Cardona v. Sessions

• Decision Date: 17 February 2017
• Docket Number: No. 15-2095,15-2095
• Citation: 848 F.3d 519
• Parties: Veronica Carmela Cortez CARDONA, a/k/a Veronica Del Carmen Cortez, Petitioner, v. Jefferson B. SESSIONS, III,United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

848 F.3d 519

Veronica Carmela Cortez CARDONA, a/k/a Veronica Del Carmen Cortez, Petitioner,

v.Jefferson B. SESSIONS, III,^* United States Attorney General, Respondent.

No. 15-2095

United States Court of Appeals, First Circuit.

February 17, 2017

Hans J. Bremer and Bremer Law & Associates, LLC on brief for petitioner.

Benjamin C. Mizer , Principal Deputy Assistant Attorney General, U.S. Department of Justice, Civil Division; Anthony Nicastro , Acting Assistant Director, Office of Immigration Litigation; and Joanna L. Watson , Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

Before Thompson, Selya, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

The petitioner, Veronica Carmela Cortez Cardona ("Cortez"), a native and citizen of Guatemala, seeks review of a decision from the Board of Immigration Appeals ("BIA" or "Board") denying her motion to reopen an appeal challenging an immigration judge's ("IJ") decision to reject her request for asylum and withholding of removal pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b)(3). Under the deferential standard of review accorded to the BIA's decision to reject a motion to reopen and reconsider its own proceedings, we deny her petition.

I.

Cortez arrived in the United States without proper entry documentation on April 17, 2013. During the following month, the Department of Homeland Security served her with a Notice to Appear ("NTA") before an IJ, alleging that she failed to possess a valid travel document at her time of entry into the United States in violation of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).

In a July 2013 written pleading, Cortez admitted the factual allegations and the removal charge alleged in her NTA and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Cortez's asylum application recounted an emotionally, physically, and sexually abusive relationship with a man whom she had dated in Guatemala named Juan Carlos. She testified before the IJ that her relationship with Juan Carlos went well for a few months after they first began dating, but eventually Juan Carlos introduced Cortez to his many friends who were gang members and attempted to recruit her into his gang. After rebuffing these efforts, her relationship with Juan Carlos quickly crumbled, and he became abusive. In order to escape Juan Carlos's physical and sexual violence, she made arrangements to travel to the United States. Cortez asserted before the IJ—and continues to maintain here—that she is eligible for asylum based upon a fear of persecution due to her "membership in a particular social group." 8 U.S.C. § 1158(b)(1)(B)(i). She proposed two potential social groups in her hearing before the IJ—"Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination" and "women in domestic relationships who are unable to leave."¹

Providing three reasons for his decision rejecting her application for relief, the IJ first cited inconsistencies between Cortez's testimony and statements she had made to border agents, and concluded that her testimony about her abusive relationship with Juan Carlos was not credible. Second, the IJ stated that even if Cortez's testimony was credible, her proposed social groups were not cognizable under the INA because the statute requires such a group "be sufficiently particular to permit an accurate separation of members from non-members" and an "objective observer would not reliably [be able to] gauge who is or who is not a member of the group[s]" proposed by Cortez. Finally, the IJ noted that internal relocation in Guatemala remained a "significant possibility" for Cortez.

Cortez appealed the IJ's denial to the BIA. In its June 2015 decision, the Board chose not to address the IJ's determination as to Cortez's credibility or her ability to relocate internally in Guatemala. Moreover, the BIA did not adopt the IJ's determination that Cortez failed to define a cognizable social group under the INA. Rather, the BIA acknowledged that in one of its recent decisions, Matter of A–R–C–G–, the Board held that, depending upon the circumstances of an individual case, "married women in Guatemala who are unable to leave their relationship" can constitute a cognizable social group under the act." 26 I. & N. Dec. 388, 392 (BIA 2014). Ignoring the obvious fact that Cortez was not married to Juan Carlos, the BIA stated that "the respondent and her boyfriend had not established a domestic relationship, and the respondent has limited knowledge about her former boyfriend's life."² [Id.] The BIA thus concluded that "the respondent has not shown that she was in a domestic relationship and does not fit within the particular social group that she claims." As a result, the BIA upheld the IJ's denial and dismissed Cortez's appeal.

Cortez next filed a timely motion requesting that the Board reopen and reconsider her appeal, insisting the BIA committed three distinct legal errors.³ First, she argued that it was improper for the BIA to cite Matter of A–R–C–G– in its decision because that case was decided after she had submitted her appeal brief. Second, even if the BIA appropriately cited Matter of A–R–C–G–, she should have been allowed to submit a brief in response to that decision in order to present a full argument to the Board. Finally, she contended that the BIA erred when it decided she was not in a "domestic relationship" with her boyfriend, Juan Carlos. The BIA rejected Cortez's arguments and denied her motion to reopen and reconsider. This timely petition for review of the Board's decision against reopening and reconsideration followed.

II.

We review the denial of a motion to reopen and reconsider for abuse of discretion. ⁴

Martinez–Lopez v. Holder, 704 F.3d 169, 171 (1st Cir. 2013). "This is a deferential standard, and we will find an abuse of discretion only when the ‘denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’ " Id. at 172 (quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) ).

Cortez presses before us the three legal arguments she advanced in her motion to reopen. We address each in turn.

A. The BIA's Reliance upon Matter of A–R–C–G–

Cortez urges that, "[i]n the interests of equity and fairness," the BIA should not be permitted to cite a case in its decision denying her appeal from the IJ that was decided after she submitted her brief to the Board. In its denial of the motion to reopen and reconsider, the BIA noted that its Practice Manual provides an opportunity for parties to file a supplemental brief if the party discovers new authority that creates a change in the law. Cortez contends that her counsel did not discover Matter of A–R–C–G– before her appeal was decided, and it cannot "be reasonably expected that in the dynamic and ever changing area of immigration law, a party's counsel will always be immediately apprised of every new authority that arises shortly after a brief has been submitted with the Board."

We disagree. It is counsel's role to be alert to changes in the law. See United States v. Gonzalez Vargas, 585 F.2d 546, 547 (1st Cir. 1978) (per curiam) ("It is the responsibility of counsel to keep abreast of the law and to inform the court of the correct state of the law."). Not only was the BIA acting well within its broad discretion in citing Matter of A–R–C–G– when it reviewed the IJ's decision, its failure to consider such an important and relevant intervening decision could, itself, be grounds for remand from this court. See Kadri v. Mukasey, 543 F.3d 16, 22 (1st Cir. 2008) (remanding case to the IJ to evaluate petitioner's claim in light of intervening case law).

B. The BIA's Refusal to Allow Further Briefing

Even if the BIA could have properly cited Matter of A–R–C–G– in its decision, Cortez argues that it improperly denied her request to submit additional briefing in response to her motion to reopen and reconsider. She further asserts that the "severe time constraints" placed upon her for filing a timely motion to reconsider prevented her from fully briefing the matter and "[a]ffording more time would not have placed a burden on the BIA."

Perhaps not, but the Board had no obligation to permit further briefing. Also, in rejecting Cortez's argument, the Board explained that Cortez had set forth her Matter of A–R–C–G– contention in her motion to reopen and reconsider, and it was willing to reconsider that argument sua sponte, without the benefit of further briefing. There was no abuse of discretion in the Board's decision to consider Cortez's argument on the basis of the papers before it.

C. The BIA's Cognizable Social Group Analysis

In challenging the BIA's reconsideration of her Matter of A–R–C–G– argument, Cortez insists that the BIA erred by narrowly focusing on the fact that she was not married to her abusive boyfriend and thus...