Filed: Mar. 28, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1614 _ JENCY DAMARIS LOPEZ–CRUZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A206-685-950) Immigration Judge: Steven A. Morley _ Argued October 31, 2018 _ Before: CHAGARES and JORDAN, * Circuit Judges (Filed: March 28, 2019) Alex G. Isbell [Argued] Matthew J. Hartnett Solow, Isbell, & Palladino LLC * The Honora
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1614 _ JENCY DAMARIS LOPEZ–CRUZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A206-685-950) Immigration Judge: Steven A. Morley _ Argued October 31, 2018 _ Before: CHAGARES and JORDAN, * Circuit Judges (Filed: March 28, 2019) Alex G. Isbell [Argued] Matthew J. Hartnett Solow, Isbell, & Palladino LLC * The Honorab..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 18-1614
_________
JENCY DAMARIS LOPEZ–CRUZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A206-685-950)
Immigration Judge: Steven A. Morley
______________
Argued October 31, 2018
______________
Before: CHAGARES and JORDAN, * Circuit Judges
(Filed: March 28, 2019)
Alex G. Isbell [Argued]
Matthew J. Hartnett
Solow, Isbell, & Palladino LLC
*
The Honorable Thomas I. Vanaskie retired from the Court on January 1, 2019
after the argument and conference in this case, but before the filing of the opinion. This
opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third Circuit
I.O.P. Chapter 12.
1601 Walnut St., Suite 1200
Philadelphia, PA 19102
Counsel for Petitioner
Gregory A. Pennington, Jr.
Benjamin Zeitlin [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________
OPINION **
_____________
PER CURIAM
Petitioner Jency Lopez–Cruz challenges an order of the Board of Immigration
Appeals denying her petition for asylum. Because the Board did not err in finding that
Lopez–Cruz failed to establish a sufficient nexus between her protected social group and
the alleged persecution, we will deny the petition for review. 1
I.
Lopez–Cruz, a native and citizen of Honduras, arrived in the United States as an
unaccompanied minor in 2014, without being admitted or paroled. She received a
Notice to Appear on March 31, 2014, charging her as removable pursuant to
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
Also before us are Respondent’s unopposed motion to supplement the record
and Respondent’s motion to supplement its brief. We will grant both motions.
2
§ 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(A)(i). Lopez–Cruz conceded that she was removable as charged. She
applied for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”), citing incidents in which she was harassed and threatened by
three men: two neighbors, who are brothers, and the ex-partner of her sister. (A.R. 330–
46). In particular, Lopez–Cruz asserted that she was persecuted because of her status as
a “young female head of household.” 2 (A.R. 99).
The Immigration Judge (“IJ”) found that Lopez–Cruz was entitled to asylum
based on her status as a “young female head of household.” (A.R. 92–105). He
considered that, although the incidents described by Lopez–Cruz did not amount to past
persecution, they were indicators of Lopez–Cruz’s credible fear of future persecution. In
particular, the IJ found that there was a clear nexus between Lopez–Cruz’s status as a
young female head of household and the harm she would suffer if she were forced to
return to Honduras. In making this finding, the IJ pointed to evidence that Lopez–
Cruz’s father abandoned her family at a young age and that she cares for her ailing
mother and her two younger nephews. (A.R. 93–94). He also found that Lopez–Cruz’s
neighbor, who regularly assaulted and threatened her, told her: “You look like your
2
Lopez–Cruz also asserted that she was persecuted because of her religion as a
Seventh Day Adventist. The IJ denied this claim, finding that the only incident that
could be perceived as motivated by her religion—that one man commented on her loose-
fitting clothing—was motivated not by her religion but by her physical appearance. The
IJ found that, to the extent any future persecution was motivated by Lopez–Cruz’s
religion, such a motivation was incidental and not a central reason for the persecution.
Lopez–Cruz did not challenge this finding before the BIA and the issue is not before us
on appeal.
3
sister. You will take your sister’s place[,]” and that Lopez–Cruz took this to mean that
she would be possessed by the man because her sister––who had been the man’s
partner––had left him. (A.R. 95). The IJ also noted evidence presented by Lopez–Cruz
that female heads of household are a “vulnerable population” as defined by the
Honduran government and, according to country reports, are frequently victims of
violence. (A.R. 103). 3 Having found Lopez–Cruz eligible for asylum, the IJ did not
reach Lopez–Cruz’s applications for withholding of removal and protection under the
CAT.
The Government appealed, and the Board of Immigration Appeals vacated the
IJ’s grant of asylum. The Board found that the IJ clearly erred in finding that Lopez–
Cruz’s membership in the social group of “single female heads of household” was one
central reason why she would be targeted for harm. 4 (A.R. 3). The Board reasoned:
[Lopez–Cruz] contends that the absence of a male figure in the household
provides motivation. However, this argument demonstrates that those at
risk are not necessarily the head of the household. In other words, the
fact that the respondent was the victim of her assailants’ criminal conduct
does not necessarily establish a nexus between the harm and a protected
3
Lopez–Cruz also said that one of the men told her that he would “make her the
woman of the house,” in reference to his plans to rape her. (A.R. 220).
4
The Board did not address whether “young female heads of household” qualify
as a cognizable particular social group. We have been critical of the Board jumping to
the nexus requirement to resolve disputes. See, e.g., Serrano-Alberto v. Att’y Gen., 859
F.3d 208, 219 n.5 (3d Cir. 2017) (“In a number of recent cases, the [Board] likewise has
assumed a cognizable [particular social group] or imputed political opinion and disposed
of the appeal by finding no nexus. ... This practice, however, can have troubling
consequences. ... [T]he [Board]’s practice of assuming [particular social group] and
resolving cases on nexus grounds often inhibits the proper and orderly development of
the law in this area by leaving the contours of protected status undefined, precluding
further appellate review[.]” (citations omitted)).
4
ground. Thus, in the absence of evidence that the respondent would not
have been treated in the same manner had she not held the status of head
of household, we discern clear error in the [IJ]’s nexus finding and will
reverse this portion of his decision.
(A.R. 4–5) (citations omitted). The Board vacated the IJ’s decision and ordered Lopez–
Cruz removed to Honduras. 5 The Board did not address Lopez–Cruz’s petitions for
withholding of removal and for relief under the CAT. Lopez–Cruz filed a timely
petition for review.
II.
“We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of
removal issued by the BIA.” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
We review the BIA’s legal conclusions de novo and its factual conclusions for
substantial evidence. Valdiviezo–Galdamez v. Att’y Gen.,
663 F.3d 582, 590 (3d Cir.
2011). Under the substantial-evidence standard, we may reverse the Board’s factual
conclusions only if the record shows that any reasonable factfinder would be compelled
to a different conclusion.
Id.
“To qualify for asylum, an alien must show persecution, or a well founded fear of
persecution, on account of race, religion, nationality, membership in a particular social
group, or political opinion.” Amanfi v. Ashcroft,
328 F.3d 719, 726 (3d Cir. 2003) (citing
5
The Board’s original order, dated February 22, 2018, ordered Lopez–Cruz
deported to El Salvador, despite the fact that Lopez–Cruz is a native and citizen of
Honduras. Then, on July 6, and subsequent to Lopez–Cruz’s petition for review, the
Board vacated its February 22 order and issued a new order. The July 6 order is
materially the same as the February 22 order except that it changed the country of
removal from El Salvador to Honduras.
5
8 U.S.C. §§ 1101(a)(42)(A), 1158(a); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481–82
(1992)). In 2005, Congress passed the REAL ID Act, Pub. L. No. 109-13, 199 Stat. 302
(2005), which clarified the standard for evaluating mixed-motive asylum cases: in cases
where the persecutor has more than one motive, an applicant must prove the protected
characteristic “was or will be at least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i). The protected ground need not be the primary motivation for
persecution, but “asylum may not be granted if a protected ground is only an ‘incidental,
tangential, or superficial’ reason for persecution of an asylum applicant.” Ndayshimiye
v. Att’y Gen.,
557 F.3d 124, 130 (3d Cir. 2009). “Therefore, a key task for any asylum
applicant is to show a sufficient ‘nexus’ between persecution and one of the listed
protected grounds.”
Id. at 129. The Board’s decision on whether an asylum applicant
has established the necessary nexus between persecution and a protected ground is based
on factual findings that we review for substantial evidence. See Shehu v. Att’y Gen.,
482
F.3d 652, 657 (3d Cir. 2007) (“Substantial evidence also supports the IJ’s conclusion
that the [persecutors] w[ere] not motivated by animus [based on an alleged protected
ground].”). 6
III.
6
We note that “[w]e exercise de novo review over constitutional claims or
questions of law and the application of law to facts.” Garcia v. Att’y Gen., 665 F.3d
496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012) (citation omitted).
6
The sole issue in this case is whether the Board erred by reversing the IJ’s
conclusion as to nexus. Under the deferential standard applicable in this case, we cannot
say that it so erred.
Lopez–Cruz asks us to rule that the Board applied the incorrect standard to her
asylum claim by requiring her to prove that, but for her status as a young female head of
household, she would not face persecution. The Board has adopted a but-for standard in
asylum cases, requiring asylum applicants to establish the “at least one central reason”
standard of § 1158(b)(1)(B)(i) by showing that “the persecutor would not have harmed
the applicant if the protected trait did not exist.” Matter of N –M–, 25 I. & N. Dec. 526,
531 (BIA 2011) (citing Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009)).
Whether that but-for standard is correct is not something we need to address here. Even
if Lopez–Cruz were right that the Board applied the wrong standard, she has failed to
demonstrate that a reasonable factfinder would be compelled to conclude that her status
as a young female head of household would be at least one central reason for the
persecution she fears. See Gonzalez-Posados v. Att’y Gen.,
781 F.3d 677, 685 (3d Cir.
2015) (noting in the withholding of removal context that to qualify as “one central
reason” the reason must be “essential”).
“Where the [Board] rejects an IJ’s findings . . . we carefully scrutinize its
reasoning to determine whether the [Board] has overstepped [its] bounds and misapplied
the clear error standard by ignoring evidence relevant to determining the merits of a
petitioner’s claim, failing to supply cogent reasons for its rulings, substituting its own
judgment for that of the IJ, or failing to defer to the IJ’s findings.” Alimbaev v. Att’y
7
Gen., 872 F.3d 188, 197 (3d Cir. 2017) (citations and internal quotation marks omitted).
We cannot say that the Board committed any such errors in this instance.
The IJ based his findings regarding nexus on the following evidence: (1) Lopez–
Cruz’s father left at a young age; (2) her mother is seriously ill; (3) her would-be
persecutors told her that they would rape and kill her; (4) one persecutor told her: “You
look like your sister. You will take your sister’s place,” which Lopez–Cruz took to
mean that she would be possessed by the man; and (5) country reports indicating that
female heads of household are a “vulnerable population” as defined by the Honduran
government and are frequently victims of violence. With the exception of the country
conditions evidence, the Board addressed each of these pieces of evidence in its opinion.
Indeed, the Board accepted the IJ’s fact finding on each aspect of Lopez–Cruz’s petition
except for the final conclusion that the findings demonstrated a nexus.
After carefully scrutinizing the BIA’s reasoning, we cannot say that it was in any
way wrong to conclude that the IJ clearly erred in finding that Lopez–Cruz had
established the requisite nexus. While Lopez–Cruz need not prove the exact motive of
her perpetrators, she carries the burden of providing “some evidence of [a motive based
on a statutorily protected ground], direct or circumstantial.” Ndayshimiye, 557 F.3d at
131 (alteration in original) (quoting
Elias-Zacarias, 502 U.S. at 483). The record
evidence suggests, at best, that Lopez–Cruz’s status as a “young female head of
household” provided an opportunity for her alleged persecutors to take advantage of her;
it does not establish that such status was relevant to their motivation. The facts that
Lopez–Cruz’s father is absent and her mother is ill, while perhaps indicative of her
8
social vulnerability, do not evidence any motive of her persecutors. After all, such facts
would also provide the same opportunity for alleged persecutors to take advantage of a
young woman who was not the head of household.
Similarly, country reports indicating that female heads of household are
considered a vulnerable population do not relate to the particular motives of Lopez–
Cruz’s would-be persecutors. The only evidence in the record relating to the motives of
Lopez–Cruz’s would-be persecutors—that one wanted to “make [her] the ‘woman of the
house,’” (A.R. 220), and that she would “take [her] sister’s place,” (A.R. 95)––does not
tend to suggest that they were motivated by Lopez–Cruz’s status as a young female head
of household. As such, it was not unreasonable for the BIA to conclude that, even if
Lopez–Cruz belonged to a protected group, she did not satisfy her burden of establishing
that her membership in that group was more than an “incidental, tangential, or
superficial” reason for the persecution she fears. Ndayshimiye, 557 F.3d at 130.
IV.
For the foregoing reasons, we will grant Respondent’s unopposed motion to
supplement the record, grant Respondent’s motion to supplement the brief, and deny the
petition for review.
9
