United States Court of Appeals

for the Fifth Circuit

No. 18-60276

Irma Emperatriz Berrios-Bruno; Julio Cesar RodriguezBerrios; David Elias Rodriguez-Berrios, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petitioner for Review from an Order of the 

Board of Immigration Appeals

BIA No. A202 004 616

BIA No. A202 004 617

BIA No. A202 004 618

Before Smith, Graves, and Ho, Circuit Judges.

Per Curiam:*

Irma Emperatriz Berrios-Bruno seeks review of a Board of 

Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s 

(“IJ”) denial of her asylum petition on behalf of herself and her two minor 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2021

Lyle W. Cayce

Clerk

Case: 18-60276 Document: 00515980329 Page: 1 Date Filed: 08/16/2021
No. 18-60276

2

children. Finding no error in the agency’s decisions, we deny the petition for 

review. 

I.

Berrios is an El Salvadorean citizen. Around 2003, when she was 

fifteen years old, she began a relationship with David Elias Rodriguez Cortes. 

After Berrios gave birth to the first of their two sons, the family moved into a 

home on land belonging to Berrios’ family. Berrios and Rodriguez never 

officially married, but Berrios described their relationship as a common-law 

marriage or domestic partnership, and she testified that Rodriguez had long 

been physically and emotionally abusive.

In 2014, a man named Alfredo, who purported to be a representative 

of the MS-13 gang, approached Rodriguez and demanded money. To stave 

off threatened violence, Rodriguez began making semi-regular payments to 

Alfredo until, later that year, he was kidnapped for failure to meet the gang’s 

payment demands. Berrios then learned of Rodriguez’ payments for the first 

time when Alfredo told Berrios that MS-13 had kidnapped Rodriguez. Berrios 

recognized from Alfredo’s tattoos that he was an MS-13 member. Alfredo 

later wrote Berrios a letter threatening her and her children unless she paid 

him. Berrios then fled with her children to the United States, where she 

surrendered to border officials. While in detention, she learned that 

Rodriguez had escaped his captivity and fled to his brother’s home in Playa 

El Espino, about fifty miles from Berrios’ hometown. At some point in 2015, 

Rodriguez also fled El Salvador to the United States. 

After the Department of Homeland Security concluded that Berrios 

was removable, Berrios and her two children applied for asylum, withholding 

of removal under the Immigration and Nationality Act (“INA”), and 

protection under the Convention Against Torture (“CAT”). Berrios’ 

application listed her two children as derivatives. Berrios asserted two 

Case: 18-60276 Document: 00515980329 Page: 2 Date Filed: 08/16/2021
No. 18-60276

3

grounds for asylum. First, she sought asylum based on the domestic abuse 

Rodriguez inflicted upon Berrios. She thus asserted a fear of persecution in 

El Salvador due to her membership in the particular social group of “nuclear 

family members of David Elias Rodriguez Cortes.” Second, she claimed 

relief on account of her fear of retribution by the MS-13 gang for Rodriguez’ 

escape, also due to her relationship to Rodriguez. 

At a hearing before an IJ, Berrios testified about the abuse she suffered 

from Rodriguez and the threats she had received from MS-13 in El Salvador. 

She feared that the gang would find and kill her and her children if she 

returned to El Salvador. The Berrios family also presented the testimony of 

Dr. Thomas Boerman, whom the IJ recognized as an expert in “gangs and 

other organized criminal groups in El Salvador.” Dr. Boerman testified about 

MS-13’s culture generally, and opined that the gang would be intent on 

punishing Rodriguez for his escape, and that this punishment would include 

killing Berrios. Dr. Boerman said that “typically” the MS-13 gang would 

threaten a targeted individual’s family because “part of that strategy of terror 

is to say that once you . . . are on our radar screen, once you fall into disfavor 

with us, it is not just you that is at risk but the people you love most, and 

that’s a critical dimension in how they coerce the public into complying with 

their [] demands.” According to Dr. Boerman, if the gang could not find and 

kill Rodriguez after his escape, “his wife . . . would then serve as the proxy 

for their rage. They would punish him by harming her.” Dr. Boerman 

acknowledged that MS-13 might be less stringent with Berrios’ children, but 

he still opined that they were at risk of violence from MS-13. Dr. Boerman 

stated that he had seen hundreds of cases where MS-13 had beaten and killed

children belonging to targeted families. 

To support its applications, the Berrios family submitted identity 

documents, written statements from family and interested individuals, social 

media information, evidence of country conditions, and declarations from 

Case: 18-60276 Document: 00515980329 Page: 3 Date Filed: 08/16/2021
No. 18-60276

4

Dr. Boerman and six other putative experts. Berrios’ mother, for example, 

submitted a signed statement asserting that the gang had threatened to kill 

Berrios if Berrios did not pay her husband’s ransom. Berrios’s mother also 

noted, however, that the family had not heard from the gang since Rodriguez’ 

escape. 

The IJ denied the family’s claims for asylum, withholding of removal, 

and protection under the CAT, and ordered the family removed to El 

Salvador. The IJ first concluded that Berrios was not credible in her 

testimony regarding Rodriguez’ abuse, and denied her domestic-violencebased asylum petition. The IJ then “accepted” Dr. Boerman’s testimony as 

it pertained to gangs in El Salvador, but the IJ nonetheless found that Berrios 

and her children had not shown that their fear of persecution involved a 

protected ground. The IJ observed that regardless of whether a nuclear family 

can be a basis for asylum, economic extortion is not cognizable under the 

INA. The IJ determined that the family relationship to Rodriguez was 

“entirely subordinate to the primary reason for the harm,” which was the 

gang’s illicit financial motive. The IJ found that “putting pressure on family 

members” was “simply [a] means to an end.” The IJ similarly denied the 

claims for withholding of removal and CAT protection. 

Berrios appealed to the BIA, which affirmed the IJ’s decision and 

dismissed the appeal. As to the family-based claim for asylum and 

withholding of removal, the BIA “acknowledge[d] that family may constitute 

a particular social group,” but it did not analyze the viability of Berrios’ 

asserted social groups. Instead, the BIA affirmed by finding no error in the 

IJ’s ruling that the gang’s motivation was financial “as opposed to harming 

[Berrios and her children] on account of their family status.”. The BIA 

reasoned that Dr. Boerman’s testimony was “not inconsistent with” the IJ’s 

conclusion that any desire to harm Berrios and her children “was entirely 

subordinate to the primary motivation of perpetuating the criminal 

Case: 18-60276 Document: 00515980329 Page: 4 Date Filed: 08/16/2021
No. 18-60276

5

enterprise.” The Berrios family timely filed a petition for review in this court, 

contesting only the agency’s nexus determination for the family-based 

asylum claim. We have subject-matter jurisdiction under 8 U.S.C. 

§ 1252(b)(1) and (2). 

II.

We typically review only the BIA’s decision, but we also review the 

IJ’s decision if it had “some impact on” the BIA’s decision. Wang v. Holder, 

569 F.3d 531, 536 (5th Cir. 2009). We review factual findings under the 

substantial evidence standard, and we review legal questions de novo. Rui 

Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011). The BIA’s factual 

determination that an alien is not eligible for asylum or withholding of 

removal is reviewed under the substantial evidence standard. Chen v. 

Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Under that standard, Berrios

must show that “the evidence is so compelling that no reasonable factfinder 

could” conclude against her. Orellana-Monson v. Holder, 685 F.3d 511, 518 

(5th Cir. 2012) (internal quotation marks and citation omitted). 

Berrios’ primary arguments on appeal center around nexus and the 

extent to which an asylum applicant’s protected ground must factor into her 

credible fear of persecution. She argues that she is “eligible for asylum 

because she was persecuted on account of her status as [Rodriguez’] nuclear 

family member[.]”She contends that the BIA erroneously required her to 

prove that her family status was the central reason for her persecution. She 

argues instead that under the INA, she must show only that her status as 

Rodriguez’ family member was a central reason for her persecution. Finally, 

Berrios contends that the IJ wrongly concluded that Berrios was not credible, 

and that he impermissibly substituted his own opinions and speculation for 

record evidence, tainting the IJ’s entire ruling. 

Case: 18-60276 Document: 00515980329 Page: 5 Date Filed: 08/16/2021
No. 18-60276

6

As a preliminary matter, any error in the IJ’s credibility determination 

was harmless. That determination pertained only to a separate ground that 

Berrios asserted for asylum and which is not contested on appeal. Further, 

the BIA did not adopt the IJ’s credibility determination, so that 

determination has no bearing on this appeal. INS v. Bagamasbad, 429 U.S.

24, 25 (1976) (“As a general rule courts and agencies are not required to make 

findings on issues the decision of which is unnecessary to the results they 

reach.”). And as Berrios has not shown she is eligible for refugee status, any 

error in the immigration judge’s credibility assessment was harmless. LunaGarcia v. Barr, 932 F.3d 285, 292 (5th Cir. 2019), cert. denied, 141 S. Ct. 157 

(2020) (denying a petition for review where, even absent the error, “there is 

no realistic possibility that the BIA would reach another outcome than to 

dismiss [the] appeal”).

III.

An applicant for asylum must demonstrate that she is a “refugee” 

within the INA’s meaning. See 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is a 

person outside her country of nationality who “is unable or unwilling to 

return to . . . that country because of persecution or a well-founded fear of 

persecution on account of race, religion, nationality, membership in a 

particular social group, or political opinion.” Id. § 1101(a)(42)(A).1 An 

asylum applicant must therefore prove that she belongs to a protected class, 

1 The INA does not define “persecution on account of . . . membership in a 

particular social group,” 8 U.S.C. § 1101(a)(42)(A), and courts have repeatedly recognized 

the phrase as ambiguous. E.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) 

(acknowledging “that the BIA should be accorded Chevron deference as it gives ambiguous 

statutory terms concrete meaning through a process of case-by-case adjudication” (internal 

quotation marks and citation omitted)). We therefore have often deferred to the BIA’s 

interpretation of the INA’s nexus requirement. See Orellana-Monson v. Holder, 685 F.3d 

511, 517 (5th Cir. 2012).

Case: 18-60276 Document: 00515980329 Page: 6 Date Filed: 08/16/2021
No. 18-60276

7

and that she was persecuted because of that characteristic. Thuri v. Ashcroft, 

380 F.3d 788, 792 (5th Cir. 2004) (noting the requirement that the “alien 

[must] prove some nexus between the persecution and the five protected 

grounds” (citing Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 349 (5th Cir. 

2002))); INS v. Elias-Zacarias, 502 U.S. 478, 482–84 (1992) (requiring a 

showing of compelling evidence of the motive behind the persecution).

An asylum applicant satisfies this burden by showing that her 

protected characteristic “was or will be at least one central reason for 

persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). This means that 

while the protected ground, such as membership in a particular social group, 

“need not be the only reason for harm, it cannot be incidental, tangential, 

superficial, or subordinate to another reason for harm.” Sealed Petitioner v. 

Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). The BIA and this court 

have recognized that a nuclear family may constitute a particular social group

under the INA. See Pena Oseguera v. Barr, 936 F.3d 249, 250–51 (5th Cir. 

2019). To show proof of the required nexus, the petitioner “must 

demonstrate through some evidence, either direct or circumstantial, that the 

persecutors know of his (the alien’s) political opinion and [have] or will likely 

persecute him because of it.” Ontunez-Tursios, 303 F.3d at 351. The 

petitioner need not provide direct proof of her persecutor’s motives, but 

must provide “some evidence of it, direct or circumstantial.” Elias-Zacarias, 

502 U.S. at 483. When, as is often the case, a persecutor has multiple or 

mixed motives, the agency must then conduct a mixed-motive analysis to 

determine whether the protected ground was “at least one central reason” 

for the persecution. Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009); 8 

U.S.C. § 1158(b)(1)(B)(i). We examine the contours of that test below. 

Case: 18-60276 Document: 00515980329 Page: 7 Date Filed: 08/16/2021
No. 18-60276

8

A.

Berrios contends that the IJ and BIA applied an incorrect legal 

standard by requiring her to show that family membership was the “primary 

motivation” for her persecution. Instead, she argues that she need show only

that her family membership was one central reason for her persecution. 

Although Berrios articulates the correct standard, we are not convinced that 

the IJ or the BIA deviated from controlling precedent or applied an incorrect 

standard. An asylum applicant must first show that a protected ground 

motivated her persecution. Elias-Zacarias, 502 U.S. at 483. If an applicant 

has made this threshold showing but there are other, non-protected grounds 

motivating the persecution, the agency must then conduct a mixed-motive 

analysis to determine whether the protected ground was “at least one central 

reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i); Shaikh, 588 F.3d at 

864. Under that test, the applicant need not prove that her protected ground 

was the central reason, but the existence of a protected ground, by itself, does 

not necessarily suffice to show nexus. Matter of L-E-A-, 27 I. & N. Dec. 40, 

45 (BIA 2017), aff’d in part, rev’d in part, 27 I. & N. Dec. 581 (A.G. 2019), 

reinstated, 28 I. & N. Dec. 304 (A.G. 2021) (“[N]exus is not established 

simply because a particular social group of family members exists and the 

family members experience harm.”). Conversely, the existence of an 

unprotected motivation does not necessarily defeat nexus. 

What matters is the relative weight of the protected ground. To gauge 

this weight, the BIA has articulated a sequential two-step test: first the 

applicant must demonstrate that the protected ground was a but-for cause of 

the persecution; and second she must demonstrate that the protected ground 

played more than a minor role in motivating the persecution. Matter of L-EA-, 27 I. & N. Dec. at 43-44. “If the persecutor would have treated the 

applicant the same if the protected characteristic . . . did not exist, then the 

applicant has not [satisfied the but-for cause test.]” Id. After satisfying this 

Case: 18-60276 Document: 00515980329 Page: 8 Date Filed: 08/16/2021
No. 18-60276

9

first prong, the applicant must then demonstrate that the protected ground 

was not “incidental, tangential, superficial, or subordinate to another reason 

for harm.” Sealed Petitioner, 829 F.3d at 383. A protected ground will likely 

be incidental when it is but a means to an ultimate, unprotected end. E.g., 

Ramirez-Mejia v. Lynch, 794 F.3d 485, 492 (5th Cir. 2015). 

The agency’s analysis comports with these standards. The IJ 

concluded that Berrios’ family status played no more than a minor role in the 

gang’s motivation to persecute her, and therefore that her application failed 

on the second prong of the BIA’s promulgated nexus test. Although the IJ 

did not use the phrase “one central reason,” he cited our decision in RamirezMejia for the proposition that Berrios’ “family relationship is entirely 

subordinate to the primary motivation of the alleged persecutor, that being a 

criminal gang.” The BIA found no clear error in this factual conclusion, 

noting that the IJ’s decision was “not inconsistent” with Dr. Boerman’s 

testimony that the gangs’ “strategy of terror undergirds how [they] compel 

others to accede to their criminal demands,” and therefore that Berrios’ 

family status is “entirely subordinate” to its interests in money and power in 

El Salvador. Contrary to Berrios’ argument, nowhere did the agency require 

her to prove that her family status was the only central reason, or even the 

most central reason. Instead, it concluded that Berrios had not demonstrated 

that her family status was a central reason. 

B.

We also find no clear error in the agency’s conclusion, which is 

consistent with our caselaw. “[T]o obtain judicial reversal of the BIA’s 

determination” that the gang did not target Berrios on account of a protected 

ground, Berrios “must show that the evidence [s]he presented was so 

compelling that no reasonable factfinder could fail to find” the nexus 

requirement satisfied. Elias-Zacarias, 502 U.S. at 483–84. It is “[q]uite beside 

Case: 18-60276 Document: 00515980329 Page: 9 Date Filed: 08/16/2021
No. 18-60276

10

the point” that the record might support the conclusion that Berrios’ family 

status was at least one central reason for the gang’s efforts to extort her. Id. 

at 481 n.1. The substantial-evidence standard does not permit us to re-weigh 

evidence or to substitute our own factual determinations for the agency’s. 

Chen v. Gonzales, 470 F.3d at 1134. We ask only whether a reasonable 

factfinder could agree with the agency’s determination; i.e., whether 

substantial evidence supports the agency’s nexus conclusion.

It is true that Berrios’ family status likely explains why the gang 

persecuted her and not some other person. There is nothing that she did to 

draw the gang’s ire; it was only the actions of her children’s father that made 

her a target. The Fourth Circuit found nexus under similar circumstances. In

Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015), a mother was 

threatened by gang members because she refused to let her son join their 

ranks. Id. at 947. The Fourth Circuit recognized that the gang’s motive was 

recruitment and not a free-standing grudge against the family. Id. at 950. But 

that “recruitment motiv[e],” the Fourth Circuit explained, “did not 

preclude the existence of another central reason – family ties – for that same 

persecution,” because it was the mother’s tie to her son that explained why 

she, rather than another person, was targeted for threats. Id. 

We disagree with this approach and find, moreover, that this approach 

is inconsistent with caselaw from the BIA, this court, and the majority view 

of other circuits. See, e.g., Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 

1287 (11th Cir. 2021) (“We decline to follow [the Fourth Circuit’s]reasoning 

because it expands the nexus inquiry to include family status as a central 

reason even when it is ‘incidental’ and ‘subordinate to another reason for 

harm.’”); Orellana-Recinos v. Garland, 993 F.3d 851, 858 (10th Cir. 2021)

(“To the extent that the Fourth Circuit’s opinion holds that a gang’s threats 

to persuade a mother to encourage, or at least allow, a son to join the gang is 

necessarily persecution on account of the mother’s membership in the son’s 

Case: 18-60276 Document: 00515980329 Page: 10 Date Filed: 08/16/2021
No. 18-60276

11

nuclear family, we are unpersuaded.”). See also Matter of L-E-A-, 27 I. & N. 

Dec. at 46-47 (“Any motive to harm the [applicant] because he was a member 

of his family was, at most, incidental. In this regard, we point out that the 

evidence does not indicate that the persecutors had any animus against the 

family or the [applicant] based on their biological ties, historical status, or 

other features unique to that family unit.”).

First, Berrios’ assertion is inconsistent with the INA’s text. Under 

Berrios’ and the Fourth Circuit’s reasoning, the family member whom the 

gang principally extorts would not be entitled to eligibility, as extortion does 

not qualify as a protected ground, but another family-member, targeted by 

the gang in only an ancillary fashion, could qualify. Garcia v. Holder, 756 F.3d 

885, 890 (5th Cir. 2014) (“This court does not recognize economic extortion 

as a form of persecution under immigration law[.]”). However, the INA

requires that an asylum applicant be persecuted “on account of” her 

membership in a particular social group. The INA therefore “makes motive 

critical” to obtaining asylum, and that motive must be specifically tied to one 

of the five grounds enumerated in the statute. Elias-Zacarias, 502 U.S. at 483. 

The BIA has thus clarified that an applicant’s membership in a particular 

social group is not a motive for persecution if the persecutors are simply 

pursuing separate, unprotected objectives and the applicant’s membership in 

the group is relevant only as a means to an end, that it just allows the 

persecutors to achieve their objectives. See Matter of L-E-A-, 27 I. & N. Dec. 

at 43-45. 

Here, the BIA reasonably concluded—and the record does not compel 

a contrary conclusion—that the gang targeted Berrios only to effectuate its 

interests in maintaining a viable extortion regime, not because it had some 

animus against Rodriguez’ family. This is not to say that nexus is defeated 

anytime a persecutor is motivated by financial interests. The result might be 

different if, say, the gang had a pattern of targeting only certain families. See 

Case: 18-60276 Document: 00515980329 Page: 11 Date Filed: 08/16/2021
No. 18-60276

12

Id. at 46-47 (noting that nexus may be established where the gang’s animus 

is rooted in traits unique to a specific family). But according to Berrios’ 

expert, the gang would have had the same attitude toward anyone who defied 

its extortion demands. Berrios’ relationship to Rodriguez is thus relevant 

only as a means to the gang’s illicit financial objectives. Further 

demonstrating this means-end relationship, as opposed to animus against 

Berrios’ family, is that Berrios’ family members remain in El Salvador, 

unmolested by the gang. Ontunez-Tursios, 303 F.3d at 353 (“The fact that a 

persecutor has not opposed other members of the same group suggests that 

the persecution was not on account of that group membership.”).

Second, the BIA’s conclusion is consistent with this court’s caselaw. 

In Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015), gang members in 

Honduras had murdered the petitioner’s brother and then began sending the 

petitioner anonymous notes demanding that she reveal information that her 

brother may have revealed to her. Id. at 487. When the petitioner failed to 

respond to those notes, gang members shot up her father’s business, after 

which she fled the country. Id. The petitioner argued that she was persecuted 

on account of her relationship to her brother, because, had she not been 

related to her brother, the gang would not have targeted her. Id. at 492

(arguing that “[w]ithout her relationship to her brother, the gang would not 

have asked her about any hypothetical ‘information’”). We rejected this 

argument and held that she was not entitled to withholding of removal.2 We

concluded that there “is no reason to suppose that those who persecute to 

2 It should be noted that withholding of removal imposes “a higher standard than 

asylum.” Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). However, this court has held 

that applicants for withholding of removal must similarly show that a protected ground, 

including membership in a particular social group, was or will be “at least one central 

reason for persecuting the applicant.” Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 

2018). 

Case: 18-60276 Document: 00515980329 Page: 12 Date Filed: 08/16/2021
No. 18-60276

13

obtain information also do so out of hatred for a family, or vice versa,” and 

therefore “the evidence that gang members sought information from 

Ramirez-Mejia about her brother, without more, does not support her claim 

that the gang intended to persecute her on account of her family.” Id. at 493. 

We also relied on “the fact that other members of her family, who have 

remained in Honduras, have not faced persecution on the basis of their 

membership in the family.” Id. We took a similar approach in QuinterosHernandez v. Sessions, 740 F. App’x 57 (5th Cir. 2018). There, the petitioner 

alleged that gang members pressured her son to join their ranks by 

threatening to kill her son’s family. Id. at 58. But there was no evidence that 

“family members who remained in El Salvador were threatened after 

Quinteros-Hernandez and her son left the country, nor is there any evidence 

that gang members threatened her or attempted to recruit her son due to their 

animosity toward her family.” Id. Accordingly, the petitioner failed to show 

that “her family membership was a central reason for the alleged persecution 

and was not subordinate or tangential to the gang members’ recruitment of 

Herrera-Quinteros.” Id. Accord Parra-Hernandez v. Sessions, 712 F. App’x 

446, 447 (5th Cir. 2018).

So too here. The gang’s only motivation was extortion, not animus 

against Berrios based on her family status. Because Berrios’ relationship to 

Rodriguez was subordinate and tangential to the gang’s illicit financial 

motives, the relationship was not a central reason for the gang’s demands. 

Because substantial evidence and this court’s caselaw support the agency’s 

determination, we DENY the petition for review.

Case: 18-60276 Document: 00515980329 Page: 13 Date Filed: 08/16/2021