United States Court of Appeals

For the Eighth Circuit

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No. 21-2333

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Hugo Aguilar Montecinos

lllllllllllllllllllllPetitioner

v.

Merrick B. Garland, Attorney General of United States

lllllllllllllllllllllRespondent

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No. 22-1438

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 Hugo Aguilar Montecinos

lllllllllllllllllllllPetitioner

v.

Merrick B. Garland, Attorney General of United States

lllllllllllllllllllllRespondent

 ____________

Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: December 13, 2022

Filed: February 10, 2023

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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges. 

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ARNOLD, Circuit Judge.

After conceding that he was removable from the United States for entering the

country without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), Hugo

Aguilar Montecinos applied for asylum on the ground that gangs in his native

Honduras had persecuted him in the past and that he feared persecution from them

should he return there. An immigration judge and the Board of Immigration Appeals

determined, as relevant, that any harm Aguilar had suffered bore no connection to his

political opinions and denied his application. Aguilar petitions our court for review

of the agency's decision and his motion to reconsider that decision, and we deny the

petitions.

In his initial application for asylum, Aguilar explained that he had been

"threatened by the gang MS-13 because they wanted me to help collect 'rent' from

people because I had a car," and he expressed a fear that, should he return to

Honduras, "police and Ms13 can torture you, [and] the authorities would never find

out." In a supplement to that application Aguilar provided a declaration explaining

that, one afternoon in November 2012, four armed people robbed him and his wife

of money and personal documents, among other things, and threatened to kill them

if they told police. A week later Aguilar found a note on his car stating that "we have

all of your information, where you live, what you do, what can you own, and you

move around a lot in your car." It then said that "we want you [to] help us collect the

war tax," and if he did, it "can save your life also your brothers, your wife's and

children." Finally, the note warned, "We will be calling and we will be aware of you

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and if you do not do it, you will be dead. MS13." Aguilar testified before an

immigration judge that he didn't contact police "[b]ecause many times the police is

actually working with them." Aguilar reported that, after he found the note, "[t]hey

kept calling me, threatening me, and leaving me intimidating messages." He testified

that they threatened to kill him and that they called two or three times a week for the

next month or two. When asked why he thought the gang had selected him to collect

the war tax, he surmised, "I think they did it because I have to go all over the country,

and I am an honest person with no problems."

Aguilar also provided a statement from his wife, who still lives in Honduras,

in support of his application. She reported that, in October 2016, her neighbors were

the victims of an armed robbery at their home. At some point during the robbery, the

culprits told the neighbors "sorry man, made a mistake" and left. They then knocked

on Aguilar's wife's door, but she didn't answer and wasn't harmed. Aguilar appears

to suspect that the robbers were gang members who were looking for him or his

family. Aguilar also submitted evidence that Honduran gangs like MS-13, sometimes

with the help of police, have demanded that certain people who travel throughout the

country collect a "war tax" and that many people have been killed for refusing to do

so. He also testified that Honduran gangs are so big that "they are actually part of the

government." Finally, he provided his mother's death certificate as evidence that

gangs were targeting his family, though his attorney admitted that the certificate

doesn't say that someone murdered Aguilar's mother.

In rejecting the claim that any actual or imputed political opinion of Aguilar's

was at least one central reason for his mistreatment, the IJ explained that Aguilar "has

never expressed any political opinion or anti-corruption sentiment" that could be

characterized as political opinion, "nor is there any evidence that the gang has

imputed to him such a position." The IJ noted that mere resistance to assisting a

criminal enterprise is insufficient to qualify as political opinion. The IJ also pointed

out that it appeared the gang targeted Aguilar "because he had a car and traveled to

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different parts of Honduras, and therefore, would be a useful tool to further the

criminal efforts of the MS 13 Gang."

The BIA upheld the IJ's decision, explaining that the IJ "did not clearly err in

finding the gang members were not and would not be motivated to target the

respondent because of his actual or imputed political opinion." It rejected Aguilar's

contention that his refusal to collect the "war tax was viewed as an act of resistance

to the gang, which operates as a de facto government in Honduras," explaining that

the IJ could reasonably believe that the dispute between Aguilar and the gang was a

product of "general criminality," and not an effort to punish someone for his political

views. Aguilar also failed to provide any evidence, the BIA said, that the gang

imputed a political opinion to him, and it appeared that the gang targeted him merely

for economic gain.

Aguilar maintains that the BIA erred in holding that no "nexus" exists between

any actual or imputed political opinion and Aguilar's past mistreatment or current

fears. To be eligible for asylum, Aguilar must show that he is a refugee, see 8 U.S.C.

§ 1158(b)(1)(A), who is unwilling or unable to return to his home country "because

of persecution or a well-founded fear of persecution on account of . . . political

opinion." See id. § 1101(a)(42)(A). To demonstrate the requisite nexus between

Aguilar's persecution and his political opinion, he must show that "political opinion

was or will be at least one central reason for persecuting" him. See id.

§ 1158(b)(1)(B)(i). Though a central reason need not be the sole reason, it must be

more than incidental or tangential. See Gomez-Rivera v. Sessions, 897 F.3d 995, 998

(8th Cir. 2018). Because we review the agency's nexus holding for substantial

evidence, we will reverse only if we determine that a reasonable factfinder would

have to conclude that Aguilar's actual or imputed political opinion motivated his

persecutors' actions sufficiently to qualify him for asylum. See Silvestre-Giron v.

Barr, 949 F.3d 1114, 1117–19 (8th Cir. 2020).

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An asylum applicant's refusal to assist or join a gang is often unrelated to the

applicant's political opinions. For example, in Marroquin-Ochoma v. Holder, 574

F.3d 574, 576 (8th Cir. 2009), an applicant had received threatening notes and phone

calls from a gang in her native Guatemala demanding money, but she resisted and

fled. The applicant asserted before our court that the gang's "threats were motivated

by an anti-gang political opinion that the gang members imputed to her based on her

refusal to join the gang or otherwise succumb to their extortionate demands." See id.

at 577. We upheld the agency's determination to the contrary and rejected the

applicant's contention that the gang wasn't a "garden variety street gang" but

"political in nature" and so "the mere refusal to join the gang is therefore sufficient

to find an imputed political opinion." See id. at 578. We explained that "evidence that

the gang is politically minded could be considered evidence that the gang members

would be somewhat more likely to attribute political opinions to resisters," but "a

generalized 'political' motive underlying the gang's forced recruitment would be

inadequate to establish" that "the gang believes resistance to those recruitment efforts

is based on an anti-gang political opinion." See id. After all, even a person who

supports a gang might refuse to assist it for reasons other than political opinion, such

as fear that gang rivals might target the applicant or "fear of combat, a desire to

remain with one's family and friends, a desire to earn a better living in civilian life,

to mention only a few." See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482 (1992). The

record here simply does not contain much evidence, if any, that Aguilar's refusal to

assist the gang, even one as powerful and politically influential as MS-13, was meant

to reflect a political opinion, or that the gang thought his refusal was due to a political

opinion.

Aguilar asserts that the IJ and BIA did not carefully examine the record but

simply assumed that any opposition to a criminal organization is necessarily

apolitical. It is true that "careful attention to the particular circumstances surrounding

the alleged persecution remains necessary even if the persecution is generally

categorized as extortion or recruitment." See Marroquin-Ochoma, 574 F.3d at 577.

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The circumstances could show that, even if a gang's actions amounted to extortion,

the gang might have been motivated to persecute the victim because of a statutorily

protected ground. For example, in a case Aguilar relies on, De Brenner v. Ashcroft,

388 F.3d 629, 637 (8th Cir. 2004), our court concluded that it was "an

oversimplification" to characterize the threats made in that case "as simple extortion

without carefully examining the record for particularized evidence of imputed

political opinion." The record there showed that an asylum applicant who resisted

gang recruitment in Peru was eligible for asylum because her persecution was

sufficiently related to gang-imputed political opinions. The gang had labeled the

applicant and her family as members and supporters of the ruling party. It had also

mistakenly identified her as the personal secretary of a senior, active member of the

party. And the record showed that the persecutors had imputed certain political

opinions to all wealthy Peruvians like the applicant. See id. at 636–37. But the record

here contains nothing of the sort.

Aguilar's contention that the IJ and BIA failed to examine the record

adequately in reaching their conclusions is untenable. The IJ recounted the gang's

interactions with Aguilar and concluded that he never expressed any political opinion

or anti-corruption sentiment, or that the gang imputed those things to

him—conclusions that find ample support in the record. We read the IJ's opinion to

say that, unless the record provides some reason to think that a gang's persecution of

an asylum applicant relates to the applicant's actual or imputed political opinions,

refusal to comply with gang demands alone is insufficient to demonstrate the requisite

nexus. That seems unexceptionable. The BIA similarly recounted the gang's

interactions with Aguilar, pointed out that he hadn't provided evidence that gang

members imputed a political opinion to him, and noted that it was not error for the IJ

to hold that the gang's motivation was economic in nature. The agency therefore did

not take the improper shortcut that Aguilar says it did.

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Aguilar also maintains that we should grant his petition because the BIA failed

to address his request that it take administrative notice of an indictment in the

Southern District of New York against the brother of Honduras's president for drug

trafficking. Aguilar says that the allegations in the indictment show "the Honduran

government's deep involvement with organized crime made the MS-13 functionally

a quasi-governmental entity" and so blurs the line between government and gang.

We agree with Aguilar that the BIA, in resolving his appeal of the IJ's decision

and his motion to reconsider, appeared to misapprehend either his request or its

authority to take administrative notice should it choose to do so. See 8 C.F.R.

§ 1003.1(d)(3)(iv). But we think the BIA's apparent error was harmless because we

have "not the slightest uncertainty as to the outcome of [the] proceeding" were we to

remand the case, as any error "clearly did not affect the outcome" of Aguilar's appeal

or his motion to reconsider. See Prohibition Juice Co. v. U.S. Food & Drug Admin.,

45 F.4th 8, 24 (D.C. Cir. 2022). The indictment was largely duplicative of the

country-conditions evidence that Aguilar had already submitted to the BIA in that it

tended to show that Honduras is plagued by corruption and that certain government

officials and members of the police assist gangs in their drug-trafficking pursuits.

Though the indictment provides a specific example of potential corruption, we do not

think it would have influenced the BIA to reach a different result, especially since it

does nothing to cure the deficiencies in Aguilar's asylum request, namely, the lack of

evidence that his resistance to the gang had anything to do with an actual or imputed

political opinion.

Despite Aguilar's contention to the contrary, our determination that any error

was harmless does not violate the so-called Chenery doctrine. Under that doctrine,

"a reviewing court, in dealing with a determination or judgment which an

administrative agency alone is authorized to make, must judge the propriety of such

action solely by the grounds invoked by the agency," and "[i]f those grounds are

inadequate or improper, the court is powerless to affirm the administrative action by

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substituting what it considers to be a more adequate or proper basis." See Sec. &

Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947). But as our sister circuits

have explained, the Chenery doctrine doesn't prohibit courts from considering

whether an agency error is harmless. See, e.g., Prohibition Juice, 45 F.4th at 24;

Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010); Save Our Heritage, Inc. v.

F.A.A., 269 F.3d 49, 61 (1st Cir. 2001); see also Mass. Trs. of E. Gas & Fuel Assocs.

v. United States, 377 U.S. 235, 246–48 (1964). The Administrative Procedure Act

requires courts, in reviewing agency action, to take "due account" "of the rule of

prejudicial error," see 5 U.S.C. § 706, and that is what we do here.

Aguilar also asserts that the BIA's reliance on Matter of A-B-, 27 I. & N. Dec.

316 (A.G. 2018) (Matter of A-B- I), requires that we grant his petitions because that

decision has been vacated. See Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021)

(Matter of A-B- II). Indeed, the BIA relied on Matter of A-B- I when, in explaining

that Aguilar had not established a nexus between the gang's mistreatment of him and

his political opinions, it said "that acts of personal or private violence would not

ordinarily satisfy the nexus prong of persecution analysis." The attorney general,

though, vacated Matter of A-B- I at least in part because he thought it "could be read

to create a strong presumption against asylum claims based on private conduct." See

Matter of A-B- II, 28 I. & N. Dec. at 309.

We nonetheless conclude that remand is unnecessary because Aguilar already

brought this matter to the BIA's attention, and the BIA held that vacatur of Matter of

A-B- I didn't affect Aguilar's asylum application. In so holding, the BIA explained

that, even without a presumption against asylum claims involving persecution by

private actors, Aguilar had failed to show that his actual or imputed political opinions

had anything to do with the gang's mistreatment of him. In other words, Aguilar's

asylum application failed under "legal authority that remains valid." We discern no

error on this point.

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Finally, Aguilar maintains that the BIA erred when it refused to consider his

request for withholding of removal. See 8 U.S.C. § 1231(b)(3). In deciding Aguilar's

appeal, the BIA said that Aguilar had not challenged the IJ's ruling on withholding

of removal, and so it deemed the matter waived. When Aguilar moved the BIA to

reconsider, it explained that he didn't raise any meaningful arguments regarding

withholding of removal. Aguilar says that he did and that the arguments he makes

regarding his asylum application apply with equal force to his request for withholding

of removal.

Aguilar had to raise issues with the agency before challenging their resolution

here. See Bakor v. Barr, 958 F.3d 732, 739 (8th Cir. 2020). If a petitioner "fails to

raise a particular issue when he appeals to the Board, the petitioner has not exhausted

his administrative remedies with respect to that issue." Ramirez v. Sessions, 902 F.3d

764, 770 (8th Cir. 2018). We agree with the BIA that Aguilar failed to appeal the IJ's

determination on withholding of removal. While Aguilar adverted to withholding of

removal a few times in the relevant brief, he did so only when reciting the actions that

the IJ took or the names of documents at issue. On the other hand, he clearly

challenged the IJ's asylum determination, dedicating a large portion of his brief to the

"substantive requirements for asylum" and concluding that he "is statutorily eligible

for asylum." So we find no fault with the BIA interpreting Aguilar's appeal as relating

only to the IJ's asylum decision.

Petitions denied.

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