Hernandez-Avalos v. Lynch, 14–1331.

• Decision Date: 30 April 2015
• Docket Number: No. 14–1331.,14–1331.
• Parties: Maydai HERNANDEZ–AVALOS, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

784 F.3d 944

Maydai HERNANDEZ–AVALOS, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 14–1331.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2015.

Decided: April 30, 2015.

ARGUED:Tamara L. Jezic, Yacub Law Offices, LLC, Woodbridge, Virginia, for Petitioner. Rebecca Hoffberg Phillips, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Ivan Yacub, Yacub Law Offices, LLC, Woodbridge, Virginia, for Petitioner. Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Daniel E. Goldman, Senior Litigation Counsel, Samuel P. Go, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before SHEDD, WYNN, and THACKER, Circuit Judges.

Opinion

Petition for review granted; remanded for further proceedings by published opinion. Judge SHEDD wrote the opinion, in which Judge WYNN and Judge THACKER joined.

SHEDD, Circuit Judge:

Maydai Hernandez–Avalos, a native and citizen of El Salvador, petitions for review of a final order of removal entered by the Board of Immigration Appeals (BIA). For the reasons that follow, we grant Hernandez's petition for review, vacate the BIA's order, and remand for further proceedings.

I.

In June 2008, Hernandez and her son, Kevin Avalos–Rojas, entered the United States near Eagle Pass, Texas, without inspection and without valid entry documents. The following month, the Government initiated deportation proceedings against them.¹ Hernandez admitted the factual allegations in her Notice to Appear and conceded her removability, but sought relief from removal in the form of asylum and withholding of removal under the Immigration and Naturalization Act (INA).² She had a hearing before an Immigration Judge (IJ) in February 2012, during which she related certain threats she had received in El Salvador from members of the gang Mara 18.³ The IJ, considering both her live and written testimony, found her to be a “generally credible witness,” A.R. 47, and her testimony is summarized below.

In 2007, members of the gang Mara 18 killed Augustin, the cousin of Hernandez's husband, because he refused to join their ranks. Hernandez did not herself witness Augustin's murder, but she later identified his body at the medical forensic lab in her town and took it home to prepare it for burial. Following Augustin's burial, heavily armed gang members came to her house and threatened to kill her if she identified the gang members to the authorities as the men responsible for Augustin's murder.

Although the exact date is unclear from the record, within a few months Hernandez was threatened with death a second time. Five Mara 18 members came to her home and told her that because her son Kevin was getting older, “he was getting ready to join the maras.” A.R. 115. Kevin was twelve years old at the time. When Hernandez responded that her son was not going to join the gang, the gang members put a gun to her head and told her that if she opposed her son's joining them, “[she] was the one who was going to die.” A.R. 116. One of the men who threatened her on this occasion was later prosecuted and sentenced to 25 years in prison by the Salvadoran government for killings unrelated to any interaction between Mara 18 and Hernandez's family. Hernandez was not involved in that prosecution, and we have no further information about these killings.

In May 2008, Mara 18 members threatened to kill Hernandez for the third time. They came to her home, put a gun to her head, and told her that her son was ready to join the gang. She responded that her son was not going to join and that she was not going to allow the gang members to get any closer to him. The Mara 18 members then aimed the gun at her and told her that they were going to force her son to join. When Hernandez responded that she did not want her son to be like them, but instead wanted him to study and to be a good person, the Mara 18 members told her that she had one day to turn her son over to the gang or she would be killed.

Before dawn the following day, Hernandez and her son left El Salvador for the United States with the help of a smuggler. Hernandez stated that reporting these incidents to the Salvadoran police was not an option for her because “[t]he police routinely arrested gang members and within days they were released. Many times the gang members learned who reported them to the police and retaliated against that person. I was afraid that would happen to me.” A.R. at 147–48. Hernandez also stated that she does not believe that she can go back to El Salvador because the gangs would kill her.

Despite finding her testimony credible, the IJ found that Hernandez had not established her eligibility for asylum because she had not demonstrated that she was likely to suffer future persecution on account of a protected ground, nor had she demonstrated that she was threatened by persons that the Salvadoran government was unwilling or unable to control. The IJ therefore denied her petition for relief and ordered her removed to El Salvador. Hernandez appealed to the BIA, which affirmed the IJ's decision. She timely filed a petition for review of the BIA's decision in this court, challenging the BIA's denial of her claim for eligibility for asylum and its failure to consider her request for withholding of removal.

II.

The INA permits the Secretary of Homeland Security or the Attorney General, in their discretion, to grant asylum to any alien who qualifies as a refugee. 8 U.S.C. § 1158(b)(1)(A). See also I.N.S. v. Cardoza–Fonseca, 480 U.S. 421, 443, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ; Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.2006). To qualify as a refugee, and thereby to establish eligibility for asylum, an alien must demonstrate that she

is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A).⁴

Where the BIA adopts the IJ's opinion and supplements it with its own reasoning, we review both rulings. Barahona v. Holder, 691 F.3d 349, 353 (4th Cir.2012). But where, as here, the BIA issues its own opinion without adopting the IJ's reasoning, we review only the BIA's final order. Martinez v. Holder, 740 F.3d 902, 908 (4th Cir.2014). We review factual findings under the substantial evidence standard, meaning that they are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary,” Cordova v. Holder, 759 F.3d 332, 337 (4th Cir.2014) (quoting 8 U.S.C. § 1252(b)(4)(B) ), and we review legal determinations de novo, Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.2010).⁵ Finally, we must uphold the BIA's decision “unless it is ‘manifestly contrary to law and an abuse of discretion.’ ” Cordova, 759 F.3d at 337 (quoting Tassi v. Holder, 660 F.3d 710, 719 (4th Cir.2011) ).

III.

Under 8 U.S.C. § 1101(a)(42)(A), to establish her eligibility for asylum, Hernandez must prove that she (1) has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control. Lopez–Soto v. Ashcroft, 383 F.3d 228, 234 (4th Cir.2004) (vacated pending reh'g en banc on other grounds).

A.

As to the first requirement, we have expressly held that “the threat of death qualifies as persecution.” Crespin–Valladares v. Holder, 632 F.3d 117, 126 (4th Cir.2011) (citing Li v. Gonzales, 405 F.3d 171, 177 (4th Cir.2005) ). Further, “[a]pplicants who demonstrate past persecution are presumed to have a well-founded fear of future persecution.” Naizgi, 455 F.3d at 486 (citing 8 C.F.R. § 1208.13(b)(1) ). Because Hernandez credibly testified that she received death threats from Mara 18, she has proven that she has a well-founded fear of future persecution were she to return to El Salvador.⁶ She has thus satisfied the first prong of eligibility for asylum.

B.

Next, Hernandez must show that the persecution she suffered was on account of a protected ground. “Persecution occurs ‘on account of’ a protected ground if that ground serves as ‘at least one central reason for’ the feared persecution.” Crespin–Valladares, 632 F.3d at 127 (quoting 8 U.S.C. § 1158(b)(1)(B)(i) ). Among the protected grounds listed in the asylum statute is “membership in a particular social group.” 8 U.S.C. § 1158(b)(1)(B)(i). Hernandez claims, and the government correctly acknowledges, that membership in a nuclear family qualifies as a protected ground for asylum purposes. See Crespin–Valladares, 632 F.3d at 125 (“[T]he family provides a prototypical example of a particular social group.”) (internal quotation marks and citations omitted).

The government argues, however, that the BIA was correct in holding that Hernandez's persecution was not “on account of” her family ties. To prove that persecution took place on account of family ties, an asylum applicant “need not show that his family ties provide ‘the central reason or even a dominant central reason’ for his persecution, [but] he must demonstrate that these ties are more than ‘an incidental, tangential, superficial, or subordinate reason’ for his persecution.” Id. at 127 (quoting Quinteros–Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir.2009) ) (emphasis in original).

The BIA concluded that the threats to kill Hernandez unless she allowed her son to join the gang were not made on account of Hernandez's membership in her nuclear family. It reasoned that “[s]he was not threatened because of her relationship to her son (i.e. family), but rather because she would not consent to her son engaging in a criminal activity.” A.R. 4. The government argues that the BIA did not err in concluding that gang recruitment was the central motivation for these threats. Further, it argues that the fact...