Zepeda-Lopez v. Garland
| Decision Date | 28 June 2022 |
| Docket Number | Docket No. 19-145-ag,August Term 2021 |
| Citation | 38 F.4th 315 |
| Parties | Carlos Alexander ZEPEDA-LOPEZ, Karla Argentina Zepeda-Lopez, Melissa Isabel Zepeda-Lopez, Wuendy Yessenia Rodriguez-Cerda, Melissa Alexandra Zepeda-Rodriguez, Ansony Emmanuel Aguilar-Castro, Petitioners, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Christina Colón Williams, Esperanza Center for Law & Advocacy, Norwalk, CT, for Petitioners.
Monica G. Antoun, Trial Attorney (Brian Boynton, Acting Assistant Attorney General, Shelley R. Goad, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.
Jon Bauer, Asylum and Human Rights Clinic, University of Connecticut School of Law, Hartford, CT, for Amici Curiae HIAS, International Refugee Assistance Project, Asylum Seeker Advocacy Project, and Integrated Refugee & Immigrant Services, in support of Petitioners.
Before: Livingston, Chief Judge, and Chin and Nardini, Circuit Judges.
Petitioners seek review of a December 14, 2018, decision of the Board of Immigration Appeals (the "BIA") affirming a decision of an Immigration Judge (the "IJ") denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") to petitioners Carlos Alexander Zepeda-Lopez ("Carlos"), Karla Argentina Zepeda-Lopez ("Karla"), Melissa Isabel Zepeda-Lopez ("Melissa Isabel"), Wuendy Rodriguez-Cerda ("Wuendy"), Melissa Alexandra Zepeda-Rodriguez ("Melissa Alexandra"), and Ansony Emmanuel Aguilar-Castro ("Ansony") (collectively, "Petitioners") and ordering their removal to Nicaragua. Petitioners entered the United States in 2014 and were placed into removal proceedings later that year. Petitioners applied for asylum and withholding of removal under the Immigration and Nationality Act (the "INA"), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under CAT, see 8 C.F.R. § 208.16. Carlos, Karla, and Melissa Isabel are siblings, and all three are citizens of both Honduras and Nicaragua. They applied as the lead asylum respondents and designated Wuendy, Melissa Alexandra, and Ansony as derivative applicants.
As a general matter, to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. § 1158(b)(1)(A). But this is only one step in the asylum process. Even if an individual is a refugee, there are other bars to asylum, see 8 U.S.C. §§ 1158(a)(2) (), 1158(b)(2) (), and even assuming all bars are overcome, the decision whether to grant a particular asylum application is still a matter of discretion for the Attorney General. See, e.g. , Ojo v. Garland , 25 F.4th 152, 163 (2d Cir. 2022). Here, the IJ denied asylum and withholding of removal to all Petitioners at the initial step, concluding that they did not meet the definition of refugee.
The IJ found that Petitioners did not meet the definition of refugee because of what it described as the "Dual Nationality Bar to Asylum." Cert. Admin. R. at 139. In doing so, the IJ relied on Matter of B-R- , which interpreted the INA to require that a dual national asylum applicant demonstrate persecution in both countries of nationality to qualify as a refugee. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The IJ found that Petitioners made the necessary showing as to Honduras -- but not as to Nicaragua -- and therefore were not "refugees" under 8 U.S.C. § 1101(a)(42)(A). The BIA dismissed Petitioners' appeal, which requested, in part, that the BIA overrule Matter of B-R- .
We hold that to be considered a "refugee" under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, we GRANT the petition for review, VACATE the BIA's December 14, 2018, decision, and REMAND to the BIA for further proceedings in accordance with the proper legal standard.
Carlos, Karla, and Melissa Isabel are siblings who grew up and lived primarily in Honduras. They hold secondary Nicaraguan citizenship through their mother, who was born in Nicaragua. Wuendy is Carlos's wife and Melissa Alexandra is their daughter. Ansony is Karla's husband. Petitioners fled Honduras in 2014 after they experienced continued extortion and physical violence from members of the Mara 18 gang. All Petitioners except for Ansony and Karla, who was pregnant at the time, went to Nicaragua temporarily after they escaped from Honduras and before they arrived in the United States.
Petitioners fled Honduras because, beginning in 2010, the Mara 18 gang extorted the members of the family and threatened to kill them if they did not pay a monthly tax. Although Mara 18 successfully forced the family to pay the tax, four armed gang members attacked the family home in February 2014. During the attack, the Mara 18 gang members asked about family members who had ties to a rival gang and marked the walls of the family home with the number 18. The attackers strangled and threatened to kill Melissa Isabel, and they violently beat and tied up both Carlos and Ansony. Petitioners sought help from the Honduran police, but the police responded only by saying that the family "were dead people already" for calling the police. Cert. Admin. R. at 226. After the attack, Petitioners relocated multiple times to other towns in Honduras. Each time, they were tracked down, threatened, or followed by Mara 18.
Prior to the events in Honduras, Petitioners also experienced violence in Nicaragua. Carlos went to school in Nicaragua around 2003 for two years of elementary school and then from 2008 to 2011 for high school, where he met Wuendy. In June of 2012, during a two-week trip to Nicaragua to visit Wuendy and his just-born daughter, Melissa Alexandra, Carlos was stabbed multiple times and spent five days in a Nicaraguan hospital with a perforated lung. Karla and Melissa Isabel spent some of their childhoods in Nicaragua and testified that they were sexually abused as young children by their stepfather there. During the time that Petitioners were in Nicaragua before coming to the United States, the family received a threatening phone call believed to be from Mara 18.
All Petitioners entered the United States at Eagle Pass, Texas. Karla did so on May 10, 2014. Ansony entered on either October 7 or November 28, 2014. Carlos, Wuendy, and Melissa Alexandra entered on October 7, 2014, as did Melissa Isabel. Petitioners did not have valid entry documents, nor were they granted admission or parole after inspection.
Each Petitioner was served with a Notice to Appear shortly after entry into the United States. The removal proceedings were consolidated into a single proceeding at a Master Calendar hearing on October 6, 2015. Two hearings with respect to Petitioners' applications for asylum were ultimately held before Immigration Judge Michael W. Straus, on January 30 and February 7, 2017. Carlos, Karla, and Melissa Isabel were the lead applicants. Wuendy and Melissa Alexandra were Carlos's derivative applicants; Ansony was Karla's derivative applicant.
The IJ denied Petitioners' applications for asylum, withholding of removal, and relief under CAT on October 6, 2017, and ordered Petitioners to be removed to Nicaragua. The IJ entered positive credibility determinations for Carlos, Karla, and Melissa Isabel and found that Petitioners "experienced past persecution in Honduras," as "their family was threatened repeatedly by Mara-18." Cert. Admin. R. at 103-04. Additionally, the IJ found that Petitioners demonstrated that they were persecuted on account of a protected ground and that the Honduran government was unwilling and unable to protect them. The IJ nevertheless denied Petitioners' application. In doing so, it cited the "Dual Nationality Bar to Asylum." Id . at 107. Under the precedential Matter of B-R- decision, Petitioners were required to "demonstrate a well-founded fear of persecution in both Honduras and Nicaragua in order to be eligible for asylum." Id . The IJ explained that Petitioners did not demonstrate such fear as to Nicaragua. Thus, the IJ denied Petitioners' applications for asylum and withholding of removal, and ordered their removal to Nicaragua.1
Petitioners appealed the IJ's denial of their applications for asylum and withholding of removal. On December 14, 2018, the BIA dismissed Petitioners' appeal. The BIA agreed with the IJ that Petitioners did not, as required under Matter of B-R- , establish persecution on account of a protected ground in Nicaragua. In a two-sentence paragraph, the BIA also explained that it was "not persuaded" by Petitioners' arguments that Matter of B-R- was wrongly decided and that "therefore we will continue to follow it." Cert. Admin. R. at 5.
This petition followed.
Where, as here, the BIA adopts the IJ's reasoning and offers additional commentary, "we review the decision of the IJ as supplemented by the BIA." Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). Generally, we review BIA determinations of law de novo . Iavorski v. U.S. INS , 232 F.3d 124, 128 (2d Cir. 2000). When appropriate, however, we afford Chevron deference to BIA interpretations of the INA. See Brathwaite v. Garland , 3 F.4th 542, 547 (2d Cir. 2021). To determine whether Chevron deference applies, we first determine "whether Congress has directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "If the intent of Congress is clear, that is the end of the matter ...." Id . "If, however, there is ambiguity," Chevron requires that we "defer to an agency's interpretation of the statute if that interpretation is reasonable." Nwozuzu v. Holder , 726 F.3d 323, 327 (2d Cir. 2013) ; see Chevron , 467 U.S. at 843, 104 S.Ct....
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