UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2124

RICCY MABEL FUNEZ-MUNGUIA; A.I.F.,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued: October 27, 2021 Decided: November 23, 2021

Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.

Petition for review granted; vacated and remanded by unpublished opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.

ARGUED: Bradley Bruce Banias, WASDEN BANIAS LLC, Charleston, South Carolina, for Petitioners. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Acting Assistant Attorney General, Nancy E. Friedman, Senior Litigation Counsel, 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Unpublished opinions are not binding precedent in this circuit. PAMELA HARRIS, Circuit Judge:

Riccy Mabel Funez-Munguia (“Funez”) came to the United States from Honduras

after she was threatened by a gang member who lived in her apartment building. According

to Funez, the gang member persecuted her on account of her familial relationship with the

apartment manager, worried that she would use her influence with the manager to have him

evicted. An Immigration Judge denied relief from removal and the Board of Immigration

Appeals affirmed, holding that there was no “nexus” between Funez’s family relationship

and the threats against her. Because the agency incorrectly applied the statutory nexus

standard, we grant the petition for review, vacate the agency’s decision, and remand for

further proceedings.

I.

In April 2016, Funez entered the United States with her minor daughter. After the

government placed the two in removal proceedings, Funez applied for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). 1

A.

The Immigration Judge (“IJ”) deemed credible Funez’s account of the events that

led to her flight from Honduras, and we begin with a summary of that account. Early in

1 Funez’s daughter, A.I.F., also appears as a petitioner, but is eligible for relief only as a derivative applicant, or rider, on Funez’s application. See

(b)(3)(A);

(a). Because Funez is the lead applicant, our opinion focuses on her claims. See Perez Vasquez v. Garland,

, 218 n.1 (4th Cir. 2021).

2 2015, Funez moved into an apartment building in the Serrito Lindo neighborhood of San

Pedro Sula, Honduras. She then learned that her cousin’s husband, Anibal Alvarenga, once

had owned the building and continued to be “in charge of the apartments,” collecting rent

and managing it for a new owner who lived in the United States. A.R. 388. Funez believed

that other tenants in the building knew of this relationship because her daughter publicly

greeted Funez’s cousin as “Aunt.” A.R. 389; see also A.R. 185 (cousin stating that Funez

was “like another sister” to her).

In June 2015, a gang member named Oscar, who had lived in the building until his

arrest earlier that year, was released from jail. He returned to the building and almost

immediately began to harass Funez. In their first encounter, in July 2015, he accosted

Funez while she was out with her daughter and accused her of trying to have him evicted

from the building – which she could do, he claimed, “because [she was] related to the

owners.” A.R. 389–90 (“They tell me that you’re going to decide[] who lives there because

you’re related to the owners.”). Funez understood Oscar to be referring to her relationship

with Alvarenga, and explained that Alvarenga no longer owned the apartments and that she

“was nothing to the owners.” A.R. 390. Oscar angrily pointed at her and told her to “watch

out,” which Funez took to be a threat against her and her daughter.

She testified that

she feared Oscar could have killed her that night.

Over the next several months, Oscar continued to target Funez. But he no longer

mentioned her family, the building’s owner, or Alvarenga; and eventually he stopped

mentioning the building altogether. First, late one night in October 2015, Oscar and six

men confronted Funez with guns drawn, asking if she was “going to let [them] live there.”

. She denied having any say over such matters and swore that she had “nothing

to do with the owner.”

Oscar declared that he was “going to live there” and let her go.

Then, the next month, Oscar walked into the building’s laundry room, again carrying

a gun, and slapped Funez in the face without explanation.

At that point, fearing Oscar’s hostility, Funez moved out of Serrito Lindo to a town

about an hour away. Soon after, however, Oscar caught up with her: In January 2016, he

called her cell phone, claiming that he knew where she lived and worked, and that he would

find and kill her. And in February 2016, he called again, threatening to find her, kill her,

and “cut [her] up in little pieces and feed [her] to the dogs.” A.R. 393. The next month,

scared that Oscar would follow through on these threats, Funez fled with her daughter to

the United States.

Upon crossing the border, Funez turned herself in to immigration authorities. She

was then given an interview with an asylum officer, who concluded that she had a credible

fear of persecution because Oscar “thought that [she] was the family member of the owners

of the building” and “that [she] would keep him and his friends from taking the building

over,” and had threatened her as a result. A.R. 488–89.

B.

After conceding removability, Funez applied for asylum, withholding of removal,

and CAT relief. The IJ found Funez’s testimony credible but denied her application in its

4 entirety. Because Funez has abandoned any challenge to the denial of CAT relief, we focus

exclusively on her claims to asylum and withholding of removal. 2

The IJ rejected those claims on a single ground: According to the IJ, Funez had not

shown that any persecution she feared or had suffered was “on account of” – that is, had a

nexus to – her familial relationship with Alvarenga. See

(a)(42)(A)

(identifying protected grounds supporting asylum);

§ 1231(b)(3)(A) (same for

withholding of removal). The IJ recognized that persecution on account of kinship ties

may qualify for protection. See, e.g., Crespin-Valladares v. Holder,

(4th Cir. 2011). But here, the IJ concluded, the record did not support Funez’s claim that

Oscar in fact was motivated by her family ties when he harassed her.

As to the first, July 2015 incident, the IJ acknowledged that Oscar referred to

Funez’s family ties in stating that she would “decide[] who lived in the building because

she is related to the owners.” A.R. 67 (emphasis added). The IJ went on, however, to note

that Oscar mentioned only the “owner” of the building – no longer Alvarenga – and that

Oscar in fact never was threatened with eviction.

“At most,” the IJ concluded, the

“record reflects that Oscar was upset that [Funez] may have been attempting to use her

position to influence the owner of the building to have [him] removed.” A.R. 69. As for

the later episodes and threats, the IJ held, there was no evidence that they were motivated

2 The Board of Immigration Appeals (“BIA”) determined that Funez failed to challenge the IJ’s denial of CAT protection in her appeal to the Board, and Funez neither challenges that determination nor addresses the merits of her CAT claim on appeal to this court. Accordingly, the question of CAT protection is not before us, and we do not address it further. See Cedillos-Cedillos v. Barr,

, 822–23 nn.2–3 (4th Cir. 2020).

5 by family ties, given Oscar’s failure to mention family, or even the building, during those

incidents. Instead, the IJ expressed his “suspicions that there was something else going on

in this case,” especially with respect to the escalating threats that came after Funez had left

the building. A.R. 68.

For those reasons, the IJ summed up, the record lacked “any direct or circumstantial

evidence” tying Oscar’s actions to Funez’s familial relationship. A.R. 69. And without

that evidence, Funez could prevail neither on her asylum claim nor under the more

demanding standard for withholding of removal. 3

The Board of Immigration Appeals (“BIA”) affirmed the denial of asylum and

withholding relief “for the reasons set forth by the Immigration Judge,” agreeing that Funez

had failed to establish the necessary nexus to family ties. A.R. 3. Specifically, the Board

reasoned, the IJ “did not commit clear error in finding that [Oscar] was motivated by his

mistaken belief that [Funez] could have him evicted from the apartment where he lived,

including his mistaken belief that she was related to the owner, rather than by her actual

familial relationship with the rent collector.” A.R. 3–4.

Funez and her daughter timely petitioned this court for review.

3 As the IJ noted, an applicant who “fails on her asylum claim will necessarily fail on her withholding [o]f removal claim” as well. A.R. 69. For both forms of relief, an applicant must show persecution on account of a statutorily protected ground. But “withholding of removal implicates a more demanding standard of proof,”

requiring the applicant to establish a “clear probability” of persecution rather than the “well-founded fear” sufficient to make out an asylum claim, Marynenka v. Holder,

(4th Cir. 2010).

6 II.

To qualify for relief, Funez must show that she “(1) has a well-founded fear of

persecution; (2) on account of a protected ground; (3) by an organization that the

[Honduran] government is unable or unwilling to control.” Hernandez-Avalos v. Lynch,

(4th Cir. 2015) (outlining asylum criteria); see also Marynenka v.

Holder,

(4th Cir. 2010) (outlining same criteria for withholding of

removal, but subject to a higher “clear probability” standard). Here, the agency addressed

only the “on account of” requirement of the second factor, denying Funez’s asylum and

withholding claims because she failed to establish the requisite nexus to her family

relations. We agree with Funez that the agency misapplied the nexus requirement, and

therefore vacate its determination and remand for further proceedings.

In evaluating Funez’s claim, we consider both the BIA’s decision and that of the IJ.

When, as here, the BIA adopts the opinion of an IJ and supplements it with its own

reasoning, we review both rulings. See Martinez v. Holder,

(4th Cir.

2014) (citing Barahona v. Holder,

(4th Cir. 2012)). And when, as here,

the BIA “holds that the IJ did not clearly err in making a factual finding, we must also

examine the IJ’s factual finding” on the issue. See Zavaleta-Policiano v. Sessions,

(4th Cir. 2017) (internal quotation marks omitted). We review such factual

findings for substantial evidence, “treating them as conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Perez Vasquez v. Garland,

(4th Cir. 2021) (internal quotation marks omitted). Whether the agency

7 “applied the correct legal standard in [its] nexus analysis,” however, is a legal question we

review de novo.

(internal quotation marks omitted).

Here, the agency failed to apply the correct legal standard. “As we have repeatedly

emphasized,” to establish nexus to a protected ground, “it is enough that the protected

ground be at least one central reason for the persecution.”

(internal quotation

marks omitted). And the record establishes that when Oscar targeted Funez in July 2015,

her familial relationship with Alvarenga, the building’s manager, was at least one central

reason for Oscar’s actions. That much is clear from his own statement, explaining that he

believed Funez was “related to the owners” and would use that relationship to have him

evicted. See A.R. 390 (“[Y]ou’re going to decide who lives there because you’re related

to the owners.”); see also A.R. 111, 113–14, 118, 124–25 (Funez’s testimony to same

effect). Indeed, the IJ himself acknowledged that Oscar initially accosted Funez because

he was concerned that she would “use her position to influence the owner of the building”

to have him removed, A.R. 69 – a “position” and “influence” that existed only by virtue of

her family ties to Alvarenga, see Hernandez-Avalos, 784 F.3d at 949–50 (mother

threatened by gang because of her influence over her son’s refusal to join gang is

persecuted “on account of” her family ties). 4

4 At oral argument, the government hypothesized that Oscar might have believed Funez had some influence over the building not because of her family relations but because she occasionally helped to collect rent. But that of course is not what Oscar said, and there is no record evidence suggesting that Oscar ever fell behind in his rent or had some other rent-related reason to fear eviction. Likely as a result, neither the IJ nor the BIA relied on this theory, and we will not do so here. See, e.g., Cordova v. Holder,

, 337

8 The agency found – and the government argues on appeal – that Oscar threatened

Funez not because of her kinship ties to Alvarenga, but only because he was angry that she

was “attempting to have him removed” from the building, A.R. 68, or wanted him “evicted

from the apartment where he lived,” A.R. 4. But in this context, as we have explained, that

is “a meaningless distinction.” Hernandez-Avalos,

(rejecting agency

conclusion that applicant was threatened “because she exercises control over her son’s

activities” and “not because she is his mother”); see Cruz v. Sessions,

(4th Cir. 2017) (applying Hernandez-Avalos to hold that the agency erred in “failing to

consider the intertwined reasons” for a persecutor’s threats). Oscar may indeed have felt

“personal animosity” toward Funez because of what he understood to be her efforts to have

him evicted. A.R. 68. But the reason Oscar targeted Funez – as opposed to some other

neighbor who also might have preferred not to live with a gang member – was, as he said,

her perceived ability to make good on those efforts by leveraging her familial relationship

with Alvarenga. That is enough to show that Funez’s familial relationship to Alvarenga

was “one central reason, perhaps intertwined with others, why [she], and not another person

was threatened.” Perez Vasquez,

(emphasis omitted); see also, e.g.,

Hernandez-Avalos,

(explaining that nexus requirement is satisfied if family

relationship is one of “multiple central reasons” for persecution).

(4th Cir. 2014) (we may affirm the agency “only [on] the grounds upon which the agency acted” (internal quotation marks omitted)).

9 The agency and the government also focus on the fact that Oscar referred expressly

to the “owner” of the building, while Alvarenga was the former owner and current manager

of the apartment complex. But that has no bearing on Funez’s claim, which is that she was

targeted by Oscar in July 2015 at least in central part because she was related to someone

with perceived authority over the building. Whether Oscar correctly understood the

building’s evolving ownership and management structure or the extent of Alvarenga’s

authority is beside the point; what matters is that he believed that Funez could use her

familial relationship with Alvarenga to have him evicted. See Cruz,

(nexus

requirement satisfied where persecutor “suspected” that applicant would have access to

damaging information based on her marital relationship).

The BIA appears to have gone a step further, reasoning that Oscar mistakenly

believed Funez was not related to Alvarenga but instead related to the current owner of the

apartment building, living in the United States. At oral argument, the government declined

to defend that theory, and properly so. In July 2015, Funez understood Oscar to be referring

to her actual family relationship with former-owner and current-manager Alvarenga, and

there is no record evidence to suggest that Oscar even was aware of a new owner in the

United States, let alone under the misimpression that Funez was related to him or her, rather

than to Alvarenga. And regardless, even on the BIA’s hypothesized series of errors, this

would be a case of alleged “[p]ersecution for imputed grounds” – that is, persecution

because one is “erroneously thought” to be part of a protected group or hold protected

political views – which both we and the BIA have recognized may satisfy the nexus

requirement. Abdel-Rahman v. Gonzales,

(4th Cir. 2007) (internal

10 quotation marks omitted) (quoting In re S-P-,

(BIA 1996)). Even

if, that is, one central reason for Oscar’s approach to Funez in July 2015 was that he

mistakenly thought she was related to the building’s United States owner, the agency has

given no explanation for why that would not satisfy the nexus requirement.

Finally, to the extent the IJ suggested, and the government echoes on appeal, that a

nexus finding is precluded by the fact that Oscar never was evicted, we disagree. The IJ

and the government appear to take the position that because Funez did not use her family

relationship to have Oscar removed, Oscar must have known that she could not have done

so. See A.R. 67 (suggesting that because he was not evicted, Oscar would not have thought

the “threat of removal from the building was a realistic possibility”). But what Oscar knew

and did not know in July 2015 is best captured by what he said: that Funez would “decide[]

who lives” in the building. A.R. 390; see also A.R. 391 (Oscar asking in October 2015 if

Funez was “going to let [him] live there”). Further, the inference on which the government

relies was unavailable to Oscar when he first approached Funez. At that point, his fears

were entirely prospective, and he could not have known the outcome of Funez’s purported

efforts to have him evicted. 5

5 The government also suggests that Oscar’s continued presence in the building in later months necessarily would have shown him that he had misjudged Funez’s influence. As Funez argues, however, Oscar might more likely have assumed from his longevity only that his intimidation campaign was working as planned. As discussed below, we leave that question, along with other factual issues arising in subsequent months, to the agency on remand.

11 In sum, we conclude that the agency misapplied the statutory nexus standard when

it found that the record lacked “any direct or circumstantial evidence,” A.R. 69, that

Funez’s familial relationship with Alvarenga was at least “one central reason” Oscar

approached her in July 2015, Perez Vasquez,

. Because of that legal error,

we vacate the agency’s nexus finding and remand for further proceedings. See

(holding that misapplication of the statutory nexus standard is a “legal error provid[ing]

an . . . independently sufficient ground for vacatur”).

Funez urges us to go further, reversing the agency’s nexus finding and holding that

the record compels the conclusion that she was subject to past persecution on account of

her kinship ties. This we cannot do. As we have explained, the record makes

unequivocally clear that Oscar’s initial encounter with Funez, in July 2015, was motivated

at least in central part by her kinship ties to Alvarenga. But whether Oscar’s later threats

also were on account of her familial relationship is a separate question. To be sure, Oscar’s

motive may well have stayed the same, so that he continued to target Funez for the same

family-based reasons as before. As the IJ noted, however, at least some of the relevant

facts had changed by the time of their later encounters: By November 2015, Funez had

twice explained to Oscar that she had no influence over building management, and Oscar

had ceased referring to her family ties and to the apartment altogether. And by January

2016, when Oscar’s threats escalated, she had moved out of the building to a town an hour

away.

Moreover, the agency has yet to consider which of Oscar’s actions rose to the level

of persecution, rather than “mere harassment.” See Portillo Flores v. Garland,

,

12 627 (4th Cir. 2021) (en banc) (internal quotation marks omitted). While Oscar’s explicit

death threats in January and February of 2016 clearly would qualify, see Bedoya v. Barr,

(4th Cir. 2020) (collecting cases holding that death threats amount to

persecution), whether Oscar’s earlier threats also amount to persecution is, again, a separate

question. We in no way prejudge those issues here. But this is a complicated case, and we

follow our ordinary rule of remanding so that the agency may make the relevant factual

assessments under the proper standard and in the first instance. See Alvarez Lagos v. Barr,

(4th Cir. 2019). 6

III.

For the reasons given above, the petition for review is granted, the agency’s nexus

determination is vacated, and the case is remanded to the BIA for further proceedings

consistent with this opinion.

PETITION FOR REVIEW GRANTED; VACATED AND REMANDED

6 Our remand includes both Funez’s asylum claim and her withholding claim. Contrary to the government’s suggestion, Funez has not abandoned her withholding claim before this court for failing to address it separately in her opening brief. Throughout these proceedings, the agency has intertwined the asylum and withholding claims, denying them in tandem under the same improper nexus analysis. See A.R. 3–4; id. at 69 (IJ denying withholding relief solely because “[a]n applicant who fails on her asylum claim will necessarily fail on her withholding [o]f removal claim”). Under those circumstances, Funez’s challenge to the agency’s nexus analysis plainly comprehends both her asylum and her withholding claims.

13