Case: 18-60300 Document: 00515806421 Page: 1 Date Filed: 04/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 2, 2021
No. 18-60300
Lyle W. Cayce
Clerk
Wendy Carolina Castro-Rodriguez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 879 537
Before Ho, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Wendy Carolina Castro-Rodriguez, a native and citizen of Honduras,
petitions for review of an order of the Board of Immigration Appeals (BIA)
dismissing her appeal from the Immigration Judge’s (IJ) denial of asylum and
withholding of removal. For the following reasons, the petition for review is
DENIED.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-60300 Document: 00515806421 Page: 2 Date Filed: 04/02/2021
No. 18-60300
Castro-Rodriguez was the primary caregiver and sole parental figure
for her nephew, Cristian. In October 2014, while Cristian was visiting his
grandparents, two men accosted him, forced him to ingest drugs, and pulled
his pants down to carve a symbol of the letter “Y” in his thigh with a knife.
Cristian was twelve years old at the time of the attack. Luckily, Cristian
escaped. Castro-Rodriguez contends that the perpetrators were members of
the MS-13 gang, which is known for targeting young boys for recruitment into
the gang.
Once MS-13 discovered that Cristian lived with Castro-Rodriguez,
she began to receive threatening calls. During these calls, the caller
referenced the attack on Cristian and mentioned information about Castro-
Rodriguez’s daughter. In an effort to stop the calls, Castro-Rodriguez
changed her phone number; however, these efforts proved futile and the calls
continued. The caller threatened violence to Cristian, Castro-Rodriguez,
and Castro-Rodriguez’s daughter if Castro-Rodriguez did not cooperate with
handing Cristian over for membership in MS-13. Castro-Rodriguez believed
the gang would kill her and the children if she failed to cooperate.
Because she also believed Honduran law enforcement had little
capacity to combat the activities of MS-13, Castro-Rodriguez arranged for
herself, her daughter, and Cristian to flee Honduras for the United States.
They entered the United States without inspection on December 3, 2014. On
December 4, 2014, the Department of Homeland Security served Castro-
Rodriguez with a Notice to Appear, charging her with being removable under
the Immigration and Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. §
1182(a)(6)(A)(i), as an alien present in the United States without being
admitted or paroled. Castro-Rodriguez conceded removability at a master
calendar hearing on June 3, 2015. On July 9, 2015, she applied for asylum via
form I-589.
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The IJ and the BIA both concluded that Castro-Rodriguez failed to
meet the “nexus” requirement under 8 U.S.C. § 1158 and thus denied her
application for asylum. On appeal, Castro-Rodriguez asserts that this
determination was erroneous for two reasons: (1) the factual finding that
Castro-Rodriguez failed to establish “nexus” is contradicted by the
evidence, and (2) the BIA and IJ’s interpretation of the “nexus” requirement
under § 1158 is contrary to the unambiguous meaning of the statutory
language.
This court reviews the BIA’s final decision only, unless the BIA’s
decision is affected by the IJ’s ruling, in which case we review both decisions.
Pena Oseguera v. Barr, 936 F.3d 249, 250 (5th Cir. 2019) (citing Sealed
Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016)). We review
factual findings for substantial evidence and legal conclusions de novo. Id.
To be eligible for asylum as a refugee, an applicant must show that she
is a person outside of her country who is unable or unwilling to return
“because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A); see 8 U.S.C. § 1158(b)(1).
This means that the applicant must establish a nexus, i.e., that a protected
ground “was or will be at least one central reason for persecuting the
applicant.” Sealed Petitioner, 829 F.3d at 383 (internal quotation marks and
citation omitted) (emphasis added). While “a statutorily protected ground
need not be the only reason for harm, it cannot be incidental, tangential,
superficial, or subordinate to another reason for harm.” Id. (internal
quotation marks and citation omitted). In mixed motive cases, then,
“persecutors may have legitimate reasons for their actions, but an additional
central reason for their actions is persecution on account of a protected
category.” Id.
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The BIA and IJ did not err either in construing the nexus requirement
or in their factual findings that Castro-Rodriguez did not establish a nexus
between her alleged persecution and membership in a particular social group.
In this case, Castro-Rodriguez asserted that her nuclear family constitutes a
“particular social group” for the purposes of seeking asylum. The Attorney
General and this court have recognized that a nuclear family may constitute
a particular social group on a case-by-case basis. See Pena Oseguera, 936 F.3d
at 250–51 (citing Matter of L-E-A-, 27 I. & N. Dec. 581 (U.S. Att’y Gen.
2019)). Regardless of whether Castro-Rodriguez’s nuclear family constitutes
a particular social group, however, the BIA and IJ determined that the threats
in this case were based primarily on MS-13’s desire to recruit new members
to further its criminal enterprise. The BIA and IJ both further found that
familial ties did not sufficiently motivate the gang to target Castro-Rodriguez.
We agree. The record evidences that the gang was primarily
motivated by a desire to increase its status by expanding its ranks; threatening
Castro-Rodriguez because she stood in the way of the gang’s recruitment of
her nephew was just “a means to an end.” Matter of L-E-A-, 27 I. & N. Dec.
40, 45 (BIA 2017), rev’d in part on other grounds by Matter of L-E-A-, 27 I. &
N. Dec. at 596 (U.S. Att’y Gen. 2019) (“[T]he fact that a persecutor targets
a family member simply as a means to an end is not, by itself, sufficient to
establish a claim, especially if the end is not connected to another protected
ground.”). The record also demonstrates that threats like the ones Castro-
Rodriguez received are, unfortunately, pervasive in Honduras. This further
shows that the gang targeted Castro-Rodriguez not “out of hatred for [her]
family,” but out of a desire to increase its numbers. Ramirez-Mejia v. Lynch,
794 F.3d 485, 493 (5th Cir. 2015). Therefore, under the nexus test, Castro-
Rodriguez’s alleged protected trait is “incidental, tangential, superficial, or
subordinate to another reason for harm.” Sealed Petitioner, 829 F.3d at 383
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(internal quotation marks and citation omitted). Accordingly, Castro-
Rodriguez has not established that she is eligible for asylum relief.
As for Castro-Rodriguez’s claim for withholding of removal, an
applicant bears an even heavier burden of proof when seeking withholding of
removal than she bears when seeking asylum. See Orellana-Monson v. Holder,
685 F.3d 511, 518 (5th Cir. 2012). Thus, an applicant who fails to establish
eligibility for asylum likewise fails to establish eligibility for withholding. Id.
Castro-Rodriguez failed to establish eligibility for either asylum or
withholding of removal here. See id.
PETITION FOR REVIEW DENIED.
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