Wake Forest Law Review

By Kelsey Hyde

On March 14, 2017, the Fourth Circuit amended their March 13, 2017 published opinion in the case of Cantillano Cruz v. Sessions III where the Court granted a petition for review of a final order from the Board of Immigration Appeals (BIA). In its decision, the Court reversed the administrative court’s denial of asylum to Luz Marina Cantillano Cruz (Cantillano Cruz), and remanded the case to BIA for further proceedings. In reversing the agency’s determination, the Court found that the BIA erroneously concluded that Cantillano Cruz failed to meet the statutory nexus requirement for asylum relief.

Factual Background Leading to Asylum Claims

Cantillano Cruz, a citizen of Honduras, began living with the late Johnny Martinez (Martinez) in 2003. Although the couple never married, they were considered married by the surrounding community and also had two children together. In 2007, Martinez obtained employment working for Danny Avila (Avila) as a personal bodyguard. Avila claimed to be a “fisherman” and Martinez regularly accompanied him on “fishing trips” for approximately five years. However, Martinez eventually discovered that Avila worked closely with organized crime groups of Honduras and Colombia, trafficking drugs and firearms. In 2012, Martinez disclosed to Cantillano Cruz his plan to quit based on Avila’s criminal conduct. A week later, Martinez left for a “fishing trip” with Avila and never returned.

Cantillano Cruz and family members searched for Martinez, unsuccessfully, and were threatened by Avila to cease looking and asking questions, or they would “suffer the same fate” as Martinez. Avila then continued these threats by calling Cantillano Cruz, loitering outside her home, firing weapons near her home, threatening the lives of her children, and even killing her dogs.

In 2014, as a result of these threats by Avila, Cantillano Cruz fled Honduras with her young children, entered the United States without authorization, and requested asylum relief. The Department of Homeland Security (DHS) charged her as an alien present in the United States without permission, under 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded this, but filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Determinations of Immigration Judge & Board of Immigration Appeals

The Immigration Judge (IJ) found that although Cantillano Cruz was a member of a particular social group, the nuclear family of Johnny Martinez, she failed to show past or future persecution on account of membership in this group.  Instead, the IJ concluded the major reason Avila targeted Cantillano Cruz was to deter her from contacting the police, a reasoning which could have occurred regardless of their familial relationship, and consequently denied her application for asylum and withholding of removal. The IJ also rejected her request for protection under CAT, finding that the threats against her had never escalated to violence and that Avila only threatened to commit violence if Cantillano Cruz contacted the police, which she had expressed no intention of doing. In Cantillano Cruz’s appeal to the BIA, the BIA adopted the conclusions made by the IJ, supplemented with its own reasoning, and dismissed her appeal. On appeal to the Fourth Circuit, Cantillano Cruz claimed that the BIA and IJ both erred in their conclusion that she was not persecuted based on her membership in Martinez’s nuclear family.

Issues & Standards of Review On Appeal

An applicant seeking asylum must establish her inability, or unwillingness, to return to her home country based on persecution or well-founded fear of persecution on account of some protected ground, such as nationality or membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A). Persecution occurs “on account of” one’s membership in an immediate family when that relationship is at least one central reason for the feared prosecution. Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011). The Fourth Circuit does not limit this “statutory nexus requirement” to situations where one’s membership is the sole reason for their persecution, but instead recognizes that many central reasons can motivate such actions. Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015).

On appeal, the Fourth Circuit considered both of the lower rulings, on account of the fact that the BIA adopted yet supplemented the IJ’s conclusions. The court reviewed de novo the question of whether the BIA and IJ applied the correct legal standard in determining whether Cantillano Cruz met the statutory nexus requirement. Then, the court reviewed the BIA and IJ’s determinations of factual questions, those regarding Avila’s motivations for the persecution, by considering whether these conclusions were supported by substantial evidence. Finally, the Fourth Circuit reviewed the IJ’s factual findings as conclusive unless another reasonable adjudicator would be compelled to reach a different conclusion.

Fourth Circuit Grants Petition & Reverses Administrative Court’s Findings

The Court held that the IJ and BIA applied an improper, excessively narrow standard when interpreting the statutory nexus requirement. Ultimately, the IJ and BIA improperly focused on one central reason for Avila’s threats, to deter Cantillano Cruz from contacting the police, but failed to recognize the other central and intertwined reason for the threats, her existence in the nuclear family of Martinez. The court noted that the IJ and BIA essentially seemed to require that Cantillano Cruz prove the threats were solely based on her status as Martinez’s wife, which was an improper condition to mandate.

Additionally, the court emphasized that the evidence clearly showed Cantillano Cruz knew about Avila’s criminal conduct as a result of her status as a member of Martinez’s nuclear family. Thus, the court reviewed the record and found that it was sufficient to compel the conclusion that Cantillano Cruz satisfied the statutory nexus requirement, as the evidence clearly demonstrated that she was persecuted as a result of her familial relationship with Martinez and the knowledge she obtained about Avila as a result of this relationship. Accordingly, the BIA and IJ’s conclusions were found to be contrary to law and an abuse of discretion, necessitating their reversal.

Because of this conclusion, the Court did not address whether Cantillano Cruz satisfied the requirements of CAT relief by showing the likelihood of torture if returned to Honduras. However, the Court held that, if asylum relief was still declined, the BIA ought to reconsider the CAT claim consistent with the conclusions of this opinion.

asylum-1262370_960_720

By Mike Stephens

In a civil case, Zhikeng Tang v. Loretta E. Lynch, decided today, October 28, 2016, the Fourth Circuit denied petition for review of an order from the Board of Immigration Appeals (“Board”) denying requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The Court ultimately denied the Petitioner’s petition for review because substantial evidence supported the Board’s decision.

Facts and Procedural History

The Petitioner, Zhikeng Tang (“Tang”), is a native and citizen of China. In July 2009, Tang entered the United States illegally. Tang was introduced to Catholicism in 2011 and began attending a church. In 2011, Tang filed for asylum and the United States government began removal proceedings.

At a hearing before an immigration judge (“IJ”), Tang requested asylum, withholding of removal, and CAT protection based on his religious practice. Tang produced evidence of his membership in the Catholic Church and testified that his faith was genuine. Tang argued that his practice of the Catholic faith required attendance in an underground church in China and not a church sanctioned by the Chinese government. Tang claimed that removal to China would result in persecution from the Chinese government due to his participation in an underground church. In support of this argument, Tang provided the IJ with letters from his family that showed underground churches in China were persecuted. In addition, Tang also produced two State Department reports that criticized the Chinese government’s treatment of religious groups in China.

While the IJ found Tang’s testimony to be credible, the IJ rejected Tang’s asylum request. The IJ found that Tang did not provide sufficient evidence to show that Tang “faces an objectively reasonable risk of persecution on account of his Roman Catholicism.’ Additionally, because Tang’s claim for asylum failed, the IJ determined Tang had failed to meet the higher standard required for withholding of removal. Lastly, the IJ also concluded that Tang did not show sufficient evidence that his chances of torture were “more likely than not” upon removal to China.

The Board, on administrative appeal, upheld the IJ’s conclusion that Tang had failed to meet his burden for asylum or withholding of removal. The Board noted that Tang had not shown that the Chinese government knew or would gain knowledge of Tang’s faith and that Tang had not “established that there is a pattern or practice of persecution in China of persons similarly situated to him.” In addition, the Board concluded that Tang had waived his CAT claim because he did not challenge the IJ’s ruling on this claim. Tang appealed, challenging the Board’s denial of asylum, withholding of removal, and CAT protection.

Asylum

Tang argued the Board erred in denying his request for asylum, claiming that he met his burden of proof required for showing a fear of persecution in China. Tang claims that the instances of persecution evidenced in the letters from China and the State Department reports show a “pattern or practice of persecution in China.”

The Fourth Circuit rejected Tang’s argument and upheld the Board’s denial of asylum. The Court held that Tang’s evidence was not sufficient to allow a reasonable fact-finder “to conclude that the requisite fear of persecution existed.” While the Fourth Circuit found that Tang satisfied the subjective component required for asylum, the Court determined that Tang had failed to demonstrate an objective fear of persecution.

The Court found that Tang did not meet either of the requirements to satisfy the objective component provided for within 8 C.F.R. § 1208.13(b)(2). First, the Court concluded that Tang had waived a challenge to the Board’s conclusion that he would face individual persecution from the Chinese government because he failed to raise this argument. Second, the Fourth Circuit determined that Tang did not satisfy his burden of proving “an objectively reasonable chance” of facing a pattern or practice of persecution in China. The Court noted that the two State Department reports that Tang provided showed that the Chinese government recognized the Catholic faith and also permitted practice of the faith in churches and at home. Additionally, the reports and the letters from Tang’s family only showed “random” or “isolated and sporadic” instances of harassment. Thus, because the persecution was not “thorough or systematic,” the Fourth Circuit declined to “disturb the Board’s conclusion that Tang failed to establish a well-founded fear of persecution.”

Withholding of Removal

Tang also claimed the Board’s refusal to grant his application for withholding of removal was erroneous. Tang argued that the evidence he provided in support of his claim for asylum was sufficient to grant his withholding of removal.

The Fourth Circuit held that Tang did not meet the necessary burden to entitle him to a withholding of removal. The requisite burden of proof in a withholding of removal claim is that of a “clear probability,” which means “it is more likely than not that [Tang’s] life or freedom would be threatened in the country of removal.” The Fourth Circuit noted that this burden of proof “is more demanding than that of asylum” and that an applicant’s claim for withholding of removal would fail when their claim for asylum failed. Therefore, the Fourth Circuit held that Tang had failed to satisfy his burden or proof and was not entitled to a withholding of removal.

Protection Under CAT

Lastly, Tang appealed the Board’s denial of protection under CAT. Tang asserted that his evidence showed that the Chinese government’s torture of unregistered church members was “prolific in China.”

The Fourth Circuit refused to review this claim due to lack of jurisdiction. Under 8 U.S.C. § 1252(d)(1), courts can only review an order of removal once the “alien has exhausted all administrative remedies available to the alien as of right.” The Court held that Tang did not exhaust his administrative remedies because he failed to bring this issue on appeal before the Board.

Disposition

The Fourth Circuit ultimately denied Tang’s petition for review of the Board’s decision.