Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Rosaura Aurora Sanchez-Amador, et al v. Garland (April 11, 2022) No. 20-60367 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged each of the named Petitioners under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) as an alien who is present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than designated by the Attorney General.

On June 25, 2018, an Immigration Judge denied Petitioner’s asylum application which included her husband and son.

The Board of Immigration Appeals (“BIA”) The BIA adopted and affirmed the Immigration Judge’s decision.

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

 

Facts

The Petitioner, her husband and her son are natives and citizens of Honduras. 

During a hearing on April 20, 2018, the Petitioner testified that:

• she had been sexually abused throughout her childhood by her cousin, uncle, stepfather, and landlord’s son, but did not report them to the police;
• the Honduran police often do not act on sexual assault claims, her mother and aunt also suffered sexual assaults, and Honduran women in general are vulnerable to sexual assault due to a culture of “machismo;”
• when she was fifteen, she became pregnant and moved in with her husband to escape her stepfather;
• her husband later moved to the United States in order to support their son’s university studies;
• she returned home in June 2014 to find a note from the MS-13 gang threatening to kill her and her son if she did not pay 1,000 lempiras each month;
• she began paying 1,000 lempiras each month, but three months later she received another note demanding 3,000 lempiras per month;
• she believed the MS-13 targeted her for extortion because she was studying rather than working, and her husband was in the United States supporting her financially;
• she could not afford 3,000 lempiras per month, and moved in with her mother;
• a member of MS-13 named Macuto told her if she could not give him money, she had to be “his woman,” interpreted by the Petitioner as a demand that she join the gang and have sex with him which she refused;
• Macuto gave her a one-week deadline to either pay the amount he demanded or comply with his alternative demands;
• she reported these events to the police and the police said they would investigate but that it would take two weeks; and
• instead of waiting, she fled to the United States.

The Immigration Judge found that both the Petitioner and her husband were credible witnesses.  However, the Immigration Judge reasoned that three of the four social groups proposed by the Petitioner were not cognizable; and that, although the Petitioner had suffered persecution, she failed to show that this persecution was motivated by her membership in one of her proposed social groups.

According to the Immigration Judge, the Petitioner fears general violence and civil strife, not harm directed at her and motivated by her membership in a particular social group.

In addition, the Immigration Judge reasoned that the Petitioner failed to show that the government was either unable or unwilling to protect her because she never reported the sexual abuse she suffered and she fled from Honduras before the police could complete their investigation into Macuto’s threats.

 

Held

Petition for Review DENIED

 

Rationale

The Petitioner only sought review of the BIA’s determination on the “unable or unwilling” standard relating to her fear of MS-13 gang retaliation.  Therefore, the Fifth Circuit Court of Appeal determined that the Petitioner waived any challenge to the BIA’s findings as they pertain to her stepfather and other private actors who had persecuted her or might persecute her in the future.  The Fifth Circuit Court of Appeal then narrowly focused its review on the BIA’s determination that the Petitioner had failed to prove the Honduran police authorities were “unable or unwilling” to control Macuto and the MS-13 gang.

Utilizing the substantial evidence standard based on section 242(b)(4)(B) of the Act as articulated in Revencu v. Sessions, 895 F.3d 396, at 401 (5th Cir. 2018) (i.e. that reversal of BIA factual findings is only appropriate if the evidence compels a contrary conclusion), the Fifth Circuit Court of Appeal reasoned that:

• Although the Petitioner reported Macuto’s threats to the police who told her that they would “proceed with the claim” which “would take at least two weeks,” she fled before those two weeks expired, and there is no evidence of what happened with the claim.
• The inability of the police complete their investigation to the Petitioner’s satisfaction within a single week does not compel the conclusion that they were unable or unwilling to help her.
• Thus, the BIA’s factual finding that the Petitioner failed to establish that the police were unable or unwilling to help her is supported by substantial evidence.  In other words, the evidence did not compel a contrary conclusion.

 

Commentary

The Fifth Circuit Court of Appeal clearly signaled in Rosaura Aurora Sanchez-Amador, et al v. Garland (April 11, 2022) No. 20-60367, that an asylum applicant’s subjective belief that authorities would be unwilling or unable to control a private persecutor is not sufficient for asylum eligibility, even when country condition evidence supports that belief, if underlying events in the factual record do not support that belief.

The contrast between Rosaura Aurora Sanchez-Amador, et al v. Garland (April 11, 2022) No. 20-60367 and the Fifth Circuit Court of Appeal’s recent non-precedent decision, Inthujan Thanigasalam v. Garland (March 31, 2022) No. 20-60677 (per curiam), creates an opportunity to clarify the meaning of “well-founded fear” in section 101(a)(42)(A) of the Act.

An applicant can establish a well-founded fear of persecution by showing that a reasonable person would fear future persecution upon return to his or her native country or last country of habitual residence.  Matter of Mogharrabi, 19 I&N Dec. 439, at 445 (BIA 1987).  Specifically, the asylum applicant must prove that there is a “reasonable possibility” of suffering persecution if he or she were to return to his or her native country or last country of habitual residence.  See 8 C.F.R. § 1208.13(b)(2)(i)(B).  In other words, if a reasonable person in similar circumstances would fear persecution upon return, the standard of proof is satisfied, even where the likelihood of persecution is significantly less than clearly probable. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

A “well-founded fear” consists of two components; a real subjective fear and an objective or reasonable fear.  In Inthujan Thanigasalam v. Garland (March 31, 2022) No. 20-60677, the Fifth Circuit Court of Appeal determined that a National of Sri Lanka had objectively proven his Tamil ethnicity and the Sri Lankan government’s pattern or practice of persecuting young Tamils (i.e. had established an reasonable fear of persecution).  Nevertheless, due to an adverse credibility finding by the Immigration Judge, the Fifth Circuit Court of Appeal denied the petition for review for failure to establish a subjective fear of persecution because no credible evidence existed in the record to support it. 

In my experience, the governing issue in asylum cases rarely involves subjective fear of persecution.  In most asylum cases a subjective fear of punishment or harm is genuine, even if it is sometimes irrational.  The most common challenge for asylum applicants is to establish a reasonable fear of persecution.

Rosaura Aurora Sanchez-Amador, et al v. Garland (April 11, 2022) No. 20-60367 is governed by the more typical issue of proving the reasonable fear component of “well-founded fear.”

The dual components of well-founded fear are not the only complexities that characterize asylum cases.  Proof of necessary facts that will support a reasonable fear of persecution varies according to the nature of the persecution claim.

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.

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”).  This is the view taken by former Attorney General Sessions in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (now known as “A-B- I”), and Acting Attorney General Rosen in Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (now known as “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); Gleidy Yessenia Jaco; Cristofer Alejandro Portillo Jaco v. Garland, at 10 (5^th Cir. October 27, 2021) No. 20-60081.  

 

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