PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2103

ELSY ESTELA DIAZ-HERNANDEZ; ISAI DIAZ-HERNANDEZ,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

No. 23-1291

ELSY ESTELA DIAZ-HERNANDEZ; ISAI DIAZ-HERNANDEZ,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration Appeals.

Argued: January 24, 2024 Decided: June 10, 2024

Before NIEMEYER, AGEE, and THACKER, Circuit Judges. USCA4 Appeal: 23-1291 Doc: 42 Filed: 06/10/2024 Pg: 2 of 26

Petitions denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee Joined. Judge Thacker wrote a separate concurring opinion.

ARGUED: Jake Shatzer, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Petitioners. Colin James Tucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: John W. Goodman, Benjamin J. Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia; Thomas V. Burch, Appellate Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Petitioners. Brian Boynton, Principal Deputy Assistant Attorney General, Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

2 USCA4 Appeal: 23-1291 Doc: 42 Filed: 06/10/2024 Pg: 3 of 26

NIEMEYER, Circuit Judge:

After illegally entering the United States, Elsy and Isai Diaz-Hernandez, a sister and

brother who are both natives and citizens of El Salvador, applied for asylum, withholding

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

they had suffered harm or fear of harm in El Salvador from their maternal uncle, Jose Enoc

Hernadez Avalos, who abused them to avenge his earlier deportation from the United

States, for which he blamed Elsy and Isai’s mother. They sought relief as members of a

social group defined as “children of their mother,” and maintained that they suffered harm

from their uncle on account of their membership in that group. The Immigration Judge

(“IJ”) found, however, that revenge was not a central reason for Jose’s abuse of Elsy and

Isai but at most a “tangential reason.” Instead, the IJ found that the uncle was overall an

“aggressive person” whose abuse was directed at a wider range of people and was

“triggered because of his drug, alcohol, and mental health issues.” Accordingly, the IJ

concluded that Elsy and Isai failed to establish the required nexus between their harm and

a protected ground and therefore the requirements for either asylum or withholding of

removal.

On appeal, the Board of Immigration Appeals (“BIA”) affirmed and dismissed the

appeal. In doing so, it rejected the petitioners’ argument that the evidence showed that

their relationship to their mother was “at least one central reason” for the uncle’s abusive

behavior against them. The BIA noted that the IJ’s finding that the petitioners failed to

demonstrate the necessary nexus between the harm and a protected ground was “a classic

factual question,” and after reviewing the facts, concluded that the IJ did not clearly err.

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