     Case: 17-60339    Document: 00515089293      Page: 1   Date Filed: 08/23/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                  No. 17-60339                        FILED
                                                                August 23, 2019

DANY ARIEL PENA OSEGUERA,                                        Lyle W. Cayce
                                                                      Clerk
                                             Petitioner
v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                             Respondent




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


Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:


      Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He
appeals the denial of his application for asylum and withholding of removal.
                                        I.
      In early 2013, Pena Oseguera was a university student and lived with
his family. During that time, his mother, a Honduran supervisory police officer,
received a tip about corrupt police officers who were colluding with gangs. She
referred the tip to a member of the police force with jurisdiction to investigate
corruption. The investigator was murdered in June 2013.
      Pena Oseguera claims he was approached later in 2013 by a person who
offered him a job as a bill collector. Pena Oseguera expressed interest but later
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                                     No. 17-60339
declined the offer. At that point, the person threatened to kill him. Pena
Oseguera later found out that the person was a gang member. Several days
later, Pena Oseguera’s mother received two text messages threatening her
entire family. The messages noted that she was a police officer and specifically
mentioned Pena Oseguera.
      Pena Oseguera’s parents quickly arranged for him to travel to the United
States. After he left, his mother received two more messages threatening her
family. She also stated that over a year later, her home was shot up by
unknown assailants, who she suspected were the corrupt police officers 1.
      Pena Oseguera applied for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). On June 6, 2016, the
Immigration Judge (IJ) granted relief under CAT. The IJ did not grant the
asylum and withholding of removal requests, finding that Pena Oseguera did
not establish a nexus between the alleged persecution and a legally “protected
ground.” Pena Osegeura appealed, and the Board of Immigration Appeals
(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a
petition for review of the BIA’s decision on May 3, 2017.
                                           II.
      Courts of appeals have exclusive jurisdiction to review final orders of
removal. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s
final decision, unless, as in this instance, the BIA’s decision is affected by the
IJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed
Respondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de
novo and factual findings for substantial evidence. Id.




      1  Pena Oseguera’s mother also entered the United States and testified in support of
his application.
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                                      No. 17-60339
                                            III.
       As an applicant for asylum, Pena Oseguera must show that he is “unable
or unwilling to return” to his country of origin “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). Pena Oseguera must also show a nexus – that the protected
ground “was or will be at least one central reason for persecuting the
applicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,
tangential, superficial, or subordinate to another reason for harm.” Shaikh v.
Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &
N. Dec. 208, 214 (BIA 2007)).
       At the time we heard oral arguments in this case, Matter of L-E-A- was
pending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).
That case directly took up the question of whether families qualified as “social
groups” for the purposes of refugee status. 2 We held this case in abeyance
pending a decision by the Attorney General. A decision has now been
published, and Matter of L-E-A stands for the proposition that families may
qualify as social groups, but the decision must be reached on a case-by-case
basis. The “applicant must establish that his specific family group is defined
with sufficient particularity and is socially distinct in his society.” 27 I. & N.
Dec. 581, 586 (U.S. Att’y Gen. 2019). This is “a fact-based inquiry made on a
case-by-case basis.” Id. at 584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42
(BIA 2017)).
       In the instant case, the BIA assumed that “the respondent properly and
timely set forth the particular social group of his family.” It then stated that


       2 “Whether, and under what circumstances, an alien may establish persecution on
account of membership in a ‘particular social group’ . . . based on the alien’s membership in
a family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).
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“the Immigration Judge’s decision does not specifically address this [social]
group.” Importantly, the BIA went on to suggest that the factual record and
analysis from the IJ was lacking, but brushed that aside because it intended
to make the decision based only on an analysis of the nexus: “However, we need
not remand the record for additional fact finding or analysis [on the issue of
social group].”
        The BIA admitted that the Immigration Judge incorrectly conflated the
respondent’s claim with that of his mother (“We briefly note that the
respondent is not a derivative application on his mother’s separate asylum
application, and thus each claim must stand on its own merits.” Id. at 3.). The
BIA then claims to have come to an “independent conclusion” which “this
reasoning by the Immigration Judge does not meaningfully impact.” However,
the BIA must rely on the factual findings of the IJ, which were likely impacted
by the incorrect legal posture through which the IJ viewed the case. Zumel v.
Lynch, 803 F.3d 463, 475 (9th Cir. 2015).
                                      IV.
        Considering this error, and in order that the IJ and the BIA may have
the benefit of the increased clarity provided by Matter of L-E-A-, we determine
it prudent to remand. We recognize that Matter of L-E-A- is at odds with the
precedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91
(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth
Circuits). However, it is not at odds with any precedent in the Fifth Circuit.
We therefore VACATE and REMAND for consideration in light of Matter of L-
E-A-.




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