Marcio Lopez-Orellana v. Matthew Whitaker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-2067

MARCIO LOPEZ-ORELLANA,

Petitioner,

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: September 25, 2018 Decided: December 19, 2018

Before KING and KEENAN, Circuit Judges, and John A. GIBNEY, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.

Petition for review granted in part, denied in part; vacated and remanded by unpublished
opinion. Judge Gibney wrote the opinion, in which Judge King and Judge Keenan joined.

ARGUED: Jennifer Lynn Cervantes, CERVANTES & CERVANTES, PLC,
Fredericksburg, Virginia, for Petitioner. Robert Michael Stalzer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Juan V.
Cervantes, CERVANTES & CERVANTES, PLC, Fredericksburg, Virginia, for Petitioner.
Chad A. Readler, Acting Assistant Attorney General, Stephen J. Flynn, Assistant Director,
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Unpublished opinions are not binding precedent in this circuit.

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GIBNEY, District Judge:

Marcio Lopez-Orellana faced multiple targeted death threats at the hands of a rival

family in his native Honduras. Yet the Board of Immigration Appeals (“BIA”) affirmed

an Immigration Judge’s (“IJ”) finding that he did not suffer past persecution in Honduras

and thus did not qualify for asylum. Because we hold that Lopez did suffer past

persecution, the IJ and BIA should have afforded him the rebuttable presumption of a well-

founded fear of future persecution. For the reasons that follow, we grant in part and deny

in part the petition for review, vacate the BIA’s order, and remand to the BIA for further

proceedings.

In 2005, a land dispute arose between Lopez’s uncle, Martar Orellana, and Martar’s

neighbors, the Hernandez family. The dispute escalated, and the Hernandez family

attacked Martar with a machete, amputating both of his arms. In 2007, the Hernandez

family shot and killed Lopez’s father because he had been investigating the attack on

Martar.

In early 2012, Jorge and Felipe Hernandez, while armed, threatened to kill Lopez.

Jorge and Felipe claimed that Lopez wanted to “take vengeance” against them for his

father’s death. J.A. 137. Lopez tried to convince Jorge and Felipe that he did not want to

avenge his father’s death, but they pursued him nonetheless. Lopez escaped uninjured.

Shortly thereafter, other members of the Hernandez family fired shots at Lopez. He injured

his arm while trying to escape.

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Feeling unsafe in his hometown, Lopez moved to San Marcos, Honduras. Because

people from Lopez’s hometown often visited San Marcos, Lopez still worried that the

Hernandez family would find him. He then moved to San Pedro Sula, Honduras, where

two of his sisters lived. After experiencing two unrelated assaults in San Pedro Sula, Lopez

traveled to the United States in July, 2012.

After arriving in the United States, Lopez continued to receive reports of violence

that the Hernandez family perpetrated against his family. For example, the Hernandez

family fired shots at his mother’s house with his mother and sisters inside. They later shot

Lopez’s brother and another uncle, leaving his uncle paralyzed.

Immigration officials detained Lopez at the border, where he filed an application

for asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (“CAT”). Lopez appeared before an IJ, who found his testimony “detailed,

plausible, and consistent with the asylum application and with known country conditions.”

J.A. 140.

Nonetheless, the IJ denied Lopez’s applications. First, the IJ found Lopez ineligible

for asylum. Noting “the lack of any physical harm” to Lopez, the IJ held that Lopez did

not suffer past persecution in Honduras. J.A. 141. Based on the IJ’s holding regarding

past persecution, the IJ required Lopez “to show that internal relocation is not reasonably

available to him.” J.A. 142. The IJ concluded that Lopez failed to show that he could not

relocate in Honduras. Further, the IJ found that Lopez suffered harm “as a result of a land

dispute,” but not persecution “on account of his family membership.” J.A. 141. Second,

the IJ held that Lopez did not meet the higher standard of proof required for withholding

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of removal. Finally, the IJ denied relief under the CAT because Lopez did not show that

he suffered torture in Honduras.

Lopez appealed to the BIA, and the BIA affirmed the IJ’s decision. The BIA agreed

that Lopez did not suffer past persecution based on “the absence of physical harm.” J.A.

3. Because the BIA affirmed the IJ’s finding that Lopez did not establish past persecution,

the BIA found that Lopez “is not entitled to a rebuttable presumption of a well-founded

fear of persecution.” J.A. 4. The BIA assumed without deciding that Lopez suffered harm

on account of his family membership, but concluded that Lopez could relocate within

Honduras to avoid persecution. The BIA further found Lopez ineligible for withholding

of removal and denied his request for relief under the CAT. This petition for review

followed.

II.

When the BIA affirms the IJ’s decision with its own opinion, we review both the

BIA’s and IJ’s decisions. Salgado-Sosa v. Sessions, 882 F.3d 451, 456 (4th Cir. 2018).

The BIA’s decisions on asylum and withholding of removal “are deemed conclusive if

supported by reasonable, substantial and probative evidence on the record considered as a

whole.” Velasquez v. Sessions, 866 F.3d 188, 193 (4th Cir. 2017). We review factual

findings for substantial evidence, meaning that we will not disturb factual findings unless

“any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). Finally, we review legal conclusions de novo. Velasquez, 866 F.3d at

193.

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A.

The Immigration and Nationality Act (“INA”) permits the Attorney General to grant

asylum to non-citizens who qualify as refugees. 8 U.S.C. § 1158(b)(1)(A). To qualify as

a refugee, an applicant must demonstrate that (1) he “has a well-founded fear of

persecution”; (2) his fear arises “on account of a protected ground”; 1 and (3) the authorities

in his home country are “unable or unwilling to control” the threat. 2 Hernandez–Avalos v.

Lynch, 784 F.3d 944, 948–49 (4th Cir. 2015).

If the applicant can establish that he suffered past persecution, he is “presumed to

have a well-founded fear of future persecution.” Naizgi v. Gonzales, 455 F.3d 484, 486

(4th Cir. 2006). Lopez argues that the IJ and BIA should have found that he suffered past

persecution because he faced multiple death threats from the Hernandez family. We agree

that Lopez established past persecution, so the IJ and BIA should have afforded him the

rebuttable presumption of a well-founded fear of future persecution. On remand, the

government will bear the burden to prove that Lopez could relocate within Honduras.

“[W]e have expressly held that ‘the threat of death qualifies as persecution.’”

Hernandez-Avalos, 784 F.3d at 949 (quoting Crespin-Valladares v. Holder, 632 F.3d 117,

126 (4th Cir. 2011)). In Hernandez-Avalos, we found that the applicant suffered past

1
The IJ and BIA correctly held that Lopez’s family qualifies as a particular social
group and thus a protected ground. See Crespin-Valladares, 632 F.3d at 126.
2
The IJ and BIA found Lopez ineligible for asylum based on the first and second
asylum requirements and thus did not reach the third requirement.

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persecution because she “credibly testified that she received death threats” from a gang in

her home country. Id. Similarly, in Crespin-Valladares, we held that three death threats

constituted past persecution. 632 F.3d at 126. We further explained that “parallel threats

directed at” the applicant’s family members “strengthened the objective reasonableness of

his fear.” Id.

In this case, the BIA’s conclusion that Lopez did not suffer past persecution in

Honduras “contravenes our express holding that the ‘threat of death’ qualifies as

persecution.” Id. (quoting Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)). Lopez faced

death threats from the Hernandez family on two occasions. First, Jorge and Felipe

Hernandez, while armed, told Lopez that they wanted to kill him because they believed

that Lopez intended to avenge his father’s death. Second, other members of the Hernandez

family fired shots at Lopez. Noting “the absence of physical harm” to Lopez, the BIA

concluded that those threatening encounters with the Hernandez family did not qualify as

past persecution. J.A. 3.

We have never adopted a requirement that an applicant suffer physical harm to show

past persecution. To the contrary, we have repeatedly held “that the ‘threat of death’

qualifies as persecution.” Crespin-Valladares, 632 F.3d at 126 (emphasis added) (quoting

Li, 405 F.3d at 177). The BIA’s conclusion that Lopez did not suffer past persecution,

therefore, “was . . . manifestly contrary to law.” 3 Id. at 127.

3
We reached the same conclusion in a recent decision. See Tairou v. Whitaker, No.
17-1404, at 10 (4th Cir. Nov. 30, 2018). In Tairou, we reiterated our holding that “the
(Continued)
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Moreover, members of Lopez’s family suffered “parallel threats” that “strengthened

the objective reasonableness of his fear.” Id. at 126. Lopez’s testimony reveals a pattern

of violence from the Hernandez family directed at Lopez’s family members. The

Hernandez family attacked Lopez’s uncle with a machete and amputated both of his arms,

shot and killed Lopez’s father, fired shots at his mother’s house while family members

were inside, and shot his brother and another uncle, leaving his uncle paralyzed. The

violence that the Hernandez family inflicted upon Lopez’s family members bolsters his

claim of past persecution. See Baharon v. Holder, 588 F.3d 228, 232 (4th Cir. 2009)

(“Violence or threats to one’s close relatives is an important factor in deciding whether

mistreatment sinks to the level of persecution.”).

Because we hold that Lopez established past persecution, he is entitled to a

presumption of a well-founded fear of future persecution. 4 See id. at 233 (citing 8 C.F.R.

§ 208.13(b)(1)). Accordingly, we remand to the BIA to reconsider the first asylum

requirement using the proper presumption. See id. at 233–34 (citing INS v. Ventura, 537

U.S. 12, 16–17 (2002) (per curiam)).

threat of death alone constitutes persecution.” Id. (holding that the BIA erred by finding
that the applicant did not suffer past persecution despite multiple death threats).
4
Here, the IJ found that Lopez failed to establish that he suffered past persecution,
so the IJ placed the burden on Lopez to prove that he could not reasonably relocate within
Honduras. Because we hold that Lopez has established past persecution, on remand the
government will bear the burden to show that “it would be reasonable for [Lopez] to
relocate.” 8 C.F.R. § 1208.13(b)(3)(ii).
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2.

Asylum applicants must also demonstrate that they suffered past persecution “on

account of” a protected ground. 8 U.S.C. 1101(a)(42)(A). “Persecution occurs ‘on account

of’ a protected ground if that ground serves as ‘at least one central reason for’ the feared

persecution.” Hernandez-Avalos, 784 F.3d at 949. “The protected ground need not ‘be the

central or even a dominant central reason for persecution,’ but it must be more than ‘an

incidental, tangential, superficial, or subordinate reason.’” Cordova v. Holder, 759 F.3d

332, 337 (4th Cir. 2014) (quoting Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th

Cir. 2009)).

In this case, the IJ found that “the harm that [Lopez] suffer[ed] is as a result of a

land dispute,” and not “on account of his family membership.” J.A. 141. On appeal, the

BIA assumed without deciding “that the harm [Lopez] fears at the hands of the Hernandez

family [was] on account of a cognizable particular social group, namely his nuclear

family.” J.A. 4. Because the BIA failed to adequately review whether Lopez suffered

harm on account of his family membership, “the proper course . . . is to remand to the

[BIA] for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002)

(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).

The INA prohibits the Attorney General from removing an alien if he “decides that

the alien’s life or freedom would be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A). Withholding of removal “require[s] the applicant to establish a

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‘clear probability’ of persecution, rather than the less stringent ‘well-founded fear’ of

persecution that will suffice to make out an asylum claim.” Salgado-Sosa, 882 F.3d at 456.

Accordingly, “an applicant who is ineligible for asylum is necessarily ineligible for

withholding of removal.” Velasquez, 866 F.3d at 197 n.6.

Because the IJ and BIA held that Lopez did not qualify for asylum, they found that

Lopez could not meet the higher standard for withholding of removal. If on remand the

BIA concludes that Lopez is eligible for asylum, it should reconsider Lopez’s withholding

of removal claim. See Hernandez-Avalos, 784 F.3d at 954 n.11.

To qualify for relief under the CAT, an applicant must show “both that it is ‘more

likely than not’ that he . . . will be tortured if removed to the country in question and also

that this torture will occur at the hands of public officials or with the government’s consent

or acquiescence.” Salgado-Sosa, 882 F.3d at 457 n.1. Substantial evidence supports the

BIA’s finding that Lopez has not suffered torture and thus does not qualify for relief under

the CAT. Accordingly, we deny Lopez’s petition for review as to his CAT claim.

III.

For the foregoing reasons, we grant Lopez’s petition for review as to his asylum and

withholding of removal claims, deny the petition as to his claim for relief under the CAT,

vacate the BIA’s order, and remand to the BIA for further proceedings consistent with this

opinion.

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PETITION FOR REVIEW GRANTED IN PART,
DENIED IN PART; VACATED AND REMANDED