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by William K. Zimmer, in Immigration Matters

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)."  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 in 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. 2021) No. 20-60081.

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

The procedural history, facts of record, holding and rationale in Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland, (5th Cir. October 27, 2021) No. 20-60081 are as follows:

 

Case History

The Immigration Judge denied the Petitioner’s claims for asylum, withholding of removal, and CAT protection.

On September 5, 2018, the Petitioner appealed to the Board of Immigration Appeals (“BIA”).

The BIA dismissed the appeal.

On April 29, 2019, the Petitioner filed a motion to reconsider and a petition for review before the Fifth Circuit Court of Appeal.

Subsequently, the Department of Homeland Security (“DHS”) filed a motion to remand the Petitioner’s case to the BIA.

On September 12, 2019, the Fifth Circuit Court of Appeal granted the DHS motion and remanded the case to the BIA.

On remand, the BIA denied the Petitioner’s motion for reconsideration and again dismissed the appeal.

The Petitioner then filed a petition for review appealing from the BIA’s decision dismissing her appeal and denying her motion for reconsideration.

 

Facts

The Petitioner is a native and citizen of Honduras, who entered the United States without permission.  The DHS charged that she is inadmissible to the United States and subject to removal under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended (“the Act”) (i.e. immigrant applying for admission to the United States without an immigrant visa or other suitable travel document).

The Petitioner is seeking asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) under sections 208, 241(b)(3)(A) of the Act  and 8 C.F.R. § 1208.16(c).  Her child, the Co-Petitioner, is seeking derivative asylum status.

According to the Petitioner, she left Honduras fleeing her former partner who abused her and raped her repeatedly.

The Petitioner did not report the domestic violence to the police due to her former partner’s threats to kill her for doing so.

However, she did seek and obtain child support and a restraining order in October of 2014.

The Petitioner’s former partner violated the restraining order, at one point by coming too close to her house and at another by stopping her at the grocery store to ask why she took him to court.

In February of 2016, her former partner told the petitioner that he would kill her and her child if she did not return to him.  The Petitioner did not do so and moved to another city.

When the Petitioner returned for a day to her mother’s house, her former partner confronted her again; telling her that he knows where she lives and that he will kill her if she does not return.

The Petitioner decided to flee her former partner and Honduras.  She and her child entered the United States in April of 2016.

Although her former partner had not contacted the Petitioner since she entered the United States, she heard that he was upset about her leaving. Both her mother and a former neighbor reported that he was trying to figure out where she is and that he wanted revenge.  

The Petitioner fears for her life and the lives of her family members (including her child with a newly wedded Mexican husband) if she is forced to return to Honduras.

See Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland, at 2 (5th Cir. October 27, 2021) No. 20-60081.

 

Held

Petition for Review DENIED

Rationale

The Petitioner asserted two arguments:

1. that the BIA erred in failing to either consider or remand for consideration of additional proposed “particular social groups” (that the Petitioner raised for the first time on appeal); and
2. that, in part, due to Attorney General Garland’s June 16, 2021 order 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)," the BIA erred in concluding that the Petitioner’s proposed group, "Honduran women who are unable to leave their domestic relationships," is not a “particular social group” within the meaning of section 101(a)(42)(A) of the Act (asylum claims) and section 241(b)(3)(A) of the Act (withholding of removal claims).

See Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland, at 6 (5^th Cir. October 27, 2021) No. 20-60081.

With regard to the BIA’s refusal to consider and remand for consideration of the Petitioner’s newly proposed particular social groups, the Fifth Circuit Court of Appeal reasoned as follows:

 

• Findings of fact necessary to make determinations about the validity of a particular social group ("PSG") are best left to the Immigration Judge.  Cantarero-Lagos v. Barr, 924 F.3d 145, at 150 (5^th Cir. 2019) (“[A]lthough the cognizability of a PSG presents a legal question, its answer indisputably turns on findings of fact.”).  See also Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, at 191 (BIA 2018) (“A determination whether a social group is cognizable is a fact-based inquiry made on a case-by-case basis, depending on whether the group is immutable and is recognized as particular and socially distinct in the relevant society.”) (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42 (BIA 2017)).  Here it should be noted that, although Attorney General Garland vacated former Attorney General William P. Barr’s decision in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (now known as "L-E-A- II") the original 2017 BIA decision is still good law.
• The Petitioner’s counsel made a strategic decision not to proffer additional particular social group claims before the Immigration Judge.
• Because whether to address the novel social group claims was squarely within the BIA’s discretion, it did not abuse its discretion in declining to do so.
• The Petitioner’s argument that intervening BIA decisions since the time of the Immigration Judge’s decision require a remand of her case must be rejected because A-R-C-G- was the relevant law at the time of the Immigration Judge’s decision. Now that A-R-C-G- has been revived, a remand would place the Petitioner back where she started.  Thus, her claims have already been correctly rejected under that standard.
• Alternatively, regardless of the controlling decision, only an unreasonable interpretation of the Act can support the Petitioner’s proposed particular social group.  See the rationale relating to the Petitioner’s proposed particular social group below.

With regard to the BIA’s conclusion that the Petitioner’s proposed group, "Honduran women who are unable to leave their domestic relationships," is not a “particular social group” within the meaning of section 101(a)(42)(A) of the Act (asylum claims) and section 241(b)(3)(A) of the Act (withholding of removal claims) the Fifth Circuit Court of Appeal reasoned that:

• An applicant for asylum or withholding of removal must make three showings.  1. that the applicant belongs to a cognizable particular social group;  2. that a nexus between the persecution and her membership in the particular social group exists; and 3. that the government is either unwilling or unable to protect the applicant from the persecution. See Gonzales-Veliz, 938 F.3d at 228–29; Vazquez-Guerra v. Garland, 7 F.4th 265, at 269 (5th Cir. 2021); sections 101(a)(42)(A) and 241(b)(3)(A) of the Act.
• The Fifth Circuit Court of Appeal discussed the question whether “Honduran women who are unable to leave their domestic relationships” is a valid particular social group only two years ago in Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019).
• Based on existing immigration law at the time of the Gonzalez-Veliz v. Barr decision, the Fifth Circuit Court of Appeal had held that the group is not cognizable.  Gonzalez-Veliz v. Barr, at 232.
• Despite the vacation of  A-B- I and A-B- II, Gonzalez-Veliz v. Barr remains the law of the Fifth Circuit Court of Appeal.
• The BIA clarified that an applicant must show 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 237 (BIA 2014).
• Furthermore, there must be a nexus between the particular social group and its persecution (i.e. the persecution must be “on account of” membership in the group). Matter of M-E-V-G- at 242.  See section 101(a)(42) of the Act.
• Drawing on the language of the statute, prior BIA decisions, and federal circuit court decisions, the BIA stated that the “social group must exist independently of the fact of persecution,” and that “this criterion is well established in prior Fifth Circuit Court of Appeal precedents and is already a part of the social group analysis.” M-E-V-G-, 26 I. & N. Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007) and Lukwago v. Ashcroft, 329 F.3d 157, at 172 (3d Cir. 2003)).
• To define a social group by its persecution collapses the “particular social group” and “persecution on account of membership” inquiries into the same question, contrary to the structure of the Act.  See section 101(a)(42) of the Act.
• The Fifth Circuit Court of Appeal relied on A-B- I not out of deference to it, but based on the quality of its reasoning.
• Specifically, in Gonzales-Veliz v. Barr, at 232, the Fifth Circuit Court of Appeal stated that the particular social group under consideration was:   “impermissibly defined in a circular manner. The group is defined by, and does not exist independently of, the harm—i.e., the inability to leave.”
• Thus, the Fifth Circuit Court of Appeal concluded that acknowledging “Honduran women unable to leave their relationship” as advocated by the Petitioner would “render the asylum statute unrecognizable.”
• The Attorney General’s interpretation of the Act in A-B- I is a much more faithful interpretation of the statute.  
• The Fifth Circuit Court of Appeal noted that the interpretation in A-B- I was, “a return to the statutory text as Congress created it and as it had existed before the BIA’s A-R-C-G- decision.” 
• That the conclusion reached in Gonzales-Veliz v. Barr had support in the overwhelming weight of BIA precedents shows only that the Fifth Circuit Court of Appeal reading of the statute was correct; not that A-B- I or any other decision was necessary for the Fifth Circuit Court of Appeal's conclusion in Gonzales-Veliz v. Barr.
• With regard to deference in accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), 1. the relevant statutory provision must be ambiguous, and 2. the agency’s interpretation must be reasonable.
• Even assuming arguendo that the phrase “particular social group” is ambiguous and that A-R-C-G- requires upholding the cognizability of the Petitioner’s group, that interpretation would be unreasonable for the reasons given in Gonzales-Veliz.  Relying on circular reasoning is a logical fallacy. An interpretation that renders a statute’s reasoning circular is unreasonable and therefore unworthy of deference under Chevron.
• Even if Gonzales-Veliz is not good law, the petition under review would still be denied. Following pre-A-B- I precedent, as instructed in the Attorney General’s June 16, 2021 order, would not change the result.  Attorney General Garland instructed immigration judges and the BIA to follow “pre-A-B-I precedent, including [A-R-C-G-].” Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). This was also the relevant law at the time of the Immigration Judge’s decision, and the Immigration Judge correctly distinguished the Petitioner’s case from that upheld in A-R-C-G-.
• Finally, because A-R-C-G- is not clearly on point and did not overrule prior case law, it must be read in light of prior BIA decisions, including M-E-V-G-.  See Gonzales-Veliz, 938 F.3d at 235 (“[A-B- I] did not alter [prior immigration law]; it simply restated established legal principles and overruled A-R-C-G- because A-R-C-G- deviated from those principles.”).

 

Commentary

As predicted in a previous post on June 22, 2021, the Petitioner in Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland (5th Cir. October 27, 2021) No. 20-60081 did not benefit from Attorney General Garland’s vacation 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-, 28 I&N Dec. 307 (A.G. 2021) issued by Attorney General Garland prevents a decision maker from finding the legal rationales and conclusions of vacated A-B- I persuasive in whole or in part, even though it is no longer precedential. 

Moreover, the Fifth Circuit Court of Appeal stated with regard to the Petitioner’s particular social group that “only an unreasonable interpretation of the INA can support her proposed group.”   Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland, at 16.   See also Gleidy Yessenia Jaco; Cristofer Alejandro Portillo 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 A-R-C-G- (based on the DHS concession) would 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).

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.

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