Clarifying the Nexus Requirement: Familial Threats Motivated by Financial and Informational Goals Are Insufficient for Asylum Eligibility

Introduction

In Maykon De Borba Oliveira v. U.S. Attorney General, No. 23-14019 (11th Cir. Jan. 7, 2025), the Eleventh Circuit reviewed the denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection for a Brazilian family threatened first by a local gang and then by a loan shark. Petitioners—a husband, wife, and their two minor children—argued they feared persecution on account of their membership in certain “particular social groups” (family of a gang cooperant and debtors to a violent lender) and could not safely relocate within Brazil. The panel, applying established law on the nexus requirement, deference to fact findings, and the BIA’s summary-affirmance procedures, denied the petition.

Summary of the Judgment

The court affirmed the Immigration Judge’s (IJ) findings under the substantial-evidence standard and rejected all challenges:

The IJ credited Petitioners’ testimony but found the threats did not rise to “persecution,” and that any harm was “incidental” to the perpetrators’ motive (money or silencing a witness).
Proposed social groups (“families threatened by loan sharks” or “relatives of law-enforcement witnesses”) were either circular or not socially distinct—but in any event lacked the required nexus to the feared harm.
Petitioners failed to show governmental inability or unwillingness to protect them—they never reported threats to the police.
They could internally relocate within Brazil, a large country, so no well-founded fear of future persecution arose.
Their CAT claim failed for lack of evidence that public authorities would acquiesce to their torture.
The Board of Immigration Appeals’ one-judge summary affirmance did not violate due process or the Accardi doctrine.

Analysis

Precedents Cited

Accardi v. Shaughnessy, 347 U.S. 260 (1954): Agencies must follow their own procedures.
Mendoza v. U.S. Attorney General, 327 F.3d 1283 (11th Cir. 2003): Summary affirmance by a single BIA member is permissible and reviewable under the IJ’s opinion.
Lonyem v. U.S. Attorney General, 352 F.3d 1338 (11th Cir. 2003): No due-process violation in one-judge summary orders.
Sepulveda v. U.S. Attorney General, 401 F.3d 1226 (11th Cir. 2005): Substantial-evidence review of factual findings.
Perez-Zenteno v. U.S. Attorney General, 913 F.3d 1301 (11th Cir. 2019): De novo review of legal questions, including cognizability of particular social groups.
Sanchez-Castro v. U.S. Attorney General, 998 F.3d 1281 (11th Cir. 2021): Clarified that persecution “as a means to an unrelated end” fails the nexus requirement.
Ruiz v. U.S. Attorney General, 440 F.3d 1247 (11th Cir. 2006): General criminal targeting does not satisfy nexus.
K.Y. v. U.S. Attorney General, 43 F.4th 1175 (11th Cir. 2022): CAT review—individualized risk, governmental acquiescence, country-condition evidence.
Jean-Pierre v. U.S. Attorney General, 500 F.3d 1315 (11th Cir. 2007): Generalized torture evidence insufficient for CAT relief.

Legal Reasoning

1. BIA Summary Affirmance: Under 8 C.F.R. § 1003.1(e)(4), a single BIA member may affirm without opinion if existing precedent controls and errors are harmless. The court held Petitioners had no viable due-process or Accardi claim because Mendoza and Lonyem authoritatively uphold the one-judge affirmance mechanism.

2. Standard of Review: Factual findings—credible testimony but no persecution—are overturned only if the record “compels” reversal (substantial-evidence standard). Legal conclusions—cognizability of social groups, nexus, internal relocation—are reviewed de novo.

3. Nexus Requirement: To qualify for asylum or withholding, harm must be “on account of” a protected ground. Citing Sanchez-Castro, the court held that:

The gang targeted Petitioners to punish or intimidate their uncle, not “because of” the family’s status;
The loan shark threatened merely to enforce repayment;
Thus, persecution was “incidental” to non-protected motives.

4. CAT Standard: No showing that Brazilian officials would consent to or acquiesce in Petitioners’ torture. Country‐condition evidence of general crime and corruption did not equate to individualized torture risk.

5. Exhaustion of Remedies: Petitioners raised new claims (cancellation of removal, Niz-Chavez termination, administrative closure, reopening, political opinion-based asylum) only on appeal. Under Bing Quan Lin, those claims are unexhausted and thus unavailable.

Impact

Reinforces that targeting for financial gain or to silence witnesses fails the nexus test if no animus against a protected characteristic exists.
Affirms the BIA’s summary-affirmance process as constitutionally sound and reviewable via the IJ opinion.
Clarifies that generalized country corruption or crime does not, without individualized proof, sustain a CAT claim.
Warns pro se petitioners of strict exhaustion requirements for alternative forms of relief.

Complex Concepts Simplified

Particular Social Group: A group sharing an immutable trait (e.g., family ties). Must be clearly defined and socially distinct.
Nexus Requirement: The persecutor’s motive must be “on account of” a protected trait, not merely incidental to another aim.
Substantial-Evidence Review: Courts uphold fact findings unless the record compels a different conclusion.
De Novo Review: Legal questions (e.g., group cognizability, nexus) are examined anew, without deference to the agency.
CAT Protection: Requires proof of individualized threat of torture with official acquiescence or instigation.
Board’s Summary Affirmance: One BIA member may affirm an IJ’s decision without opinion when precedent is controlling and errors are harmless.
Exhaustion Principle: Issues not presented to the IJ or BIA cannot be raised later in federal court.

Conclusion

The Eleventh Circuit’s decision in Maykon De Borba Oliveira provides a clear bar against asylum and withholding claims grounded in threats that serve only non‐protected objectives—financial extortion or preventing a witness from speaking—emphasizing that a “protected ground” must be a central reason for persecution. The opinion upholds agency procedural mechanisms and reinforces rigorous application of nexus and exhaustion doctrines. Going forward, applicants must demonstrate explicit animus or targeted violence based on a true protected characteristic, secure internal relocation when feasible, and preserve all arguments through the agency process to avoid procedural default.