Case: 20-60754 Document: 00516274577 Page: 1 Date Filed: 04/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 11, 2022
No. 20-60754
Summary Calendar Lyle W. Cayce
Clerk
Nelson Contreras Martinez, also known as Nelson
Contreras,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 470 794
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Nelson Contreras Martinez petitions for review of the Board of
Immigration Appeals’s decision denying him withholding of removal. For the
following reasons, the petition 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opinion should not be published and is not precedent except under the limited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.
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No. 20-60754
I.
Nelson Contreras Martinez is a Honduran male who was a junior gang
associate of the 18th Street gang until 2005. That year, Contreras Martinez
left the gang because he gave details regarding the gang’s activities to the
local police and the gang demanded that he harm his father in order to
become a full-fledged member. Thereafter, he fled Honduras and came to
the United States. In 2012, immigration officers detained Contreras Martinez
after he was convicted of assault. The Department of Homeland Security
filed a Notice to Appear with the Immigration Court, and during those
proceedings, Contreras Martinez conceded removability but sought
withholding of removal.
Contreras Martinez claimed he was entitled to withholding of removal
because he would be a victim of persecution in Honduras due to his
membership in a particular social group—Hondurans who refused to follow
gang-initiation orders. He further sought protection under the Convention
Against Torture (“CAT”). The Immigration Judge (“IJ”) denied his
requests. The IJ found that Contreras Martinez did not successfully allege
membership in a particular social group and, even if he did, he failed to show
that his fear of future persecution had a nexus to that social group. The IJ
further found Contreras Martinez could not show that he would be subjected
to torture sanctioned by a public official, and thus, could not obtain CAT
relief. The Board of Immigration Appeals (“BIA”) adopted the IJ’s decision
and dismissed the appeal, finding a lack of nexus between Contreras
Martinez’s fears and former gang membership. Contreras Martinez now
petitions for review.
II.
“When . . . the BIA affirms the immigration judge and relies on the
reasons set forth in the immigration judge’s decision, this court reviews the
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decision of the immigration judge as well as the decision of the BIA.” Ahmed
v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). Questions of law are reviewed
de novo; but factual findings are reviewed for substantial evidence. Gjetani v.
Barr, 968 F.3d 393, 396 (5th Cir. 2020). Substantial evidence review
“requires only that the [BIA’s] conclusion be based upon the evidence
presented and that it be substantially reasonable.” Carbajal-Gonzalez v. INS,
78 F.3d 194, 197 (5th Cir. 1996) (quoting Wilson v. INS, 43 F.3d 211, 213 (5th
Cir. 1995)). Thus, reversal is proper only if the petitioner shows “that the
evidence was so compelling that no reasonable factfinder could conclude
against it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009) (citing INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
III.
To be eligible for withholding of removal, the petitioner must show
that his “life or freedom would be threatened in the country of removal
because of [his] . . . membership in a particular social group.” Shaikh v.
Holder, 588 F.3d 861, 864 (5th Cir. 2009). Despite Contreras Martinez’s
arguments to the contrary, we have held that membership in a social group
must be “at least one central reason” for the petitioner’s persecution. Id.
(quoting 8 U.S.C. § 1158(b)(1)(A)). This means the social group cannot be
“incidental, tangential, superficial, or subordinate to another reason for
harm.” Id. (quoting Matter of J-B-N & S-M-, 24 I. & N. Dec. 208, 212 (BIA
2007)). When it is found that a petitioner’s persecution is due to a personal
vendetta against the petitioner rather than due to the petitioner’s
membership in a social group, there is no nexus connecting the membership
to the persecution, and the petitioner fails to qualify for withholding of
removal. Martinez Manzanares v. Barr, 925 F.3d 222, 227-28 (5th Cir. 2019).
The BIA and IJ found that Contreras Martinez’s fear of persecution
was not due to his being a Honduran who refused gang-initiation orders, but
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No. 20-60754
rather was due to the gang’s criminal self-interests in protecting its
operations from Contreras Martinez after he reported gang activities to the
police and protected his father, who worked as a security guard. The BIA’s
conclusion is supported by the evidentiary record, which may be read to show
Contreras Martinez’s fear was based on his own actions rather than mere
membership in a group. Thus, the BIA’s conclusion was substantially
reasonable.
The BIA also did not err when it denied CAT relief to Contreras
Martinez. To obtain CAT relief, the record must support that a petitioner
would have been tortured “by, or at the instigation of, or with the consent or
acquiescence of, a public official . . . or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1). Here, substantial evidence supports the
BIA’s conclusion that the petitioner was unlikely to experience torture
sanctioned by the Honduran government, given that the petitioner admitted
to having no particular fear of any Honduran official or entity. Martinez
Manzanares, 925 F.3d at 228-29 (finding substantial evidence supported
rejection of CAT petition when petitioner could not show prior torture by
government officials).
IV.
For the foregoing reasons, the petition for review is DENIED.
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