).
4 As Petitioner did not raise either group on appeal to this Court, we do not consider them. See Fed. R. App. P. 28(a)(8)(A). 5 See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984) (holding that a court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by [the agency charged with administering the statute],” where Congress has not spoken directly to the issue).
6 III.
As an initial matter, Petitioner contends that under the Supreme Court’s decision in
Pereira v. Sessions, her Notice to Appear was defective because it failed to include the date
or time of her removal hearing, and that this defect deprived the immigration court of
jurisdiction. See Pereira, 138 S. Ct. at 2110, 2113–14 (holding that a Notice to Appear that
fails to state the time or place of the hearing does not terminate a noncitizen’s period of
continuous physical presence in the U.S. for purposes of cancellation of removal). But we
have already rejected the same argument in United States v. Cortez, holding that a Notice
to Appear’s failure to include the date or time of the hearing does not implicate the
immigration court’s jurisdiction or adjudicative authority. 930 F.3d 350, 358–66 (4th Cir.
2019). Therefore, we readily dismiss Petitioner’s jurisdictional argument.
IV.
Turning to the merits, Petitioner argues that she has established that she was
persecuted in Honduras on account of her membership in her proposed particular social
group—her nuclear family. 6 We agree. In concluding otherwise, the immigration judge and
6 Petitioner also claims for the first time on appeal that she fears future persecution on account of an imputed anti-gang political opinion. However, we lack jurisdiction to consider this argument. During Petitioner’s hearing, the immigration judge specifically asked Petitioner whether she intended to pursue a political-opinion claim as indicated on her Form I-589. Her counsel declined, stating she would “primarily rely on [a] particular social group and [the Convention Against Torture].” A.R. 57–58. Accordingly, the immigration judge did not consider or analyze any political-opinion claim. On appeal to the Board of Immigration Appeals, Petitioner again did not raise—and thus the Board did not address—any political-opinion claim. Therefore, we conclude that Petitioner has failed to exhaust all available administrative remedies as to the imputed political-opinion claim that she now puts forth. See Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir. 2015).
7 the Board of Immigration Appeals erred by applying a legally incorrect and “excessively
narrow” approach to analyzing whether Petitioner satisfied the statutory nexus
requirement—one that we have rejected time and time again. Hernandez-Avalos, 784 F.3d
at 949.
Under well-established precedent in this Circuit, and based on the unrebutted,
substantial evidence in the record, we hold that any reasonable adjudicator would be
compelled to conclude that Petitioner’s membership in her nuclear family was at least one
central reason for her persecution. Therefore, we grant the petition and reverse the agency’s
determination as to this issue.
Under the Immigration and Nationality Act, an applicant for asylum “must establish
that [they] ha[ve] been ‘subjected to past persecution’ or ‘ha[ve] a well-founded fear of
future persecution’ ‘on account of’ . . . ‘race, religion, nationality, membership in a
particular social group, or political opinion.’” 7 Alvarez Lagos v. Barr, 927 F.3d 236, 245
(4th Cir. 2019) (quoting Tairou v. Whitaker, 909 F.3d 702, 707 (4th Cir. 2018)); see also
8 U.S.C. § 1101(a)(42)(A). To do so, the applicant must demonstrate a “nexus” between
“And under 8 U.S.C. § 1252(d)(1), [this Court is] jurisdictionally barred from reviewing unexhausted claims.” Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018). 7 The requirements for withholding of removal are largely the same, except that withholding applicants must show a higher likelihood of persecution. Whereas asylum applicants need only show a “‘reasonable possibility’—as low as a ten percent chance—of persecution,” Crespin-Valladares, 632 F.3d at 126 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)), withholding applicants must demonstrate a greater-than-fifty- percent likelihood of persecution (i.e., more likely than not), 8 C.F.R. § 1208.16(b).
8 one of the five statutorily protected grounds and the persecution they suffered or fear
suffering. Cruz v. Sessions, 853 F.3d 122, 127 (4th Cir.), as amended (Mar. 14, 2017). The
applicant satisfies the nexus requirement by showing that the protected ground was or
would be “at least one central reason” for the persecution. Crespin-Valladares, 632 F.3d at
127 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
Importantly, the protected ground need not be “the central reason or even a dominant
central reason” for the applicant’s persecution. Id. (quoting Quinteros-Mendoza v. Holder,
556 F.3d 159, 164 (4th Cir. 2009)). 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. Id. (internal quotation marks omitted) (quoting
Quinteros-Mendoza, 556 F.3d at 164).
While a persecutor’s motivation is a “classic factual question” reviewed for
substantial evidence, Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017)
(quoting Crespin-Valladares, 632 F.3d at 128), we review de novo “whether the [Board of
Immigration Appeals] and the [immigration judge] applied the correct legal standard” in
their nexus analysis. Cruz, 853 F.3d at 128.
Here, the immigration judge and the Board of Immigration Appeals erred by
misapplying the statutory nexus requirement. In fact, they committed the same legal errors
for which we have repeatedly admonished the agency. See, e.g., Hernandez-Cartagena,
977 F.3d at 321–23; Salgado-Sosa, 882 F.3d at 457–59; Zavaleta-Policiano, 873 F.3d at
249–50; Cruz, 853 F.3d at 129–30; Oliva v. Lynch, 807 F.3d 53, 56, 59–61 (4th Cir. 2015);
9 Hernandez-Avalos, 784 F.3d at 949–50; Cordova v. Holder, 759 F.3d 332, 339–40 (4th
Cir. 2014).
The agency first erred by incorrectly focusing on why the gang targeted Petitioner’s
family, rather than on why they targeted Petitioner herself. It further erred by failing to
consider the intertwined reasons for the persecution Petitioner suffered.
1.
As to the first error, our precedent makes clear that in cases involving family-based
particular social groups, “identifying why [the] [p]etitioner’s family was targeted is not the
relevant question” for nexus. Hernandez-Cartagena, 977 F.3d at 322 (emphasis added).
Rather, the “operative question” is “whether [the petitioner’s] membership [in their family]
is ‘a central reason why [they], and not some other person’ [were] targeted.” Id. at 321–22
(quoting Alvarez Lagos, 927 F.3d at 249); see also Salgado-Sosa, 882 F.3d at 458–59
(“[T]he BIA’s decision improperly focused on whether [the petitioner]’s family was
persecuted on account of a protected ground, rather than on whether [the petitioner] was
persecuted because of a protected ground—here, his relationship to his family.”);
Hernandez-Avalos, 784 F.3d at 949–50.
Our decision in Hernandez-Cartagena v. Barr is instructive. See 977 F.3d at 321–
22. Hernandez-Cartagena was a Salvadoran woman who, like Petitioner, had immediate
family living in the United States—in Hernandez-Cartagena’s case, her parents—and was
targeted by a gang for extortion. Id. at 318. When the gang initially contacted Hernandez-
Cartagena, they demanded that her parents send them money. Id. The gang warned
Hernandez-Cartagena that if her family did not meet their demands, they would kill one of
10 her siblings. Id. Hernandez-Cartagena then “informed her parents about the threats, and, in
response, [they] sent her money to give to the gang.” Id. The family continued to comply
with the gang’s demands for some months. Eventually, however, Hernandez-Cartagena
fled El Salvador to escape the gang. Id. at 319. Upon arriving in the United States, she
sought asylum and asserted her membership in her family as the protected ground. Id.
The facts of this case align almost perfectly with those of Hernandez-Cartagena. In
both cases, the petitioner had family members in the United States. A gang demanded
money from those U.S.-based family members by threatening the petitioner back in the
family’s home country. The family complied with the gang’s demands for some time, but
eventually, the petitioner fled to the United States and sought asylum, raising her
membership in her family as a protected ground. 8
8 We acknowledge that the gang in this case did not explicitly instruct Petitioner to obtain the demanded money from her husband, whereas the gang in Hernandez-Cartagena specifically told the applicant to get her parents to send them the money. See Hernandez- Cartagena, 977 F.3d at 318. But this difference is of no significance. As we recognized in Zavaleta-Policiano, “[i]t is unrealistic to expect that a gang would neatly explain . . . all the legally significant reasons it is targeting someone.” Zavaleta-Policiano, 873 F.3d at 248. To hold otherwise would be to hinge the availability of asylum and withholding of removal on the exact manner in which the persecutor words or frames a threat against the applicant—which, needless to say, would be both unfair and unreasonable. Here, it would hardly make sense to deny relief to Petitioner—who is in a position materially indistinguishable from that of Hernandez-Cartagena—merely because the gang did not expressly tell her to get the money from her husband. As noted above, when the gang first communicated their extortion demands to Petitioner, they told her that they knew she had a husband who sent her money from the United States every month. Plainly, as we hold below, Petitioner’s familial relationship to her husband—and the gang’s knowledge thereof—was at least one central reason why they targeted her, and not some other person.
11 The parallels do not end there. As here, the immigration judge credited Hernandez-
Cartagena’s testimony, but nevertheless concluded that she had failed to demonstrate a
nexus between the alleged persecution and her membership in her family. Id. Specifically,
the immigration judge concluded that “the [gang’s] primary motivation for targeting
[Hernandez-Cartagena’s] family was monetary gain,” and that “there was nothing in the
evidence presented which suggested that [her] family membership had anything to do with
why the family was targeted for extortion or why [the] [p]etitioner was [persecuted].” Id.
at 319, 321. Accordingly, the immigration judge denied Hernandez-Cartagena’s asylum
claim, and the Board of Immigration Appeals affirmed. Id. at 319.
We reversed, holding that the immigration judge “erred by focusing narrowly” on
why the gang targeted Hernandez-Cartagena’s family, rather than on why they targeted
Hernandez-Cartagena herself, and not some other person. Id. at 321–22 (quoting Salgado-
Sosa, 882 F.3d at 458). And “once the right question [was] asked,” we explained, “the
conclusion [was] quite clear: ‘whatever [the gang]’s motives for targeting [her] family,
[Hernandez-Cartagena herself] was targeted because of [her] membership in that family.’”
Id. at 322 (third, fourth, and sixth alterations in original) (quoting Salgado-Sosa, 882 F.3d
at 459). That is, the gang specifically targeted Hernandez-Cartagena, and not some other
person, because they believed that her family had the “ability . . . to pay the extorted
demands.” Id. at 321. Thus, we held that “substantial evidence in the record compel[led]
the conclusion that at least one central reason [Hernandez-Cartagena] was targeted was her
membership in [her] family,” and that the immigration judge had erred in finding
otherwise. Id. at 322.
12 The immigration judge in this case made the same error. In concluding that
Petitioner was not persecuted because of her familial ties, the immigration judge stressed
that “[t]here [wa]s nothing in th[e] record to suggest that the extortionists, the gang
members, had anything against [Petitioner’s] husband or even [her] family.” A.R. 49
(emphases added). The immigration judge’s focus on why the gang targeted Petitioner’s
family, rather than Petitioner herself, is the same type of erroneous analysis that we rejected
in Hernandez-Cartagena—as well as in various other cases. See, e.g., Salgado-Sosa, 882
F.3d at 458–59; Hernandez-Avalos, 784 F.3d at 949–50.
For its part, the Board of Immigration Appeals compounded the immigration
judge’s error by failing to recognize it—which, as we have held, is an error of law that
“necessarily constitute[s] an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 725 (4th
Cir. 2011). The agency’s legal error requires us to at least vacate its decision.
2.
The immigration judge and the Board of Immigration Appeals also erred when they
concluded that the gang was simply motivated by a desire for monetary gain, without
properly considering other intertwined reasons for Petitioner’s persecution. As we have
“repeatedly emphasized, it is enough that the protected ground be at least one central
reason for the persecution—that is, one central reason, perhaps intertwined with others,
why the applicant, and not another person was threatened.” Hernandez-Cartagena, 977
F.3d at 320 (second emphasis added) (quoting Alvarez Lagos, 927 F.3d at 250); see also
Salgado-Sosa, 882 F.3d at 458; Zavaleta-Policiano, 873 F.3d at 248; Hernandez-Avalos,
882 F.3d at 949–50.
13 Here, the agency failed to follow this precedent. The immigration judge found that
the gang targeted Petitioner not because of her familial relationship to her husband, but
“simply because [she] had money[] [and] had the means to pay the extortion demands.”
A.R. 48–50. Similarly, the Board of Immigration Appeals concluded that the gang’s
“extortion demands likely were due to [their] desire to collect money to fund their criminal
enterprise, not due to [Petitioner’s] family membership.” A.R. 4. We hold that the agency
“erred by focusing narrowly on ‘the immediate trigger’” for the gang’s extortion demands
and death threats—i.e., their “greed” or desire for monetary gain. Salgado-Sosa, 882 F.3d
at 458 (quoting Oliva, 807 F.3d at 60). The agency’s “fail[ure] to consider the intertwined
reasons” for the persecution—in particular, Petitioner’s familial relationship to her
husband—constituted a “misapplication of the statutory nexus standard.” Hernandez-
Cartagena, 977 F.3d at 320 (quoting Zavaleta-Policiano, 873 F.3d at 248). This legal error
provides an additional and independently sufficient ground for vacatur. 9
9 For the same reason, we reject the Government’s argument that the lack of nexus in this case is demonstrated by Petitioner’s testimony that the gangs demanded extortion payments from “many” other people besides her, “suggesting that the motive of the gang members was not to specifically harm members of [Petitioner’s] family, but rather, to maximize their income.” Resp. Br. at 20. Even if the gang targeted Petitioner out of a desire to maximize their income, her familial relationship to her husband—i.e., the source of her money—was another central reason intertwined with that monetary motive. Furthermore, as we have previously held, the fact “that the criminal activities of [a gang] affect the population as a whole . . . is simply beside the point in evaluating an individual’s particular claim.” Alvarez Lagos, 927 F.3d at 251 (alterations in original) (internal quotation marks omitted) (quoting Zavaleta-Policiano, 873 F.3d at 248).
14 C.
Generally, when the agency legally errs as it did here, “the proper course” is “to
remand . . . for additional investigation or explanation.” Id. at 321 (quoting Alvarez Lagos,
927 F.3d at 249). But when the “relevant record evidence, . . . [properly] considered, would
compel any reasonable adjudicator to reach” a conclusion opposite to that reached by the
agency, “then a remand is unnecessary, and we will reverse the [agency]’s finding.” Id.
(alteration modified) (quoting Alvarez Lagos, 927 F.3d at 249). Specifically, in cases where
the record evidence conclusively demonstrated that the applicant’s protected status was at
least one central reason why they, and not some other person, were targeted, we have
reversed the agency’s determination that the applicant failed to meet the nexus requirement.
See, e.g., id. 321–23; Alvarez Lagos, 927 F.3d at 249–52; Salgado-Sosa, 882 F.3d at 457–
59; Cruz, 853 F.3d at 130; Zavaleta-Policiano, 873 F.3d at 249–50; Oliva, 807 F.3d at 59–
61; Hernandez-Avalos, 784 F.3d at 950. We conclude that the same relief is warranted here.
Just as in Hernandez-Cartagena, the record evidence in this case compels only one
reasonable conclusion: the gang targeted Petitioner, and not some other person, because of
her familial relationship to her husband, who sent her money from the United States every
month. At her individual hearing, Petitioner credibly testified that when the gang first
contacted her to demand extortion payments, they told her that they knew she traveled to
San Pedro Sula every month to withdraw money that her husband sent to her from the
United States. The gang’s mention of this fact clearly suggested that they believed she had
the means to pay the demanded fee by virtue of her familial relationship to her husband
who regularly sent her money.
15 Indeed, Petitioner further stated during the hearing that she was able to meet the
gang’s demands only because her husband continued to send her money. And based on this
evidence, the immigration judge explicitly acknowledged that it was “probably true” that
“but for [Petitioner’s] husband being in the United States and sending money back, she
would not likely have been targeted or threatened” by the gang. A.R. 49 (emphasis added).
Thus, even if the gang was motivated by monetary gain, that reason was inevitably
intertwined with Petitioner’s familial relationship to her husband, or in other words, her
membership in her nuclear family.
None of the agency’s reasons for declining to find a nexus—several of which the
Government echoes on appeal—are persuasive. First, the immigration judge and the Board
of Immigration Appeals found it significant that other members of Petitioner’s family in
Honduras, including her parents and her husband’s mother, were never harmed or
threatened with harm. That was legal error.
At her individual hearing, Petitioner alleged that she was persecuted on account of
her membership in her nuclear family, which she defined as being comprised only of
herself, her husband, and her daughter. Notably, that construction is supported by this
Court’s precedent as well as the dictionary definition of “nuclear family.” See Cruz, 853
F.3d at 129 (noting that an asylum applicant’s nuclear family consisted only of the
applicant, her husband, and their children); Nuclear Family, Oxford English Dictionary
Online, https://www.oed.com/view/Entry/128926?redirectedFrom=nuclear+family#
eid34375747 (defining “nuclear family” as “the basic family group consisting typically of
father, mother, and their dependent children”). And here, the gang “in fact threatened to
16 harm all nuclear family members” of Petitioner who were living in Honduras—
specifically, Petitioner and her daughter. Cruz, 853 F.3d at 129. The agency erroneously
“g[ave] weight to the [irrelevant] fact that [the gang] did not threaten additional family
members other than . . . members of [Petitioner’s] immediate, nuclear family.” Id. In doing
so, the agency effectively mischaracterized Petitioner’s proposed particular social group,
which—as we have held—is a “critical legal error[].” Alvarez Lagos, 927 F.3d at 253.
Second, the immigration judge reasoned, and the Government asserts, that no nexus
exists between Petitioner’s persecution and her membership in her nuclear family because
she may have faced the same harms from the gang had it been another relative or a friend,
rather than her husband, who sent her money every month. But such counterfactuals are of
little value or relevance. The actual, undisputed facts in this case indicated that Petitioner’s
familial relationship to her husband—that is, her membership in her nuclear family—was
at least one central reason why the gang targeted her for extortion. Indeed, we previously
rejected a similar, hypothetical musing in Cruz v. Sessions, where the immigration judge
improperly relied on a finding that the alleged persecutor—who was likely responsible for
the sudden disappearance of the petitioner’s husband—may well have targeted any person
interested in investigating the husband’s whereabouts, even those outside the petitioner’s
nuclear family. See 853 F.3d at 129.
Moreover, the immigration judge’s view of Petitioner’s husband as a fungible
source of money for Petitioner was fundamentally misplaced. As we have explained in
prior cases, individuals are generally more vulnerable to threats and persecution based on
family relationships than those based on other relationships, given the “innate,” special,
17 and “unchangeable” nature of “family bonds.” 10 Crespin-Valladares, 632 F.3d at 124. For
instance, in Hernandez-Cartagena, we emphasized that it was “unreasonable [for the
agency] to conclude that the fact that [the] [p]etitioner [was] her parents’ child—a member
of their family, [special] concern for whom might motivate . . . payments to the gang—
[was] not at least one central reason for her persecution.” 977 F.3d at 323 (emphasis added).
Here, the unrebutted evidence demonstrates that the gang leveraged Petitioner’s
familial relationship to her husband, as well as their familial relationships to their daughter,
to incentivize payment. Again, the gang extorted money from Petitioner and threatened her
and her daughter with death, while explicitly stating that they knew she received money
every month from her husband in the United States. And the gang’s threats had just the
intended effect. After learning of those threats, Petitioner’s husband sent additional money
every month for the specific purpose of paying the gang so “they wouldn’t kill [his wife
and his daughter].” A.R. 71. Thus, just as in Hernandez-Cartagena, it was “unreasonable”
for the agency to conclude that Petitioner’s status as her husband’s spouse was “not at least
one central reason for [Petitioner’s] persecution.” Hernandez-Cartagena, 977 F.3d at 323.
Third, the immigration judge and the Board of Immigration Appeals made much of
the fact that Petitioner had already been receiving money from her husband for eleven years
by the time the gang first approached her. Yet we have previously held that “while the
timing of threats can be relevant in determining a persecutor’s motivation, . . . it is not
10 For this very reason, we have long held that the nuclear family is “a prototypical example of a particular social group.” Crespin-Valladares, 632 F.3d at 125 (internal quotation marks omitted) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)).
18 dispositive.” Alvarez Lagos, 927 F.3d at 251 (citation omitted). There is no evidence in the
record suggesting that the gang knew about Petitioner’s arrangement with her husband
before they decided to commence threatening her. And even if such evidence existed, that
alone would not alter our nexus calculation under these circumstances, where the record
makes clear that the gang targeted Petitioner for extortion because they knew her husband
was sending her money every month.
Finally, while the immigration judge emphasized—as does the Government—that
Petitioner herself testified that she did not know why she was targeted, that fact is hardly
dispositive. As we recently recognized in Arevalo Quintero v. Garland, it is not uncommon
for an asylum applicant to be unaware of the reasons for the persecution they suffered or
fear suffering. Arevalo Quintero v. Garland, 998 F.3d 612, 625 n.12 (4th Cir. 2021).
Further, even when the applicant knows the reasons, “[o]bstacles like language barriers,
past trauma, limited legal knowledge, and restricted access to basic social services often
impede asylum seekers from effectively telling their stories.” Id. at 632 n.21 (quoting
Sabrineh Ardalan, Access to Justice for Asylum Seekers: Developing an Effective Model of
Holistic Asylum Representation, 48 U. MICH. J. L. REFORM 1001, 1013 (2015)).
In light of this reality, we have held—as has the Board of Immigration Appeals—
that under both international and U.S. refugee law, immigration adjudicators have a “duty
to ascertain and evaluate all the relevant facts” and to “ensur[e] that refugee protection is
provided where such protection is warranted by the circumstances of an asylum applicant’s
claim.” Id. at 625 (quoting Matter of S-M-J-, 21 I. & N. Dec. 722, 723, 729 (BIA 1997)).
And here, because the unrebutted evidence in the record would compel any reasonable
19 adjudicator to conclude that the gang targeted Petitioner on account of her membership in
her nuclear family, Petitioner’s inability to articulate the reasons for her persecution hardly
undermined her claim.
* * *
In sum, we hold that Petitioner has established a nexus between her membership in
her proposed particular social group and the persecution she suffered, and that the agency
erred in holding otherwise. Our precedent regarding how nexus should be analyzed in
asylum and withholding-of-removal cases is well-established. Thus, we have made it clear
that all immigration adjudicators must evaluate each asylum or withholding application in
a manner faithful to the applicable precedent and must carry out their “affirmative duty”
under domestic and international refugee law to assist and “work with asylum seekers to
ensure that protection is granted to those whose factual circumstances warrant it.” Id. at
631 (emphasis omitted).
For the foregoing reasons, we reverse the agency’s determination as to nexus, vacate
the final order of removal as well as the denial of Petitioner’s application for asylum and
withholding of removal, and remand for further proceedings consistent with this opinion. 11
11 Notably, the Board of Immigration Appeals’ decision suggested that the immigration judge’s determination that Petitioner’s nuclear family was a cognizable social group may be inconsistent with the former Attorney General’s decision in Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019). However, the current Attorney General has recently vacated Matter of L-E-A- in its entirety, and thus that decision lacks legal force. See Matter of L-E- A-, 28 I. & N. Dec. 304 (A.G. 2021). And at any rate, Matter of L-E-A- conflicted with our well-established precedent recognizing nuclear families as cognizable social groups, see, e.g., Hernandez-Cartagena, 977 F.3d at 320 (“We have repeatedly held ‘a nuclear family
20 V.
Petitioner also contends that she is entitled to relief under the Convention Against
Torture. However, we conclude that she has failed to exhaust all available administrative
remedies as to this claim. Thus, we lack jurisdiction to consider it.
Under 8 U.S.C. § 1252(d)(1), federal courts may review a final order of removal
“only if” the noncitizen “has exhausted all administrative remedies available.” 8 U.S.C.
§ 1252(d)(1). We have interpreted this provision as a jurisdictional bar, holding that a
noncitizen’s failure to exhaust administrative remedies as to a particular claim bars judicial
review of that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).
“Ordinarily, a petitioner exhausts [their] administrative remedies by raising an argument
challenging the [immigration judge’s] decision in an appeal to the [Board of Immigration
Appeals].” Cabrera v. Barr, 930 F.3d 627, 631 (4th Cir. 2019). Therefore, “arguments that
a petitioner did not raise [before the Board] have not been exhausted and the Court lacks
jurisdiction to consider them.” Id.
That being said, as “no statute defines what constitutes ‘exhaustion’ for purposes of
§ 1252(d)(1),” determining whether a claim has been administratively exhausted requires
provides a prototypical example of a particular social group’ cognizable in our asylum framework.” (quoting Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020))). Moreover, while the Board of Immigration Appeals also seemed to question—again, without deciding—whether the harm Petitioner suffered amounted to “persecution,” we have held that “[e]xtortion itself can constitute persecution, even if the targeted individual will be physically harmed only upon failure to pay.” Oliva, 807 F.3d at 59. And “this Court has repeatedly and expressly held that the threat of death qualifies as persecution.” Zavaleta-Policiano, 873 F.3d at 247 (internal quotation marks omitted) (quoting Hernandez-Avalos, 784 F.3d at 949).
21 a careful inquiry. Id. Our precedent provides a few guiding principles. First, consistent with
the approach adopted by a majority of our sister circuits, we have held that “a petitioner
has exhausted [their] administrative remedies when the [Board of Immigration Appeals]
has issued a definitive ruling on the issue raised in the petition for review”—even where
the Board does so sua sponte, without the petitioner actually raising that issue before the
Board. Id. at 633; see also Portillo Flores v. Garland, No. 19-1591, 2021 WL 2655334, at
*10–11 (4th Cir. June 29, 2021) (en banc); Mazariegos-Paiz v. Holder, 734 F.3d 57, 63
(1st Cir. 2013) (collecting cases from other circuits). Recently, we have also noted that
appellants “need not conjure any ‘magic words’ to raise an issue [before the Board of
Immigration Appeals, but] simply need[] to ‘launch[] the appropriate argument.’”
Atemnkeng v. Barr, 948 F.3d 231, 240 (4th Cir. 2020) (quoting Hanna v. Lynch, 644 F.
App’x 261, 268 (4th Cir. 2016)). The exhaustion requirement “bars consideration of
‘general issues that were not raised below,’” and appellants “should not be penalized by
evaluating form over substance” where their “arguments before the [Board] in essence
raised” the claim at issue. Id. at 240–41 (first emphasis added) (first quoting Ramirez v.
Sessions, 887 F.3d 693, 700 (4th Cir.), as amended (June 7, 2018); then quoting Hanna,
644 F. App’x at 268).
Applying these principles here, we hold that Petitioner failed to exhaust all
administrative remedies as to her Convention Against Torture claim. Quite plainly, her
counsel did not adequately raise the claim before the Board of Immigration Appeals.
Petitioner’s brief before the Board did not reference the Convention Against Torture
beyond merely mentioning in the procedural history section that Petitioner had applied for
22 relief under the Convention and listing “CAT” as a bullet point under the subheading
“Grounds for Asylum,” without any further elaboration. A.R. 12, 14. Her brief also never
mentioned the word “torture” even once, let alone included any argument regarding her
Convention Against Torture claim or cited any relevant case law. Nor did Petitioner’s
Notice of Appeal to the Board of Immigration Appeals contain anything related to
Convention Against Torture relief. Presumably for these reasons, the Board of Immigration
Appeals concluded that Petitioner had failed to “meaningfully challenge” the immigration
judge’s denial of relief under the Convention Against Torture, thus deeming the issue
waived. A.R. 3 n.2.
Because Petitioner failed to adequately raise her Convention Against Torture claim
before the Board of Immigration Appeals, and because the Board deemed the issue waived
and declined to address it on the merits, we conclude that the claim has not been
administratively exhausted as required by 8 U.S.C. § 1252(d)(1). Thus, we dismiss the
petition as to this claim for lack of jurisdiction.
VI.
In conclusion, we grant the petition for review as to Petitioner’s asylum and
withholding-of-removal claims, reverse the agency’s nexus determination, vacate the final
order of removal, and remand for further proceedings consistent with this opinion. As to
her Convention Against Torture claim, we dismiss the petition for lack of jurisdiction.
PETITION GRANTED IN PART AND DISMISSED IN PART; REMANDED