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Cruz v. Sessions

United States Court of Appeals, Fourth Circuit

March 13, 2017

LUZ MARINA CANTILLANO CRUZ; J.X.M.C., Petitioners,
v.
JEFFERSON B. SESSIONS III, Attorney General, Respondent.

          Argued: December 7, 2016

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

         ARGUED:

          James Edward Tysse, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Petitioners.

          Yanal Harbi Yousef, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Michelle A. Reed, Dallas, Texas, Steven H. Schulman, Matthew W. Kinskey, AKIN GRUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Petitioners.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before MOTZ, KEENAN, and THACKER, Circuit Judges.

          BARBARA MILANO KEENAN, Circuit Judge

         Luz Marina Cantillano Cruz (Cantillano Cruz), a citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (BIA).[1]The BIA affirmed an immigration judge's (IJ) conclusion that Cantillano Cruz was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). Cantillano Cruz argued before the BIA and IJ that she feared persecution on account of her nuclear family ties to her husband Johnny Martinez (Martinez), whom she suspected had been murdered by his employer. The BIA and IJ rejected this argument and determined that any persecution suffered by Cantillano Cruz occurred because she had threatened to report the employer to the police, an act that did not qualify as a basis for her requested relief.

         Upon our review, we conclude that Cantillano Cruz's familial relationship with Martinez necessarily was one central reason for the persecution and fear of future persecution established by Cantillano Cruz, thereby meeting the statutory "nexus requirement" for asylum provided in the Immigration and Nationality Act (INA) in 8 U.S.C. § 1158(b)(1)(B)(i). Accordingly, we grant Cruz's petition and remand her case to the BIA for further proceedings.

         I.

         In July 2014, Cantillano Cruz and her minor son entered the United States without authorization and presented themselves to immigration officials to request asylum. Several days later, the Department of Homeland Security (DHS) served Cantillano Cruz with a notice to appear charging her as an alien present in the United States without admission, under the provisions of 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded removability but filed applications for asylum, withholding of removal, and protection under the CAT.

         At a hearing before the IJ, Cantillano Cruz claimed past persecution and fear of future persecution based on her membership in a "particular social group, " namely, the "nuclear family of Johnny Martinez." See 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A). She testified and presented other evidence in support of her claim. The evidence showed that in 2003, Cantillano Cruz and Martinez began living together, and that, although they were never married, were considered a married couple by members of their community. The couple had two children together.

         Between 2001 and 2007, Martinez worked for the Honduran government as a border patrol agent. However, in 2007, he obtained new employment working as the personal bodyguard to Danny Avila, who claimed to be a fisherman. For about five ...


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