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The Importance of Establishing Nexus for Particular Social Group – Case Review

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In an asylum case, establishing the “nexus” involves answering the question “why?”  It is not enough to show that you suffered persecution or fear future persecution, you must also show the grounds in which the persecution was directed at you.

When seeking asylum based on your membership in a particular social group (psg), you have to not only establish that you suffered harm or fear harm but that the persecution occurred specifically because of your membership is a particular social group; the nexus is the connection between the persecution and the protected ground ( in this instance, PSG).

In a published opinion by Judge Agee of the United States Court of Appeals (4th Cir.) on denied Petition for Review of an order of the Board of Immigration Appeals (BIA), the Court of Appeals denied Petitioner, Jose Cortez-Mendez (hereinafter “Cortez-Mendez”) Petition for Review of the BIA and Immigration Judge’s (IJ) denial of his application for withholding of removal and protection under the Convention Against Torture (CAT).

Cortez-Mendez, an El Salvadorian national entered the United States without inspection in 2003 after MS-13 and MS-18 gang members threatened him with death if he did not become a member. Cortez-Mendez refused to joined the gang even after their insistence. Despite the harassment, the gangs never physically harmed Cortez-Mendez or anyone in his family. To this day, his father, mother, and aunt live in El Salvador, unharmed. Cortez-Mendez’s father is deaf and mute and due to his disability, was never able to provide for his family. Cortez-Mendez was routinely ridiculed and discriminated against because of his father’s disability.

After entering the U.S. in 2003 without inspection, Cortez-Mendez was served with a Notice to Appear (NTA) to which he failed to appear at his hearing as was ordered removed in absentia. Cortez-Mendez continued to live in the U.S. with his girlfriend and two children.  In 2005 gang members called Cortez-Mendez’s mother demanding to know his whereabouts. His mother told him the gangs remembered him as the son of a “mute and dumb person” and threatened to kill and dismember him.

In 2015 Cortez-Mendez applied for withholding of removal at CAT protection. As grounds for protection under INA, he cited his membership in a particular social group: member of the family Marcial Cortez (his father) a disabled person.  In 2016 the IJ denied Cortez-Mendez’s application for withholding of removal and CAT holding that his PSG did not satisfy the INA’s requirement.  The IJ also stated that Cortez-Mendez failed to demonstrate sufficient nexus, i.e. he did not show that the threats he received were on account of his membership in that psg.

The BIA affirmed the IJ’s conclusion and held in its own opinion that “any threats [Cortez-Mendez] received or future harm he fears are the results of general criminal gang activity” not membership in his disabled father’s family.  Cortez-Mendez was again ordered removed.

The standard to in order to be granted withholding of removal requires two showings: 1. That it is more likely than not that his life or freedom would be threatened if he returned to El Salvador. And 2. You must the probability of persecution is linked to his status in the psg, that the two share a nexus. In order to establish the nexus, Cortez-Mendez had to demonstrate that his membership in his disabled father’s family was at least one central reason for his persecution he experienced.

Cortez-Mendez disputed the IJ and BIA’s conclusion that he was threatened because of general gang activity and not directly because of his father’s disability, but the Court of Appeals found his argument unpersuasive.  Cortez-Mendez presented no evidence that supported his claim that the gangs targeted him on account of his father’s disability rather than his own rejection of gang membership. He provided no direct evidence that the gangs intimidated him because he was his father’s son.

Judge Agee concluded his opinion by stating that Cortez-Mendez failed to compel the Court to conclude that the gang threats were on account of his father’s disability rather than his rejection of membership. Cortez-Mendez failed to establish the requisite nexus and the petition for review was denied.

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