Azmen v. Barr
| Decision Date | 13 July 2020 |
| Docket Number | Docket No. 17-982-ag,August Term, 2019 |
| Citation | 965 F.3d 128 |
| Parties | Mario ORDONEZ AZMEN, aka David Perez, aka Mario Enrique Ordonez Azmen, Petitioner, v. William P. BARR, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Zachary A. Albun, Immigration and Refugee Clinical Program, Harvard Law School, Cambridge, MA (Charles Roth, National Immigrant Justice Center, Chicago, IL, Stacy Taeuber, Benjamin Casper Sanchez, Federal Immigration Litigation Clinic, University of Minnesota Law School, Minneapolis, MN, on the brief), for Petitioner Mario Ordonez Azmen.
Margaret J. Perry (Andrew C. MacLachlan, Kevin J. Conway, on the brief), Office of Immigration Litigation, for Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent William P. Barr, United States Attorney General.
Before: KATZMANN, Chief Judge, CALABRESI, and LOHIER, Circuit Judges.
Mario Ordonez Azmen petitions for review of a decision by the Board of Immigration Appeals (BIA) denying his application for asylum and statutory withholding of removal and denying his motion to remand to the Immigration Judge (IJ) for consideration of new country conditions evidence. For the reasons that follow, we grant the petition, vacate the BIA's decision, and remand to the BIA for reconsideration of Ordonez Azmen's application for asylum and statutory withholding of removal and his motion to remand consistent with this opinion.
Ordonez Azmen is a native and citizen of Guatemala and a former member of the Mara 18 gang there. After defecting from the gang, he left Guatemala and entered the United States. In May 2008 the Department of Homeland Security (DHS) started removal proceedings against Ordonez Azmen, who conceded removability. In October 2008 Ordonez Azmen filed an application for asylum, statutory withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he feared he would be killed by associates of Mara 18 if he returned to Guatemala.
Ordonez Azmen testified at a merits hearing before the IJ in May 2010. According to his testimony, which the IJ credited, Ordonez Azmen joined a local branch of the Mara 18 gang in or around 1998 in his hometown in Guatemala. As far as Ordonez Azmen knew, members of the branch were "just a group of youth spending time and having fun" and were not "involved in gang and illegal activity." Certified Administrative Record (C.A.R.) at 498. Ordonez Azmen tried to leave Mara 18 in 2001 or 2002, when a change in the gang's leadership forced him and other Mara 18 members to commit robberies and assaults, but gang members made it clear that he could not leave "unless [he] was dead." Id. at 546. He left home to stay with his sister in another town, but the threats continued. He tried to report the threats, but the police told him he had no proof, discouraged him from complaining, and questioned him about his gang affiliation. At a certain point, he even feared that the police were in the pocket of Mara 18 or another gang and might retaliate against him.
Ordonez Azmen's experience in Guatemala with Mara 18 after he tried to leave was not unique. Other Mara 18 members who tried to get out were also threatened. Some were beaten or even killed by the gang. In November 2002, for example, David "El Baqui" Perez, Ordonez Azmen's friend and the former leader of Ordonez Azmen's local Mara 18 gang, was murdered after he disagreed with the gang's violent activities.
In the summer of 2003 Ordonez Azmen fled Guatemala for the United States. In Guatemala, meanwhile, violence against former Mara 18 members continued unabated. After Ordonez Azmen arrived in the United States, he heard from friends in Guatemala that in May 2004 Mara 18 members had murdered Aroldo Cardona, another former member who was threatened for trying to leave the gang. A third former gang associate, Piter Giovanni, was murdered in April 2010, just two weeks before Ordonez Azmen's merits hearing. Ordonez Azmen also testified about four more Mara 18 members who were killed, although the timing and circumstances of their deaths were unclear.
After the merits hearing, the IJ granted CAT relief, finding that it was more likely than not that Ordonez Azmen would be targeted by his former gang associates if he returned to Guatemala, and that the Guatemalan government was aware of the threat but unwilling or unable to protect him. The IJ rejected Ordonez Azmen's other claims for relief. The IJ first concluded that the asylum claim was untimely. See 8 U.S.C. § 1158(a)(2)(B). The IJ then determined that Ordonez Azmen failed to adduce facts establishing the extraordinary circumstances needed to permit an otherwise untimely claim to proceed under the exception in 8 U.S.C. § 1158(a)(2)(D). The IJ also rejected Ordonez Azmen's statutory withholding claim. Citing BIA precedential decisions relating to gang membership in El Salvador, Honduras, and Colombia—but not Guatemala—the IJ asserted that the category "Mara 18 [members] who resist further gang involvement" was not a cognizable social group because it was linked to resistance to gang membership or opposition to gang activity and thus lacked sufficient social distinction1 and particularity. C.A.R. 507.
In a June 27, 2013 decision, the BIA affirmed the IJ's decision as to both Ordonez Azmen's asylum claim (as untimely) and his statutory withholding claim.2
Ordonez Azmen asked us to review the BIA's decision. By summary order, we denied his petition for review as it related to asylum, but granted his petition relating to statutory withholding of removal and remanded to the BIA with instructions to reconsider the agency's particular social group analysis in view of intervening decisions from the BIA and this Court. Azmen v. Holder (Azmen I ), 593 F. App'x 65 (2d Cir. 2014). We noted that three intervening decisions, In re M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), In re W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014), and Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014), had clarified the particularity and social distinction requirements of a particular social group under the Immigration and Naturalization Act (INA), but had not been applied to Ordonez Azmen's claim for withholding of removal. Azmen I, 593 F. App'x at 67–68.
Ordonez Azmen petitioned to have us rehear the denial of his asylum claim. We granted the petition on the ground that the BIA had "mischaracterized and ignored" evidence of Piter Giovanni's murder in April 2010. Azmen v. Lynch (Azmen II ), 625 F. App'x 561, 562 (2d Cir. 2015). We intimated that evidence of the murder might constitute changed circumstances that excused the "tardiness" of Ordonez Azmen's application given the one-year deadline for asylum applications. Id. at 563. We also emphasized that "[w]hile both this Court and the BIA have assumed that the changed circumstances" under 8 U.S.C. § 1158(a)(2)(D) "must predate the asylum application, such assumptions are mere dicta." Id. Requiring petitioners to raise each subsequent changed circumstance in an entirely new application, we warned, could "creat[e] a trap for those who are ill-informed or ill-advised" and spur unnecessary filings. Id. We therefore remanded to the BIA to consider in the first instance whether events giving rise to a changed circumstances exception "must occur before the application is filed, requiring a successive asylum application to be filed subsequent to the changed circumstances for a petitioner to potentially receive relief, or [whether] such changed circumstances may occur after the application is filed, permitting them to be considered in determining a pending asylum application's timeliness." Id. (quotation marks omitted). In addition, we advised the BIA that a precedential opinion on the question "would be especially useful." Id.
Back in front of the BIA, Ordonez Azmen moved to remand to the IJ for further fact-finding. To that end, he submitted about two hundred pages of new country conditions evidence, including media accounts, country conditions reports, and an expert affidavit, which he argued "show[ed] [that] former gang members are perceived as a discrete, distinct group by the Guatemalan government, by the gangs themselves, and by Guatemalan society in general." C.A.R. 23.
The BIA eventually denied Ordonez Azmen's motion to remand to the IJ and, despite our earlier suggestion that it issue a published decision, dismissed his appeal by unpublished decision. It held that the alleged change in circumstance—the 2010 murder of Giovanni—must have occurred before, not after, Ordonez Azmen's otherwise untimely asylum application was filed in order to excuse the untimeliness. "[I]f the alleged changed circumstances are substantially related or cumulative to the original untimely filed application," the agency explained, "then the application is a continuance of the original claim and should continue to be deemed untimely ... regardless of whether a second application is submitted or not." C.A.R. 4. And even if "the 2010 murder of a gang member might be evidence that conditions in Guatemala have possibly worsened for [Ordonez Azmen] to some degree," the BIA reasoned that "this is not the same as presenting evidence that circumstances have sufficiently changed to excuse an untimely asylum application." Id. at 6.
The BIA concluded that Ordonez Azmen's claims for asylum and statutory withholding and his motion to remand failed for the separate reason that his proposed social group did not meet the particularity requirement for a "cognizable particular social group" under the INA. Id. at 7. Although Ordonez Azmen's proposed group comprised former Mara 18 gang members who lived in Guatemala, the BIA relied on a decision in which it had rejected as insufficiently particular a proposed group of "former gang members in El Salvador who have renounced their...
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