The Fourth Circuit directed the Board of Immigration Appeals to assess Jenyfer Ohazy Fajardo-Rivas’s later-submitted evidence alongside the existing record in her asylum case. The panel found that the agency had not properly considered whether a Honduran gang was responsible for her husband’s disappearance and her brother-in-law’s death. The case returns to the agency’s assessment.
The published opinion in Jenyfer Fajardo-Rivas v. Todd Blanche, No. 25-1280, was decided October 13, 2026. Fajardo-Rivas’s daughter, B.N.A.F., was included as a derivative beneficiary. The respondent was Todd Blanche, the Acting Attorney General.
Judge Wilkinson wrote for a unanimous panel with Judges Harris and Floyd. The court did not create a new category of asylum eligibility. It addressed how the agency must evaluate the family-based claim when later evidence is presented.
Fajardo-Rivas’s claim identifies her husband’s immediate family as a particular social group. The dispute centers on whether that family relationship was connected to the threats and the earlier violence. The panel said the new material had to be evaluated in context.
The case turned on threats considered against the family’s history
Fajardo-Rivas lived in a Honduran neighborhood where the 18th Street Gang operated. Her brother-in-law, Geovanny, opposed the gang and tried to drive it from the neighborhood. He was shot dead on April 2, 2015.
About a month later, four armed men posing as police officers entered the family home and abducted her husband, Jorge. Fajardo-Rivas reported the abduction to police. She suspected a connection between Jorge’s disappearance and Geovanny’s killing, believing the gang was targeting her husband’s family.
The family appeared on television in the hope that publicity would prompt a ransom demand. None came. They eventually believed Jorge had been killed, and Fajardo-Rivas fled Honduras with her three-year-old daughter.
She sought asylum with her daughter as a derivative beneficiary. Her initial supporting evidence included Geovanny’s death certificate, a police report about Jorge’s abduction and family affidavits. An immigration judge found Fajardo-Rivas’s testimony credible but concluded the evidence did not sufficiently establish that the gang killed Geovanny or abducted and killed Jorge because of his relationship to Geovanny. The BIA affirmed the denial.
Fajardo-Rivas later submitted two threatening notes, a police report and sworn affidavits. Her mother received the notes in Honduras. They called Fajardo-Rivas a “snitch” and threatened to kill her and her daughter if they returned. The notes also threatened people who refused to disclose her whereabouts.
The BIA denied reopening on nexus, while the government disputed the family link
The BIA first reasoned that the threats were not enough to justify reopening the proceedings. In its most recent denial, it concluded that Fajardo-Rivas had not established the required nexus between the feared persecution and her membership in her husband’s family.
The government argued that the notes showed “personal animus,” meaning anger because Fajardo-Rivas reported the kidnapping, rather than persecution based on her family membership. It described the case as “a personal, private dispute dressed up as family-based persecution.”
The government did not contest that gang members likely delivered the notes. The people who left them had tattoos indicating membership in the 18th Street Gang. At oral argument, the government acknowledged that the evidence “does suggest that a gang member actually left the notes.”
But it disputed the gang’s role in the earlier events. The government noted that Honduran authorities had not identified those responsible for Geovanny’s killing or Jorge’s abduction. It also argued that gang members might have threatened someone who was not a family member for reporting the kidnapping.
The panel rejected the government’s separation of the threats from the family events. Fajardo-Rivas’s relationship to Jorge helped explain why she reported the abduction, the court said. The men took Jorge from the family home, and Fajardo-Rivas maintained that the abduction was connected to her family’s relationship with Geovanny, another opponent of the gang.
Under asylum law, an applicant must show persecution or a well-founded fear of persecution on account of a protected ground, including membership in a particular social group. Immediate family can qualify as such a group. Membership must be “at least one central reason for” the feared persecution, and a credible threat of death qualifies as persecution.
“Fajardo-Rivas’s new evidence compels the conclusion that she has satisfied the nexus requirement.”
The court distinguished the evidence supporting the events from the disputed conclusions about who caused them. Substantial evidence supported the deaths, abduction, reporting and later threats. The government still disputed whether the gang committed the earlier crimes and whether opposition to gang activity motivated them.
The panel required a contextual assessment, not a new asylum category
The ruling calls for the agency to consider the later evidence with the earlier record, rather than assess the threats in isolation. The court said its decision develops existing circuit precedent. It does not establish a new class of people eligible for asylum.
The agency’s procedure for later-submitted material depends on where a case stands. The Executive Office for Immigration Review’s practice manual says a motion to remand asks the BIA to return a case pending before it to an immigration judge, including to consider newly available evidence or newly acquired eligibility for relief. Such motions follow the substantive standards for motions to reopen. See Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
A party must submit evidence and any application for relief with the motion, explain the evidence’s purpose and address why it was unavailable earlier. The BIA may deny a motion if the evidence could have been discovered earlier, is not material or probative, or is otherwise defective. Unlike motions to reopen, motions to remand are not limited in time or number while an appeal is pending.
The BIA does not consider new evidence on appeal. Under 8 C.F.R. § 1003.1(d)(3)(iv), it may treat a submission as a motion to remand to an immigration judge. Counsel’s statements in a brief or motion do not themselves constitute evidence, under Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
The court described the required approach as a “contextual, evidence-sensitive assessment” of family-based persecution when a motion to reopen includes later evidence. The agency must apply that assessment to Fajardo-Rivas’s record.
This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
