Cantarero-Lagos v. Barr

• Decision Date: 06 May 2019
• Docket Number: No. 18-60115,18-60115
• Citation: 924 F.3d 145
• Parties: Wendy Yessenia CANTARERO-LAGOS; Henry Omar Bonilla-Cantarero, Petitioners v. William P. BARR, U.S. Attorney General, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

924 F.3d 145

Wendy Yessenia CANTARERO-LAGOS; Henry Omar Bonilla-Cantarero, Petitioners

v.William P. BARR, U.S. Attorney General, Respondent

No. 18-60115

United States Court of Appeals, Fifth Circuit.

FILED May 6, 2019

Fatma Essam Marouf, Texas A&M School of Law, Immigrant Rights Clinic, Fort Worth, TX, Deborah Anker, Harvard Law School, Harvard Immigration & Refugee Clinical Program, Cambridge, MA, Geoffrey Alan Hoffman, Esq., University of Houston, Law Center, Houston, TX, for Petitioners.

Susan Bennett Green, Trial Attorney, Kevin James Conway, Esq., Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Jean-Claude Andre, Sidley Austin, L.L.P., Los Angeles, CA, for Amicus Curiae Retired Immigration Judges and Former Members of the Board of Immigration Appeals.

Monique Sherman, Cooley, L.L.P., Palo Alto, CA, for Amicus Curiae Nonprofit Immigration Legal Services Providers.

Before DAVIS, JONES, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Petitioners Wendy Cantarero-Lagos and her minor son, Henry Bonilla-Cantarero, filed a petition for review challenging an order by the Board of Immigration Appeals ("BIA") denying their applications for asylum and withholding of removal. They claim that the BIA reversibly erred by refusing to consider a reformulated particular social group ("PSG") on appeal. Because the BIA is not required to consider a PSG on appeal that was never presented to the immigration judge ("IJ"), the BIA's order is AFFIRMED.

BACKGROUND

Petitioner Wendy Cantarero-Lagos came to the United States from Honduras with her minor son, Petitioner Henry Bonilla-Cantarero, in June 2014. After they were apprehended by Border Patrol agents, Petitioners admitted to crossing the border illegally, conceded removability, and filed applications for asylum and withholding of removal. At their hearing before an IJ, Cantarero-Lagos testified that she and her son left Honduras because, in 2012, she had been threatened by gang members who were trying to extort her and, in 2001, her father had attempted to rape her.¹ She did not report either incident to the police, nor did she experience continued threats from either the gang members or her father after the 2012 and 2001 incidents. Cantarero-Lagos told the IJ that she feared returning to Honduras with her son because gang activity and rapes were on the rise and she doubted the ability of law enforcement to provide protection.

After Cantarero-Lagos finished testifying, her attorney defined her PSG as "single Honduran women, aged 14 to 30, who are victims of sexual abuse within the family and whom the government fails to protect."² However, when the IJ expressed skepticism about this definition, her attorney revised the PSG to "single Honduran women, age 14 to 30, who are victims of sexual abuse within the family and who cannot turn to the government." In an oral decision, the IJ denied the petitions for relief. Although the IJ found Cantarero-Lagos's testimony credible, he concluded that her PSG was not cognizable and that it lacked any nexus to her cited harms.

On appeal before the BIA, Cantarero-Lagos conceded that the PSG she presented to the IJ "fails for many reasons." Arguing, however, that "the evidence lends itself to a more cognizable and logically sound group," Cantarero-Lagos asked the BIA to consider a reformulated PSG: "Honduran women and girls who cannot sever family ties." She asserted that this new PSG "naturally [arose] from the substance of the evidence presented at the merits hearing" and was thus appropriate for the BIA's consideration.

In a published opinion, the BIA dismissed her appeal, holding that "[a]n applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group." Matter of W-Y-C- & H-O-B- , 27 I. & N. Dec. 189 (BIA 2018). Reasoning that "[t]he Board is an appellate body whose function is to review, not to create a record," the BIA explained that "[w]here, as here, an applicant delineates a social group for the first time on appeal, the Immigration Judge will not have had an opportunity to make relevant factual findings, [and the BIA] cannot do [so] in the first instance on appeal." Id . at 190–91 (internal quotation marks and citations omitted); cf . id . at 189 ("The [BIA] generally will not address a newly articulated particular social group that was not advanced before the [IJ]."). Furthermore, because "respondent was represented by counsel below and could have advanced this newly delineated group before the Immigration Judge," the BIA decided not to remand the case back to the IJ. Id . at 192.

Cantarero-Lagos and Bonilla-Cantarero filed this petition for review.

STANDARD OF REVIEW

On a petition for review, this court "review[s] the BIA's decision and only consider[s] the IJ's decision to the extent that it influenced the BIA." Shaikh v. Holder , 588 F.3d 861, 863 (5th Cir. 2009). "The BIA's factual findings are reviewed for substantial evidence." Ghotra v. Whitaker , 912 F.3d 284, 287 (5th Cir. 2019). The BIA's legal determinations—"including whether the Board applied an inappropriate standard or failed to make necessary findings"—are generally reviewed de novo , "unless a [legal] conclusion embodies the BIA's interpretation of an ambiguous provision of a statute that it administers," in which case its interpretation may be entitled to Chevron deference. Id . (internal citation omitted); Orellana-Monson v. Holder , 685 F.3d 511, 517 (5th Cir. 2012) (internal citation and alteration omitted). Auer deference may be appropriate if the BIA's legal conclusion interprets a regulation it administers. See Auer v. Robbins , 519 U.S. 452, 461–63, 117 S.Ct. 905, 911–12, 137 L.Ed.2d 79 (1997).

Here, the government argues that the BIA's opinion is entitled to both Chevron and Auer deference. These doctrines do not apply. Although the BIA's opinion is "a precedential decision, which relies in part on the Board's interpretation of the adjudication scheme set forth in the [Immigration and Nationality Act ("INA") ]," the government has not identified any ambiguous phrase in the INA that the BIA's opinion interpreted. Thus, Chevron deference is inappropriate. Similarly, although "the agency's decision rested, in part, on [an invocation] of its standard of review regulation, 8 C.F.R. § 1003.1(d)(3)," the BIA's opinion does not purport to interpret the regulation but rather to apply it. Consequently, Auer deference is also inappropriate, and this court will review the BIA's legal determinations de novo .

DISCUSSION

Petitioners contend that the BIA reversibly erred by refusing to consider their reformulated PSG. They further claim that the BIA announced "an excessively strict standard" when it concluded that applicants must give an "exact delineation" of their PSG to the IJ. Finally, Petitioners argue that even if the BIA did not err in its legal holdings, the legal standards announced in its opinion should not be "retroactively" applied to their case. Petitioners' arguments are unavailing.

"To qualify for asylum, an applicant must establish that he is ‘unable or unwilling to return to ... [and] avail himself or herself of the protection of [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ " Ghotra , 912 F.3d at 288 (brackets in original) (quoting 8 U.S.C. § 1101(a)(42)(A) ); see also 8 U.S.C. § 1158(b)(1)(B)(i). "To qualify for withholding of removal, an applicant must establish that ‘it is more likely than not’ that ‘his life or freedom would be threatened’ in the proposed country of removal due to his race, religion, nationality, membership in a particular social group, or political opinion, which poses a higher bar than the ‘well-founded fear’ standard for asylum." Id . (internal citations omitted); accord 8 U.S.C. § 1231(b)(3).

For both asylum and withholding of removal, "to establish persecution based on membership in a particular [social] group, the petitioners must show that they are members of a group of persons that share a common immutable characteristic that they either cannot change or should not be required to change because it is fundamental to their individual identities or consciences." Orellana-Monson , 685 F.3d at 518 (internal quotation marks and citations omitted). To be cognizable, a PSG must have sufficient particularity that its membership is "delimit[ed]" and its members must have sufficient "shared characteristics" that the group is "readily identifiable in society." Id . at 519. As a third requirement, an applicant must prove a nexus between her PSG and feared persecution. Failing any of these criteria, a request for relief may be denied.

I. Refusal to Consider a Reformulated PSG

Petitioners advance three arguments why the BIA reversibly erred by refusing to consider their reformulated PSG on appeal. First, they contend, whether a PSG is cognizable presents a question of law whose resolution does not require the IJ to make specific factual findings. Second, to the extent a PSG depends on factual findings, the IJ in this case made factual findings that would allow the BIA to assess the reformulated PSG on appeal. Third, the reformulated PSG is not "substantially different" from the PSG presented to the IJ. Primarily on these bases, Petitioners argue that the BIA abdicated its responsibility by refusing to evaluate their reformulated PSG. Each argument is wanting.

First, although the cognizability of a PSG presents a legal question, its answer indisputably turns on findings of fact. See, e.g. , Hernandez-De La Cruz v. Lynch , 819 F.3d 784, 786–87 (5th Cir. 2016) (noting that "social distinction" is premised on "factual findings"); Thuri v. Ashcroft , 380 F.3d 788, 791 (...