Velasquez-Martinez v. Garland

• Decision Date: 18 March 2021
• Docket Number: No. 19-72741,19-72741
• Parties: ELVIA ESTELA VELASQUEZ-MARTINEZ, Petitioner, v. MERRICK GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

ELVIA ESTELA VELASQUEZ-MARTINEZ, Petitioner, v. MERRICK GARLAND, Attorney General, Respondent.

No. 19-72741

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: February 2, 2021

March 18, 2021

NOT FOR PUBLICATION

Agency No. A206-475-836

MEMORANDUM^*

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 2, 2021 San Francisco, California

Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.

Dissent by Judge IKUTA

Elvia Estela Velasquez-Martinez, a native and citizen of Honduras, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) dismissed the appeal. Velasquez-Martinez now petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a), and we grantthe petition and remand for further consideration.

1. Before the BIA, Velasquez-Martinez asserted that she should be excused from the one-year asylum filing deadline at 8 U.S.C. § 1158(a)(2)(B) as a class member in Mendez Rojas v. Wolf, No. 2:16-cv-01024 (W.D. Wash. filed June 30, 2016). Though the district court's summary judgment order was stayed when the BIA issued a decision in Velasquez-Martinez's appeal, the defendants, including the Executive Office for Immigration Review, had agreed, pursuant to an interim stay agreement, "to find all class members' asylum applications were timely filed in pending adjudications before . . . the Board of Immigration Appeals . . . during the stay." See Interim Stay Agreement, Mendez Rojas v. Wolf, No. 2:16-cv-01024, at *1 (W.D. Wash. Aug. 2, 2018), ECF 69-1.¹ Because the BIA failed to address Velasquez-Martinez's assertion of class membership, we remand for consideration of Velasquez-Martinez's claim. See Sagaydak v. Gonzales, 405F.3d 1035, 1040 (9th Cir. 2005).²

2. Velasquez-Martinez argues that the BIA erred in holding that her proffered particular social group, "female victims of gender-based violence," is impermissibly circular.³ We review legal questions de novo. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). "[T]he conclusion that a proposed social group is impermissibly circular may not be reached summarily merely because the proposed group mentions harm." Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th Cir. 2020). Instead, the BIA must conduct a "rigorous analysis," id. at 1079 (quoting Matter of A-B-, 27 I. & N. Dec. 316, 340 (A.G. 2018)), and consider on a case-by-case basis "whether [the] group is cognizable if it is defined without reference to the fact of persecution," id. at 1080.

The BIA's analysis here suffers from the same flaw as the BIA decision in Diaz-Reynoso. In one sentence and citing Matter of A-B-, the BIA summarily found Velasquez-Martinez's proffered social group not cognizable because it "does not 'exist independently' of the harm asserted." Therefore, we remand so the BIAcan determine in the first instance whether Velasquez-Martinez's proposed social group is cognizable without reference to the persecution. See id. at 1080, 1088.

3. Velasquez-Martinez next argues that the BIA erred when it alternatively concluded that she was not harmed on account of her membership in two particular social groups: "female victims of gender-based violence" and "females in Honduras."⁴ We review factual findings, such as those underlying the denial of asylum, withholding, and relief under CAT, for substantial evidence. Arrey, 916 F.3d at 1157.

As a threshold matter, and contrary to the dissent's assertion, Velasquez-Martinez exhausted her nexus argument, including the argument that the harm she suffered while captive was on account of a protected ground. Though Velasquez-Martinez did not present an extensive nexus argument before the BIA, she did state that the IJ erred in finding that the persecution she suffered in Honduras, "including being raped," was not on account of a protected ground. This put the BIA on notice of the argument that Velasquez-Martinez was harmed while captive on account of her membership in a protected group. See Martinez v. Barr, 941 F.3d 907, 922 ("[W]e do not employ the exhaustion doctrine in a formalistic manner, but rather inquire into whether the issue was before the BIA such that ithad the opportunity to correct its error.") (quoting Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)).

On the merits, the BIA erred by failing to consider if the sexual violence Velasquez-Martinez suffered while captive was on account of a protected ground. See, e.g., Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (remanding nexus determination in a withholding case where the petitioner was initially kidnapped and tortured for extortion, but "[t]he torture became much worse after [he] voiced his anti-corruption opinion"); cf. Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009) ("In this case, however, it is simply not clear whether [a protected ground] caused the assailants to initiate their attack or increase its severity once it had begun.") (emphasis added).

Several pieces of evidence from the time while Velasquez-Martinez was captive indicate that she was likely persecuted on account of her gender, a key component of both particular social groups. First, the captors singled out Velasquez-Martinez and the other female captive for specific forms of harm, including sexual violence, abuses that none of the captive men suffered. See, e.g., Mengstu v. Holder, 560 F.3d 1055, 1059 (9th Cir. 2009), superseded in part by statute, REAL ID Act of 2005, Pub. L. No. 109-13 div. B, 119 Stat. 302, asrecognized in Parussimova, 555 F.3d at 740.⁵ Second, other than gender, there is no identifiable difference between the captive women and men to account for the fact that the captors committed sexual violence against both women and none of the men. See Li v. Holder, 559 F.3d 1096, 1112 (9th Cir. 2009) (pre-REAL ID application); Navas v. INS, 217 F.3d 646, 660-61 (9th Cir. 2000) (pre-REAL ID application). Third, one of the captors used a gender-based slur while raping Velasquez-Martinez. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1021-22 (9th Cir. 2009) (pre-REAL ID application). And finally, the record documents pervasive violence against women in Honduras, which also supports a nexus finding. See, e.g., Ndom v. Ashcroft, 384 F.3d 743, 754-56 (9th Cir. 2004) (pre-REAL ID application). Because the BIA failed to consider this "highly probative [and] potentially dispositive" evidence, we remand for consideration of whether Velasquez-Martinez was persecuted while captive on account of her membership in one of the asserted particular social groups. See Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011).

4. Finally, Velasquez-Martinez contests the BIA's finding that she did not establish that the government was more likely than not to acquiesce in hertorture as necessary to qualify for CAT protection. While the Honduran government's inability to prevent violence against women is not sufficient to constitute acquiescence, see Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014), the BIA nevertheless erred when it failed to give reasoned consideration to other record evidence, including an expert declaration that indicates the Honduran government is not just ineffective at preventing this violence but is also complicit in and turns a blind eye to it. For example, the report notes that "police themselves have committed violent and degrading acts against women" and that "Honduran police ignore threats made against women." We therefore remand for the BIA to consider Velasquez-Martinez's CAT claim in light of this evidence. See Cole, 659 F.3d at 772-73 (holding that the BIA "did not evidence reasoned consideration" of the evidence where it failed to address expert testimony).

PETITION GRANTED.

IKUTA, Circuit Judge, dissenting:

Velasquez-Martinez missed the statutory deadline for applying for asylum. And the BIA's determination that Velasquez-Martinez failed to establish that she was persecuted on account of her membership in a particular social group ("female victims of violence") is legally correct and supported by substantial evidence. The majority bases its conclusion to the contrary on arguments that are unexhausted or meritless. Therefore I dissent.

Velasquez-Martinez was three years late in filing her asylum application. As required by statute, 8 U.S.C. § 1158(a)(1), the IJ denied her asylum application.

At the time of the IJ's decision on Velasquez-Martinez's asylum application, a class action was pending in a Washington district court. Mendez Rojas v. Johnson, No. 2: 16-cv-0 1024-RSM (W.D. Wash.). The plaintiffs—classes of asylum seekers who had been or would be detained by the government but were not given notice of the one-year deadline for filing their asylum application—claimed that the government was legally required to give them notice of the one year deadline. According to these aliens, the government's failure to do so violated their constitutional rights.

Some time after the IJ denied Velasquez-Martinez's asylum claim ontimeliness grounds, the district court in Mendez Rojas held that the government had to provide the plaintiffs notice of the one-year deadline. Order Granting Motion for Summary Judgment, Mendez Rojas, ECF No. 64 (March 29, 2018). The district court also ordered the government "to accept as timely filed any asylum application from a class member" even if it was filed after the one-year deadline, id. at 17, even though such an order is contrary to the statutory requirement that an alien may apply for asylum only if the alien "demonstrates by clear and convincing evidence that the [asylum] application has been filed within 1 year after the date of the alien's arrival in the United States," 8 U.S.C. § 1158(a)(2)(B). While an appeal of this ruling was pending before a panel of this court, however, the parties agreed to stay the proceedings for settlement...