Diaz-Hernandez v. Garland

104 F.4th 465

Elsy Estela DIAZ-HERNANDEZ; Isai Diaz-Hernandez, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-2103

No. 23-1291

United States Court of Appeals, Fourth Circuit

Argued: January 24, 2024

Decided: June 10, 2024

On Petitions for Review of Orders of the Board of Immigration Appeals.

ARGUED: Jake Shatzer, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Petitioners. Colin James Tucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: John W. Goodman, Benjamin J. Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia; Thomas V. Burch, Appellate Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Petitioners. Brian Boynton, Principal Deputy Assistant Attorney General, Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Petitions denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee Joined. Judge Thacker wrote a separate concurring opinion.

NIEMEYER, Circuit Judge:

After illegally entering the United States, Elsy and Isai Diaz-Hernandez, a sister and brother who are both natives and citizens of El Salvador, applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). They claimed that they had suffered harm or fear of harm in El Salvador from their maternal uncle, Jose Enoc Hernadez Avalos, who abused them to avenge his earlier deportation from the United States, for which he blamed Elsy and Isai's mother. They sought relief as members of a social group defined as "children of their mother," and maintained that they suffered harm from their uncle on account of their membership in that group. The Immigration Judge ("IJ") found, however, that revenge was not a central reason for Jose's abuse of Elsy and Isai but at most a "tangential reason." Instead, the IJ found that the uncle was overall an "aggressive person" whose abuse was directed at a wider range of people and was "triggered because of his drug, alcohol, and mental health issues." Accordingly, the IJ concluded that Elsy and Isai failed to establish the required nexus between their harm and a protected ground and therefore the requirements for either asylum or withholding of removal.

On appeal, the Board of Immigration Appeals ("BIA") affirmed and dismissed the appeal. In doing so, it rejected the petitioners' argument that the evidence showed that their relationship to their mother was "at least one central reason" for the uncle's abusive behavior against them. The BIA noted that the IJ's finding that the petitioners failed to demonstrate the necessary nexus between the harm and a protected ground was "a classic factual question," and after reviewing the facts, concluded that the IJ did not clearly err.

The petitioners then filed a motion for reconsideration, arguing that the BIA's decision improperly applied the "one central reason" nexus standard to their withholding of removal claims. They contended that, when assessing their withholding of removal claims, the BIA should have instead considered whether the protected ground was merely "a reason" for the uncle's harm, not "one central reason," relying on a difference in the statutory language. Compare 8 U.S.C. § 1231(b)(3)(A), (C) (relating to withholding of removal) with id. § 1158(b)(1)(B)(i) (relating to asylum). The BIA, however, denied their motion.

On Elsy and Isai's petitions for review, we conclude that substantial evidence supported the agency's finding that the petitioners failed to establish the requisite nexus between the harm they feared and their family tie. We also reject their argument that the BIA applied the wrong standard for assessing whether they met their burden to prove the required nexus with respect to their withholding of removal claims. Thus, we deny their petitions for review.

I

Elsy and Isai Diaz-Hernandez crossed the border from Mexico to Hidalgo, Texas, unaccompanied and without inspection, in August 2015. At that time, Elsy was 13 years old and Isai, 11. For more than a decade before then, the two had been living with their grandparents in El Salvador, while their parents were living in the United States. Soon after they arrived in the United States, they were taken into the custody of the Department of Health and Human Services and given a notice to appear. Shortly thereafter, they were released to their father's custody and moved to Maryland, where both their parents and younger sibling were living.

In October 2015, Elsy and Isai appeared before an IJ and conceded that they were removable under 8 U.S.C. § 1182(a)(6)(A)(i), but they submitted applications for asylum. In their applications, they expressed fear that, if they were to return to El Salvador, their uncle would abuse them in revenge for their mother's role in the uncle's deportation from the United States in 2014. Later, they also sought withholding of removal and CAT relief.

On June 17, 2019, Elsy and Isai, represented by counsel, appeared before the IJ for a hearing on the merits of their applications. Both testified at the hearing, as did their mother, Cesiah Elizabeth Hernandez-Diaz. Cesiah recounted that, at some point in 2014, her brother Jose Enoc Hernandez Avalos, who was living with her in the United States, came home "under the influence of drugs, drunk" and "grabbed [her] by the neck," "want[ing] to throw [her] out the window from the second floor." After someone called the police, Jose was arrested, and thereafter deported to El Salvador. Before leaving, Jose told Cesiah that "he was . . . going to repay the consequences to [her] children." In El Salvador, Jose moved into his parents' house, where Cesiah's siblings and two of her children — the petitioners Elsy and Isai — were living. Cesiah testified that she had not spoken to Jose since he was deported but that she had been in contact with her parents, and her father told her that when Jose was "under the influence of drugs and drunk," he mistreated her parents by beating them. Cesiah explained that "[h]e beats [her] parents, and [her] sisters, and when he goes crazy with the drugs, he beats everyone." According to Cesiah, Jose had been hospitalized for this behavior, and "when he's not drugged up, he's fine, but when he's under the influence of drugs, alcohol, he doesn't — he misbehaves."

Elsy testified next. She stated that after Jose returned to El Salvador in 2014, "he started hitting [her] brother," Isai. She recalled an incident in which Isai did not give her uncle the television remote, so Jose hit him, and she recalled another time when Jose yanked Isai out of the hammock. Indeed, she said that Jose hit Isai "[a]lmost every day." Elsy also described Jose's abuse of others. She testified that he insulted her aunts, tried to drown his wife, and hit Elsy's grandmother and grandfather. When asked whether Jose "ever hit [her] or abused [her] in any way," Elsy stated, "[w]ell once, he was bothering me and trying to get me angry," so she hit him with a broom. She added that while Jose wanted to hit her back, Elsy's grandparents "defended [her]." Elsy further testified that, on multiple occasions, Jose had been admitted to a rehabilitation facility. She then explained that "when [her] grandparents saw that [Jose] was taking [his aggression] out on [Elsy and Isai] because he had been deported because he beat [her] mother, that's when [the grandparents] made the decision to send [her] [to the United States]."

Isai was the last to testify. He said that his uncle would "hit [him] all the time," "three or two times a day," "[n]ormally when [Isai] was watching T.V. or playing." He recalled the incident in which his uncle hit him while he was in the hammock and told him to "[b]e a man" and "[d]on't be a fairy." Isai also testified to Jose's hitting his grandfather. Isai stated that he believed the reason for Jose's actions was "revenge for the fact that [his] mother had sent him back to El Salvador."

In addition to this testimony, Elsy and Isai presented documents regarding country conditions in El Salvador and affidavits from other members of their extended family, which provided information about Jose's conduct consistent with the testimony given. In the affidavits, the family members explained that, after Jose returned to El Salvador in 2014, he was physically abusive to many people and that Elsy and Isai witnessed that abuse. One of Cesiah's sisters stated, for example, that Jose kicked the family's neighbor, hit the neighbor's son, attacked another of the siblings, bothered a man in a park, and harmed his romantic partner so badly that she was hospitalized for two weeks. This additional evidence also showed that Jose had, on multiple occasions, been admitted to a rehabilitation facility in El Salvador for his drug and alcohol abuse and mental health issues.

At the outset of her oral decision, the IJ incorporated an addendum that stated the standards of law and burdens of proof relevant to the issues, copies of which she had served on the parties. Among other things, the addendum explained that, to gain asylum, one element an applicant had to show was a "nexus" to a statutorily protected ground. The addendum stated that persecution on the basis of a protected ground, such as belonging to a particular social group, must be " 'at least one central reason' for the persecutor's action against them." (Quoting 8 U.S.C. § 1158(b)(1)(B)(i)). It continued, "the protected ground need not be the sole reason for persecution, but it must have been more than an 'incidental, tangential, superficial, or subordinate' reason." (Quoting Zavaleta-Policiano v. Sessions, 873 F.3d 241, 247 (4th Cir. 2017)).

Turning to the evidence, the IJ recounted that Cesiah testified about how her brother had assaulted her in 2014 and how he had returned to live with their parents...