United States Court of Appeals

For the Eighth Circuit

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No. 22-3565

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Hector Orlando Herrera-Elias

lllllllllllllllllllllPetitioner

v.

Merrick B. Garland, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: November 15, 2023

Filed: March 4, 2024

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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges. 

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LOKEN, Circuit Judge.

Hector Herrera-Elias, a native and citizen of Honduras, entered the United

States unlawfully on May 18, 2014. The Department of Homeland Security (DHS)

issued a Notice to Appear on July 8, 2015, charging he is removable under 8 U.S.C.

§ 1182(a)(6)(A)(i). On November 20, Herrera-Elias conceded removability and filed

a petition for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT), claiming fear of persecution and torture in Honduras because

the notorious MS-13 criminal gang forced him to “transport drugs, firearms, and have

[him] spy on people.” At the start of the July 18, 2018 merits hearing, counsel

requested a continuance because Herrera-Elias had disclosed five days before the

hearing that he is a gay man and more time was needed to prepare for this aspect of

his claim. The Immigration Judge (IJ) granted a continuance over DHS’s objection.

Herrera-Elias then filed an updated asylum application based additionally on

his sexual orientation. The IJ conducted the merits hearing in October 2018 and July

2019. DHS argued Herrera-Elias (i) was ineligible for asylum because he failed to

file the application within one year of entering the United States, see 8 U.S.C.

§ 1158(a)(2)(B); and (ii) is barred from asylum and withholding of removal for

having committed a serious nonpolitical crime before entering the United States, see

8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii). 

I.

At the hearing, Herrera-Elias testified that, at age thirteen, he met a member of

the MS-13 gang named Josue Figueroa in his home village of Yoro in Honduras. 

Josue recruited youngsters in Yoro to transport drugs to San Pedro Sula, where the

street price of marijuana was much higher. Herrera-Elias agreed to transport drugs

and guns for MS-13 on two occasions, eight months apart. He acknowledged that the

first time he was “trying to fit in.” He was paid for this first trip. A year later,

another gang approached Herrera-Elias and, under threat of death, he again

transported drugs and guns. When Josue learned of this, he threatened Herrera-Elias

that he would be targeted as an enemy unless he spied on the other gang and reported

back to MS-13. When Josue was killed, Herrera-Elias fled to the United States with

the help of his family. He did not initially disclose his homosexuality given his past

trauma and fear. He was not harmed in Honduras due to his sexual orientation, but

“anyone can hit” gay people, and there is harassment in the Honduran media.

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On July 29, 2019, the IJ denied relief in a lengthy Decision and Order. The IJ

concluded the application for asylum was untimely. In addition, the IJ ruled, “there

are serious reasons for believing that [Herrera-Elias] has committed a serious

nonpolitical crime which precludes . . . asylum and withholding of removal” under

8 U.S.C. § 1158(b)(2)(A)(iii). Though counsel in closing argument asserted that

Herrera-Elias’s involvement with gangs was “involuntary and under duress,” the IJ

found that he “willingly transported firearms and drugs for criminal organizations in

Honduras.” Though he remained eligible for withholding-of-removal relief under the

CAT, Herrera-Elias failed to show it is more likely than not that he would be tortured

if removed to Honduras because, while there is evidence “the police and gangs

‘victimize’ the LGBTI community in Honduras,” he was never harmed by anyone

acting under government authority, and the record does not show “the type of

systematic political and governmental mistreatment . . . that qualifies under the

definition of ‘torture.’” 

On November 10, 2022, the Board of Immigration Appeals (BIA) dismissed

Herrera-Elias’s administrative appeal. Regarding the serious-nonpolitical-crime bar

to asylum and withholding of removal, the BIA concluded the IJ did not clearly err

in finding that Herrera-Elias, “based on his own admissions, knowingly transported

firearms and drugs for criminal organizations in Honduras,” and in finding that his

involvement was serious in nature “due to the nature and inherent violence of the

drug trade.” One member of the three-judge panel dissented from this ruling,

concluding based on Herrera-Elias’s young age and limited involvement in the gang’s

operations that “his conduct does not constitute a serious nonpolitical crime.” 

The BIA also rejected Herrera-Elias’s argument “that his criminal activity

should not serve as a bar to his eligibility for withholding of removal because he

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acted under duress.” Herrera-Elias relied on a recent BIA decision1

 addressing

whether there is a duress exception to the separate “persecutor bar” in 8 U.S.C.

§§ 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i).2 Noting the Attorney General had vacated

that decision, the BIA explained: 

Furthermore, we decline to extend the reasoning of Matter of Negusie

concerning the persecutor bar to the serious nonpolitical crime bar,

which was not addressed in that case. The respondent cites no other

authority that suggests that there is a recognized duress exception to the

serious nonpolitical crime bar. 

Herrera-Elias petitions for review of this decision, arguing the BIA erred in

analyzing the serious nonpolitical crime issue on an incomplete record because the

IJ “fail[ed] to provide a detailed analysis in reaching his conclusion,” and failed to

consider duress in determining whether the totality of the circumstances showed that

a child applicant committed a serious nonpolitical crime.3

1Matter of Negusie, 27 I&N Dec. 347 (BIA 2018), vacated, 28 I&N Dec. 120

(A.G. 2020). 

2The persecutor bar denies withholding of removal if “the alien ordered,

incited, assisted, or otherwise participated in the persecution of an individual because

of the individual’s race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1231(b)(3)(B)(i). “[W]hether coercion or duress is

relevant in determining if an alien assisted or otherwise participated in persecution”

is an issue that has generated extensive litigation for many years and still is not fully

resolved. Negusie v. Holder, 555 U.S. 511, 517 (2009); see Fedorenko v. United

States, 449 U.S. 490 (1981). The Attorney General vacated the BIA’s decision on

remand in Negusie in a lengthy opinion, rejecting the BIA’s conclusion that duress

or coercion is relevant in determining whether the bar applies to an alien who is found

to have assisted or otherwise participated in persecution. Matter of Negusie, 28 I&N

Dec. 120, 155 (A.G. 2020). 

3The determinations that he is ineligible for asylum due to his untimely 

application and failed to show eligibility for relief under the CAT are not at issue.

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II.

A person is ineligible for withholding of removal if “there are serious reasons

to believe that the alien committed a serious nonpolitical crime outside the United

States before the alien arrived in the United States.” 8 U.S.C. § 1231(b)(3)(B)(iii). 

“The IJ’s finding that ‘there are serious reasons to believe’ [Herrera-Elias] committed

a ‘serious nonpolitical crime’ is a finding of fact we review under the substantial

evidence test.” Zheng v. Holder, 698 F.3d 710, 713 (8th Cir. 2012) (quotation

omitted). Under that deferential standard, we will reverse only if “the evidence is so

compelling that no reasonable factfinder could fail to find in favor of the petitioner.” 

Id. (quotation omitted). 

“The evaluation of a serious nonpolitical crime is conducted on a case-by-case

basis considering the facts and circumstances presented.” Barahona v. Garland, 993

F.3d 1024, 1028 (8th Cir. 2021), quoting Matter of E-A-, 26 I&N Dec. 1, 3 (BIA

2012). “[P]robable cause is required to meet the ‘serious reasons for believing’

standard.” Id. In Barahona, we held that the agency did not clearly err in finding that

charges pending in El Salvador accusing petitioner of being a “hit man” for the MS13 gang was a “serious nonpolitical crime.” Id. at 1027-28. But we remanded

because petitioner submitted evidence those Salvadoran charges were dismissed and

the BIA had not made a probable cause finding. Id. at 1028-29. In Zheng, we held

that substantial evidence supported the IJ’s finding of serious reasons to believe

petitioner committed a serious nonpolitical crime when petitioner admitted that he lay

in wait for a Chinese official who refused to return property seized during

enforcement of China’s family planning policies, and “beat the official with a stick

until he was bloody, resulting in ‘a very serious injury.’” 698 F.3d at 714. The IJ

found this was a nonpolitical crime that was “unequivocally serious.” Id.

Here, Herrera-Elias admitted that he transported guns and drugs for the MS-13

gang on multiple occasions. The issue is whether “there are serious reasons to

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believe” that he admitted committing a “serious nonpolitical crime.” Herrera-Elias 

did not argue before the agency (or this court) that he trafficked drugs and guns for

a private gang for political reasons, so the IJ had no reason to address that issue. He

carried the contraband in backpacks provided by gang members, who told him he was

carrying marijuana or “the little girl,” their term for a firearm. The State Department

2017 Country Report for Honduras confirms that narcotics traffickers are significant

perpetrators of violent crimes against law-abiding Hondurans, and Herrera-Elias

testified that criminal street gangs are pervasive in Yoro.

Herrera-Elias argues the IJ failed to compile an adequate record to address

whether his criminal conduct should be considered serious despite his young age, the

limited nature of his involvement in the gang’s operations, his fear of being killed if

he failed or refused to cooperate, and the trauma he suffered as a result of his sexual

orientation. He further argues the IJ failed “to explain its departure” from prior cases

that had considered childhood coercion and duress in determining whether the alien

had committed a serious nonpolitical crime. Therefore, the BIA erred in adopting the

IJ’s decision, and we should remand to the BIA with instructions to remand to the IJ

for thorough development of the record and further analysis of his application.

We conclude the IJ did not deny Herrera-Elias’s application on an inadequate

record. Herrera-Elias was represented by counsel at the merits hearing so the IJ had

no duty “to fully develop the record” with evidence Herrera-Elias argues is lacking

concerning the impact of his age and sexual orientation on the serious nonpolitical

crime issue. See Deng Chol v. Garland, 25 F.4th 1063, 1071 (8th Cir. 2022). The

BIA’s ruling that the fact Herrera-Elias was a minor when the crimes were committed

“does not exempt his crimes from being considered particularly serious” is consistent

with our decision in Chay-Velasquez v. Ashcroft, 367 F.3d 751, 755-56 (8th Cir.

2004). The IJ conducted its evaluation of the serious nonpolitical crime issue on a

case-by-case basis, considering the facts and circumstances presented. Herrera-Elias

admitted that he knowingly transported drugs and guns for the MS-13 gangsters on

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multiple occasions -- at least once for pay because he was “trying to fit in.” 

Substantial evidence on the record as a whole, which is our deferential standard of

review, supports the decision even though one member of the BIA panel would have

decided the serious nonpolitical crime issue differently. 

Herrera-Elias’s belated attempt to import the longstanding dispute over duress

as a defense to the persecutor bar into this serious-nonpolitical-crime bar case is

without merit. The elements of the two bars are different, and Herrera-Elias offers

no analysis of how duress is relevant to this bar. The Attorney General in Matter of

Negusie concluded that duress is not relevant to the persecutor bar if the alien is

determined to have assisted or participated in persecution. 28 I&N Dec. 120, 155

(A.G. 2020). If the BIA applied a comparable analysis to this bar, the Attorney

General’s conclusion would not decide the initial question whether childhood duress

and coercion are relevant to determining, “on a case-by-case basis considering the

facts and circumstances presented,” whether there are serious reasons for believing

that the alien committed a serious nonpolitical crime outside the United States. 

Barahona, 993 F.3d at 1028 (quotation omitted). An affirmative answer to that

question is what precludes asylum and withholding of removal under 8 U.S.C.

§ 1231(b)(3)(B)(iii). The BIA took no position on this question, and neither do we. 

We simply conclude the BIA did not err in rejecting the vague, unsupported “duress”

argument Herrera-Elias presented to the agency. 

For these reasons, we deny the petition for review.

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