In a May 24, 2019 decision, the Fifth Circuit Court of Appeals presented the face of a typical Central American asylum seeker through the case of Nelson Esimar Martinez Manzanares.
Manzanares entered the United States near McAllen, Texas in May of 2014. The Fifth Circuit noted he did not have the necessary entry documents. He was detained by the Department of Homeland Security (“DHS”). The agency then initiated removal proceedings.
Manzanares responded to the DHS removal efforts by applying for asylum, withholding of removal, and protection under the Convention Against Torture. As a basis for asylum, Manzanares stated in his application that he had suffered persecution in Honduras because of “his membership in a particular social group related to his former work in law enforcement.”
In subsequent proceedings before an Immigration Judge (“IJ”), Manzanares testified that between 2005 and 2009 he worked as an “auxiliary police officer” in the small community village of San Isidro, Honduras. During that period, he arrested a violent criminal for the machete murder of a local resident. The individual remained in jail for seventeen days before being released, and upon release fled the area.
Several years later the accused killer returned to the San Isidro community vowing to take revenge against Manzanares. True to this vow, the accused killer made several attempts on Manzanares’s life. No longer a police officer, he could not report the accused killer’s actions to the local police because, as Manzanares told the IJ, Honduran police “do not function.” He did report the incidents to the local mayor who encouraged Manzanares’s “to take vengeance in [his] own hands” and that he had the authority to kill the accused killer if he so desired.
No Rule of Law in Honduras
Realizing that his life was in imminent danger and that the rule of law no longer existed in Honduras, Manzanares fled his home county in April 2014 and traveled to the United States.
The troubled former law enforcement officer was not well-received in this country. The IJ found that his status as a law enforcement officer is not, as the Fifth Circuit noted, “cognizable as a particular social groups under the Immigration and Nationality Act (‘INA’).”
The IJ then slammed the asylum door in Manzanares’s face by saying he failed to show that he had been persecuted in his home country because of his former law enforcement status. Specifically, the IJ found that Manzanares was “not being singled out because of his status as a former law enforcement officer, but instead for his role in arresting a particular individual.”
US Fails to Protect Law Enforcement Officer
Manzanares appealed the IJ’s ruling to the Bureau of Immigration Appeals (“BIA”). The BIA upheld the IJ’s ruling by finding that Manzanares failed to show “the requisite nexus between the harm he suffered and a protected ground for asylum or withholding of removal.”
What does a showing of “requisite nexus” demand?
Under immigration law, 8 U.S.C. § 1158(b)(1)(B)(i), by seeking asylum, Manzanares had to first establish he was a refugee—a process that requires a showing of “[past] persecution or a well-founded fear of [future] persecution on account of … membership in a particular social group.” Then, to secure a withholding of removal, he had to show his “life or freedom would be threatened” in Honduras “because of membership in a particular social group.”
Showing Membership in “Particular Social Group”
The Fifth Circuit has defined a “particular social group” as a “group of persons [who] share a common immutable characteristic that they either cannot change or should not be required to change.”
The Fifth Circuit refused to recognize Manzanares’s status as a former law enforcement as a particular social group, saying that “ … After all, ‘[w]hen the harm visited upon members of a group is attributable to the incentives presented to ordinary criminals rather than to persecution, the scales are tipped away from considering those people a “particular social group” within the meaning of the INA.’”
The appeals court said Manzanares had failed to show any evidence that “ex-law enforcement officials” are “socially distinct.”
That said, the Fifth Circuit suggested that Manzanares relocate to another area in Honduras upon his return to his native country. The court agreed with Manzanares that the government of Honduras “was unable to provide [him] and other citizens complete protection from criminals” but concluded that a “government’s inability to protect its citizens” does not amount to torture sufficient to warrant asylum in this country.
Manzanares, like thousands of others, will be returned to Honduras where the rule of law no longer exists. He may or may not survive. To quote the often-used phrase of President Trump, “who knows?”
The Trump administration does not want to know, nor does it care to know, how many people they have deported to certain death. Manzanares is not a criminal, drug dealer, rapist, or terrorist. He is just a former cop who faces death in Honduras upon his return because he tried to maintain the rule of law in that country.
If he is not eligible for asylum, who is?