Jexte Cedillos-Cedillos v. William Barr ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2233
JEXTE BENJAMIN CEDILLOS-CEDILLOS,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: May 28, 2020 Decided: June 26, 2020
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Dismissed in part and denied in part by published opinion. Judge Harris wrote the opinion,
in which Judge Richardson and Judge Quattlebaum joined.
Dree K. Collopy, Sarah B. Pitney, BENACH COLLOPY LLP, Washington, D.C., for
Petitioner. Joseph H. Hunt, Assistant Attorney General, Jessica E. Burns, Senior Litigation
Counsel, Maarja T. Luhtaru, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
PAMELA HARRIS, Circuit Judge:
Jexte Benjamin Cedillos-Cedillos (“Cedillos”), a native and citizen of El Salvador,
seeks review of a final order of removal entered by the Board of Immigration Appeals.
Cedillos contends that he fled El Salvador after he was the only witness to his brother’s
murder, reported the murder to the police, and was threatened by his brother’s attackers on
several occasions. Based on those events, he applied for asylum and other forms of relief
from removal, claiming that he was persecuted and fears future persecution on account of
his family ties. An immigration judge and the Board of Immigration Appeals rejected his
application, and Cedillos timely sought review in this court. For the reasons that follow,
we dismiss in part and deny in part Cedillos’s petition for review.
I.
Cedillos entered the United States without authorization in April of 2013, near
Laredo, Texas, and was immediately detained by the Department of Homeland Security.
After passing an initial credible fear interview, Cedillos was released of his own
recognizance and served with a notice to appear for a removal hearing at a date and time
to be determined. He subsequently received follow-up notices listing the date and time for
his hearing, and attended that hearing, represented by counsel. Cedillos conceded
removability as charged as an alien present in the United States without having been
admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), but applied for asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”). Cedillos based
his petition for relief on alleged persecution “on account of” his “membership in a
2
particular social group” composed of his nuclear family. See 8 U.S.C. § 1101(a)(42)(A).
We begin by summarizing Cedillos’s testimony before the immigration judge (“IJ”) and
then outline the legal proceedings that followed.
A.
The following facts are taken from Cedillos’s testimony, which the IJ deemed
credible, and his application for relief from removal. On November 17, 2012, Cedillos was
walking home from work when he saw two men, whom he recognized as neighbors and
friends of his brother, beating a person he could not immediately identify. After the men
– one of whom Cedillos believed to be a gang member – saw Cedillos and recognized him,
they yelled “‘hoy,’ as a greeting,” stopped beating the victim, and left. When Cedillos
approached the victim, he realized it was his brother, Ruben, whose injuries turned out to
be fatal. Cedillos and his father immediately reported the attack to the police, but the police
were not able to locate the attackers. At some point, the police went to the attackers’ homes
but found that the men no longer lived there.
Cedillos did not see or hear from the attackers for approximately a month and a half.
Then, on January 1, 2013, Cedillos was leaving his job at a local restaurant when he saw
the attackers waiting in a car outside. He ran to the nearby home of a friend, Nurian
Ramirez, to avoid the attackers, who chased after him but stayed outside. The next
morning, Ramirez received a telephone call from the attackers asking to speak to Cedillos,
but Cedillos did not take the call. The attackers returned to Ramirez’s home on January
10, 2013, and again asked for Cedillos; Ramirez told the men that she did not know who
3
they were talking about. Cedillos had no further contact with the attackers before he fled
to the United States in March of 2013, during which time he “almost never” left the house.
A.R. 116.
None of Cedillos’s family, all of whom remain in El Salvador, have been threatened
or harmed, nor have the two men who killed Cedillos’s brother tried to contact his family
or ask for his whereabouts.
B.
The IJ denied Cedillos’s petition for relief from removal on all counts. Most
relevant to this appeal is Cedillos’s application for asylum, which, the IJ held, suffered
from a number of flaws. First, the IJ found that Cedillos failed to establish either that he
“suffered past persecution or that he independently has a well-founded fear of future
persecution.” A.R. 53. Though the IJ recognized this circuit’s determination, in Crespin-
Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011), that credible death threats can
amount to persecution, he found that what Cedillos described here – the two attackers
looking for him, without any claim that they physically harmed him or that they
communicated any specific threat to do so – did not meet that threshold. Nor had Cedillos
shown a reasonable possibility of future persecution in El Salvador, the IJ held, given his
testimony that his immediate family – eight surviving siblings and both his parents –
remained there and had not been harmed, or even contacted, by the attackers. And, the IJ
noted, Cedillos also could not establish a well-founded fear of future persecution because
he could avoid persecution by relocating to another part of El Salvador. See 8 C.F.R.
1208.13(b)(2)(ii).
4
The IJ then held that Cedillos’s asylum application failed for a second, independent,
reason: because “even if [Cedillos] could establish that he was persecuted in the past and
has a well-founded fear of future persecution, he has not established that any such
persecution would be on account of a protected ground.” A.R. 55 (emphasis added).
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). Cedillos claims that he is a member of a
particular social group made up of his immediate family, and the IJ acknowledged that a
family can constitute a particular social group. However, the IJ went on to hold, Cedillos
had not met what is often called the nexus requirement of the asylum statute: That is, he
had not made a showing that “his family membership is at least one central reason for the
harm that he suffered and fears.” A.R. 55. Instead, the IJ found, the record indicated that
“the overwhelming motivation” for any potential harm was that Cedillos “witnessed the
murder,” independent of the fact that he was related to the victim. Id.For much the same reasons, the IJ held that Cedillos was not entitled to withholding
of removal. 1 Finally, the IJ held that Cedillos failed to establish that it is more likely than
not that he would be tortured if removed to El Salvador, and thus that he did not qualify
for CAT protection.
1
Both asylum and withholding of removal are based on an applicant’s showing of
persecution on account of a statutorily protected status. See 8 U.S.C. § 1101(a)(42)(A)
(asylum); id. § 1231(b)(3)(A) (withholding). However, the standard of proof for
withholding is higher, requiring the applicant to establish a “clear probability” of
persecution, rather than the less stringent “well-founded fear” of persecution sufficient to
make out an asylum claim. See Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010).
Thus, an applicant who is ineligible for asylum necessarily is ineligible for withholding of
removal. See Tang v. Lynch, 840 F.3d 176, 183 (4th Cir. 2016).
5
Cedillos appealed to the Board of Immigration Appeals (“BIA”). As a threshold
matter, Cedillos cited the Supreme Court’s opinion in Pereira v. Sessions, 138 S. Ct. 2105(2018) – which had issued after the IJ’s decision – to argue that because the first notice to
appear (“NTA”) he received had not specified the time and place for his removal hearing,
the IJ lacked jurisdiction over his removal proceedings altogether. He also argued that the
IJ erred on the merits in denying his claims for relief.
A one-member panel of the BIA dismissed Cedillos’s appeal and affirmed the IJ’s
findings. The BIA rejected Cedillos’s Pereira argument, explaining that an NTA lacking
the time and place of an initial removal hearing nonetheless “vests an [IJ] with jurisdiction
over the proceedings . . . as long as a Notice of Hearing specifying this information is later
sent to the alien.” A.R. 5. Here, because Cedillos indisputably received later notices that
included this information, there was no jurisdictional defect.
The BIA also affirmed the IJ’s denial of asylum, agreeing that “the incidents of harm
described by [Cedillos] did not rise to the level of past persecution,” and echoing the IJ’s
determination that the record lacked evidence sufficient to establish an objectively
reasonable fear of future harm. A.R. 4. In addition, the BIA agreed that Cedillos had failed
to establish the requisite nexus between the threatened harm and membership in his family.
Like the IJ, the BIA recognized that it is “well settled that membership in a nuclear family
qualifies as a protected ground for asylum purposes.” Id. But like the IJ, the BIA also
concluded that the record indicates that the attackers’ motivation was not Cedillos’s family
membership, but rather “their desire to retaliate against [him] for having reported to the
police the crime they committed.” Id.6
Finally, the BIA found no reason to disturb the IJ’s determinations that Cedillos
could avoid persecution by relocating to another part of El Salvador and that he had failed
to establish grounds for withholding of removal or CAT protection.
Cedillos timely petitioned this court for review.
II.
On appeal, Cedillos argues that the BIA and IJ improperly denied his claim for
asylum. 2 He identifies several purported errors, including the failure to dismiss
proceedings for lack of jurisdiction following Pereira, and the determination that Cedillos
had not shown past persecution or a well-founded fear of future persecution on account of
his family ties. 3
Where, as here, the BIA “adopts the IJ’s opinion and supplements it with its own
reasoning,” we consider both rulings on appeal. Hernandez-Avalos v. Lynch, 784 F.3d 944,
948 (4th Cir. 2015). We review de novo the legal question of whether the IJ lacked
2
Because Cedillos does not meaningfully address his claims for withholding or
CAT, we conclude that he has abandoned those claims on appeal. See Fed. R. App. P.
28(a)(8)(A); Suarez-Valenzuela v. Holder, 714 F.3d 241, 249 (4th Cir. 2013) (noting that
it is “a well settled rule that contentions not raised in the argument section of the opening
brief are abandoned” (citations and emphasis omitted)).
3
Cedillos also argues, for the first time on appeal, that the IJ erred when it did not
consider additional potential “particular social groups” other than Cedillos’s nuclear
family. But because Cedillos failed to raise this argument before the BIA, we have no
authority to consider it, and therefore dismiss the petition for review insofar as this claim
is concerned. See 8 U.S.C. § 1252(d)(1) (stating that court may review removal order only
if alien exhausted all administrative remedies); Kporlor v. Holder, 597 F.3d 222, 226 (4th
Cir. 2010) (“[I]t is well established that an alien must raise each argument to the BIA before
we have jurisdiction to consider it.” (internal quotation marks omitted)).
7
jurisdiction over Cedillos’s removal proceedings, and we review factual findings –
including the determination that the harm alleged was not on account of Cedillos’s family
ties – for substantial evidence, treating them as conclusive “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C.
§ 1252(b)(4)(B)). Ultimately, we must affirm the BIA’s decision if it is not “manifestly
contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).
A.
We first address Cedillos’s jurisdictional argument, though we need not say much.
That is because this claim – that because his initial NTA did not include a time or date for
a hearing, the immigration court lacked jurisdiction over his removal proceeding – is
squarely foreclosed by our recent opinion in United States v. Cortez, 930 F.3d 350, 355
(4th Cir. 2019), which was issued only after the parties’ briefing in this case.
A bit of context: The regulations governing removal proceedings provide that such
proceedings commence and “[j]urisdiction vests” with the IJ “when a charging document
is filed with the [i]mmigration [c]ourt.” 8 C.F.R. § 1003.14(a). One such qualifying
document is a “[n]otice to [a]ppear,” id. § 1003.13, which – as described by the regulations
– need not include a date and time for a hearing, id. § 1003.15(b)–(c), though that
information is required to be provided to a noncitizen later, by the immigration court
itself, id. § 1003.18(b). The Immigration and Nationality Act also refers to a “notice to
appear,” and defines that document to include “[t]he time and place at which [removal]
proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i); see also Pereira, 138 S. Ct. at 2114(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of the
8
removal proceedings”). Relying on this statutory provision, Cedillos contends that because
the initial notice in his case omitted the date and time of his hearing, the immigration court
never had “jurisdiction,” rendering his removal proceeding altogether null and void.
We rejected this precise claim in Cortez, holding that the purported defect here is
not jurisdictional, because the regulation upon which this argument relies – 8 C.F.R.
§ 1003.14(a) – is not “jurisdictional in the formal sense,” 930 F.3d at 359, but instead is
“more like a docketing rule, providing for the orderly administration of proceedings . . .
before the immigration judges,” id. at 362 (internal quotation marks omitted). And second,
we explained that there is in any event no defect in such circumstances, because “[i]t is the
regulatory definition of ‘notice to appear,’ and not § 1229(a)’s definition, that controls in
determining when a case is properly docketed with the immigration court,” and that
regulatory definition does not require inclusion of the time and date of proceedings. Id. at
363. Thus, Cedillos’s threshold claim fails.
B.
We turn next to the crux of this appeal: whether substantial evidence supports the
determination of the IJ and BIA that Cedillos has not met his burden of showing eligibility
for asylum. To establish such eligibility, an applicant must show that he has suffered past
persecution or has a well-founded fear of future persecution, and must meet the nexus
requirement by showing that such persecution was or will be “on account of” his
“membership in a particular social group.” 8 C.F.R. § 1208.13(b)(1); see also 8 U.S.C.
§ 1101(a)(42)(A). Both prongs are necessary to make out a cognizable claim for asylum,
and the IJ and BIA determined that Cedillos satisfied neither here. Because the nexus issue
9
is dispositive of this petition, we need not address the agency’s determination that the harm
alleged falls short of persecution. Instead, we begin, and end, our analysis by considering
whether Cedillos satisfied the nexus requirement.
It is important to note that our role in this context – reviewing the finding that
Cedillos failed to fulfill the nexus requirement – is limited, as we have repeatedly
emphasized: “Because this is a factual finding, our task is not to decide how we would
rule in the first instance. Rather, we must uphold the BIA’s finding unless no rational
factfinder could reach the same conclusion.” Temu v. Holder, 740 F.3d 887, 891 (4th Cir.
2014). Put differently, “our review of the BIA’s and IJ’s determination of this factual
question is limited to considering whether their conclusion is ‘supported by reasonable,
substantial, and probative evidence.’” Cruz v. Sessions, 853 F.3d 122, 128 (4th Cir. 2017)
(quoting Ngarurih v. Ashcroft, 371 F.3d 182, 188 (4th Cir. 2004)). We conclude that it is.
The BIA and IJ properly determined, and the government does not dispute, that
Cedillos is a member of a cognizable particular social group – his immediate family.
Indeed, we have held that a nuclear family “provides a prototypical example of a particular
social group.” Crespin-Valladares, 632 F.3d at 125 (internal quotation marks omitted).
The only question is whether Cedillos has shown the requisite nexus between his family
ties and the alleged persecution, or whether, as the government argues, substantial evidence
supports the agency’s finding that the attackers’ overwhelming motivation was that
Cedillos had witnessed the murder and reported it to the police.
“Persecution occurs ‘on account of’ a protected ground if that ground serves as ‘at
least one central reason for’ the feared persecution.” Id. at 127 (quoting 8 U.S.C.
10
§ 1158(b)(1)(B)(i)). A central reason is not necessarily “the central reason or even a
dominant central reason,” but it must be more than “incidental, tangential, superficial, or
subordinate” to another reason for harm. Id. (internal quotation marks omitted). As the
Supreme Court has explained, the applicant “must provide some evidence of [motive],
direct or circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
Here, the record provides ample support for the IJ and BIA’s conclusion that the
attackers’ motivation was their desire to prevent Cedillos – the only witness – from
reporting the murder of his brother, or to retaliate against him for having done so. Cedillos
testified, credibly, that he witnessed the attackers’ murder of his brother, that the attackers
recognized him, that he reported this crime to the police, and that the attackers subsequently
tried to speak to him at his place of work and a friend’s house. But it does not inevitably
follow that the attackers’ motivation was his relationship to his brother, and Cedillos points
to nothing in the record that would support such a conclusion. Instead, the events as
recounted by Cedillos indicate that the attackers approached him because he was the sole
witness to a crime they committed, in an attempt to prevent him from, or retaliate against
him for, reporting them to the police.
Cedillos’s testimony and the documentary evidence he provided support this
determination. When asked why he was afraid to return to El Salvador, Cedillos testified
before the IJ that it was “[b]ecause [he is] the only witness who recognized them.” A.R.
101. This rationale is consistent with Cedillos’s application for relief from removal, which
states that the attackers “threatened [him] because [he] was the only witness.” A.R. 302.
Similarly, the letters submitted in support of Cedillos’s asylum application repeat the
11
notion that he feared for his life as the only witness. See, e.g., A.R. 320 (“[Cedillos] was
persecuted . . . after having been the only witness of the death of his brother . . . .”); A.R.
322 (Cedillos’s “life was in danger since he was the only . . . witness of his older brother’s
murder”); A.R. 324 (“[F]or being the only witness [Cedillos] was threatened by the
perpetrators . . . .”); A.R. 333 (Cedillos was threatened “for being the only . . . witness of
the murder of his older brother”).
It is true, as we have explained, that “more than one central reason may, and often
does, motivate a persecutor’s actions,” Cruz v. Sessions, 853 F.3d 122, 128 (4th Cir. 2017),
and evidence that Cedillos’s attackers were motivated by his status as a witness does not
by itself foreclose the possibility that they also might have been motivated by his
membership in his nuclear family, see id. at 129–30. On multiple occasions, we have
recognized the existence of “mixed motive” cases, “in which a statutorily protected ground
comprises only part of the persecution.” Quinteros-Mendoza v. Holder, 556 F.3d 159, 164
(4th Cir. 2009). And in several of our recent mixed motive cases, we have cautioned the
BIA against taking an “excessively narrow” approach to the nexus requirement,
Hernandez-Avalos, 784 F.3d at 949, especially in the context of family ties. But those
cases are distinguishable, and here the agency was not “compelled” to conclude, id. at 948,
on this factual record, that mixed motives were at play.
In Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015), for example, we
considered a case in which gang members threatened to kill a woman if she would not
allow her son to join their ranks. See id. at 947. The BIA determined that the gang was
motivated by recruitment, rather than the mother’s family relationship to her son, so that
12
Hernandez was not eligible for asylum. Id. at 949. But we disagreed, explaining that the
“recruitment motiv[e] . . . did not preclude the existence of another central reason – family
ties – for that same persecution,” and that the record compelled a finding that it was the
mother’s relationship to her son that explained why she, and not some other person, was
targeted for threats. Id. at 950.
At the same time, however, we noted that even a threat that specifically references
a family member is not necessarily made “on account of” the familial relationship. Id. at
950 n.7. Gang members had issued a second threat against Hernandez, vowing to kill her
if she reported them to authorities for murdering her husband’s cousin. It “may well be”
the case, we explained, that this threat “was not made on account of Hernandez’s familial
connections,” because “[t]hat same threat could have been directed at any person who knew
about the gang members’ criminal activities.” Id. The same reasoning governs here, where
substantial evidence indicates that the threats made to Cedillos could have been directed at
any person who witnessed his brother’s killing. Unlike the threats against Hernandez
concerning her son’s recruitment, for which “there [was] no evidence that she would have
been selected as the recipient . . . absent th[e] familial connection,” id., the threats alleged
by Cedillos are entirely consistent with a motivation independent of his family ties.
For much the same reason, the nexus determinations of the IJ and BIA in this case
comport with our decision in Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017). In Cruz, the
petitioner’s husband disappeared, and she suspected he was killed by his employer – who,
when asked about the disappearance, threatened that she would “suffer the same fate” if
she filed a police report. 853 F.3d at 125. We rejected the BIA’s determination that Cruz
13
was not persecuted because of her relationship to her husband, but rather to deter her from
reporting her husband’s murderer to the police. See id. at 128–29. This, we held,
disregarded record evidence that the employer was motivated by his belief that “because
of [Cruz’s] relationship with her husband, she was more likely than others to search for
him and to contact the police.” Id. at 130. The record “unequivocally demonstrate[d],” we
explained, that Cruz was in a position to suspect and report her husband’s employer only
because of information she learned through her husband, as a result of her spousal
relationship with him. Id. In addition, the employer specifically told Cruz not to report
her husband’s disappearance; threats were made both to Cruz and to her children over a
period of two years; and those threats – repeated phone calls to Cruz, and the killing of the
family’s dogs – occurred in Cruz’s home, “the center of life for [her deceased husband]
and his nuclear family.” Id. at 129.
The record before us now is very different, and it cannot be said to compel the
conclusion that Cedillos was targeted – in whole or in part – because the men who attacked
his brother were concerned with his membership in his nuclear family. On Cedillos’s own
telling, the attackers never mentioned his brother to him; they did not go to his family’s
home, despite the fact that they were neighbors and presumably knew where the Cedillos
family lived; and they have never contacted any other member of his family – including
his father, who along with Cedillos reported the crime to the police. And Cedillos, unlike
Cruz, knew the attackers’ identity not because of information he learned through his
familial relationship with his brother, but only because he happened upon the assault. On
this record, we think there is ample evidence to support the agency’s determination that
14
family membership was not an “intertwined” reason for the threats against Cedillos. Cf.
Cruz, 853 F.3d at 129 (finding that agency erred in “failing to consider the intertwined
reasons for” the threats against Cruz).
In sum, and consistent with our case law, the record in this case does not compel the
conclusion that family membership was “at least one central reason,” 8 U.S.C.
§ 1158(b)(1)(B)(i), why Cedillos was threatened by his brother’s attackers. Accordingly,
we affirm the agency’s determination that Cedillos cannot satisfy the nexus requirement,
and so is not eligible for asylum.
III.
For the foregoing reasons, we dismiss in part and deny in part Cedillos’s petition
for review.
DISMISSED IN PART AND DENIED IN PART ∗
∗
This opinion is published without oral argument pursuant to this Court’s Standing
Order 20-01, http://www.ca4.uscourts.gov/docs/pdfs/amendedstandingorder20-01.pdf
(amended Apr. 7, 2020).
15