Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Lamy Bertrand v. Garland (5th Cir. June 3, 2022) No. 19-60620 are as follows:

 

Case History

The Petitioner applied for admission to the United States.

 

The Petitioner then filed applications for asylum, withholding of removal, and for protection under the Convention Against Torture (CAT).

 

The Immigration Judge denied all requested relief.

 

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

 

The BIA affirmed the Immigration Judge’s decision and dismissed the Petitioner’s appeal.

 

The Petitioner timely filed a petition for review.

 

The government filed an unopposed motion to remand to the BIA.

 

The Fifth Circuit Court of appeal granted the motion to remand.

 

On remand, the BIA reaffirmed its original decision, denied all forms of relief, and again dismissed the appeal.

 

Again, the Petitioner filed a petition for review.

 

Facts

The Petitioner is a native and citizen of Haiti, who was detained upon applying for admission to the United States in 2016.

To avoid removal from the United States, the Petitioner filed applications for asylum, withholding of removal, and for protection under the Convention Against Torture (CAT).  See sections 208 and 241(b)(3) of the Immigration and Nationality Act, as amended (“the Act”) and the Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (a treaty signed by the United States on October 18, 1988 and ratified by the United States Senate on October 27, 1990).

The Petitioner testified before the Immigration Judge and described several violent attacks allegedly committed against him and his family members in Haiti.

Following an attack against the Petitioner in 2009, the police transported him to the hospital and took his report.

In the aftermath of a second attack in October 2009 at the Petitioner’s home in his absence during which the Petitioner’s sister, his daughter, and another woman were killed, the police and a local judge took a report.  At the time the police and local judge took the report, the Petitioner was told that they would investigate.

During another attack at the Petitioner’s home in December of 2009, he escaped and moved with his mother to the Dominican Republic, where they stayed together for four years.

In August of 2013, the Petitioner obtained a travel visa and moved to Brazil.

Ultimately, in July of 2016, the Petitioner left Brazil for the United States, where he arrived later that year.

 

Held

Petition for Review DENIED

 

Rationale

The Petitioner asserts in his petition for review that:

1. The BIA did not apply the correct legal standard in determining that the Petitioner had not shown the Haitian government to be unable or unwilling to protect him; and
2. substantial evidence does not support the BIA’s conclusion.

The Fifth Circuit Court of Appeal reasoned as follows:

• The Petitioner did not address the BIA’s denial of CAT relief or withholding of removal under section 241(b)(3) of the Act. Thus, he forfeited any claim about CAT relief, as well as any claim about withholding of removal that does not overlap with his asylum claim.  United States v. Bowen, 818 F.3d 179, at 192 n.8 (5th Cir. 2016) (“We have made clear that any issue not raised in an appellant’s opening brief is forfeited.”).
• The substantial evidence standard applies to an Immigration Judge’s factual conclusion that an alien is not eligible for asylum.  Zhao v. Gonzales, 404 F.3d 295, at 306 (5th Cir. 2005).
• Under the substantial evidence standard, a petition for review will be granted only when the record evidence “compels” a conclusion contrary to the agency’s determination.  Gjetani v. Barr, 968 F.3d 393, at 396 (5th Cir. 2020) (quoting Zhao, 404 F.3d at 306); Wang v. Holder, 569 F.3d 531, at 536–37 (5th Cir. 2009).  “The applicant has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion.”  Chen v. Gonzales, 470 F.3d 1131, at 1134 (5th Cir. 2006).
• Where private actors are concerned, the applicant must show that the government condoned the private violence “or at least demonstrated a complete helplessness to protect the [applicant].” Shehu v. Gonzales, 443 F.3d 435, at 437 (5th Cir. 2006) (quoting Galina v. INS, 213 F.3d 955, at 958 (7th Cir. 2000)).
• This requires showing “that an alien’s home government has ‘more than difficulty . . . controlling private behavior.’” Gonzales-Veliz v. Barr, 938 F.3d 219, at 233 (5th Cir. 2019) (quoting Matter of A-B-, 27 I. & N. Dec. 316, at 337 (A.G. 2018) (A-B- I), vacated by Matter of A-B-, 28 I. & N. Dec. 307 (AG 2021) (AB- III), and Menjivar v. Gonzales, 416 F.3d 918, at 921 (8th Cir. 2005) (quoting In re McMullen, 17 I. & N. Dec. 542, at 546 (BIA 1980))).
• The police responded to the Petitioner’s September 2009 attack, transported the Petitioner to the hospital and took a report about the incident.
• The police, along with a judge, responded to the October 2009 attack on Petitioner’s home, took a report, and said that they would investigate.
• The police similarly responded to the December 2009 attack on his mother’s house—in an entirely different city—and took her report.
• The government interviewed witnesses, came to the scene of a crime multiple times, and took the Petitioner to the hospital when he was attacked.
• The phrases, “unable to control” and “complete helplessness,” are different articulations of the same standard.  Both articulations “accomplish the same purpose”; they both require proof that “an alien’s home government has ‘more than difficulty . . . controlling private behavior.’” Gonzales-Veliz, 938 F.3d at 233.  To that end, both articulations rightly distinguish between the standard difficulties inherent in law enforcement and an utter inability to prevent private violence.
• Therefore, the Petitioner has not carried his burden of “showing that the evidence is so compelling that no reasonable factfinder” could agree with the BIA’s decision.  Chen, 470 F.3d at 1134.

Commentary

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 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. 

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 of the “unable to control” standard to mean “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").  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); Jaco v. Garland, at 10 (5^th 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. 

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.

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