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by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Garcia v. Garland, (August 7, 2023) No. 22-60501 are as follows:

 

Case History:

The Department of Homeland Security (“DHS”) charged that the Petitioner, Bessy Ileana Garcia-Gonzalez, and her son, Kevin Steven Soriano-Garcia, are subject to removal from the United States.

 

An Immigration Judge determined that the Petitioner is subject to removal as charged and denied her applications for relief from removal.

 

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the Immigration Judge’s denial of relief from removal.

 

The Petitioner filed a motion to reopen immigration court proceedings.

 

The BIA denied the Petitioner’s motion to reopen.

 

The Petitioner then filed a petition for review of the decision the BIA.

 

Facts

• The Petitioner is a native and citizen of Honduras who entered the United States without proper documentation in June, 2016.
• The Petitioner ultimately conceded that she was subject to removal from the United States while represented by counsel.
• At the hearing during which she conceded her removal charge, the Petitioner identified asylum under section 208 of the Immigration and Nationality Act, as amended (“the Act”), related relief known as withholding of removal under section 241(b)(3) of the Act and the Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), a treaty signed by the United States on October 18, 1988 and ratified by the United States Senate on October 27, 1990.  See 8 C.F.R. § 1208.16(c).
• The Immigration Judge informed the Petitioner that she must submit biometric information within six months as part of her asylum application.  See 8 C.F.R. § 1003.47(d).
• The Petitioner missed the deadline for submitting biometric information.
• The Immigration Judge determined that the Petitioner had abandoned her relief applications based on failure to timely submit biometrics information, as provided in 8 C.F.R. § 1003.47(d) and ordered the Petitioner removed to Honduras.
• The Petitioner retained new counsel and elected to file an appeal to the Board of Immigration Appeals (“BIA”) rather than file a motion to reopen based on ineffective assistance of counsel (who had assumed responsibility for the Petitioner’s failure to timely submit biometric information).
• The BIA affirmed the Immigration Judge’s decision, finding that the Immigration Judge had properly informed the Petitioner about the biometrics requirement.  The BIA also noted that the Petitioner did not raise ineffective assistance of counsel in her appeal or provide evidence in accordance with Matter of Lozada, 19 I. & N. Dec. 637, at 639 (B.I.A. 1988).
• In late 2020, the Petitioner hired a third attorney and filed a motion to reopen, alleging that that both of her former attorneys were ineffective, in conformance with the criteria established in Matter or Lozada.  In the alternative, the Petitioner moved the BIA to reopen her sua sponte (legalese meaning by spontaneous self-urging or recommendation).  See 8 C.F.R. § 1003.2(a).
• Approximately in 2022, the BIA denied the Petitioner’s motion to reopen, based in part that the Petitioner had not demonstrated prejudice by establishing prima facie (i.e. on the face or surface of the record) eligibility for relief.  In particular, the BIA noted that the Petitioner had not submitted evidence to support the conclusion that the PSG upon which her persecution claim was grounded (her son’s nuclear family) was distinct in Honduran society in a way that justified recognizing it as a PSG.  In other words, that the Petitioner did not show that her son’s nuclear family was viewed as separate from the rest of the society in question.
• The BIA also determined that the Petitioner did not make a prima facie showing that she was entitled to relief under the CAT, because she did not provide evidence that she would be tortured or that the Honduran government would acquiesce in her torture if she returned to Honduras.  See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
• Finally, BIA declined to reopen the removal proceedings sua sponte, because the Petitioner did not demonstrate an “exceptional situation” that would justify her motion to reopen.      

 

Held

Petition for Review DISMISSED in part for lack of jurisdiction and DENIED in part

 

Rationale

The Petitioner raised three challenges to the BIA’s denial of his motion to reopen:

1. The BIA erred in finding that the Petitioner had not made a prima facie claim for asylum and withholding of removal under section 208 and 241(b)(3) of the Act by incorrectly holding that she had failed to provide evidence that she belonged to a cognizable PSG.
2. The BIA erred in finding that the Petitioner had not made a prima facie claim for relief under the CAT by concluding that she had neither claimed past torture nor presented evidence that she would be tortured by or with the acquiescence of the Honduran government.
3. The BIA erred in not reopening the Petitioner’s proceedings sua sponte.

 

Reviewing the BIA’s denial of a motion to reopen for abuse of discretion (i.e. the BIA’s decision will be upheld unless it is “capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies,” Ramos-Portillo v. Barr, 919 F.3d 955, at 958 (5th Cir. 2019));  and applying the substantial evidence standard that an appellate court will uphold an administrative fact finding “unless it is clear[] from the totality of the circumstances” that a “reasonable adjudicator would be compelled to conclude to the contrary.” See section 242(b)(4)(B) of the Act; Morales v. Sessions, 860 F.3d 812, at 817 (5th Cir. 2017), the Fifth Circuit Court of Appeal reasoned as follows:

 

Prima Facie Eligibility For Asylum and Withholding of Removal

• After reviewing the recent history of administrative decisions and executive orders relating to asylum claims, including the definition of PSG, the Fifth Circuit Court of Appeal expressed frustration as follows:

[T]he Department of Justice issued guidance, vacated that guidance, was instructed to provide new guidance, failed to provide said guidance, and now asks us to refrain from providing any meaningful guidance ourselves.

Garcia v. Garland, at p.10 (August 7, 2023) No. 22-60501

• However, the Fifth Circuit Court of Appeal ultimately agreed with the government that it could dispose of the Petitioner’s case on narrow grounds.
• In particular, the Fifth Circuit Court of Appeal noted that the Petitioner “did not proffer any evidence of the social distinction of her family in Honduran society or of the social saliency of the nuclear family unit in Honduran society generally.”  Garcia v. Garland, at p. 10.
• There is no per se rule that every family-based PSG is cognizable. Congress did not make persecution based on “family” a statutorily enumerated ground for asylum or withholding of removal. See sections 208(b)(1)(B)(i)–(ii) and 241(b)(3)(C) of the Act.
• The Petitioner, therefore, was required to put forward at least some evidence of the social distinction of her son’s nuclear family in Honduran society in support of her motion to reopen.
• Consequently, the Petitioner failed to make out a prima facie case of eligibility for withholding of removal or asylum.
• As a result, the BIA did not err in denying the Petitioner’s motion to reopen relating to her withholding of removal and asylum claims.
• Even if the Petitioner’s first two attorneys had provided ineffective assistance of counsel, their ineffective assistance of counsel did not prejudice the Petitioner because in the absence of evidence of social distinction to justify prima facie eligibility for asylum and withholding of removal her motion to reopen was independently defective, separate and apart from the consequences attributable to ineffective assistance of counsel.

 

Prima Facie Eligibility For CAT

• The Petitioner did not proffer any evidence that her local police in Honduras would acquiesce in her torture.
• In fact, the Petitioner alleged that the police in Honduras did respond when her brother was beaten, but not as vigorously or with as many officers as the Petitioner would have liked.
• Thus, the BIA did not err by concluding that the Petitioner had not made a prima facie claim of relief under the CAT.
• With regard to the Petitioner’s assertion that the BIA should have taken administrative notice of the United States State Department Country Report, the has forfeited that argument by raising it for the first time in her reply brief.  United States v. Jackson, 426 F.3d 301, at 304 n.2 (5th Cir. 2005). 
• Even if the Petitioner had properly raised the issue of administrative notice and the BIA is authorized to engage in limited factfinding through administrative notice, including notice of official documents and government sources and facts ascertainable therefrom (See 8 C.F.R. § 1003.1(d)(3)(iv)(A)), it has merely the power to do so, not the obligation.  
• The Petitioner did not cite any authority for her proposition that the BIA had an affirmative obligation—completely sua sponte—to consider documents or information external to the record.
• Finally, the information to which the Petitioner refers from the 2020 State Department report on human rights in Honduras does not establish state action necessary to establish the likelihood of torture for the Petitioner in Honduras.

 

Exercise of Sua Sponte Authority

• Circuit courts lack jurisdiction over denials by the BIA to reopen proceedings sua sponte, because governing regulations provide federal courts with “no legal standard against which to judge” the BIA’s decision.  Eneugwu v. Garland, 54 F.4th 315, at 320 (5th Cir. 2022) (quoting Mejia v. Whitaker, 913 F.3d 482, at 490 (5th Cir. 2019)); see also Mejia, 913 F.3d at 490; Hernandez-Castillo v. Sessions, 875 F.3d 199, at 206 (5th Cir. 2017); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, at 250 (5th Cir. 2004).
• In short, the Fifth Circuit Court of Appeal declined the Petitioner’s invitation to depart from its own precedent.

 

Commentary

In Garcia v. Garland, (August 7, 2023) No. 22-60501, the Fifth Circuit Court of Appeal refrained from clarifying the standard for classification of a nuclear family as a PSG, except to declare that evidence must be submitted to establish a nuclear family as “distinct” in the perception of the society in which is resides to qualify as a PSG.

Perhaps, a review of case law relating to the definition of PSG will shed some light on the meaning of terminology, such as socially “distinct” and “particularity,” currently utilized to recognize a PSG in the context of United States asylum law.

In 1985, the BIA declared that:

The members of a particular social group must share a common, immutable characteristic, which may be an innate one, such as sex, color, or kinship ties, or a shared past experience, such as former military leadership or land ownership, but is must be one that the members of the group either cannot change, or should not be required to change, because it is fundamental to their individual identities or consciences.

Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); followed in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006).  

Obviously, the word, “distinct,” does not appear in this early description of a PSG.

In 2007, the BIA required social visibility as an essential property of a particular social group.  Specifically, according to the BIA, to be socially visible a particular social group’s shared characteristic must make the group readily identifiable in society and the group must be defined with sufficient particularity to limit membership.  Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007).

In 2014, the BIA further specified the standard for recognizing a particular social group by explaining that an asylum applicant claiming membership in a particular social group must “establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-, 26 I&N Dec. 227, at 234, 237 (BIA 2014); see also Matter of W-G-R-, 26 I&N Dec. 208 at 212 (BIA 2014).

It seems that the BIA intended “defined with particularity” and “socially distinct” to clarify the meaning of “social visibility,” rather than to change its meaning.  Nevertheless, most appellate courts currently frame a rationale relating to a particular social group by describing and explaining concepts of particularity and social distinction, without mentioning social visibility.  

In 2018, the approach based on particularity and social distinction was approved by Attorney General Sessions in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).  Attorney General Barr reiterated approval of requiring particularity and social distinction to define a particular social group by partially overruling the BIA in Matter of L-E-A-, 27 I&N Dec. 581 (2019).

In Matter of L-E-A-, the Attorney General applied the requirement of social distinction to hold that most nuclear families are not particular social groups because “most nuclear families are not inherently socially distinct.” Matter of L-E-A-, 27 I&N Dec. 581, at 589 (A.G. 2019). 

Attorney General Barr quoted Matter of W-G-R- with approval as part of his rationale in Matter of L-E-A- as follows: 

To have the “social distinction” necessary to establish a particular social group, there must be evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group. 

Matter of W-G-R-, 26 I&N Dec. at 217.

Attorney General Merrick B. Garland, on June 16, 2021, vacated previous attorney general decisions in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (now known as “A-B- I”) and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (now known as “A-B- II”) and the attorney general decision in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019)  (now known as “L-E-A- II”).  See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) and Matter of L-E-A- 28 I&N Dec. 304 (A.G. 2021).

At least in the Fifth Circuit Court of Appeal, this flurry of vacated decisions seems to be much ado about nothing.

On June 16, 2021 Attorney General Merrick B. Garland ordered that “pending forthcoming rulemaking, immigration judges and the Board should follow pre-A-B- I precedent, including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)."  Former Attorney General Jefferson B. Sessions, on June 11, 2018, had held that Matter of A-R-C-G- was wrongly decided and should not have been issued as a precedential decision.  See Matter of A-B- I, at headnote 1.

Nevertheless, on October 27, 2021 the Fifth Circuit Court of Appeal published a decision in which it agreed with former Attorney General Sessions and likewise rejected the proposed particular social group described in Matter of A-R-C-G-.  Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland, (5th Cir. October 27, 2021) No. 20-60081.

Moreover, the Fifth Circuit Court of Appeal endorsed the rationale articulated by former Attorney General William P. Barr in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (now known as “A-B- I”).

Perhaps, an example of a nuclear family that would qualify as a particular social group will provide clarity.  The BIA provided a “classic” example of a family whose members would qualify as members of a particular social group in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017):

For illustrative purposes, we consider the well-known historical scenario of the Bolshevik assassination of Czar Nicholas II, his wife, Czarina Alexandra, and their five children after he abdicated the throne in 1917. The immediate family, as well as other family members, were killed between 1918 and 1919. See Romanov, 19 Encyclopædia Britannica, Inc. 553−54 (1971). While there were political reasons why they were endangered and killed, it would be difficult to say either that these individuals did not form a particular social group or that their family membership was not at least one central reason for their persecution. This is a classic example of a persecutor whose intent, for at least one central reason, was to overcome the protected characteristic of the immediate family.

Matter of L-E-A-, 27 I&N Dec. 40, at 44 (BIA 2017).

As of the date of this blog article, as noted by the Fifth Circuit Court of Appeal, “we are still waiting for the government to issue the rule envisaged by L-E-A- III.” Garcia v. Garland, at p.9.

In fact, some readers might recall that the late Attorney General Janet Reno vacated a BIA decision relating to PSGs involving private actors in the context of domestic violence during the Clinton administration.  Matter of R-A-, 22 I&N Dec. 906 (BIA 1999, A.G. 2001).  Unfortunately, clarifying regulations regarding the PSG at issue in Matter of R-A-, have not yet been promulgated.

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