Hurtado v. Attorney General United States of America, 110218 FED3, 16-3908

Docket Nº:16-3908
Opinion Judge:ROTH, CIRCUIT JUDGE.
Party Name:HERNAN DARIO HURTADO; JANET GOMEZ-PARA, Petitioners v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
Attorney:Joseph C. Hohenstein Landau Hess Simon & Choi, Philadelphia, Counsel for Petitioners. Ashley Huebner, Charles Roth Lisa Koop National Immigration Justice Center, Counsel for Amicus-Petitioners. Chad A. Readler, Acting Assistant Attorney General Alison R. Drucker, Senior Litigation Counsel Aimee J...
Judge Panel:Before: MCKEE, AMBRO and ROTH, Circuit Judges.
Case Date:November 02, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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HERNAN DARIO HURTADO; JANET GOMEZ-PARA, Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

No. 16-3908

United States Court of Appeals, Third Circuit

November 2, 2018

NOT PRECEDENTIAL

On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A098-365-240 and A098-365-241) Immigration Judge: Rosalind K. Malloy.

Joseph C. Hohenstein Landau Hess Simon & Choi, Philadelphia, Counsel for Petitioners.

Ashley Huebner, Charles Roth Lisa Koop National Immigration Justice Center, Counsel for Amicus-Petitioners.

Chad A. Readler, Acting Assistant Attorney General Alison R. Drucker, Senior Litigation Counsel Aimee J. Carmichael, Senior Litigation Counsel Susan B. Green, Jem C. Sponzo United States Department of Justice Office of Immigration Litigation P.O., Counsel for Respondent.

Before: MCKEE, AMBRO and ROTH, Circuit Judges.

OPINION [*]

ROTH, CIRCUIT JUDGE.

To qualify for asylum or withholding of removal under the Immigration and Nationality Act (INA), an alien must establish that he or she is a "refugee" under the Act.1 In relevant part, such an alien must show "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."2

Hernan Dario Hurtado and his wife Janet Gomez Parra (Petitioners) seek relief as members of "a particular social group" subjected to persecution in Colombia. The proposed group to which they belong consists of "architect[s]/engineer[s] and project manage[rs] . . . forced to provide FARC with jobs, materials, and/or money and [who are] no longer able to meet FARC's demands."3

On appeal from an Immigration Judge's denial of a motion to reconsider and reopen their applications for asylum and withholding of removal, the Board of Immigration Appeals (BIA) held that Petitioners did not meet a central prerequisite for "a particular social group," namely, "social distinction." To satisfy that requirement, a proposed group must be perceived by "the people of a given society . . . as sufficiently separate or distinct."4

Petitioners seek review of the BIA's decision. Because the BIA did not abuse its discretion, we will deny the petition for review.

I.

BACKGROUND

Petitioners entered the United States in 2003 as visitors authorized to remain in the country until June 2004. In April 2004, Petitioners applied for asylum and withholding of removal. Approximately four months later, they were each charged with removability under 8 U.S.C. § 1227(a)(1)(B) and received a Notice to Appear before an Immigration Judge (IJ).

At a December 2006 hearing, Petitioners testified before an IJ in support of their applications. Petitioner Hernan Hurtado was an engineer and project manager who ran construction projects in Colombia; his wife was a fashion designer. After crossing paths with the insurgent Revolutionary Armed Forces of Colombia (FARC), Petitioners were kidnapped, robbed, and subjected to a series of extortive threats for work, money, and building materials, culminating in their decision to flee the country to escape FARC.

After the hearing, the IJ found that although Petitioners possessed "a subjective fear of persecution," they had failed to meet their burden of establishing that they were persecuted because of their membership in a particular social group.5 On that basis, the IJ denied Petitioners' applications for asylum and withholding of removal. In August 2011, agreeing with that determination, the BIA dismissed Petitioners' appeal.

Shortly thereafter, in Valdiviezo-Galdamez v. Attorney General, we rejected two of the BIA's three constituent requirements for a "particular social group": "particularity" and "social visibility."6 In relevant part, we held that the "social visibility" requirement-the precursor to the current "social distinction" requirement- had been applied inconsistently and was therefore not entitled to Chevron deference.7We reasoned that certain groups-including homosexuals in Cuba, women opposed to female genital mutilation, and former members of the El Salvador national police-had been deemed to satisfy the "particular social group" requirement even though their members had defining attributes that were not outwardly perceptible or "socially visible."[8]

In March 2012, the government filed an unopposed motion to remand this case to the BIA to consider the impact of Valdiviezo-Galdamez, and we granted that motion.

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