Argued: May 9, 2017
Petition for Review of an Order of the Board of Immigration
John Kline, Alexandria, Virginia, for Petitioners.
Gregory Darrell Mack, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Bridget Cambria, Jacquelyn Kline, CAMBRIA & KLINE,
Reading, Pennsylvania, for Petitioners.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Terri J. Scadron, Assistant Director, Civil
Division, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Suyapa Velasquez, a citizen and native of Honduras, entered
the United States unlawfully in 2014 with her minor son
D.A.E.V.; they were detained by U.S. Customs and Border
Patrol at the time of entry. The Government issued a Notice
to Appear, charging Velasquez and D.A.E.V. with removability
under section 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act (the "INA"). See generally
8 U.S.C. § 1182(a)(7)(A)(i)(I). Velasquez conceded her
removability, but applied for asylum and withholding of
removal, and attached D.A.E.V. as a rider on her
petition.An Immigration Judge
("IJ") rejected her claims, and a single-member
panel of the Board of Immigration Appeals (the
"BIA" or "Board") dismissed her appeal.
Velasquez now petitions this Court for review. For the
reasons that follow, we deny the petition.
recount the facts set out in the record, which are not
and D.A.E.V. fled Honduras because the mother of
D.A.E.V.'s late father, Maria Estrada, demanded custody
of D.A.E.V. For nearly a decade, Estrada implored Velasquez
to turn D.A.E.V. over to her, but each time Estrada made such
a request Velasquez denied it. In 2013, Estrada's
attempts to take custody of D.A.E.V. became more forceful. On
more than one occasion, Estrada kidnapped D.A.E.V. from
Velasquez' home while Velasquez was away. Each time,
D.A.E.V. escaped and walked back home. Shortly before
Velasquez fled Honduras, Estrada began threatening to kill
Velasquez if she did not relinquish custody of D.A.E.V. to
escalating tension between Velasquez and Estrada prompted
Velasquez to relocate to the United States. In April 2014,
Velasquez and D.A.E.V. unlawfully crossed the United
States' border with Mexico and were detained shortly
after. While detained, Velasquez' mother communicated to
her that Estrada's son Oscar (D.A.E.V.'s uncle)
murdered Velasquez' sister. The murder, according to
Velasquez' mother, was a case of mistaken identity: Oscar
believed his victim was Velasquez.
Government issued Velasquez a Notice to Appear and charged
her with being removable under section 212 of the INA.
Velasquez conceded her removability, but argued she was a
"refugee, " entitled to either asylum or
withholding of removal under sections 208 and 241 of the INA.
See generally 8 U.S.C. § 1158(b)(1)(A) (setting
standard for asylum); id. § 1231(b)(3) (setting
standard for withholding of removal); see also generally
id. § 1101(a)(42)(A) (defining
"refugee"). Velasquez based her petition for asylum
and withholding of removal on alleged persecution "on
account of" her membership in a "particular social
group, " which she contended was her nuclear family.
See 8 U.S.C. §§ 1101(a)(42). She claimed
D.A.E.V. as a derivative beneficiary on her petition for
asylum under INA section 208(b)(3)(A). See generally
8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. §
petition for asylum and withholding of removal was heard by
an IJ, who denied the petition on both bases. First, the IJ
found that Velasquez was not entitled to asylum because the
dispute between Velasquez and Estrada was not "on
account of" Velasquez' membership in her claimed
particular social group, her nuclear family, but rather was
"an intra-family custody dispute over" D.A.E.V.
A.R. 93. In particular, the IJ held that Velasquez
"failed to proffer evidence that the motivation for the
conduct of the Estrada family was to persecute [her] on
account of her family membership." A.R. 93. It observed,
for example, that Oscar had killed Velasquez' sister
"in the presence of [her] mother, who remained
untargeted and intact" and that Velasquez'
"four other children [by a different father] remain in
Honduras and are unharmed." A.R. 93. Because the IJ
denied Velasquez' application for asylum, it necessarily
also denied D.A.E.V.'s derivative claim. In addition,
because withholding of removal employs a more stringent
standard than asylum, it held Velasquez could not meet her
burden of proof as to withholding of removal. Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) ("[A]n
applicant who is ineligible for asylum is necessarily
ineligible for withholding of removal.").
Compare 8 U.S.C. § 1231(b)(3)(A) (providing
that an alien cannot be removed if she demonstrates
that her "life or freedom would be threatened"
because of her "membership in a particular social
group"), with 8 U.S.C. § 1158(b)(1)
(stating that an alien may be granted asylum if she
can demonstrate that membership in a particular social group
"was or will be at least one central reason" for
persecution in her native country).
timely appealed the IJ's adverse decision to the Board,
which dismissed her appeal in a single-member decision. The
Board adopted and supplemented the IJ's reasoning,
stating: "The [IJ's] finding that the criminal acts
committed by [Velasquez'] deceased husband's family
against [her] d[id] not constitute persecution on account of
a statutorily protected ground is not clearly erroneous
inasmuch as the record supports the finding that [Velasquez]
was targeted due to a personal dispute over who should have
custody of [D.A.E.V.]." A.R. 437. The ...