Francisco Antonio Contreras-Mejia v. WILLIAM P. BARR, Attorney General

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-1120

FRANCISCO ANTONIO CONTRERAS-MEJIA,

Petitioner,
v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted: April 15, 2020 Decided: May 21, 2020

Before KING, KEENAN, and RUSHING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Hector I. Hernandez, Sr., LAW OFFICE OF HECTOR HERNANDEZ, Fredericksburg,
Virginia, for Petitioner. Jody H. Hunt, Assistant Attorney General, Ernesto H. Molina, Jr.,
Deputy Director, Nancy N. Safavi, 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Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
Petitioner Francisco Antonio Contreras-Mejia (“Contreras”), a native and citizen of
El Salvador, petitions for review of the January 4, 2019 decision and order of the Board of
Immigration Appeals (the “BIA”) dismissing his appeal from the Immigration Judge’s (the
“IJ”) decision denying his applications for asylum and withholding of removal. By way of
this proceeding, Contreras challenges the BIA’s and the IJ’s rulings that he failed to
establish a sufficient nexus between the persecution that he suffered or expected to suffer
in El Salvador and a protected ground under the Immigration and Nationality Act (the
“INA”). As explained below, we deny the petition for review.

I.
A.
We begin by summarizing several relevant aspects of the INA. We have explained
that the INA renders deportable “[a]n alien who enters the United States without required
documentation, and who remains present here.” See Xing Yang Yang v. Holder, 770 F.3d
294, 296 (4th Cir. 2014) (citing 8 U.S.C. §§ 1182(a)(7)(A)(i), 1227(a)(1)(A)). The INA,
however, creates “several avenues by which such an alien may seek relief from deportation
and lawfully remain in the United States.” Id.
Important here, the INA authorizes the Attorney General to confer asylum on an
alien who is a “refugee” and thereby prevent his deportation. See 8 U.S.C. § 1158(b)(1)(A).
A “refugee” is a person unwilling or unable to return to his native country “because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,

3

membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). An
asylum applicant can establish refugee status and qualify for asylum by demonstrating past
persecution in his native country on account of a protected ground or a well-founded fear
of persecution in that country on such a ground. See 8 C.F.R. § 1208.13(b). When an
applicant claims “persecution by a private actor,” he “must also show that the government
in [his] native country is unable or unwilling to control [his] persecutor.” See Orellana v.
Barr, 925 F.3d 145, 151 (4th Cir. 2019) (internal quotation marks omitted). We have
characterized persecution as involving “the infliction or threat of death, torture, or injury
to one’s person or freedom, on account of one of the enumerated grounds.” See Li v.
Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal quotation marks omitted). The
applicant “bear[s] the burden of proving eligibility for asylum.” See Naizgi v. Gonzales,
455 F.3d 484, 486 (4th Cir. 2006).
Additionally, the INA permits an alien to seek withholding of removal from the
United States. See 8 U.S.C. § 1231(b)(3)(A). To qualify, the withholding of removal
applicant must establish that his “life or freedom would be threatened” in a particular
country “because of his race, religion, nationality, membership in a particular social group,
or political opinion.” Id. Like eligibility for asylum, the applicant bears the burden of
proving his eligibility for withholding of removal. See Camara v. Ashcroft, 378 F.3d 361,
367 (4th Cir. 2004) (“An applicant for withholding of removal must establish that if she
were sent back, it is more likely than not that her life or freedom would be threatened
because of her race, religion, nationality, membership in a particular social group, or
political opinion.” (alterations and internal quotation marks omitted)). An applicant’s

4

“burden of proof for withholding of removal is higher than for asylum,” however, so “an
applicant who is ineligible for asylum is necessarily ineligible for withholding of removal.”
Id.
B.
1.
We now recount the facts and procedural history relevant to Contreras’s petition for
review. Contreras illegally entered the United States as a minor on May 7, 2015. That
day, the Department of Homeland Security (“DHS”) issued a Notice to Appear, charging
Contreras with removability as an alien present in the United States without being admitted
or paroled. On February 18, 2016, Contreras filed applications for asylum and withholding
of removal, alleging that gangs in El Salvador had threatened and “assaulted” him. See
A.R. 399.
1
The same day, the IJ administratively closed Contreras’s case.
On September 13, 2017, Contreras was arrested in Virginia for simple assault. An
immigration officer interviewed Contreras at the jail, and Contreras confessed that he had
entered the United States without being admitted or paroled. As a result of that and other
information, DHS moved to recalendar Contreras’s immigration case in October 2017. The
IJ granted the motion and scheduled a November 16, 2017 hearing. During that hearing,
Contreras’s lawyer conceded that Contreras was removable and explained that Contreras

1
Citations herein to “A.R. __” refer to the contents of the Administrative Record
filed in this proceeding.

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would pursue his previously filed applications for asylum and withholding of removal. The
IJ continued the proceedings and scheduled a later hearing on those applications.
In January 2018, Contreras filed updated asylum and withholding of removal
applications. Therein, Contreras claimed that his older brother, Edwin, was “assassinated
by a group of organized criminals” in December 2005 “because he did not want to integrate
into the group.” See A.R. 384. Additionally, Contreras asserted that another brother, Jose
Luis, was “abducted by the criminal group” in December 2014 and has never been found.
Id. According to Contreras, Jose Luis “also did not want to integrate into the group which
made th[e] group very angry.” Id. Contreras also recounted the group attempting to recruit
him, emphasizing that he “was afraid of the consequences if [he] did not accept, [and]
feared [group members] would do the same thing to [him] as they did with [his] brothers[,]
which is why [he] decided to come to the United States to save [his] life.” Id. He also
explained that members of the criminal group had threatened to kill him if he returned to
El Salvador.
2.
At the April 10, 2018 hearing before the IJ, Contreras testified that he was seven
years old when Edwin was brutally killed by gang members in El Salvador. Contreras
asserted that Edwin was killed because of “[e]nvy.” See A.R. 94. He then explained that
“there is a resentment” or “hatred[] due to the fact that [Edwin] worked for the
government.” Id. at 94-95. Contreras did not know which gang killed Edwin, but he
believed it was the “18th Street gang or the MS[-13] gang.” Id. at 95. Additionally,
Contreras testified that his other brother, Jose Luis, disappeared in 2014 and had not been

6

seen since. Contreras and his sister suspected that the disappearance of Jose Luis was gang
related.
After Jose Luis went missing, MS-13 gang members began threatening Contreras,
and they offered him three choices: (1) to join the gang, (2) to “leave [his] home” and
never return, or (3) to die at their hands. See A.R. 89.
2
When Contreras was asked if the
gangsters said “anything about [his] brother” when threatening him, he responded, “[O]nly
that what happened to him, that was what was going to happen to me.” Id. at 90.
3
On one
occasion, MS-13 members beat Contreras and put a gun to his mouth. Immediately
thereafter, Contreras fled to the United States.
Contreras testified that the MS-13 members targeted and threatened him because he
refused to join their ranks. According to Contreras, “rather than join in the gang, [he]
decided it was best to leave” El Salvador and come to the United States. See A.R. 97.
Contreras’s sister also testified that “the problem [Contreras] had with the gangs was
related to his refusal to join them.” Id. at 121. Contreras’s father likewise testified that he
believed the gang members threatened Contreras because they “wanted to recruit him.” Id.

2
La Mara Salvatrucha — perhaps better known in the United States as “MS-13” —
is a violent “street gang” that has “active ‘cliques,’ or local chapters with varying levels of
autonomy, operating throughout the United States and several Central American
countries.” See United States v. Zelaya, 908 F.3d 920, 924 (4th Cir. 2018). Some of the
gang’s leadership resides in El Salvador. Id.
3
Although the record is unclear, Contreras was apparently referencing his brother
Edwin when describing the gang members’ threats.

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at 150. Contreras told his father that MS-13 members once threatened that Contreras
“would run the same luck as his other brothers” if he did not join the gang. Id. at 143.
3.
On July 12, 2018, the IJ issued the decision denying Contreras’s applications for
asylum and withholding of removal. The IJ first found that Contreras presented credible
testimony in support of his claims and established that he suffered past harm rising to the
level of persecution. The IJ further found that the Salvadoran government is unable or
unwilling to control the gangs in its country, such as MS-13.
The IJ next assessed whether Contreras proved that he had been persecuted on
account of a protected ground. The IJ acknowledged that Contreras claimed persecution
on account of the particular social group consisting of “male family members of the
Contreras[-]Mejia family.” See A.R. 53. And the IJ found that the group is cognizable and
that Contreras is a member thereof. The IJ also determined, however, that Contreras failed
to establish that he was targeted by MS-13 on account of his particular social group.
Specifically, the IJ found that the evidence indicated that Contreras “was targeted by MS-
13 for recruitment because he was a young male,” and not because of his membership in
his family. Id. at 54.
The IJ further explained that, “[a]lthough [Contreras] testified the gang [members]
told him he would suffer the same fate as his brother, they prefaced the threat stating the
same would befall him if he did not join them.” See A.R. 54. According to the IJ, “[i]t was
not a statement that they would harm him because he was related to his brother; instead,
his brother’s suffering was used as an example of what happens to those who do not join

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the gang.” Id. The IJ emphasized Contreras’s own testimony that the gang members
threatened to kill him because he refused to join them. Finally, the IJ found it “unlikely
that [Contreras] would not have been targeted and harmed by the gang but for his
relationship to his brothers.” Id. Because Contreras failed to establish the required nexus
between his past persecution or fear of future persecution and his particular social group,
the IJ concluded that Contreras was not entitled to asylum or withholding of removal and
ordered him removed to El Salvador.
4.
On January 4, 2019, the BIA issued the decision and order dismissing Contreras’s
appeal from the IJ’s decision. The BIA ruled that the IJ had correctly determined that
Contreras had not satisfied his burden of establishing the necessary nexus between the
persecution he suffered or expects to suffer in El Salvador, on the one hand, and his
particular social group, on the other. In particular, the BIA discerned no clear error in the
IJ’s finding as to the motive of the MS-13 members in threatening Contreras and concluded
that Contreras “was threatened because the gang members wanted him to join their gang,
not because of his membership in a particular social group.” See A.R. 4. According to the
BIA, Contreras failed to establish that “he was threatened because the gang members had
any particular animus towards his family.” Id. The BIA therefore upheld the IJ’s denial
of asylum and withholding of removal. Contreras thereafter timely filed his petition for
review in our Court.

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II.
Because the BIA adopted the IJ’s decision denying Contreras’s applications for
asylum and withholding of removal in a decision of its own, we review and assess both
decisions. See Salgado-Sosa v. Sessions, 882 F.3d 451, 456 (4th Cir. 2018). We will affirm
the BIA’s and the IJ’s determinations regarding eligibility for asylum and withholding of
removal if they are supported by substantial evidence. See INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). Substantial evidence has been defined as less than a preponderance but
“more than a mere scintilla” of evidence. See Shively v. Heckler, 739 F.2d 987, 989 (4th
Cir. 1984) (internal quotation marks omitted). In conducting our substantial evidence
review, we treat administrative findings of fact as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” See Ai Hua Chen v. Holder,
742 F.3d 171, 178 (4th Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). On the other hand,
we review de novo any legal rulings of the BIA and the IJ. See Salgado-Sosa, 882 F.3d at
456.
In this proceeding, Contreras contests the BIA’s adoption of the IJ’s finding that he
did not establish a sufficient nexus between his past persecution or fear of future
persecution and his particular social group, that is, male family members of the Contreras-
Mejia family.
4
Whether Contreras satisfies the nexus requirement for asylum is a question
of fact. See Cortez-Mendez v. Whitaker, 912 F.3d 205, 209 (4th Cir. 2019). As we have

4
The Attorney General does not dispute the IJ’s findings that Contreras suffered
past persecution and that the Salvadoran government is unable or unwilling to control the
gangs in its country.

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explained, an asylum applicant establishes the required nexus if his “[p]ersecution occurs
‘on account of’ a protected ground.” See Crespin-Valladares v. Holder, 632 F.3d 117, 127
(4th Cir. 2011) (quoting 8 U.S.C. § 1101(a)(42)(A)). And that standard is met if the
protected ground “serves as ‘at least one central reason for’” the persecution. Id. (quoting
8 U.S.C. § 1158(b)(1)(B)(i)). A “central reason” is one that is more than “incidental,
tangential, superficial, or subordinate to another reason for harm.” See Quinteros-Mendoza
v. Holder, 556 F.3d 159, 164 (4th Cir. 2009) (internal quotation marks omitted).
Having thoroughly reviewed the record, we are satisfied that substantial evidence
supports the BIA’s and the IJ’s rulings that Contreras has not established the required nexus
for asylum. See Elias-Zacarias, 502 U.S. at 481 (explaining substantial evidence standard).
More specifically, substantial evidence supports their conclusions that Contreras’s
membership in his family is not a “central reason” for his past persecution or fear of future
persecution. See Crespin-Valladares, 632 F.3d at 127.
To the contrary, the record illustrates that Contreras’s past persecution was linked
only to his refusal to join the MS-13 gang, and not to his family membership. For example,
Contreras testified that he was targeted by MS-13 members because he declined to join
their gang, not because he is a male member of the Contreras-Mejia family. See Velasquez
v. Sessions, 866 F.3d 188, 196 (4th Cir. 2017) (concluding that BIA’s and IJ’s decisions
denying asylum were supported by substantial evidence where applicant failed to produce
evidence that motive for persecution was her “familial status”). Importantly, Contreras
said that his problems with the MS-13 members began when he refused to join them and
that he left El Salvador because he feared the consequences of that refusal. And Contreras’s

11

sister and father both confirmed that Contreras was targeted by the gang members because
they hoped to recruit him. For those reasons, substantial evidence supports the BIA’s and
the IJ’s conclusions that there is an insufficient nexus between Contreras’s past persecution
or fear of future persecution and a protected ground. See Cortez-Mendez, 912 F.3d at 210
(“Flight from gang recruitment is not a protected ground under the INA.”).
Contreras resists our ruling, emphasizing that MS-13 members “referenced his two
dead brothers” when threatening and “beating” him. See Br. of Pet’r 14. We have no
cause, however, to disturb the IJ’s findings that the gang members’ cruel language “was
not a statement that they would harm him because” of his membership in his family, and
that it is “unlikely that [Contreras] would not have been targeted and harmed by the gang
but for his relationship to his brothers.” See A.R. 54.
5

Despite the sad circumstances of Contreras’s case, we are constrained to affirm the
denial of his asylum claim. And because Contreras has not satisfied his burden on that

5
Contreras also contends in this proceeding that the BIA and the IJ failed to assess
his relationship with his brother-in-law, who is a police sergeant tasked with combatting
gang activities in El Salvador. Contreras did not claim in his asylum and withholding of
removal applications, however, that his particular social group depended on his relationship
to a police officer. Additionally, neither Contreras nor his family members testified that
he was personally targeted by MS-13 members on that ground or that Contreras has a fear
of future persecution predicated thereon. Contreras’s repeated claims in his opening brief
to the contrary — that he testified before the IJ that “everything changed when the gangs
found out that he was related to [a] police officer” — are unsupported by the record. See
Br. of Pet’r 15; see also id. at 14 (making similar claim without record support). Moreover,
the speculation of Contreras’s lawyer that MS-13 members began to threaten Contreras
more severely after discovering his brother-in-law’s profession is not evidence. See INS v.
Phinpathya, 464 U.S. 183, 188 n.6 (1984) (explaining that unsupported assertions in briefs
are not evidence).

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claim, he “is necessarily ineligible for withholding of removal.” See Camara v. Ashcroft,
378 F.3d 361, 367 (4th Cir. 2004).

III.
Pursuant to the foregoing, we deny the petition for review. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this Court and argument would not aid the decisional process.
PETITION DENIED