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Viewing entries tagged
withholding of removal
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:
The Second Circuit has deferred to the agency’s requirement that a protected ground be “one central reason” for persecution in order to qualify for withholding of removal. The Court concluded that the INA does not unambiguously provide the proper standard for assessing motive in withholding of removal claims, and thus, deferred to the agency’s interpretation as a reasonable one.
The full text of Quituizaca v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/doc/19-3470_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/hilite/
The First Circuit has remanded a withholding case for further consideration of whether imputed membership in a gang can establish membership in a particular social group (PSG). The court noted that the policy reasons for rejecting former gang members as a PSG (namely, not rewarding former gang members for bad behavior) are not present when the gang membership is only imputed.
The full text of Chavez v. Garland can be found here:
The Third Circuit has determined that “Guatemala women” do not qualify as a cognizable particular social group for asylum and withholding of removal purposes because the proposed group lacks the requisite particularity. The court also recognized that the Notice to Appear in the case was lacking the time and date of the first removal hearing, which constituted a claims processing rule violation. However, the court determined that equitable considerations supported the agency’s refusal to terminate proceedings despite the rule violation.
The full text of Chavez-Chilel v. Attorney General can be found here:
The Eighth Circuit has determined that a crime which is not a per se particularly serious crime must be of the type that shows that the applicant is a danger to the community and must be “excessive in quality or extent to some unusual degree.”
The full text of Mumad v. Attorney General can be found here:
The Eleventh Circuit has remanded a discretionary denial of asylum, where the petitioner as granted withholding of removal, and where the Immigration Judge failed to reconsider the denial of asylum, including the possibility of family reunification.
The full text of Thamotar v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf
The Board of Immigration Appeals has concluded that when the Department of Homeland Security states that an applicant may be removed to a specific country, the applicant may seek withholding of removal from that country in withholding-only proceedings, even if that country is different from the country that was originally designated in the reinstated removal order on which the withholding-only proceedings are based.
In this case, the applicant indicated that he was actually a citizen of Honduras, despite having been previously removed to Mexico, and the Department of Homeland Security indicated it would remove the applicant to Honduras.
The full text of Matter of A-S-M- can be found here:
justice.gov/eoir/page/file/1385691/download
The Ninth Circuit has determined that if the government of the third country in which an asylum seeker has resettled is unable or unwilling to protect the asylum seeker from persecution by private parties, the asylum seeker qualifies for an exception to the firm resettlement bar. In this case, which involved a Somali citizen who had obtained refugee status in South Africa, the immigration judge had paradoxically found the petitioner firmly resettled in South Africa, but granted withholding of removal based on past persecution in South Africa.
The full text of Aden v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/17-71313.pdf
The Fourth Circuit has determined that the Board of Immigration Appeals’ (BIA) definition of particularity, as defined in Matter of W-G-R-, is not reasonable.
“First, the BIA’s description of the particularity requirement in W-G-R impermissibly conflates it with the social distinction requirement. The particularity requirement flows quite naturally from the language of the statute and is necessary to ensure there is a clear benchmark for determining who falls within the group. As such, particularity is a definitional question—an inquiry meant to ensure there is an adequate benchmark for setting the boundaries of the group.” “Similarly, the social distinction requirement flows from the statute and is necessary to ensure that the PSG is perceived as a group by society. Social distinction thus asks whether the home society actually does recognize that group as being a distinct and identifiable group.”
“Critically, the requirements serve distinct purposes, and it is important to consider them separately and with integrity to their purposes. The BIA’s articulation of particularity in W-G-R-, however, fails to do this. More specifically, the BIA claims there is some overlap between the particularity and social distinction requirements because both take account of the societal context specific to the claim for relief. In general, there is nothing unreasonable about overlap among legal elements or requirements. That happens all the time in the law. But what the BIA calls overlap is actually the incorporation of the social distinction requirement into the particularity requirement. According to the BIA, the particularity question is whether the group can be described in sufficiently distinct terms that it would be recognized, in the society in question, as a discrete class of persons.d. If that is true, the particularity inquiry requires an analysis into whether the PSG is an identifiable, recognized group from the perspective of the pertinent society. That inquiry, however, is essentially the same analysis the BIA requires for social distinction. This conflation of the particularity requirement with the social distinction requirement not only creates an analytical muddle but also renders the BIA’s third part of the PSG test—social distinction—surplusage.”
“The BIA unreasonably grounded its rejection of the PSG in W-G-R- in part on the fact that it could further subdivide the group in any number of ways—by age, sex, or background or by level of involvement with the gang. We fail to see how this reasoning provides clarity to the group’s boundaries, as it only points out that there are smaller parts to any whole. What matters is not whether the group can be subdivided based on some arbitrary characteristic but whether the group itself has clear boundaries.”
“Here, the boundaries of Amaya’s proposed PSG—“former Salvadoran MS-13 members”—are clear. On its face, ‘former Salvadoran MS-13 members’ contains several self-limiting features that provide clear benchmarks for the boundaries of the group. First, the reference to a single notorious gang leaves no ambiguity as to how a ‘gang’ might be defined. Second, the group only includes people of Salvadoran nationality, eliminating many people with MS-13 affiliation from other countries. Third, and most significantly, the group does not include those who never joined the MS-13 gang. All those self-limiting features baked into the definition of the group aid in its determinacy.”
“Indeed, there are many ways one can become a former member of a group, and those differences may be fatal to an argument that the alleged persecution was on account of membership in the PSG. But they are irrelevant to the particularity inquiry. Further specification of how one becomes a former member does not more clearly define the boundaries of the group; instead, it arbitrarily makes the group smaller. It is already sufficiently clear who is a former member of a group—it is someone who (1) joined the group and (2) is no longer in the group.”
The full text of Amaya v. Rosen can be found here:
https://www.ca4.uscourts.gov/Opinions/191619.P.pdf
An amended version of the opinion can be found here:
The Sixth Circuit has overturned a negative corroborating evidence determination in a withholding of removal case because the applicant was not given the opportunity to explain the absence of the corroborating evidence. The court further determined that an affidavit from the applicant’s sister was not reasonably available because she lived a 30-60 minute walk from a telephone that she had to pay to use, and the applicant accordingly only spoke with her about once per year. An affidavit was from the applicant’s mother was also unavailable because she still lived with the persecutor and because she could not write. Finally, the court determined that a withholding of removal applicant need only show that a protected ground is “a reason,” not “one central reason,” for the harm he suffered or fears suffering.
The full text of Guzman Vazquez v. Barr can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0155p-06.pdf
The Eighth Circuit has rejected family-based withholding of removal claim. Extortionists had killed the petitioner’s stepfather after he was unable to pay extortion. They then threatened to kill petitioner’s mother and siblings. However, the court found this threat to be insufficient to demonstrate that any harm the petitioner would suffer would be on account of her family membership, as opposed to the extortionists’ desire to obtain money.
The full text of Silvestre-Giron v. Barr can be found here:
https://ecf.ca8.uscourts.gov/opndir/20/02/182887P.pdf
In a case in which the agency determined that the petitioner had suffered past persecution on account of a protected ground, the Fourth Circuit addressed what type of evidence is necessary to rebut the resulting presumption of future persecution. The court rejected the idea that the Department of Homeland Security must produce some type of evidence, and indicated that at times, the agency would be able to rely on the petitioner’s evidence (including her testimony) to find the presumption had been rebutted. However, it is not sufficient for the agency to simply find state that the record is ambiguous as to whether there had been a fundamental change in circumstances or whether the petitioner could safely internally relocate. “To rebut the presumption, the government must prove that its view of the evidence as to either condition is the most convincing one.”
The court determined that a persecutor’s failure to contact the petitioner for the intervening years that she had been in the United States, on its own, does not rebut the presumption. There were other explanations - such as the difficulty in locating the petitioner while she resided in the United States - that could explain the persecutor’s lack of contact. It was not a reasonable conclusion that he had necessarily lost interest in harming her.
Similarly, the fact that the petitioner had briefly been able to relocate (in hiding) to another part of Honduras did not indicate she could safely relocate now, as it is not reasonable to assume she will remain in hiding for her entire life. The agency’s error was compacted by the fact that the persecutor had tracked the petitioner to another part of the country in the past.
The full text of Ortez-Cruz v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181439.P.pdf
The Tenth Circuit has remanded a withholding of removal claim for further analysis of whether the government of the Democratic Republic of the Congo engages in a pattern and practice of persecution of political dissidents.
The full text of Matumona v. Barr can be found here:
https://www.ca10.uscourts.gov/opinions/18/18-9579.pdf
The Ninth Circuit has rejected a petitioner’s claim that the particular social group comprised of people who report the criminal activity of gangs to the police is cognizable for withholding of removal purposes. In so doing, the court noted that “the record is devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who ‘report the criminal activity of gangs to the police’ are perceived or recognized as a group by society in Guatemala.”
The court was careful to note that its decision did “not foreclose the possibility that reporting gang violence to police could suffice to establish eligibility. For example, if there were evidence that, in a specific country, people in the community knew who reported crimes to the police, or if there were laws protecting those who did, the proposed group potentially could be cognizable. Here, however, Petitioner met with only one police officer; he was not in the main public precinct room but in a separate room when making the report; no evidence was taken from him; he was not photographed; and he did not cooperate with the police beyond making his complaint at the police office. As noted, Petitioner presented no evidence of a Guatemalan law or program protecting those who, without more, make police reports, and Petitioner presented no other evidence that Guatemalan society recognizes those who just report criminal activity of gangs to police as a particular social group.:”
The full text of Conde Quevedo v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/24/18-70078.pdf
The Fifth Circuit has deferred to the Attorney General’s decision in Matter of A-B-, and rejected a domestic violence-based protection claim. The court also determined that the injunction in Grace v. Whitaker only enjoins the application of Matter of A-B- in credible fear interviews, not in removal proceedings. Thus, the injunction poses no impediment to the Fifth Circuit evaluating the validity of the decision in the context of a removal proceeding.
The full text of Gonzalez-Veliz v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/18/18-60174-CV0.pdf
The Fourth Circuit has remanded a petition for review filed by a female asylum seeker who argued that she was targeted for persecution by the gangs in Honduras based on her status as a single mother. The court found that the gendered statements made by the gang members, as well as the threats made against the petitioner’s daughter, were sufficient to demonstrate that petitioner’s status as an unmarried mother was at least one central reason for the harm she suffered.
With respect to the petitioner’s proposed social group, the court did not decide whether the group was cognizable, but made several observations about the legal conclusions of the Immigration Judge. The court rejected the Immigration Judge’s conclusion that the proposed group was too large to be cognizable for asylum purposes.
Additionally, the petitioner asserted that she was persecuted on account of her imputed anti-gang political opinion. “When, as here, an applicant claims that she has been or will be persecuted on account of an imputed political belief, then the relevant inquiry is not the political views sincerely held or expressed by the victim, but rather the persecutor’s subjective perception of the victim’s views.” The court chided the Immigration Judge for focusing on whether the applicant was politically motivated when she refused the gang’s demands, but remanded for the agency to consider if the gang perceived her refusal as a political statement.
Finally, the court remanded for further analysis of the petitioner’s Convention Against Torture claim. A gang member threatened to rape, mutilate, and murder both the petitioner and her daughter if she did not pay him. The petitioner also testified that Barrio 18 members have continued to ask her family about her whereabouts since she fled. “That testimony alone could be sufficient to sustain her burden as to future mistreatment.” The fact that the testimony was corroborated by expert testimony only strengthened her claim.
The full text of Alvarez Lagos v. Barr can be found here:
The Sixth Circuit has determined that the Jordanian government is unable to protect women from honor killings, and the government's policy of placing women in protective custody amounts to involuntary incarceration. This policy demonstrates government acquiescence to torture. The court remanded to determine if the petitioner had put forward a cognizable particular social group and whether she could safely internally relocate.
The full text of Kamar v. Sessions can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0260p-06.pdf
In an unusual move, the Third Circuit granted a petitioner's application for withholding of removal without remanding to the agency for further fact-finding. The court determined that country conditions evidence, ignored by the Board, was sufficient to show that current conditions in Honduras established a clear probability that the petitioner would be persecuted on account of his political opinion. "In this instance, we are convinced that evidence of the politically motivated death threats, the inaction on Mendoza’s complaints, a perpetrator and judge who shared a political affiliation in opposition to that of Mendoza, and evidence of a politically corrupt justice system that failed to reign in politically motivated violence in Honduras compels two findings: first, the Honduran government was unwilling or unable to protect Mendoza from death threats; and, second, Mendoza could not safely relocate in Honduras."
The full text of Mendoza-Ordonez v. Attorney General can be found here:
The Seventh Circuit has remanded a case in which the petitioner sought withholding of removal on account of his status as an HIV positive, unmarried male, who would be perceived by Honduran society as gay on account of his medical conditions. The court noted that the applicant's claim was corroborated by an expert witness, and that the Immigration Judge gave full credit to that expert's testimony. The court also reiterated that the "more likely than not standard" for withholding of removal cannot be taken literally to require a "greater than 50% chance" of persecution.
The full text of Velasquez-Banegas can be found here:
The Ninth Circuit has held that an applicant for withholding of removal need not prove that a protected ground (i.e. his political opinion, religion, membership in a particular social group, etc.) is one central reason for the persecution inflicted on him. The court noted that when Congress amended the asylum statute to include the "one central reason" requirement, it did not similarly amend the withholding of removal statute. Thus, an applicant for withholding of removal need only show that a protected ground is "a reason" for the harm inflicted on him, and not "one central reason." In so holding, the Ninth Circuit rejected the Board of Immigration Appeals' decision in Matter of C-T-L-, which extended the one central reason standard to withholding of removal.
With respect to the petitioner's application for protection under the Convention Against Torture, the Court noted that there is no "rogue official" exception to this protection. "Since the officers were apparently off duty when they tortured Barajas-Romero, they were evidently not acting 'in an official capacity,' but the regulation does not require that the public official be carrying out his official duties, so long as he is the actor or knowingly acquiesces in the acts."
The full text of Barajas-Romero v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/18/13-70520.pdf
