Riccy Funez-Munguia v. Merrick Garland ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2124
RICCY MABEL FUNEZ-MUNGUIA; A.I.F.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: October 27, 2021 Decided: November 23, 2021
Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Petition for review granted; vacated and remanded by unpublished opinion. Judge Harris
wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.
ARGUED: Bradley Bruce Banias, WASDEN BANIAS LLC, Charleston, South Carolina,
for Petitioners. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Acting
Assistant Attorney General, Nancy E. Friedman, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:
Riccy Mabel Funez-Munguia (“Funez”) came to the United States from Honduras
after she was threatened by a gang member who lived in her apartment building. According
to Funez, the gang member persecuted her on account of her familial relationship with the
apartment manager, worried that she would use her influence with the manager to have him
evicted. An Immigration Judge denied relief from removal and the Board of Immigration
Appeals affirmed, holding that there was no “nexus” between Funez’s family relationship
and the threats against her. Because the agency incorrectly applied the statutory nexus
standard, we grant the petition for review, vacate the agency’s decision, and remand for
further proceedings.
I.
In April 2016, Funez entered the United States with her minor daughter. After the
government placed the two in removal proceedings, Funez applied for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). 1
A.
The Immigration Judge (“IJ”) deemed credible Funez’s account of the events that
led to her flight from Honduras, and we begin with a summary of that account. Early in
1
Funez’s daughter, A.I.F., also appears as a petitioner, but is eligible for relief only
as a derivative applicant, or rider, on Funez’s application. See 8 U.S.C. § 1158(b)(3)(A);
8 C.F.R. § 208.21(a). Because Funez is the lead applicant, our opinion focuses on her
claims. See Perez Vasquez v. Garland, 4 F.4th 213, 218 n.1 (4th Cir. 2021).
2
2015, Funez moved into an apartment building in the Serrito Lindo neighborhood of San
Pedro Sula, Honduras. She then learned that her cousin’s husband, Anibal Alvarenga, once
had owned the building and continued to be “in charge of the apartments,” collecting rent
and managing it for a new owner who lived in the United States. A.R. 388. Funez believed
that other tenants in the building knew of this relationship because her daughter publicly
greeted Funez’s cousin as “Aunt.” A.R. 389; see also A.R. 185 (cousin stating that Funez
was “like another sister” to her).
In June 2015, a gang member named Oscar, who had lived in the building until his
arrest earlier that year, was released from jail. He returned to the building and almost
immediately began to harass Funez. In their first encounter, in July 2015, he accosted
Funez while she was out with her daughter and accused her of trying to have him evicted
from the building – which she could do, he claimed, “because [she was] related to the
owners.” A.R. 389–90 (“They tell me that you’re going to decide[] who lives there because
you’re related to the owners.”). Funez understood Oscar to be referring to her relationship
with Alvarenga, and explained that Alvarenga no longer owned the apartments and that she
“was nothing to the owners.” A.R. 390. Oscar angrily pointed at her and told her to “watch
out,” which Funez took to be a threat against her and her daughter. Id. She testified that
she feared Oscar could have killed her that night.
Over the next several months, Oscar continued to target Funez. But he no longer
mentioned her family, the building’s owner, or Alvarenga; and eventually he stopped
mentioning the building altogether. First, late one night in October 2015, Oscar and six
men confronted Funez with guns drawn, asking if she was “going to let [them] live there.”
3
A.R. 391. She denied having any say over such matters and swore that she had “nothing
to do with the owner.” Id. Oscar declared that he was “going to live there” and let her go.
Id. Then, the next month, Oscar walked into the building’s laundry room, again carrying
a gun, and slapped Funez in the face without explanation.
At that point, fearing Oscar’s hostility, Funez moved out of Serrito Lindo to a town
about an hour away. Soon after, however, Oscar caught up with her: In January 2016, he
called her cell phone, claiming that he knew where she lived and worked, and that he would
find and kill her. And in February 2016, he called again, threatening to find her, kill her,
and “cut [her] up in little pieces and feed [her] to the dogs.” A.R. 393. The next month,
scared that Oscar would follow through on these threats, Funez fled with her daughter to
the United States.
Upon crossing the border, Funez turned herself in to immigration authorities. She
was then given an interview with an asylum officer, who concluded that she had a credible
fear of persecution because Oscar “thought that [she] was the family member of the owners
of the building” and “that [she] would keep him and his friends from taking the building
over,” and had threatened her as a result. A.R. 488–89.
B.
After conceding removability, Funez applied for asylum, withholding of removal,
and CAT relief. The IJ found Funez’s testimony credible but denied her application in its
4
entirety. Because Funez has abandoned any challenge to the denial of CAT relief, we focus
exclusively on her claims to asylum and withholding of removal. 2
The IJ rejected those claims on a single ground: According to the IJ, Funez had not
shown that any persecution she feared or had suffered was “on account of” – that is, had a
nexus to – her familial relationship with Alvarenga. See 8 U.S.C. § 1101(a)(42)(A)
(identifying protected grounds supporting asylum); id. § 1231(b)(3)(A) (same for
withholding of removal). The IJ recognized that persecution on account of kinship ties
may qualify for protection. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 125
(4th Cir. 2011). But here, the IJ concluded, the record did not support Funez’s claim that
Oscar in fact was motivated by her family ties when he harassed her.
As to the first, July 2015 incident, the IJ acknowledged that Oscar referred to
Funez’s family ties in stating that she would “decide[] who lived in the building because
she is related to the owners.” A.R. 67 (emphasis added). The IJ went on, however, to note
that Oscar mentioned only the “owner” of the building – no longer Alvarenga – and that
Oscar in fact never was threatened with eviction. Id. “At most,” the IJ concluded, the
“record reflects that Oscar was upset that [Funez] may have been attempting to use her
position to influence the owner of the building to have [him] removed.” A.R. 69. As for
the later episodes and threats, the IJ held, there was no evidence that they were motivated
2
The Board of Immigration Appeals (“BIA”) determined that Funez failed to
challenge the IJ’s denial of CAT protection in her appeal to the Board, and Funez neither
challenges that determination nor addresses the merits of her CAT claim on appeal to this
court. Accordingly, the question of CAT protection is not before us, and we do not address
it further. See Cedillos-Cedillos v. Barr, 962 F.3d 817, 822–23 nn.2–3 (4th Cir. 2020).
5
by family ties, given Oscar’s failure to mention family, or even the building, during those
incidents. Instead, the IJ expressed his “suspicions that there was something else going on
in this case,” especially with respect to the escalating threats that came after Funez had left
the building. A.R. 68.
For those reasons, the IJ summed up, the record lacked “any direct or circumstantial
evidence” tying Oscar’s actions to Funez’s familial relationship. A.R. 69. And without
that evidence, Funez could prevail neither on her asylum claim nor under the more
demanding standard for withholding of removal. 3
The Board of Immigration Appeals (“BIA”) affirmed the denial of asylum and
withholding relief “for the reasons set forth by the Immigration Judge,” agreeing that Funez
had failed to establish the necessary nexus to family ties. A.R. 3. Specifically, the Board
reasoned, the IJ “did not commit clear error in finding that [Oscar] was motivated by his
mistaken belief that [Funez] could have him evicted from the apartment where he lived,
including his mistaken belief that she was related to the owner, rather than by her actual
familial relationship with the rent collector.” A.R. 3–4.
Funez and her daughter timely petitioned this court for review.
3
As the IJ noted, an applicant who “fails on her asylum claim will necessarily fail
on her withholding [o]f removal claim” as well. A.R. 69. For both forms of relief, an
applicant must show persecution on account of a statutorily protected ground. But
“withholding of removal implicates a more demanding standard of proof,” id., requiring
the applicant to establish a “clear probability” of persecution rather than the “well-founded
fear” sufficient to make out an asylum claim, Marynenka v. Holder, 592 F.3d 594, 600
(4th Cir. 2010).
6
II.
To qualify for relief, Funez must show that she “(1) has a well-founded fear of
persecution; (2) on account of a protected ground; (3) by an organization that the
[Honduran] government is unable or unwilling to control.” Hernandez-Avalos v. Lynch,
784 F.3d 944, 949 (4th Cir. 2015) (outlining asylum criteria); see also Marynenka v.
Holder, 592 F.3d 594, 600 (4th Cir. 2010) (outlining same criteria for withholding of
removal, but subject to a higher “clear probability” standard). Here, the agency addressed
only the “on account of” requirement of the second factor, denying Funez’s asylum and
withholding claims because she failed to establish the requisite nexus to her family
relations. We agree with Funez that the agency misapplied the nexus requirement, and
therefore vacate its determination and remand for further proceedings.
In evaluating Funez’s claim, we consider both the BIA’s decision and that of the IJ.
When, as here, the BIA adopts the opinion of an IJ and supplements it with its own
reasoning, we review both rulings. See Martinez v. Holder, 740 F.3d 902, 908 (4th Cir.
2014) (citing Barahona v. Holder, 691 F.3d 349, 353 (4th Cir. 2012)). And when, as here,
the BIA “holds that the IJ did not clearly err in making a factual finding, we must also
examine the IJ’s factual finding” on the issue. See Zavaleta-Policiano v. Sessions, 873
F.3d 241, 246 (4th Cir. 2017) (internal quotation marks omitted). We review such factual
findings for substantial evidence, “treating them as conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Perez Vasquez v. Garland,
4 F.4th 213, 220 (4th Cir. 2021) (internal quotation marks omitted). Whether the agency
7
“applied the correct legal standard in [its] nexus analysis,” however, is a legal question we
review de novo. Id. at 221 (internal quotation marks omitted).
Here, the agency failed to apply the correct legal standard. “As we have repeatedly
emphasized,” to establish nexus to a protected ground, “it is enough that the protected
ground be at least one central reason for the persecution.” Id. at 224 (internal quotation
marks omitted). And the record establishes that when Oscar targeted Funez in July 2015,
her familial relationship with Alvarenga, the building’s manager, was at least one central
reason for Oscar’s actions. That much is clear from his own statement, explaining that he
believed Funez was “related to the owners” and would use that relationship to have him
evicted. See A.R. 390 (“[Y]ou’re going to decide who lives there because you’re related
to the owners.”); see also A.R. 111, 113–14, 118, 124–25 (Funez’s testimony to same
effect). Indeed, the IJ himself acknowledged that Oscar initially accosted Funez because
he was concerned that she would “use her position to influence the owner of the building”
to have him removed, A.R. 69 – a “position” and “influence” that existed only by virtue of
her family ties to Alvarenga, see Hernandez-Avalos, 784 F.3d at 949–50 (mother
threatened by gang because of her influence over her son’s refusal to join gang is
persecuted “on account of” her family ties). 4
4
At oral argument, the government hypothesized that Oscar might have believed
Funez had some influence over the building not because of her family relations but because
she occasionally helped to collect rent. But that of course is not what Oscar said, and there
is no record evidence suggesting that Oscar ever fell behind in his rent or had some other
rent-related reason to fear eviction. Likely as a result, neither the IJ nor the BIA relied on
this theory, and we will not do so here. See, e.g., Cordova v. Holder, 759 F.3d 332, 337
8
The agency found – and the government argues on appeal – that Oscar threatened
Funez not because of her kinship ties to Alvarenga, but only because he was angry that she
was “attempting to have him removed” from the building, A.R. 68, or wanted him “evicted
from the apartment where he lived,” A.R. 4. But in this context, as we have explained, that
is “a meaningless distinction.” Hernandez-Avalos, 784 F.3d at 950 (rejecting agency
conclusion that applicant was threatened “because she exercises control over her son’s
activities” and “not because she is his mother”); see Cruz v. Sessions, 853 F.3d 122, 129
(4th Cir. 2017) (applying Hernandez-Avalos to hold that the agency erred in “failing to
consider the intertwined reasons” for a persecutor’s threats). Oscar may indeed have felt
“personal animosity” toward Funez because of what he understood to be her efforts to have
him evicted. A.R. 68. But the reason Oscar targeted Funez – as opposed to some other
neighbor who also might have preferred not to live with a gang member – was, as he said,
her perceived ability to make good on those efforts by leveraging her familial relationship
with Alvarenga. That is enough to show that Funez’s familial relationship to Alvarenga
was “one central reason, perhaps intertwined with others, why [she], and not another person
was threatened.” Perez Vasquez, 4 F.4th at 224 (emphasis omitted); see also, e.g.,
Hernandez-Avalos, 784 F.3d at 950 (explaining that nexus requirement is satisfied if family
relationship is one of “multiple central reasons” for persecution).
(4th Cir. 2014) (we may affirm the agency “only [on] the grounds upon which the agency
acted” (internal quotation marks omitted)).
9
The agency and the government also focus on the fact that Oscar referred expressly
to the “owner” of the building, while Alvarenga was the former owner and current manager
of the apartment complex. But that has no bearing on Funez’s claim, which is that she was
targeted by Oscar in July 2015 at least in central part because she was related to someone
with perceived authority over the building. Whether Oscar correctly understood the
building’s evolving ownership and management structure or the extent of Alvarenga’s
authority is beside the point; what matters is that he believed that Funez could use her
familial relationship with Alvarenga to have him evicted. See Cruz, 853 F.3d at 130 (nexus
requirement satisfied where persecutor “suspected” that applicant would have access to
damaging information based on her marital relationship).
The BIA appears to have gone a step further, reasoning that Oscar mistakenly
believed Funez was not related to Alvarenga but instead related to the current owner of the
apartment building, living in the United States. At oral argument, the government declined
to defend that theory, and properly so. In July 2015, Funez understood Oscar to be referring
to her actual family relationship with former-owner and current-manager Alvarenga, and
there is no record evidence to suggest that Oscar even was aware of a new owner in the
United States, let alone under the misimpression that Funez was related to him or her, rather
than to Alvarenga. And regardless, even on the BIA’s hypothesized series of errors, this
would be a case of alleged “[p]ersecution for imputed grounds” – that is, persecution
because one is “erroneously thought” to be part of a protected group or hold protected
political views – which both we and the BIA have recognized may satisfy the nexus
requirement. Abdel-Rahman v. Gonzales, 493 F.3d 444, 450 (4th Cir. 2007) (internal
10
quotation marks omitted) (quoting In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996)). Even
if, that is, one central reason for Oscar’s approach to Funez in July 2015 was that he
mistakenly thought she was related to the building’s United States owner, the agency has
given no explanation for why that would not satisfy the nexus requirement.
Finally, to the extent the IJ suggested, and the government echoes on appeal, that a
nexus finding is precluded by the fact that Oscar never was evicted, we disagree. The IJ
and the government appear to take the position that because Funez did not use her family
relationship to have Oscar removed, Oscar must have known that she could not have done
so. See A.R. 67 (suggesting that because he was not evicted, Oscar would not have thought
the “threat of removal from the building was a realistic possibility”). But what Oscar knew
and did not know in July 2015 is best captured by what he said: that Funez would “decide[]
who lives” in the building. A.R. 390; see also A.R. 391 (Oscar asking in October 2015 if
Funez was “going to let [him] live there”). Further, the inference on which the government
relies was unavailable to Oscar when he first approached Funez. At that point, his fears
were entirely prospective, and he could not have known the outcome of Funez’s purported
efforts to have him evicted. 5
5
The government also suggests that Oscar’s continued presence in the building in
later months necessarily would have shown him that he had misjudged Funez’s influence.
As Funez argues, however, Oscar might more likely have assumed from his longevity only
that his intimidation campaign was working as planned. As discussed below, we leave that
question, along with other factual issues arising in subsequent months, to the agency on
remand.
11
In sum, we conclude that the agency misapplied the statutory nexus standard when
it found that the record lacked “any direct or circumstantial evidence,” A.R. 69, that
Funez’s familial relationship with Alvarenga was at least “one central reason” Oscar
approached her in July 2015, Perez Vasquez, 4 F.4th at 224. Because of that legal error,
we vacate the agency’s nexus finding and remand for further proceedings. See id. at 224
(holding that misapplication of the statutory nexus standard is a “legal error provid[ing]
an . . . independently sufficient ground for vacatur”).
Funez urges us to go further, reversing the agency’s nexus finding and holding that
the record compels the conclusion that she was subject to past persecution on account of
her kinship ties. This we cannot do. As we have explained, the record makes
unequivocally clear that Oscar’s initial encounter with Funez, in July 2015, was motivated
at least in central part by her kinship ties to Alvarenga. But whether Oscar’s later threats
also were on account of her familial relationship is a separate question. To be sure, Oscar’s
motive may well have stayed the same, so that he continued to target Funez for the same
family-based reasons as before. As the IJ noted, however, at least some of the relevant
facts had changed by the time of their later encounters: By November 2015, Funez had
twice explained to Oscar that she had no influence over building management, and Oscar
had ceased referring to her family ties and to the apartment altogether. And by January
2016, when Oscar’s threats escalated, she had moved out of the building to a town an hour
away.
Moreover, the agency has yet to consider which of Oscar’s actions rose to the level
of persecution, rather than “mere harassment.” See Portillo Flores v. Garland, 3 F.4th 615,
12
627 (4th Cir. 2021) (en banc) (internal quotation marks omitted). While Oscar’s explicit
death threats in January and February of 2016 clearly would qualify, see Bedoya v. Barr,
981 F.3d 240, 246 (4th Cir. 2020) (collecting cases holding that death threats amount to
persecution), whether Oscar’s earlier threats also amount to persecution is, again, a separate
question. We in no way prejudge those issues here. But this is a complicated case, and we
follow our ordinary rule of remanding so that the agency may make the relevant factual
assessments under the proper standard and in the first instance. See Alvarez Lagos v. Barr,
927 F.3d 236, 252 (4th Cir. 2019). 6
III.
For the reasons given above, the petition for review is granted, the agency’s nexus
determination is vacated, and the case is remanded to the BIA for further proceedings
consistent with this opinion.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
6
Our remand includes both Funez’s asylum claim and her withholding claim.
Contrary to the government’s suggestion, Funez has not abandoned her withholding claim
before this court for failing to address it separately in her opening brief. Throughout these
proceedings, the agency has intertwined the asylum and withholding claims, denying them
in tandem under the same improper nexus analysis. See A.R. 3–4; id. at 69 (IJ denying
withholding relief solely because “[a]n applicant who fails on her asylum claim will
necessarily fail on her withholding [o]f removal claim”). Under those circumstances,
Funez’s challenge to the agency’s nexus analysis plainly comprehends both her asylum
and her withholding claims.
13