Vazquez-Guerra v. Garland

7 F.4th 265

Edith Nohemi VAZQUEZ-GUERRA; Wendy Chantal Barragan-Vazquez, Petitioners,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 18-60828

United States Court of Appeals, Fifth Circuit.

FILED July 29, 2021

Raed Gonzalez, Esq., Senior Attorney, Ross Alan Miller, Gonzalez Olivieri, L.L.C., Amanda Waterhouse, Waterhouse Dominguez & Strom, P.L.L.C., Houston, TX, for Petitioners.

Scott Michael Marconda, Esq., Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before Smith, Graves, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

Edith Vazquez-Guerra is a Mexican citizen who seeks asylum and withholding of removal for herself and her minor daughter, Wendy Barragan-Vazquez. Her application expressed a fear that, if she were returned to Mexico, she would be killed or tortured by the Zetas, a Mexican drug cartel, on account of her membership in a particular social group—her immediate family. The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) determined, inter alia , that Vazquez-Guerra failed to establish a nexus between either the harm she suffered or her fears of future persecution and her particular social group. The IJ denied her application for asylum and withholding of removal, and the BIA dismissed the appeal. Because Vazquez-Guerra does not demonstrate that substantial evidence compels a different conclusion, we deny her petition for review.

I.

Vazquez-Guerra first entered the United States illegally in 2006 and subsequently married a lawful permanent resident. While Vazquez-Guerra was living in the United States, her brother was allegedly beaten and kidnapped by the Zetas in front of their mother in June 2013 in Mexico. Vazquez-Guerra returned to Mexico to visit her seriously ill mother in July 2015.

Shortly after her return to Mexico, Vazquez-Guerra contacted the city council and police to inquire about the kidnapping and disappearance of her brother. She made three or four inquiries to the authorities about the status of the investigation but, each time, came away empty-handed. She believes that the Zetas ultimately murdered her brother.

A few weeks later, in September 2015, masked men from the Zetas forced their way into Vazquez-Guerra's house while she was sleeping. While pointing guns at her head, the men told her she "needed to quit looking for [her] brother," threatened that she "would meet his same fate" if she continued investigating, and "warned [her] not to go to police."

Days later, more "armed men" from the Zetas allegedly followed her in a pickup truck while she was in a taxi on her way to meet her daughter. She exited the taxi, "fearing that they thought [she] was going to the downtown police station," and eluded them in a crowded shopping area. She then fainted, suffered a nervous breakdown and a pre-stroke, and was hospitalized.

During her convalescence, Vazquez-Guerra fled to a neighboring city to hide. But the threats continued. Though she did not experience additional direct encounters with the Zetas, they "left [her] a message" in the form of "pieces of paper with things written on it" in which they warned that "if [she] continued to investigate about [her] brother ... the same thing was going to happen to [her] ... and all [her] family, one by one." Vazquez-Guerra's daughter was staying with her father at the time and was not subject to direct threats from the Zetas. The threats convinced Vazquez-Guerra that it was time to leave Mexico. She and her daughter arrived in the United States at the end of September 2015, whereupon they were apprehended by the Department of Homeland Security, Customs and Border Protection.

DHS served Vazquez-Guerra and her daughter a notice to appear charging them with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as aliens without valid entry documents at the time of application for admission. Vazquez-Guerra then filed an application for asylum and withholding of removal, expressing a fear that she would be killed or tortured by the Zetas if she were returned to Mexico on account of her membership in a particular social group—her immediate family.

II.

The IJ denied Vazquez-Guerra's applications for asylum and withholding of removal, as well as the derivative application of her minor daughter. While the IJ found that Vazquez-Guerra was credible, it determined that the harm she experienced—"[a] few isolated incidents of harassment or intimidation unaccompanied by physical punishment, infliction of harm or significant deprivation of liberty"—"does not rise to the level of persecution." She therefore "failed to establish past persecution."

Even if Vazquez-Guerra could demonstrate past persecution, the IJ continued, she failed to produce "evidence of the requisite nexus between any persecution ... and any protected ground." It considered her proposed particular social group—her nuclear or immediate family—and determined that it was cognizable because she "is the sister of the brother who was kidnapped." However, the IJ concluded that the harm Vazquez-Guerra suffered at the hands of the Zetas was motivated by "criminal intention"—namely "to prevent her from investigating her brother's disappearance"—not by her "kinship to the Vazquez family." Thus, the protected trait was not "one central reason" for her purported persecution. The IJ found additional support for its conclusion in Vazquez-Guerra's testimony that "she has siblings ... all living in Mexico ... [and] [t]here was no testimony as to any harm that these siblings received by the Zetas." And, for the same reasons, the IJ determined that Vazquez-Guerra could not demonstrate a well-founded fear of future persecution on account of her membership in her nuclear family.

The IJ also denied Vazquez-Guerra's application for withholding of removal because she failed to establish eligibility for asylum and was thus unable to satisfy the higher standard for withholding of removal. Vazquez-Guerra and her daughter were ordered to be removed from the United States to Mexico, and she appealed.

The BIA dismissed the appeal. It found "no clear error in the [IJ]’s findings of fact." It then concluded that Vazquez-Guerra failed to "establish[ ] past persecution or a well-founded fear of persecution on account of any ground for asylum or withholding of removal" because the record "does not indicate that [her] membership in the Vazquez family was or will be at least one central reason for the harm she experienced or may suffer upon her return to Mexico."

While recognizing that an "alien's family may constitute a particular social group," the BIA determined that "the Zetas targeted [Vazquez-Guerra] to prevent her from investigating her brother's disappearance," not because she was a member of her brother's family. It did not analyze whether Vazquez-Guerra's nuclear family constituted a particular social group before making its nexus determination. Rather, it assumed the cognizability of Vazquez-Guerra's purported particular social group (her nuclear family) and found that she failed to demonstrate a nexus between that group and any harm. It added that its conclusion is "further supported by the observation that [Vazquez-Guerra]’s siblings continue to live in Mexico without suffering any harm."

Finally, the BIA concluded that, because she is not eligible for asylum, she cannot meet the higher clear-probability-of-persecution standard required for withholding of removal. The BIA did not address other potential bases for denying relief, such as Vazquez-Guerra's subjective and objective fear of persecution, her purported past persecution, or her ability to reasonably and safely relocate within Mexico. Vazquez-Guerra timely filed a petition for review.

III.

Vazquez-Guerra challenges both the denial of asylum and the denial of withholding of removal. We generally review only the final decision of the BIA, but where, as here, the BIA's decision is affected by the IJ's ruling, we also review the IJ's decision. Sealed Petitioner v. Sealed Respondent , 829 F.3d 379, 383 (5th Cir. 2016). We review questions of law de novo and factual findings for substantial evidence. Id. Under the substantial evidence standard, this court may not reverse an immigration court's factual findings unless the alien shows that "the evidence was so compelling that no reasonable factfinder could conclude against it." Wang v. Holder , 569 F.3d 531, 537 (5th Cir. 2009).

A.

We start with the denial of asylum. Under 8 U.S.C. § 1158(b)(1)(A), the Attorney General has discretion to grant asylum to refugees who meet certain requirements. Sealed Petitioner , 829 F.3d at 383. A refugee is "an alien who is unable or unwilling to return to his home country ‘because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group.’ "¹ INS v. Elias-Zacarias , 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1101(a)(42) ). The protected ground must be "at least one central reason" for the persecution. Sealed Petitioner , 829 F.3d at 383 (quoting § 1158(b)(1)(B)(i) ). While the protected ground, such as membership in a particular social group, "need not be the only reason for harm, it cannot be incidental, tangential, superficial, or subordinate to another reason for harm." Id. (quoting Sharma v. Holder , 729 F.3d 407, 411 (5th Cir. 2013) ). We commonly refer to this as the "nexus requirement." See , e.g. , Gonzales-Veliz v. Barr , 938 F.3d 219, 229 (5th Cir. 2019).

Vazquez-Guerra argues that her nuclear family is a cognizable particular social group and that she has established a nexus between either the harm she suffered or her fears of future persecution and this protected group. Because the BIA and the IJ correctly determined that Vazquez-Guerra failed to establish that nexus, we deny her petition for review.

Throughout her briefing, Vazquez-Guerra states that the Zetas began threatening her after she...