Jaco v. Garland
| Decision Date | 27 October 2021 |
| Docket Number | No. 20-60081,20-60081 |
| Citation | 16 F.4th 1169 |
| Parties | Gleidy Yessenia JACO; Cristofer Alejandro Portillo Jaco, Petitioners, v. Merrick GARLAND, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gleidy Yessenia Jaco, Pro Se.
Cristofer Alejandro Portillo Jaco, Pro Se.
Robbin Kinmonth Blaya, Esq., Trial Attorney, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.
Before Jolly, Elrod, and Oldham, Circuit Judges.
Appellant Gleidy Yessenia Jaco is an immigrant from Honduras seeking asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Her child seeks derivative asylum. After both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied her claims, Jaco filed a pro se petition for review from the BIA's dismissal of her appeal and denial of her motion for reconsideration. We likewise deny her petition for review.
Jaco left Honduras fleeing her former partner. According to Jaco, her former partner abused her and raped her repeatedly. Jaco did not report the domestic violence to the police due to his threats to kill her for doing so. But she did seek and obtain child support and a restraining order in October of 2014. According to Jaco, her former partner violated the restraining order, at one point by coming too close to her house and at another by stopping her at the grocery store to ask why she took him to court.
In February of 2016, her former partner told her that he would kill her and her child if she did not return to him. Jaco did not do so and moved to another city. But when she returned for a day to her mother's house, he confronted her again. He told her that he knows where she lives and that he will kill her if she does not return.
Jaco decided to flee her former partner and Honduras. She and her child entered the United States in April of 2016. Although her former partner has not contacted her since she entered the United States, she has heard that he is upset with her leaving. Both her mother and a former neighbor reported that he is trying to figure out where she is and that he wants revenge. Since arriving in the United States, Jaco has a new partner from Mexico, with whom she has another child. As such, Jaco fears for the lives of her and her family if she is forced to return to Honduras.
Gleidy Jaco and her child entered the United States without valid entry documents. DHS charged her with inadmissibility to and removability from the United States under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA). 8 U.S.C. § 1182(a)(7)(A)(i)(I). In response, Jaco applied for asylum, withholding of removal, and for protection under CAT. Her child sought derivative asylum.
The IJ denied Jaco's claims for asylum, withholding of removal, and CAT protection. With regard to CAT protection, the IJ determined that there was "insufficient evidence ... indicating the government of Honduras would wish to torture or acquiesce in the torture of" Jaco. And with regard to Jaco's claims for asylum and withholding of removal, the IJ found that Jaco's proposed social group—women in Honduras unable to leave their domestic relationships—was not cognizable. Although one of the BIA's recent precedential opinions, Matter of A-R-C-G- , 26 I. & N. Dec. 388 (BIA 2014), had recognized the group "married women in domestic relationships who are unable to leave," the IJ distinguished Jaco's case. Relying also on Matter of M-E-V-G- , 26 I. & N. Dec. 227 (BIA 2014), and Matter of W-G-R- , 26 I. & N. Dec. 208 (BIA 2014), the IJ considered a number of factors, including the fact that Jaco and her former partner were never married, and held that Jaco's case was sufficiently distinguishable from A-R-C-G- .
Jaco appealed to the BIA on September 5, 2018. In addition to challenging the IJ's conclusions, she argued that the BIA should remand her case in light of the newly released Matter of A-B- , 27 I. & N. Dec. 316 (A.G. 2018) ( A-B-I ) , in which the Attorney General vacated A-R-C-G- and held that "married women in Guatemala who are unable to leave their relationship" was not a particular social group.
The BIA dismissed the appeal. Citing A-B-I , it held that "[g]enerally, claims by aliens pertaining to domestic violence perpetrated by non-governmental actors will not qualify for asylum." The BIA further held that even if she were to qualify for a particular social group, Jaco failed to show that the Honduran government is unwilling or unable to prevent her persecution, as required for claims of asylum, withholding of removal, and protection under CAT.
On April 29, 2019, Jaco filed a motion to reconsider. As is relevant here, Jaco argued that (1) the IJ misapplied A-B-I and failed to assess her particular social group claim on an individual basis; (2) the BIA should have remanded her case to the IJ to consider her inclusion in additional social groups such as "Honduran women," "Honduran women in domestic relationships," "Honduran women who oppose male domination," and "Honduran women viewed as property because of their position in a familial relationship;" and (3) the BIA erred in concluding that Jaco did not show that the Honduran government was unwilling or unable to prevent her persecution.
Jaco also filed a petition for review in this court. After she filed her petition, the government filed a motion asking this court to remand her case to the BIA to allow it to conduct a "detailed analysis" of the effect of A-B-I on Jaco's proposed group, allow it to address any other dispositive issue, or allow it to remand to the IJ to further explain whether the Honduran government was "unwilling or unable" to prevent Jaco's persecution. On September 12, 2019, this court granted the government's motion and remanded the case to the BIA.
On remand, the BIA denied Jaco's motion for reconsideration and again dismissed the appeal. The BIA refused to either consider in the first instance or remand for consideration of groups proposed by Jaco for the first time on appeal. It further found no factual or legal error in its prior determination that "women in Honduras unable to leave their domestic relationships" is not a cognizable particular social group. The BIA also affirmed the IJ's distinction of Jaco's case from A-R-C-G- on numerous grounds: (1) Jaco was not married to her former partner; (2) the relationship was not long lasting; (3) the abuse was not as extensive as in A-R-C-G- ; (4) she moved out of her former partner's home; and (5) she took her former partner to court and received child support and a protective order.
The BIA also recognized that the Attorney General's decision in A-B-I overruled A-R-C-G- . Citing A-B-I , it reiterated that claims involving domestic violence will generally not qualify for asylum unless the violence was inflicted "on account of" a protected ground. And that protected ground, in turn, "must exist independently" of the harm from which the asylum seeker flees. The BIA concluded that Jaco's group failed this requirement because it was defined by the very persecution from which she flees. Quoting A-B-I , it determined that the group was "effectively defined to consist of women ... who are victims of domestic abuse because the inability ‘to leave’ [is] created by harm or threatened harm." See 27 I. & N. Dec. at 334–35 (alteration in original). Finally, the BIA held that the proposed group was neither particularized nor recognized in society as a distinct group. Because Jaco had failed to show a cognizable particular social group, the BIA found it unnecessary to address whether the Honduran government was unwilling or unable to protect her. After affirming its prior decision that CAT relief is unavailable, the BIA denied the motion for reconsideration and dismissed the appeal.
Jaco now petitions from the BIA's decision dismissing her appeal and denying her timely motion for reconsideration. Our jurisdiction is governed by 8 U.S.C. § 1252. Normally, petitioners wishing to challenge both the dismissal of an appeal and the denial of a motion for reconsideration must file separate petitions. See Kane v. Holder , 581 F.3d 231, 237 n.14 (5th Cir. 2009) ; 8 U.S.C. § 1252(b)(6). Here, however, because of our prior remand to the BIA, the Board addressed both Jaco's appeal and her motion to reconsider in the same order. Thus, Jaco's single petition for review can challenge both of the BIA's decisions. See 8 U.S.C. § 1252(b)(1) ; see also id. § 1252(a)(1) ; Stone v. I.N.S. , 514 U.S. 386, 405–06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
Although Jaco was represented by counsel at all prior stages of these proceedings, she files this petition for review pro se . We construe the filings of pro se litigants liberally. Coleman v. United States , 912 F.3d 824, 828 (5th Cir. 2019). Construed accordingly, Jaco's petition makes two arguments. First, that the BIA erred in failing to either consider or remand for consideration of additional proposed "particular social groups" that Jaco raised for the first time on appeal. And second, that the BIA erred in concluding that Jaco's proposed group—Honduran women who are unable to leave their domestic relationships—is not a "particular social group" within the meaning of 8 U.S.C. § 1101(a)(42)(A) (claims for asylum) and 8 U.S.C. § 1231(b)(3)(A) ().1
"When considering a petition for review, this court has the authority to review only the BIA's decision, not the IJ's decision, unless the IJ's decision has some impact on the BIA's decision." Wang v. Holder , 569 F.3d 531, 536 (5th Cir. 2009) (citing Mikhael v. I.N.S. , 115 F.3d 299, 302 (5th Cir. 1997) ).2
We review the denial of a motion to reconsider under an abuse-of-discretion standard. Gonzales-Veliz v. Barr , 938 F.3d 219, 226 (5th Cir. 2019). Under this standard, Jaco must identify either a "change in the law, a misapplication of the law, or an aspect...
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