United States Court of Appeals

for the Fifth Circuit

____________

No. 22-60479

____________

Sandra Beatriz Bustamante-Leiva; Jayco David JovelBustamante; Jean Carlos Jovel-Bustamante; Jonathan 

Josue Jovel-Bustamante, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

______________________________

Petition for Review of an Order of the

Board of Immigration Appeals

Agency Nos. A208 173 147, 

A208 173 149, A208 173 150, 

A208 173 151

______________________________

Before Higginbotham, Smith, and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Sandra Beatriz Bustamante-Leiva, and her three children (Jean Carlos 

Jovel-Bustamante, Jayco David Jovel-Bustamante, and Jonathan Josue JovelBustamante) petition for review of the Board of Immigration Appeals’ denial 

of their applications for asylum, statutory withholding of removal under 8 

U.S.C. § 1231(b)(3), and protection of removal under the Convention 

Against Torture. We DENY their petitions. 

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2024

Lyle W. Cayce

Clerk

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I

Bustamante-Leiva and her three children are natives and citizens of 

Honduras. Each was served a notice to appear after entering the United 

States illegally near Hildalgo, Texas. Petitioners were then charged with 

removability under 8 U.S.C. § 1182(a)(6)(A)(i) because they did not possess 

valid documentation at the time of entry. Petitioners conceded removability 

as charged. Bustamante-Leiva then applied for asylum, withholding of 

removal, protection under the Convention Against Torture, and 

humanitarian asylum, with the children as riders to her application. 

Petitioners based their claims for relief on claims of persecution on 

account of religion, political opinion, and membership in a particular social 

group. In doing so, Petitioners proposed five particular social groups: (1) 

“unprotected Honduran [w]omen who are viewed as property and 

subordinate to the male dominated gangs”; (2) “unprotected Honduran 

[w]omen who are unable to protect themselves or [t]heir children from 

Honduran gangs”; (3) “Honduran [w]omen, who are involved in religious 

activities and a church that strives to proselytize and convert teenagers from 

joining gangs, and who are unable to protect themselves or their children 

from Honduran gangs”; (4) “a [f]amily that is headed by an unprotected 

Honduran [w]oman who is unable to protect herself and her family, including 

children, from the Honduran [g]angs itself and the children from Honduran 

gangs”; and (5) “Honduran witnesses to witness Honduran gang violence 

and threats.” The application was supported by Bustamante-Leiva’s 

testimony and written declaration. It was also supported by the testimony of 

her son, Jean Carlos; testimony from experts Arlee Pugh and Dr. Thomas 

Boerman; and documentary evidence. 

Bustamante-Leiva based her claims for relief on the following facts: 

Beginning around 2012, gang members used an empty lot adjacent to the back 

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of Bustamante-Leiva’s home to torture, kill, and bury gang victims. 

Bustamante-Leiva stated that the screaming from gang victims was audible 

in her home and that smells from the events carried through the walls. 

Because the family felt unsafe in this neighborhood but lacked the financial 

resources to leave, Bustamante-Leiva’s husband left the family to earn 

money in the United States. He made this decision with the goal of earning 

enough money for the family to move. 

At the end of 2012, Bustamante-Leiva heard that the gang would begin 

recruiting children as young as twelve. Having sons within this age range, 

Bustamante-Leiva fled to a city about an hour away with her sons and mother. 

Shortly thereafter, Bustamante’s oldest son, Jorge, told his mother that he 

was going to go to the United States to help his father earn money. 

Unfortunately, however, Jorge was killed during his travels in a train accident 

in Mexico. Bustamante-Leiva’s next oldest son, Jean Carlos, later informed 

Bustamante-Leiva that the true reason Jorge left for the United States was 

because gang members were trying to recruit him. 

Bustamante-Leiva and her remaining children lived in the new city

without issue until April 2015, when a gang member called her and demanded 

money. The gang member told Bustamante-Leiva that the gang was watching 

her, knew that she lived with only her children and mother, knew when and 

where her son Jean Carlos went to school, and knew that her husband was in 

the United States. The gang member demanded that she give the gang a sum 

of money, which would increase each day that she did not comply. The gang 

member then threatened to “chop up [her son] into little pieces” and kill the 

rest of the family if she refused to pay. 

In response to the threats, Bustamante-Leiva consulted her pastor, 

and the pastor and two of his family members went to Bustamante-Leiva’s 

house, where they all prayed together. Bustamante-Leiva stated that she 

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received another call from the gang as the group was praying, and she left the 

phone on so that the caller could hear their audible prayers. She continued 

to get threatening text messages from the gang, and the pastor advised her to 

disable her phone and flee. 

After receiving the pastor’s advice, Bustamante-Leiva left with her 

children and mother for a family member’s house in another city. Petitioners 

stayed with the family member for one week, until the family member began 

to fear for her own safety and asked Bustamante-Leiva to leave. At that point, 

Bustamante-Leiva and her children left for the United States. BustamanteLeiva reported that another family member helped her, the children, and her 

mother travel until they reached Mexico. After entering the United States, 

Bustamante-Leiva learned that the family member who had helped her was 

killed near his house by gang members for helping the family flee Honduras. 

Pugh, a licensed professional counselor, was accepted as an expert on 

mental health diagnoses and testified that Bustamante-Leiva suffered from 

post-traumatic stress disorder and adjustment disorder with mixed anxiety 

and depression. The Petitioners offered Dr. Boerman as an expert on gangs 

in Honduras, and he testified on that topic. 

II

The immigration judge denied all requested relief and ordered that 

Petitioners be removed to Honduras. 

On appeal, the BIA upheld the immigration judge’s findings that 

Petitioners did not show harm rising to the level of persecution, did not show 

a nexus between the harm and a protected ground, and did not establish a 

cognizable particular social group. Regarding their failure to establish a 

cognizable particular social group, the BIA determined that the Petitioners 

failed to establish the requisite social distinction with respect to their first 

four proposed particular social groups and that the final proposed particular 

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social group, Honduran witnesses to gang violence and threats, was not 

cognizable because it lacked the requisite particularity. In addition, the order 

rejected due process arguments made by Petitioners and denied their request 

for a three-member panel as moot. Petitioners then filed a timely petition for 

review in this court. 8 U.S.C. § 1252(b)(1).

III

We review factual findings under the substantial evidence standard 

and its legal conclusions de novo. Bertrand v. Garland, 36 F.4th 627, 631 (5th 

Cir. 2022). Where the immigration judge’s decision impacted the BIA—as 

is the case here—we consider the immigration judge’s decision to the extent 

it influenced the BIA. Hernandez-Castillo v. Sessions, 875 F.3d 199, 204 (5th 

Cir. 2017). 

IV

Petitioners contend that the BIA erred in denying their relief because:

(1) substantial evidence does not support the BIA’s determination that 

Petitioners failed to show membership in a cognizable particular social group; 

(2) substantial evidence does not support the BIA’s determination that 

Petitioners failed to demonstrate the requisite nexus between their harm and 

religion; (3) the BIA violated Petitioners’ constitutional rights when it 

allowed a single BIA member to render its decision, without referral to a 

three-member panel; and (4) the BIA adjudicator failed to act as an impartial 

adjudicator in violation of 8 C.F.R. § 1003.1(d)(1). 

A

We begin by considering whether the BIA erred when it determined

that Petitioners failed to show membership in a cognizable particular social 

group. We hold that it did not. 

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To be eligible for asylum, an applicant must show, among other things, 

that “race, religion, nationality, membership in a particular social group, or 

political opinion was or will be at least one central reason for persecuting the 

applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). To be cognizable, a particular social 

group must be comprised of persons who share an immutable characteristic 

that is particularly defined and socially distinct within the society at issue. 

See Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir. 2019). A group’s 

“immutable characteristics must make the group sufficiently particularized 

and socially distinct without reference to the very persecution from which its 

members flee.” Jaco v. Garland, 24 F.4th 395, 407 (5th Cir. 2021). Social 

distinction “is determined by ‘the extent to which members of a society 

perceive those with the characteristic in question as members of a social 

group.’” Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) 

(quoting Orellana-Monson, 685 F.3d 511, 519–20 (5th Cir. 2012)). While 

Petitioners identified five proposed particular social groups before the 

immigration judge, they only raise two on appeal: (1) “unprotected 

Honduran [w]omen who are unable to protect themselves or [t]heir children 

from Honduran gangs;” and (2) “a [f]amily that is headed by an unprotected 

Honduran [w]oman who is unable to protect herself and her family, including 

children, from the Honduran [g]angs itself and the children from Honduran 

gangs.” 

The law of this circuit squarely supports the BIA’s conclusion that the 

two proposed particular social groups on appeal are not cognizable due to lack 

of social distinction. In Suate-Orellana v. Barr, this Court held that 

“Honduran women who have been targeted for and resisted gang 

recruitment after the murder of a gang-associated partner” lacked the 

necessary social distinction to qualify as a particular social group. 979 F.3d 

1056, 1061 (5th Cir. 2020). Similarly, in Jaco, the Court held that “Honduran 

women who are unable to leave their domestic relationships” did not make 

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up a particular social group because the proposed group also lacked an 

independent social distinction in the community. Jaco, 24 F.4th at 402, 407.

Just as the proposed particular social groups in those cases lacked the 

independent social distinction necessary to form cognizable particular social 

groups, Petitioners’ proposed particular social groups fall short. 

Indeed, testimony by Petitioners’ own expert witness supports this 

holding. While Petitioners allege that Dr. Boerman’s testimony before the 

immigration judge adequately supports their position that the proposed 

particular social groups described a socially distinct group in Honduras, Dr. 

Boerman’s testimony indicated that violence by gangs against women in 

Honduras was generally subsumed by the larger phenomenon of gang 

violence. Specifically, Dr. Boerman stated that gang violence against women 

was “treated essentially as an invisible phenomenon” and that there were

“no specialized programs of any sort to protect women at risk, and it’s just 

kind of lost in the shuffle of the larger phenomenon of violence.” In other 

words, Dr. Boerman’s testimony goes to show that the proposed particular 

social groups are not perceived as socially distinct in the community. It 

follows that nothing in the record compels the conclusion that the members 

of Petitioners’ two proposed particular social groups are perceived 

substantially differently in Honduras from the general Honduran population 

who are targeted or harmed by gang members. See Suate-Orellana, 979 F.3d 

at 1061.

To the extent that Petitioners attempt to rely on a broader variation of 

their proposed particular social groups than what they raised before the 

immigration judge, we reject that attempt. Petitioners assert that the 

operative language in the definitions of their two proposed particular social 

groups is: (1) “unprotected Honduran women [and] children;” and (2) “a 

family that is headed by an unprotected Honduran woman [who has] 

children.” Petitioners then contend that a mother and her children are a selfCase: 22-60479 Document: 76-1 Page: 7 Date Filed: 04/19/2024
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evident group whose social distinction is recognized by society almost 

universally. According to Petitioners, the remaining language of their 

proposed particular social groups is harmless surplusage that merely repeats 

the persecutory conduct that must be proven. 

However, the “operative language” that Petitioners seek to rely on when 

making this argument is similar to the language used in the reformulated 

particular social groups definitions that Petitioners proposed to the BIA and 

that the BIA refused to consider. In deciding to reject the Petitioners’

reformulated particular social groups, the BIA stated that Petitioners’ newly 

articulated particular social groupswould not be addressed because they were 

not advanced before the immigration judge. Id. This decision by the BIA is 

consistent with our precedent. The BIA need not consider a claim or issue 

raised for the first time on appeal, including a reformulated particular social 

group. See Jaco, 24 F.4th at 402; Cantarero-Lagos v. Barr, 924 F.3d 145, 150-

54 (5th Cir. 2019). Thus, because a particular social group consisting simply 

of “unprotected Honduran women with children” was not raised before the 

immigration judge, the BIA was permitted to decline to address it. See Jaco, 

24 F.4th at 402; Cantarero-Lagos, 924 F.3d at 150–54. Given the BIA’s 

refusal to address Petitioners’ refined particular social groups, this court’s 

consideration of the proposed particular social group here would be 

improper.

B

Second, we consider whether the BIA erred when it determined that 

Petitioners failed to establish past persecution or a well-founded fear of 

persecution on account of religion. We hold that it did not, as the evidence 

presented to the BIA does not compel the conclusion that religion was a 

central reason for the gang’s purported persecution of Petitioners.

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In arguing that they are eligible for asylum because they came to the 

United States to flee religious persecution, Petitioners rely on BustamanteLeiva’s testimony that she was heavily involved in her church and made 

efforts to convert young people in order to deter them from joining gangs. 

Petitioners further rely on Bustamante-Leiva’s testimony that she left the 

phone on so that the gang could hear her praying with others when the gang 

first called and threatened her family, and on Dr. Boerman’s testimony that 

gangs tend to target church members for being outspoken opponents of 

gangs. However, this evidence does not compel the conclusion that religion 

was a central reason for the harm by the gang. See Shaikh v. Holder, 588 F.3d 

861, 864 (5th Cir. 2009). As we have recognized, “a statutorily protected 

ground need not be the only reason for harm, [but] it cannot be incidental, 

tangential, superficial, or subordinate to another reason for harm” for a 

petitioner to obtain asylum on the basis of religious persecution. Id. (quoting 

Matter of J-B-N & S-M-, 24 I.&N. Dec. 208, 212 (BIA 2007)). 

To the extent religion played any role in the harm to Petitioners, it was at 

most incidental to the gang’s goal of economic extortion. See Shaikh, 588 

F.3d at 864. This is evident from the fact that the praying that the gang might 

have heard through the phone occurred after the gang already initiated its 

extortion demands and death threats. In addition, Bustamante-Leiva’s 

testimony indicated that she did not have any issues with gangs directly 

related to her church involvement. In light of these facts, and because 

substantial evidence only requires “that the BIA’s decision be supported by 

record evidence and be substantially reasonable,” we hold that substantial 

evidence supports the BIA’s determination that Petitioners failed to show 

past persecution or a well-founded fear of persecution based on religion. 

Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). 

C

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Next, we consider Petitioners’ argument that the BIA violated their

due process rights when it allowed a single BIA member to render its 

decision, without referral to a three-member panel. Petitioners’ due process 

arguments are identical to those made by another petitioner in a recently 

decided case, Mejia-Alvarenga v. Garland, 95 F.4th 319, 326–27 (5th Cir.

2024). Just as we did in that case, we reject Petitioners’ claim. 

Specifically, Petitioners argue that the regulation governing decisions 

by a single BIA member, 8 C.F.R. § 1003.1(e), is unconstitutional because it 

precludes reversal of immigration judges’ removal orders even when 

meritorious issues are raised. While Petitioners correctly assert that singlemember BIA panels do not have the authority to reverse an immigration 

judge’s decision unless reversal is plainly consistent with and required by an 

intervening change in law, see 8 C.F.R. § 1003.1(e)(5), (e)(6)(vi), this feature 

of the BIA’s case management system does not violate due process. MejiaAlvarenga, 95 F.4th at 326.

1

D

Finally, we consider whether the BIA violated itsregulatory obligation 

to be impartial under 8 C.F.R. § 1003.1(d). Petitioners contend that the BIA 

failed to act as an impartial appellate body when the BIA adjudicator did not 

require DHS to file briefing and instead “sua sponte decide[d]” issues “on 

DHS’s behalf.” However, there is no authority requiring either party to file 

briefing before the BIA, and Petitioners’ argument is otherwise legally 

insufficient to prove bias. 

_____________________

1 To the extent that Petitioners argue that the BIA also committed an abuse of 

discretion by not referring her case to a three-member BIA panel pursuant to 

§ 1003.1(e)(6), we do not have jurisdiction over that claim for the reasons articulated in 

Mejia-Alvarenga. 95 F.4th at 327. 

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Petitioners ground their claims concerning the BIA’s failure to act as 

an impartial appellate body in 8 C.F.R. § 1003.1(d)(1), which requires the 

BIA to function as such. However, this argument is unavailing. As we 

recently held in Mejia-Alvarenga, the decision not to require the government 

to file briefing is consistent with the regulations governing appeals before the 

BIA. 95 F.4th at 325. Under the regulations, “[b]riefs may be filed by both 

parties.” 8 C.F.R. § 1003.38(f). Thus, the regulations allow even the 

appealing party to forgo filing a brief before the BIA, so long as the party 

identifies the reasons for the appeal when filing the notice of appeal. See 8 

C.F.R. § 1003.3(b). It follows that the single BIA member’s decision not to 

require the government to file a brief complies with the regulations.

Further, even if we were to construe Petitioners’ argument as a due 

process concern—instead of one grounded in the Attorney General’s 

regulations—Petitioners have still failed to present evidence in support of 

their position that the BIA member demonstrated partiality by not requiring 

the government to file a brief. Mejia-Alvarenga, 95 F.4th at 326 (citing Wang 

v. Holder, 569 F.3d 531, 540 (5th Cir. 2009)). 

V

For these reasons, we DENY the petition. 

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