Zimmer's Books

Complete Helplessness Again

In The Fifth Circuit, The "Complete Helplessness" Standard is Still Applicable For Assessing The Government's Ability to Protect an Asylum Applicant Against Private Persecution.
 

The procedural history, facts of record, holding and rationale in Mejia-Alvarenga v. Garland (January 3, 2024) No. 22-60554 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged that the Petitioner is subject to removal from the United States.

 

The Petitioner conceded the removal charge and filed applications for relief from removal.

 

An Immigration Judge denied the Petitioner’s applications for relief and ordered her removal from the United States.

 

The Petitioner filed an appeal to the Board of Immigration Appeals and a motion for the appeal to be heard by a three-judge panel.

 

Both the Petitioner’s appeal and her motion were denied by the BIA.

 

The Petitioner then filed a petition for review with the Fifth Circuit Court of Appeal.

 

 

Facts

  • The Petitioner is a native and citizen of El Salvador who attempted to enter the United States without any required travel documents and was detained by immigration officers.
  • The DHS charged that the Petitioner is subject to removal from the United States under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended (“the Act”) as an immigrant applying for admission to the United States without an immigrant visa or other suitable travel document.
  • The Petitioner conceded that she is subject to removal as charged and initially filed an application for withholding of removal under section 241(b)(3) of the Act and relief under the Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).
  • The Petitioner subsequently filed an application for asylum under section 208 of the Act.
  • Even though the Immigration Judge acknowledged that the Petitioner was credible and had suffered harm that was sufficiently egregious to justify a persecution claim, the Immigration Judge denied all of the Petitioner’s relief applications and ordered her removal to El Salvador.
  • In particular, the Immigration Judge determined that the Petitioner had not been harmed on account of her political opinion or her membership in a particular social group, and that the Petitioner did not show that the government would be unable or unwilling to control a future persecutor.
  • The respondent testified that:
    • A man named Rigoberto Nelson raped her and immediately threatened to kill the Petitioner to prevent her from reporting the rape to the police.
    • Nevertheless, the Petitioner did report the rape to the police.
    • Shortly thereafter, Nelson was arrested and government officials began his prosecution.
    • After more than one attempt to persuade the Petitioner to drop the case against Nelson, including offers of money, the Petitioner received multiple threats through men that the Petitioner suspected were criminal gang members and a final threat about 7 years after the rape from Nelson himself who said: “[Y]ou’re going to pay for what you did to me.”
    • Instead of reporting this last threat, the Petitioner traveled to the United States.

 

Held

Denied in part

Dismissed in part

 

Rationale

The Petitioner contended that:

(1) her petition for asylum established that the Salvadoran government was unable or unwilling to protect her from private persecutors;

(2) the BIA adjudicator failed to act as an impartial adjudicator in violation of 8 C.F.R. § 1003.1(d)(1);

(3) the BIA violated her constitutional rights when it allowed a single BIA member to render its decision, without referral to a three-member panel; and

(4) the BIA committed an abuse of discretion by not referring her case to a three-member panel pursuant to 8 C.F.R. § 1003.1(e)(6).

 

The Fifth Circuit Court of Appeal reasoned as follows:

 

Asylum Claim

  • “Persecution refers to harm inflicted either by the government or by private actors whom the government ‘is unable or unwilling to control.’” Bertrand v. Garland, 36 F.4th 627, at 631 (5th Cir. 2022) (quoting Sanchez-Amador v. Garland, 30 F.4th 529, at 533 (5th Cir. 2022)).
  • To prove that a government is unable or unwilling to protect against private persecution, an applicant for asylum “must show that the government condoned the private violence ‘or at least demonstrated a complete helplessness to protect the [applicant.]’” Bertrand v. Garland at 631–32 (quoting Shehu v. Gonzales, 443 F.3d 435, at 437 (5th Cir. 2006)).
  • Although the Petitioner asserts that the “complete helplessness” standard is inapposite because it was adopted in Matter of A-B-, 27 I&N Dec. 316, at 337 (A.G. 2018) (A-B- I), which has since been vacated by Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (A-B- III), Fifth Circuit precedent forecloses that argument.  Bertrand 36 F.4th at 632 n.5.
  • In other words, the complete helplessness standard was the law of the Fifth Circuit prior to A-B- I, and it continues to serve as the law of the Fifth Circuit even after the vacatur in A-B- III.
  • Furthermore, the Petitioner’s reliance on INS v. Cardoza-Fonseca, 480 U.S. 421, at 431 (1987) because INS . Cardoza-Fonseca explained what is required to establish a “well-founded fear of persecution;” not government’s ability or willingness to protect against private persecution.
  • Finally, the Petitioner did not identify any evidence that would compel a reasonable adjudicator to conclude that the El Salvadoran government was unwilling or unable to protect the Petitioner from her alleged persecutors in compliance with the “substantial evidence” standard for appellate review of administrative fact finding.  The Fifth Circuit Court of Appeal cannot reverse the BIA “unless we decide ‘not only that the evidence supports a contrary conclusion, but also that the evidence compels it.’”  [emphasis added] Chen v. Gonzales, 470 F.3d 1131, at 1134 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404 F.3d at 306 (5th Cir. 2005)); see also section 242(b)(4)(B) of the Act (agency’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) [emphasis added].  See, also, Bertrand v. Garland, at 631.
  • Therefore, the BIA appropriately applied the correct standard when determining whether the Salvadoran government would be unwilling or unable to control the Petitioner’s alleged persecutors.

 

Failure to Act as an Impartial Adjudicator

  • Although the Petitioner contends that the BIA failed to act as an impartial appellate body when the BIA adjudicator did not require DHS to file briefing and instead “sua sponte decide[d]” issues “on DHS’s behalf,” there is no authority requiring either party to file briefing before the BIA.
  • Under governing regulations, “[b]riefs may be filed by both parties.” 8 C.F.R. § 1003.38(f). Thus, the regulations allow even the appealing party to forgo filing a brief in the BIA, so long as the party identifies the reasons for the appeal when filing the notice of appeal.  See 8 C.F.R. § 1003.3(b).
  • Even if viewed as a due process issue, the Petitioner failed to present evidence in support of her position that the BIA member demonstrated partiality by not requiring the government to file a brief.  See Wang v. Holder, 569 F.3d 531, at 540 (5th Cir. 2009) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the . . . proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” (quoting Liteky v. United States, 510 U.S. 540, at 555 (1994)).

 

Constitutional Due Process

  • The Petitioner correctly observes that single-member BIA panels do not have the authority to reverse an immigration judge’s decision unless reversal is plainly consistent with and required by an intervening change in law.  See 8 C.F.R. § 1003.1(e)(5), (e)(6)(vi).
  • Nevertheless, the statutory scheme, referral to a three-member BIA panel is discretionary.
  • Failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.” Ramos-Portillo v. Barr, 919 F.3d 955, at 963 (5th Cir. 2019) (quoting Assaad v. Ashcroft, 378 F.3d 471, at 475 (5th Cir. 2004)). “[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving party] had been eligible for it.” Ramos-Portillo v. Barr, 919 F.3d at 963 (alterations in original) (quoting Altamirano-Lopez v. Gonzales, 435 F.3d 547, at 550 (5th Cir. 2006)).
  • Alternatively, since Congress has given the BIA the responsibility to conduct its own proceedings, the agency “should be free to fashion [its] own rules of procedure and to pursue methods of inquiry capable of permitting [it] to discharge [its] multitudinous duties.” Soadjede v. Ashcroft, 324 F.3d 830, at 832 (5th Cir. 2003) (quoting Albathani v. INS, 318 F.3d 365, at 376 (1st Cir. 2003)).
  • Therefore, the BIA’s case management system does not violate Constitutional due process rights.

 

Abuse of Discretion

  • Judicial review under the Administrative Procedure Act is not available for agency actions that are “committed to agency discretion by law.”  5 U.S.C. § 701(a)(2); see Heckler v. Chaney, 470 U.S. 821, at 828 (1985).
  • Therefore, an appellate court lacks jurisdiction to consider the Petitioner’s claim that the BIA committed an abuse of discretion by not referring her case to a three-member BIA panel pursuant to 8 C.F.R. § 1003.1(e)(6).

 

Commentary

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”).

According to Attorney General Garland:

The President recently issued an executive order directing the Attorney General and the Secretary of Homeland Security to promulgate regulations “addressing the circumstances in which a person should be considered a member of a ‘particular social group.’” Exec. Order No. 14010, § 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2, 2021).

See Matter of A-B-, 28 I&N Dec. 307, at 308 (A.G. 2021) and Matter of L-E-A- 28 I&N Dec. 304, at 304, 305 (A.G. 2021).

Some readers might recall that the same approach was taken by the late Attorney General Janet Reno during the Clinton administration regarding Matter of R-A-, 22 I&N Dec. 906 (BIA 1999, A.G. 2001).  Clarifying regulations, however, regarding the particular social group at issue in Matter of R-A-, have not yet been promulgated.

Immigration practitioners, lawyers and judges can only trust that the observation of the 17th century British statesman, George Savile, 1st Marquess of Halifax, does not apply.  Savile’s observation is that “Hope is generally a wrong guide, though it is very good company by the way.”

As predicted in my previous post on June 22, 2021, the Petitioner in Lamy Bertrand v. Garland (5th Cir. June 3, 2022) No. 19-60620 did not benefit from Attorney General Garland’s vacature of A-B- I, in part, because Attorney General Garland did not substitute a distinct rationale that conforms with the definition of refugee under section 101(a)(42) of the Act, as well as precedent case law that existed before A-B- I was decided in 2018.

Nothing in Matter of A-B- III, issued by Attorney General Garland prevents a decision maker from finding the legal rationales and conclusions of vacated A-B- I and A-B- II persuasive in whole or in part, even though it is no longer precedential. 

This observation was made abundantly clear when the Fifth Circuit Court of Appeal stated with regard to the petitioner’s proposed particular social group in Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland (5th Cir. October 27, 2021) No. 20-60081 that “only an unreasonable interpretation of the INA can support her proposed group.”   Jaco v. Garland, at 16.   See also Jaco v. Garland, at 14 (even assuming arguendo that the phrase “particular social group” is ambiguous and that A-R-C-G- requires upholding the cognizability of Jaco’s group, that interpretation would be unreasonable . . .”).

This means that, at least in the Fifth Circuit Court of Appeal, a regulation that defines “Honduran women unable to leave their relationship” as a particular social group even though recognized by the BIA in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (based on the DHS concession) might not receive deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 468 U.S. 837 (1984).  It seems likely that the Fifth Circuit Court of Appeal would deem such regulation to be ultra vires (i.e. an act done without legal authority).

The Fifth Circuit Court of Appeal’s interpretation that the “unable to control” standard means “complete helplessness” is yet another example of affirmation of the A-B- I rationale relating to the standard for asylum eligibility regardless of A-B- I’s vacated status.  See Lamy Bertrand v. Garland at p. 5, n. 5, 6-8 (5th Cir. June 3, 2022) No. 19-60620.  

In any asylum claim, six conditions must be present to objectively establish the reasonable fear component of well-founded fear:

  1. The asylum applicant must possess a belief or characteristic connected to one of the five statutory grounds in the definition of refugee under section 101(a)(42)(A) of the Act (i.e. race, religion, nationality, membership in a particular social group or political opinion);
  2. the asylum applicant must have been targeted for sufficiently egregious punishment or harm based on that belief or characteristic;
  3. the persecutor must be aware or could become aware that the asylum applicant possesses that belief or characteristic or is a member of a group defined by that belief or characteristic;
  4. the persecutor must have the capability to punish or harm the asylum applicant;
  5. the persecutor must have the inclination to punish or harm the asylum applicant; AND
  6. internal relocation within the country from which the asylum applicant is seeking asylum status to avoid the risk of persecution is not reasonable.

See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), as modified by Matter of Mogharrabi, supra.  See 8 C.F.R. § 1208.13(b)(2).

For example, when the alleged persecutor is the government proving that internal relocation to avoid the risk of persecution is not reasonable is likely to be easier.

If the alleged persecutor is a private actor or organization, in addition to proving that internal relocation to avoid the risk of persecution is not reasonable, the asylum applicant must prove that the government in the asylum applicant’s country of nationality (or if stateless, in the last country of habitual residence) is unable or unwilling to control the alleged persecutor. 

In the Fifth Circuit Court of Appeal, “unable” and “complete helplessness” are interchangeable terms.  Shehu v. Gonzales, 443 F.3d 435, at 437 (5th Cir. 2006) (government must condone persecution or "demonstrate complete helplessness), and now Mejia-Alvarenga v. Garland (January 3, 2024) No. 22-60554.  This is the view taken by former Attorney General Sessions in A-B- I and Acting Attorney General Rosen in A-B- II. 

Although Attorney General Garland vacated both previous A-B- decisions, the Fifth Circuit Court of Appeal has agreed with the reasoning of Attorney General Sessions and Acting Attorney General Rosen.  Therefore, the rationale of Matter of A-B- I and A-B- II is the law in the Fifth Circuit Court of Appeal.  See Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019); Jaco v. Garland, at 10 (5th Cir. October 27, 2021) No. 20-60081; Lamy Bertrand v. Garland at p. 5, n. 5, 6-8 (5th Cir. June 3, 2022) No. 19-60620; Mejia-Alvarenga v. Garland (January 3, 2024) No. 22-60554. 

Specifically, an asylum applicant claiming persecution by a private actor or organization within the jurisdiction of the Fifth Circuit Court of Appeal must prove complete helplessness of the government to protect the asylum applicant from the alleged persecutor in the country where the claim is based or that the government is unwilling to protect the asylum applicant from the alleged persecutor.

In the aftermath of Attorney General Garland’s aggressive vacation of his predecessors’ asylum law decisions, at least within the jurisdiction of the Fifth Circuit Court of Appeal, it appears that everything is altered, but nothing is changed.

Copyright © Zimmer's Books.

Created with Pub Site