Aguilar v. Garland

• Decision Date: 29 March 2022
• Docket Number: No. 18-9570,18-9570
• Citation: 29 F.4th 1208
• Parties: Kelly Camila Gonzalez AGUILAR, f/k/a Oscar Alexis Gonzalez Aguilar, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

29 F.4th 1208

Kelly Camila Gonzalez AGUILAR, f/k/a Oscar Alexis Gonzalez Aguilar, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States,^* Respondent.

No. 18-9570

United States Court of Appeals, Tenth Circuit.

FILED March 29, 2022

Nicole Henning, Jones Day, Chicago, Illinois (Dennis D'Aquila, Jones Day, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, with her on the briefs), on behalf of the Petitioner.

Scott Stewart, Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C. (Joseph H. Hunt, Assistant Attorney General, Civil Division; Claire L. Workman, Senior Litigation Counsel; Rosanne M. Perry, Trial Attorney, Office of Immigration Litigation, Civil Division, with him on the brief), on behalf of the Respondent.

Before BACHARACH, PHILLIPS, and CARSON, Circuit Judges.^**

BACHARACH, Circuit Judge.

Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed

• past persecution in Honduras from her uncle's abuse,

• fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and

• likely torture upon return to Honduras.

The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review.

We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.

I. Kelly fled Honduras and sought asylum in the United States.

Kelly was born a male and named "Oscar" at birth.¹ From an early age, however, Oscar displayed many feminine qualities, creating tensions at home. These tensions flared when Oscar's mother left for Mexico. When she left, Oscar went to live with his uncle, a violent man who often beat Oscar and expressed disgust for his feminine behavior. The uncle told Oscar that he was creating "bad luck for the family" and forced him to stop spending time on feminine activities, such as talking to girls and watching soap operas. R. at 106, 217. The uncle cut Oscar's hair and beat him, calling him derogatory names and promising to "make him a man." Id. at 106, 218. Oscar's sister intervened, but she too was beaten.

When Oscar was twelve, he and his sister fled to Mexico to look for their mother. But Oscar and his sister suffered further abuse in Mexico, leading them to flee again—this time for the United States. While in the United States, Oscar publicly identified as a woman, changing her name to "Kelly," taking hormonal treatments, and wearing female clothes.

The government brought removal proceedings against Kelly, and she sought asylum, withholding of removal, and deferral of removal. At her hearing, Kelly explained her fear of returning to Honduras, describing life there as "very difficult" for transgender women. Id. at 107, 231. The immigration judge found Kelly's testimony credible, but denied asylum, withholding of removal, and deferral of removal. She appealed, and a member of the Board of Immigration Appeals issued a brief order dismissing the appeal. On the asylum claim, the Board rejected Kelly's claims of past persecution and a fear of future persecution.

II. We review the Board's findings but can consult the immigration judge's opinion.

Though we review the Board's order, we "may consult the [immigration judge]’s opinion to the extent that the [Board] relied upon or incorporated it." Sarr v. Gonzales , 474 F.3d 783, 790 (10th Cir. 2007) ; see also Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006) ("We also look to the [immigration judge's] decision in ... cases where the [Board's] reasoning is difficult to discern and the [immigration judge]’s analysis is all that can give substance to the [Board]’s reasoning in its order of affirmance."). We consider the Board's "factual findings [as] conclusive unless any reasonable adjudicator would be compelled to" reach a contrary conclusion. Dallakoti v. Holder , 619 F.3d 1264, 1267 (10th Cir. 2010) (quoting Witjaksono v. Holder , 573 F.3d 968, 977 (10th Cir. 2009) ).

III. The Board erred in deeming Kelly ineligible for asylum.

To obtain eligibility for asylum, an applicant must establish status as a refugee. Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004) ; 8 U.S.C. § 1158(b)(1)(A). An applicant can obtain this status by proving past persecution or a well-founded fear of future persecution. Wiransane , 366 F.3d at 893 ; 8 C.F.R. § 1208.13(b)(1), (2).

A. The Board had substantial evidence to deny Kelly's claim of past persecution.

Kelly argues that the Board should have found past persecution from her uncle's beatings and her expulsion from a Honduran school.

1. The Board had substantial evidence to reject Kelly's gender identity as a central reason for her uncle's beatings.

Kelly argues that her gender identity was a primary reason for her uncle's beatings. The Board disagreed.

To show past persecution, an applicant for asylum must establish membership in a particular social group that is "at least one central reason for" the persecution. 8 U.S.C. § 1158(b)(1)(B)(i) ; Dallakoti v. Holder , 619 F.3d 1264, 1268 (10th Cir. 2010). The reason "cannot be incidental, tangential, superficial, or subordinate to another reason for harm." Id. (quoting In re J-B-N- & S-M- , 24 I. & N. Dec. 208, 214 (BIA 2007) ).

The immigration judge found that Kelly's gender identity was not a central reason for her uncle's beatings:

[Kelly] states that her uncle was "physically abusive to my sister and I ," and that he "would hit us with his fists." [R. at 319] (emphasis added). Even though [Kelly's] sister was not a transgender woman, their uncle abused her the same as [Kelly]. This indicates that [Kelly]’s transgender identity was not a "central reason" for her persecution. Instead, the facts suggest other factors—such as the financial burden [she] and her sister placed on their uncle, not to mention the generally brutish character of the uncle—were the central reasons underlying the harm they suffered in Honduras. See [id. at 320] ("After my mother stopped sending money, my uncle became frustrated and began to physically mistreat us even more.").

R. at 112–13. The Board upheld this finding. Id. at 4.

This finding was supported by substantial evidence. Kelly points to evidence of the uncle's slurs and threats, attributing his violence to disgust with Kelly's feminine behavior. But other evidence suggested that the uncle would have abused Kelly anyway: the uncle abused not just Kelly but also her sister and brother, the uncle often resorted to violence when drunk, and the uncle became increasingly violent when he stopped getting money for Kelly's care. A reasonable adjudicator could thus regard gender identity as subordinate or incidental to the uncle's other reasons for beating Kelly. See Dallakoti , 619 F.3d at 1268. So we conclude that the Board had substantial evidence to reject Kelly's claim of past persecution based on the uncle's abuse.

2. In appealing to the Board, Kelly did not characterize her expulsion from school as past persecution.

Kelly also alleges past persecution based on her expulsion from a Honduran school. We can consider this allegation only if Kelly exhausted it when appealing to the Board. See Torres de la Cruz v. Maurer , 483 F.3d 1013, 1018 (10th Cir. 2007) (concluding that an issue is exhausted only if it's presented to the Board or otherwise addressed by the Board).

Kelly did not present this theory to the Board, but she did refer to her Honduran education when stating that

• other students had called her "gay" and

• she'd been expelled for refusing to cut her hair or wear male clothing.

R. at 31, 34. Despite these two references to harm at school based on her gender identity, Kelly never characterized the denial of educational access as persecution. So these two references did not present a distinct theory of past persecution involving the denial of education. See Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010) (Gorsuch, J.) (stating that exhaustion requires the noncitizen to "present the same specific legal theory to the [Board of Immigration Appeals] before he or she may advance it in court") (emphasis in original).

* * *

Given the record as a whole, the Board had substantial evidence to find that Kelly had not shown past persecution on account of her gender identity.²

B. The Board erred in rejecting Kelly's claim based on a fear of future persecution.

Kelly also claims a well-founded fear of future persecution in Honduras on account of her identity as a transgender woman. The Board rejected this claim, reasoning that Kelly had failed to show a pattern or practice of persecution against transgender adults in Honduras.

1. A well-founded fear of future persecution may come from a pattern or practice of persecution.

To establish a well-founded fear, an applicant must show (1) "a genuine, subjective fear of persecution" that is (2) objectively reasonable based on " ‘credible, direct, and specific evidence in the record.’ " Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004) (quoting Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) ). For the second element, an applicant must demonstrate a reasonable possibility of future persecution. Uanreroro v. Gonzales , 443 F.3d 1197, 1202 (10th Cir. 2006). The possibility can be reasonable even when the chance of future persecution is as low as 10 percent. INS v. Cardoza-Fonseca , 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

Applicants may show that their fears are objectively reasonable based on membership in a group subject to "a pattern or practice" of persecution...