REVISED October 15, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60339

DANY ARIEL PENA OSEGUERA,

Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He 

appeals the denial of his application for asylum and withholding of removal.

I.

In early 2013, Pena Oseguera was a university student and lived with 

his family. During that time, his mother, a Honduran supervisory police officer, 

received a tip about corrupt police officers who were colluding with gangs. She 

referred the tip to a member of the police force with jurisdiction to investigate 

corruption. The investigator was murdered in June 2013.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2019

Lyle W. Cayce

Clerk

 Case: 17-60339 Document: 00515158420 Page: 1 Date Filed: 10/15/2019
No. 17-60339

2

Pena Oseguera claims he was approached later in 2013 by a person who 

offered him a job as a bill collector. Pena Oseguera expressed interest but later 

declined the offer. At that point, the person threatened to kill him. Pena 

Oseguera later found out that the person was a gang member. Several days 

later, Pena Oseguera’s mother received two text messages threatening her 

entire family. The messages noted that she was a police officer and specifically 

mentioned Pena Oseguera.

Pena Oseguera’s parents quickly arranged for him to travel to the United 

States. After he left, his mother received two more messages threatening her 

family. She also stated that over a year later, her home was shot up by 

unknown assailants, who she suspected were the corrupt police officers1.

Pena Oseguera applied for asylum, withholding of removal, and relief 

under the Convention Against Torture (CAT). On June 6, 2016, the 

Immigration Judge (IJ) granted relief under CAT. The IJ did not grant the 

asylum and withholding of removal requests, finding that Pena Oseguera did 

not establish a nexus between the alleged persecution and a legally “protected 

ground.” Pena Oseguera appealed, and the Board of Immigration Appeals 

(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a 

petition for review of the BIA’s decision on May 3, 2017.

II.

Courts of appeals have exclusive jurisdiction to review final orders of 

removal. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s 

final decision, unless, as in this instance, the BIA’s decision is affected by the 

IJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed 

 

1 Pena Oseguera’s mother also entered the United States and testified in support of

his application.

 Case: 17-60339 Document: 00515158420 Page: 2 Date Filed: 10/15/2019
No. 17-60339

3

Respondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de 

novo and factual findings for substantial evidence. Id.

III.

As an applicant for asylum, Pena Oseguera must show that he is “unable 

or unwilling to return” to his country of origin “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, 

membership in a particular social group, or political opinion.” 8 U.S.C. §

1101(a)(42). Pena Oseguera must also show a nexus – that the protected 

ground “was or will be at least one central reason for persecuting the 

applicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental, 

tangential, superficial, or subordinate to another reason for harm.” Shaikh v. 

Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &

N. Dec. 208, 214 (BIA 2007)).

At the time we heard oral arguments in this case, Matter of L-E-A- was 

pending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019). 

That case directly took up the question of whether families qualified as “social 

groups” for the purposes of refugee status.2 We held this case in abeyance 

pending a decision by the Attorney General. A decision has now been 

published, and Matter of L-E-A stands for the proposition that families may

qualify as social groups, but the decision must be reached on a case-by-case 

basis. The “applicant must establish that his specific family group is defined 

with sufficient particularity and is socially distinct in his society. In the 

ordinary case, a family group will not meet that standard, because it will not 

have the kind of identifying characteristics that render the family socially 

distinct within the society in question.” 27 I. & N. Dec. 581, 586 (U.S. Att’y 

 

2 “Whether, and under what circumstances, an alien may establish persecution on 

account of membership in a ‘particular social group’ . . . based on the alien’s membership in 

a family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).

 Case: 17-60339 Document: 00515158420 Page: 3 Date Filed: 10/15/2019
No. 17-60339

4

Gen. 2019). This is “a fact-based inquiry made on a case-by-case basis.” Id. at 

584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42 (BIA 2017)); see also

Matter of A-B-, 27 I. & N. Dec. 316, 333 n.8 (Att’y Gen. 2018) (“There is reason 

to doubt that a nuclear family can comprise a particular social group under the 

statute.”).

In the instant case, the BIA assumed that “the respondent properly and 

timely set forth the particular social group of his family.” It then stated that 

“the Immigration Judge’s decision does not specifically address this [social] 

group.” Importantly, the BIA went on to suggest that the factual record and 

analysis from the IJ was lacking, but brushed that aside because it intended 

to make the decision based only on an analysis of the nexus: “However, we need 

not remand the record for additional fact finding or analysis [on the issue of 

social group].”

The BIA admitted that the Immigration Judge incorrectly conflated the 

respondent’s claim with that of his mother (“We briefly note that the 

respondent is not a derivative application on his mother’s separate asylum 

application, and thus each claim must stand on its own merits.” Id. at 3.). The

BIA then claims to have come to an “independent conclusion” which “this 

reasoning by the Immigration Judge does not meaningfully impact.” However, 

the BIA must rely on the factual findings of the IJ, which were likely impacted 

by the incorrect legal posture through which the IJ viewed the case. Zumel v. 

Lynch, 803 F.3d 463, 475 (9th Cir. 2015).

IV.

Considering this error, and in order that the IJ and the BIA may have 

the benefit of the increased clarity provided by Matter of L-E-A-, we determine

it prudent to remand. We recognize that Matter of L-E-A- is at odds with the 

precedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91

(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth 

 Case: 17-60339 Document: 00515158420 Page: 4 Date Filed: 10/15/2019
No. 17-60339

5

Circuits). However, it is not at odds with any precedent in the Fifth Circuit. 

We therefore VACATE and REMAND for consideration in light of Matter of LE-A-.

 Case: 17-60339 Document: 00515158420 Page: 5 Date Filed: 10/15/2019