Vasquez v. Garland

• Citation: 4 F.4th 213
• Decision Date: 09 July 2021
• Docket Number: No. 19-1954,19-1954
• Parties: Sonia Araceli PEREZ VASQUEZ; J.S.G.P., Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

4 F.4th 213

Sonia Araceli PEREZ VASQUEZ; J.S.G.P., Petitioners,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-1954

United States Court of Appeals, Fourth Circuit.

Argued: March 11, 2021

Decided: July 9, 2021

ARGUED: Jonathan Westreich, WESTREICH LAW, Alexandria, Virginia, for Petitioners. Margot Lynne Carter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before KING, WYNN, and HARRIS, Circuit Judges.

Petition for review granted in part and dismissed in part, and remand awarded by published opinion. Judge Wynn wrote the opinion, in which Judge King and Judge Harris joined.

WYNN, Circuit Judge:

Sonia Araceli Perez Vasquez ("Petitioner") and her minor daughter, natives and citizens of Honduras, appeal from the Board of Immigration Appeals’ final order affirming the denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture.¹ The central issue on appeal is whether the immigration judge and the Board of Immigration Appeals erred in concluding that Petitioner failed to demonstrate that she was persecuted on account of her membership in her proposed particular social group, namely her nuclear family.

For the reasons explained below, we answer that question in the affirmative. Accordingly, we grant the petition in part and remand for further proceedings.

I.

A.

In June 2016, Petitioner was living with her eleven-year-old daughter and her parents in Villanueva, Honduras.² Early that month, a young man called Petitioner; claimed to "represent[ ] a gang group"; and demanded that she begin paying the gang a monthly fee of 1,000 lempiras (roughly $43.00). A.R. 226.³ The man informed Petitioner that the gang, which is unspecified in the record, was aware that she traveled to San Pedro Sula every month to withdraw money that her common-law husband sent to her from the United States. The man also told Petitioner that the gang knew where she lived and what school her daughter attended, and he warned her that the gang would kill them both if Petitioner did not comply with the gang's demand for monthly payments.

True to the young man's word, at the end of June and every month that followed, gang members came to Petitioner's house with "guns and caps that almost covered their eyes" to collect the extortion fee. Id. On every visit, the gang members "threaten[ed] [Petitioner] and brandish[ed] their guns," reminding her that she "knew what was going to happen to [her and her] daughter if [she] did not pay them or obey their demands."Id. Indeed, she did know—she averred that she was aware of other individuals the gang had killed as an "example" after they failed to pay. A.R. 227. The gang also warned Petitioner that if she "said something to anyone" or "made a complaint," "they would kill [her] and [her] daughter." A.R. 72, 74.

Despite the gang's warnings, Petitioner made a report to the police, but the police never took any action. So, fearful for her and her daughter's safety, Petitioner paid the extortion fee to the gang for five months, with her husband sending her the demanded 1,000 lempiras every month. During those five months, Petitioner "was unable to sleep," "suffered from nightmares and depression," and became "so terrified" for her daughter's safety that she took her out of school. A.R. 226–27.

While Petitioner believed that paying the gang's fee was the only thing that would "stop [the gang] from hurting [her] and [her] daughter," her ability to pay it rested precariously on conduct largely beyond her control—her husband continuing to send her enough money to pay the fee every month. A.R. 226. She feared that one day her husband might be unable to do so, and that she would not be able to meet the gang's demands. Petitioner eventually fled Honduras with her daughter. In November 2016, six months after she was initially approached by the gang, Petitioner and her daughter arrived in the United States and applied for admission at the port of entry in El Paso, Texas.

B.

Because Petitioner did not possess valid entry documents at the time of entry, the Government issued a Notice to Appear and instituted removal proceedings against her. Petitioner conceded removability as charged, but she applied for asylum, withholding of removal, and protection under the Convention Against Torture.

In her application (Form I-589), Petitioner relayed the account summarized above and described that she was "certain that [the gang members] [we]re looking for [her], and [that] if [she] returned they would find [her] and hurt ... or kill [her]." A.R. 219. Her application indicated that she was seeking asylum and withholding of removal based on political opinion and membership in a particular social group. At the individual hearing, however, Petitioner (through her counsel) decided not to pursue a political-opinion claim. She instead relied solely on her membership in a particular social group, which she defined as her nuclear family comprised of herself, her husband, and her daughter.

Though the immigration judge fully credited Petitioner's testimony, he nevertheless denied all of her claims for relief and ordered that she and her daughter be removed to Honduras. Regarding her claims for asylum and withholding of removal, the immigration judge found that Petitioner's nuclear family was a cognizable particular social group, and that she had established her membership in that group. However, the immigration judge held that Petitioner had failed to prove that she suffered persecution—i.e., the gang's extortion demands and death threats—on account of her membership in the proposed particular social group. Curiously, he reached that conclusion despite expressly acknowledging that it was "probably true" that "but for [Petitioner's] husband being in the United States and sending money back , she would not likely have been targeted or threatened." A.R. 49 (emphasis added). The immigration judge also denied Petitioner's claim under the Convention Against Torture.

On appeal to the Board of Immigration Appeals, Petitioner challenged the immigration judge's finding that she had failed to demonstrate a causal connection between her membership in her nuclear family and the persecution she suffered. She also raised two additional particular social groups for the first time—her "[e]xtended family" and "[m]embers of [a] nuclear family opposed to gangs." A.R. 15. Finally, Petitioner challenged the immigration court's jurisdiction based on the Supreme Court's intervening decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018).

The Board of Immigration Appeals denied all of Petitioner's claims for relief and dismissed her appeal in an unpublished opinion issued by a single member. Specifically, it affirmed the immigration judge's determination that Petitioner had failed to show that she was persecuted because of her membership in her nuclear family. Citing its precedent, including Matter of W-Y-C- & H-O-B- , 27 I. & N. Dec. 189 (BIA 2018), the Board of Immigration Appeals declined to consider the two new particular social groups that Petitioner raised for the first time on appeal.⁴ Furthermore, it held that Petitioner had failed to "meaningfully challenge" the immigration judge's denial of her claim under the Convention Against Torture and thus deemed the issue waived. A.R. 3 n.2. Finally, the Board of Immigration Appeals rejected Petitioner's jurisdictional challenge under Pereira . Petitioner timely petitioned for this Court's review.

II.

Where, as here, the Board of Immigration Appeals has adopted and supplemented an immigration judge's decision, we review both decisions. Hernandez-Cartagena v. Barr , 977 F.3d 316, 319 (4th Cir. 2020). We review factual findings for substantial evidence, treating them as conclusive "unless any reasonable adjudicator would be compelled to conclude to the contrary." Chen v. Holder , 742 F.3d 171, 178 (4th Cir.), as amended (May 30, 2014) (quoting 8 U.S.C. § 1252(b)(4)(B) ). Legal determinations are reviewed de novo . Hernandez-Avalos v. Lynch , 784 F.3d 944, 948 (4th Cir. 2015). Further, single-member decisions of the Board of Immigration Appeals—such as the one subject to review here—are not entitled to Chevron deference.⁵ Martinez v. Holder , 740 F.3d 902, 909–10 (4th Cir.), as revised (Jan. 27, 2014).

III.

As an initial matter, Petitioner contends that under the Supreme Court's decision in Pereira v. Sessions , her Notice to Appear was defective because it failed to include the date or time of her removal hearing, and that this defect deprived the immigration court of jurisdiction. See Pereira , 138 S. Ct. at 2110, 2113–14 (holding that a Notice to Appear that fails to state the time or place of the hearing does not terminate a noncitizen's period of continuous physical presence in the U.S. for purposes of cancellation of removal). But we have already rejected the same argument in United States v. Cortez , holding that a Notice to Appear's failure to include the date or time of the hearing does not implicate the immigration court's jurisdiction or adjudicative authority. 930 F.3d 350, 358–66 (4th Cir. 2019). Therefore, we readily dismiss Petitioner's jurisdictional argument.

IV.

Turning to the merits, Petitioner argues that she has established that she was persecuted in Honduras on account of her membership in her proposed particular social group—her nuclear family.⁶ We agree. In concluding otherwise, the immigration judge and the Board of Immigration Appeals erred by applying a legally incorrect and "excessively narrow" approach to analyzing whether Petitioner satisfied the statutory nexus requirement—one that we have rejected time and time again. Hernandez-Avalos , 784 F.3d at 949.

Under well-established...