Ninth Circuit Reverses Denial of Asylum

The Ninth Circuit has reversed an agency’s denial of asylum, finding that the non-citizen had experienced harm rising to the level of persecution, by actors the government of Mexico was unable to control, on account of her family ties.

“The harms that Meza Diaz and her family suffered— murder, physical assault, kidnapping, a home invasion, and specific, years-long death threats—clearly rise to the level of persecution under our precedents.”

“The report contained the attackers’ statement to Meza Diaz that ‘your time has come’ and that she was going to die. The attackers’ statement that Meza Diaz’s ‘time ha[d] come’ links the home invasion and attack to the numerous death threats Meza Diaz received after her brother’s murder and husband’s kidnapping. Several of those death threats were made by callers who told Meza Diaz that they knew she was Ismar’s sister and that she did not want to meet his fate—namely, being murdered. The police report also notes that Ismar’s murderers were recently released from prison. And the report summarizes Meza Diaz’s family history, including her brother’s murder, her husband’s kidnapping, and the death threats and extortion attempts that Meza Diaz suffered after both events.” “In concluding that Meza Diaz had not presented any evidence of a link between the home invasion and her family history, the agency failed to consider the attackers’ statement or the additional evidence presented in the police report in making its nexus determination.”

“But although Meza Diaz provided the police with significant information regarding who might have a motive to harm her, the police explicitly told her that they could not guarantee her safety and recommended that she flee the country. Meza Diaz presented compelling evidence indicating that the police were either unable or unwilling to control her persecutors.” “The explicit admission by the police that they could not ensure Meza Diaz’s safety must be given substantial weight because the question on this step is whether the government both ‘could and would provide protection.”

The full text of Meza Diaz v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/08/23-973.pdf

First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

BIA Narrows Relief for Family-Based Particular Social Groups

The Board of Immigration Appeals has again narrowed the circumstances in which an asylum applicant can establish the requisite nexus between persecution and the particular social group comprised of the applicant’s family. “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm. The question asked under the Fourth Circuit’s approach—why an applicant, and not others, is targeted—is relevant in evaluating the reasons for harm, but it is not the end of the analysis. When a persecutor targets multiple members of a single family, their family membership may be a reason for harming them, especially when non-family members are not similarly targeted. However, the fact that family membership is a reason for harm does not mean that it is necessarily one central reason. If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Likewise, when a persecutor’s threats to harm family members are contingent on one or more of the family members acting or failing to act in a certain way—such as failing to comply with demands for money or other property—family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end.”

The full text of Matter of M-R-M-S- can be found here:

https://www.justice.gov/d9/2023-12/4068.pdf

Ninth Circuit Clarifies Standard for Family-Based PSG Nexus

The Ninth Circuit has clarified that a petitioner does not need to show that his relatives experienced persecution on the basis of their family membership in order to show that he himself might experience persecution as their relative. In this case, the petitioner expressed fear of persecution because of his family ties to members of an Autodefensora group, and the Immigration Judge found that the uncles who were members of the group had experienced persecution because of the membership in the group, not because of their family ties. The Ninth Circuit found that reasoning unpersuasive. “Thus, even assuming all of Blancas Hermosillo’s uncles were harmed only because of their Autodefensa memberships and not their familial relationships, that does not foreclose the possibility that Blancas Hermosillo will experience persecution as a relative of the Autodefensa leader and other members.”

The full text of Hermosillo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/18-71220.pdf

Fifth Circuit Finds Asylum Applicant Must Demonstrate Social Distinctiveness of her Nuclear Family

The Fifth Circuit has determined that an asylum applicant has the obligation to provide some evidence of the social distinction of her nuclear family in her society when relying on that family as a particular social group for asylum purposes. The Court was also critical of the Biden Administration’s failure to promulgate proposed regulations on family-based particular social groups.

The full text of Garcia-Gonzalez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60501-CV0.pdf

Fourth Circuit Remands Family-Based PSG Withholding Claim

The Fourth Circuit re-affirmed its strong family-based particular social group case law, finding that “young male family members of [the applicant’s] cousin Emily” is a cognizable social group.

The full text of Santos Garcia v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

Fourth Circuit Sustains Appeal of Asylum Applicant Fearing "Revenge Killing"

The Fourth Circuit has sustained the appeal of an asylum applicant who fears he would be the victim of a revenge killing by gang members because his brother refused to cooperate with the gang.

The full text of Marvin A.G. v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

Fourth Circuit Finds Asylum Seeker was Persecuted because of Land Ownership and not Family Ties

The Fourth Circuit has determined that an asylum seekers was persecuted because gang members believed she was the heir to her late common law spouse’s land, and not because of her family ties to him.

The full text of Madrid-Montoya v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/202072.P.pdf

Fourth Circuit Affirms Denial of Family-Based PSG Claim

The Fourth Circuit has affirmed the denial of a family-based particular social group claim for a woman who was persecuted by her brother-in-law because she tried to protect her sister from domestic violence. The court found that “[t]he record would not compel a reasonable adjudicator to conclude that Veronica’s membership in Guisela’s family was anything more than incidental, tangential, superficial and subordinate to another reason for Rogelio to harm her. In contrast, the record contains substantial evidence that central reasons for Veronica’s persecution included her intervening in Guisela’s and Rogelio’s marriage, aiding her sister in escaping Rogelio and assisting in Rogelio’s capture and imprisonment.” This narrow nexus analysis seems out of step with other Fourth Circuit cases on family-based social groups, which have recognized that a mother protects her son from gang recruitment because of their family ties. It is unclear why a sister would not be similarly motivated by family ties to protect her sibling from domestic abuse.

The court also noted that Rogelio similarly persecuted non-family members who assisted Guisela, and cited this as evidence that it was the assistance to Guisela, not the family ties, that motivated the persecution. The court also relied on this fact to distinguish this case from its other precedents on persecution motivated by family ties.

The full text of Toledo-Vasquez v. Garland:

https://www.ca4.uscourts.gov/opinions/201849.P.pdf

Fourth Circuit Remands Family-Based Asylum Claim

Continuing its streak of truly excellent asylum decisions, the Fourth Circuit has remanded an asylum application premised on a family particular social group, finding that “the gang targeted Petitioner, and not some other person, because of her familial relationship to her husband, who sent her money from the United States every month.”

The full text of Perez Vasquez v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/191954.P.pdf

Tenth Circuit Rejects Family PSG Asylum Claim on Nexus Grounds

The Tenth Circuit, while assuming that family could be a valid particular social group, rejected an asylum claim where the “gang was threatening family members as a means to achieve an end that was unrelated to a protected ground.” The court recognized its decision was contrary to Fourth Circuit precedent involving a similar fact pattern.

The full text of Orellana Recinas v. Garland can be found here:
https://www.ca10.uscourts.gov/opinions/19/19-9596.pdf

Ninth Circuit Remands Asylum Claimed Based on Family and Land Ownership Particular Social Groups

In a case in which the agency assumed that family and landownership could serve as particular social groups for asylum purposes, the Ninth Circuit reversed the agency’s finding that these social groups were not one central reason for the harm the applicant suffered. The court noted that the agency found that both land ownership and family ties motivated the persecutors, and thus, the nexus analysis was legally erroneous.

“Garcia or members of her family similarly have experienced murder, specific death threats, forcible taking of property, attempted conscription, and retaliation for failed conscription. Furthermore, the timing of the persecution and statements by the persecutor may constitute circumstantial evidence of motive. The cartel in part targeted Garcia’s husband to obtain his property, but Garcia’s husband was still killed even after he had turned over the property deed, which suggests the cartel may have targeted him for reasons beyond the possibility of stealing his property. Beyond that, the cartel then sought out Garcia at her husband’s funeral, a uniquely family affair, threatening her so that she would remain silent about his death. The cartel sought out Garcia once again after she helped her son escape to the United States to avoid the Templars’ recruitment efforts. In this coercive effort, the Templars forced her from her home and took her property. Parada indicates that such sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from purely personal retribution. This kind of targeting is sufficient to demonstrate nexus if the petitioner shows via uncontradicted testimony that persecutors specifically sought out the particular social group’ of his family.”

The full text of Naranjo Garcia v. Wilkinson can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/18/19-72803.pdf

Fourth Circuit Reaffirms Family as a Particular Social Group

The Fourth Circuit has published another case affirming that family ties can form a particular social group for asylum and withholding of removal purposes.

“The record before us conclusively establishes a nexus between the death threats made against Diaz de Gomez and her ties to her nuclear family. Three facts are particularly probative of this nexus. Most notably, the threats to Diaz de Gomez’s family members first began when multiple members of that family, including Diaz de Gomez, witnessed a gang killing in 2008. Shortly thereafter, Diaz de Gomez’s husband started receiving threats, including threats to kill Diaz de Gomez and other family members if he did not agree to work for the gang. Second, after Diaz de Gomez’s husband fled to the United States, her brother started receiving death threats to coerce him to join the gang. And third, Diaz de Gomez began to receive threats personally in 2015, after two key events: (1) the April 2015 moped collision initiated by the Zetas when gang members saw Diaz de Gomez with her brother, who had refused to join the gang and was murdered a few months later; and (2) Diaz de Gomez’s parents’ refusal to acquiesce to the gang’s attempts at extortion. In both instances, the gang threatened to kill the brother and parents’ family members if they did not agree to the gang’s demands. The timing and context of these threats lead to the unmistakable conclusion that Diaz de Gomez was targeted, at least for one central reason, based on her relationship to her family. In light of this evidence, the record conclusively shows that more than one central reason motivated the gang’s death threats against Diaz de Gomez, namely, her and her family’s refusal to acquiesce to the gang’s several demands, and Diaz de Gomez’s familial ties to her brother, husband, and parents. As we previously have emphasized, the fact that the gang sought to recruit Diaz de Gomez and her family members does not preclude a finding that her familial ties were another central reason that she was persecuted by the gang, establishing the required nexus.“

The Court further concluded that the petitioner had demonstrated that the Guatemalan government was unable or unwilling to control her persecutors. “Diaz de Gomez provided credible testimony that she reported the escalating threats against her to the police in 2015, following the moped accident. She stated that she had been afraid to report the threats earlier, because people tend to “just show up dead” after filing police reports. To support her allegations, she showed law enforcement officers the written messages she had received, and also provided audio recordings of the telephone threats. She reported the threats to both the public affairs ministry and to the local police. Neither law enforcement agency took any action in response to the reports; no one was arrested, and officials never provided Diaz de Gomez any updates on the investigation. She returned to the police station twice to check on the status of the investigation, and was told both times that the person in charge of her case was unavailable. A friend who followed up after Diaz de Gomez left for the United States received the same response. This lack of action by law enforcement authorities is consistent with evidence of country conditions that Diaz de Gomez submitted to corroborate her claims. The 2015 Department of State Country Report on Human Rights Practices noted Guatemala’s widespread institutional corruption, particularly in the police and judicial sectors, including the involvement of police and military officers in drug trafficking and extortion. Referencing the Zetas specifically, one 2010 academic study explained that the gang has a “propensity to attack state institutions,” including by bribing police and judicial officials and infiltrating the gang’s supporters into the civil service. Approximately $1 billion of drug proceeds is used to bribe Guatemalan government officials annually, and corruption is rampant at the local level. Notably, organized crime has infested so many Guatemalan] state institutions as to render them virtually worthless, and the government has fail[ed] to provide even a minimal level of domestic security. This evidence of widespread gang influence and corruption, together with Diaz de Gomez’s credible testimony regarding her fear of reporting the Zetas and the failure of law enforcement to investigate her claim, leads to the inescapable conclusion that the government was unwilling or unable to protect her from her persecutors.”

The full text of Diaz de Gomez v. Wilkinson can be found here:

https://www.ca4.uscourts.gov/opinions/192115.P.pdf

Fourth Circuit Reaffirms Viability of Family-Based PSG Claims

The Fourth Circuit has affirmed the validity of an asylum claim brought by a woman who was threatened by the gangs in order to get her parents to pay extortion money. The woman was raped and her younger brother was assaulted with a knife. “Petitioner clearly demonstrated that her family was being targeted for extortive threats and she was targeted because her parents were failing to comply with those threats.”

“Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child -- a member of their family, concern for whom might motivate additional payments to the gang -- is not at least one central reason for her persecution.”

The full text of Hernandez-Cartagena v. Barr can be found here:

https://www.ca4.uscourts.gov/opinions/191823.P.pdf

First Circuit Remands Family-Based PSG Asylum Claim

The First Circuit has remanded an asylum claim in which the petitioner alleged that his paternal grandparents persecuted him because of their hatred for his mother.

The full text of Enamorado-Rodriguez v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1084P-01A.pdf

Fifth Circuit Remands for Further Consideration of new Decision in L-E-A-

The Fifth Circuit has remanded an asylum case for further consideration in light of the Attorney General’s recent decision in Matter of L-E-A-. The court acknowledged that the AG’s decision is conflict with case law in the First, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits, but not with any Fifth Circuit precedent.

The full text of Pena Oseguera v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60339-CV0.pdf

Eleventh Circuit Addresses Jurisdictional Challenge to NTA Missing Time and Date of Hearing

The Eleventh Circuit has determined that a challenge to a Notice to Appear missing the time and date of the first removal hearing is a claim-processing challenge, not a jurisdictional challenge. As such, the claim needed to be raised before the agency.

The court rejected the agency’s asylum analysis. The Immigration Judge had determined that one central reason for the Gulf Cartel’s persecution of the petitioner was to collect on a debt owed by his father-in-law, but then stated that the family relationship was merely “incidental” to the persecution. The court disagreed, stating that “it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin. The record is replete with evidence that the Gulf Cartel sought out and continuously extorted Mr. Perez-Sanchez because of his father-in-law’s past history with the cartel.” “Absent the familial relationship between Mr. Perez-Sanchez and Mr. Martinez-Carasco, the cartel would never have hunted him and his partner down to begin with or continued persecuting them for months.”

The full text of Perez-Sanchez v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201812578.pdf

Attorney General Curtails Family PSG Claims

The Attorney General has revised the Board of Immigration Appeals’ prior decision finding that family qualifies as a particular social group for asylum and withholding of removal purposes. Instead, the Attorney General stated that “most nuclear families are not inherently socially distinct.” “When an applicant proposes a group composed of a specific family unit, he must show that his proposed group has some greater meaning in society. It is not enough that the family be set apart in the eye of the persecutor, because it is the perception of the relevant society—rather than the perception of the alien’s actual or potential persecutors—that matters.”

“If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way.’ It is not sufficient to observe that the applicant’s society (or societies in general) place great significance on the concept of the family. If this were the case, virtually everyone in that society would be a member of a cognizable particular social group. The fact that ‘nuclear families’ or some other widely recognized family unit generally carry societal importance says nothing about whether a specific nuclear family would be ‘recognizable by society at large.’”

The full text of Matter of L-E-A- can be found here:

https://www.justice.gov/eoir/page/file/1187856/download

Seventh Circuit Grants Asylum Appeal Based on Family PSG

The Seventh Circuit has granted the appeal of a petitioner seeking asylum based on the particular social group of immediate relatives of his wife. The petitioner’s wife was kidnapped and rape by a cartel leader who wished to “possess” her, and the petitioner himself was kidnapped and forced to listen to the execution of two other men because he refused to leave his wife and allow the cartel leader to claim her. The cartel leader also threatened him at gunpoint, and told him he knew the names of the couple’s sons.

“As in Hernandez-Avalos, the government argues here that the harm Gonzalez Ruano experienced resulted from Rivera’s attempt to ‘possess’ Catalina, and that the persecution was simply a ‘means to an end,’ making Gonzalez Ruano’s relationship to his wife incidental. In other words, goes the argument, he was not persecuted because he is a member of Catalina’s immediate family but because, as her husband, he was the one person preventing the CJNG from forcibly recruiting her. We confess that this argument—CJNG targeted Gonzalez Ruano because they wanted his wife, not because he is her husband—draws a finer distinction than we can discern. As in Hernandez-Avalos, Gonzalez Ruano’s relationship to his wife was the reason he, and not someone else, was targeted.“

“Finally, we address the government’s contention that Gonzalez Ruano should be denied asylum because no other members of his family were threatened or harmed by the CJNG. To downplay the obvious threats against Catalina’s sons, the government actually argued that Rivera, by merely expressing knowledge of the children’s names, did not threaten them. It’s an interesting suggestion, but it overlooks the fact that Rivera was holding a gun to Gonzalez Ruano when he mentioned that he knew the boys’ names. In the alternative, the Government argues the threat was actually against Gonzalez Ruano, not the boys themselves. We reject these astonishing arguments. They ask us to close our eyes to reality. In any event, Gonzalez Ruano did not need to prove that the CJNG targeted other members of Catalina’s family to establish that the cartel targeted him on account of his membership in her family. Threats to harm other members of the group can certainly be relevant, but they are not essential to such an asylum claim.“

The full text of Gonzalez Ruano v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D04-24/C:18-2337:J:Hamilton:aut:T:fnOp:N:2330663:S:0

Seventh Circuit Remands Family-Based Asylum Claim

The Seventh Circuit has determined that a petitioner who was threatened at gunpoint by maras because his brother left the gang was persecuted on account of his family membership.

In a footnote, the court also recognized the indecipherable nature of the BIA’s case law on particular social groups. “W.G.A.’s arguments that the Board’s interpretation is unreasonable have some force. He argues that social distinction and particularity create a conceptual trap that is difficult, if not impossible, to navigate. The applicant must identify a group that is broad enough that the society as a whole recognizes it, but not so broad that it fails particularity. And as we have stated, rejecting a social group because it is too broad ‘would be akin to saying that the victims of widespread governmental ethnic cleansing can‐ not receive asylum simply because there are too many of them.’”

The full text of WGA v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-21/C:16-4193:J:Hamilton:aut:T:fnOp:N:2205587:S:0