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S.E.R.L. v. Attorney General United States

United States Court of Appeals, Third Circuit

July 3, 2018

S.E.R.L.; Y.N.S.R.; Y.Y.R.L., Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA

          ARGUED: March 12, 2018

          On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA-1:A206-800-692, A206-800-690, A206-800-691) Immigration Judge: Hon. John B. Carle

          David C. Bennion, Elizabeth A. Cuneo, Russell H. Falconer [ARGUED], Chelsea G. Glover, Gibson Charles, Roth Lisa Koop, Ashley Huebner Counsel for Petitioners

          Kirsten L. Nathanson, Emily T. Kuwahara, Daniel P. Wierzba, Tu-Quyen Pham Amicus Counsel for NIWAP Inc. and Pennsylvania Coalition Against Domestic Violence

          Blaine M. Bookey, Anne Dutton, Eunice Lee, Karen Musalo Amicus Counsel for American Immigration Lawyers Association, Center for Gender & Refugee Studies, and Hebrew Immigrant Aid Society PA

          Jefferson B. Sessions, III, Chad A. Readler, Anthony P. Nicastro, Sheri R. Glaser [ARGUED] Counsel for Respondents

          Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges

          OPINION OF THE COURT

          JORDAN, Circuit Judge

         In this immigration case, we consider the term "particular social group," which is part of the definition of "refugee" in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(42). We must decide whether a revised interpretation of that term by the Board of Immigration Appeals (the "BIA" or the "Board") is reasonable and therefore entitled to deference under the strictures of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Like other circuit courts, we had dutifully deferred to the initial interpretation of that term given by the Board in Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Fatin v. I.N.S., 12 F.3d 1233, 1239-40 (3d Cir. 1993). But, over time, the Board began adding new requirements to its test for determining whether an applicant had established the existence of a particular social group and could thereby claim refugee status. In Valdiviezo-Galdamez v. Attorney General, 663 F.3d 582 (3d Cir. 2011), we concluded that the BIA had departed from Acosta without a principled explanation and that its new requirements for proving a particular social group were incapable of consistent application. We therefore held that its interpretation of "particular social group" was not entitled to Chevron deference. Id. at 608.

         The BIA has since responded to our concerns. In a pair of precedential decisions, 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), affirmed in part, vacated and remanded in part on other grounds sub nom. Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), it articulated a three-part test for proving the existence of a cognizable particular social group. The test requires applicants to "establish that the group [at issue] is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." M-E-V-G-, 26 I. & N. Dec. at 237. We now hold that that statutory interpretation is entitled to Chevron deference, and, applying the newly framed test here, we conclude that substantial evidence supports the BIA's determination that the petitioner has not met its requirements. Accordingly, we will deny the petition for review.

         I. BACKGROUND[1]

         S.E.R.L., a native of Honduras, seeks review of the denial of her application for asylum and statutory withholding of removal based on membership in a proposed particular social group that she characterizes as "immediate family members of Honduran women unable to leave a domestic relationship[.]"[2] (Opening Br. at 21.) She fears persecution by two men, Jose Angel and Juan Orellana. Jose Angel abducted, raped, and continues to stalk one of S.E.R.L.'s daughters, K.Y.R.L. That daughter has already been granted asylum in the United States. Juan Orellana is S.E.R.L.'s stepfather and has repeatedly abused S.E.R.L.'s mother. S.E.R.L. fears that if she is removed to Honduras, both men will persecute her, Jose Angel because of her relationship to her daughter, and Juan Orellana because of her relationship to her mother.

         S.E.R.L. and two of her children fled here from Honduras in 2014. Within a month of their unlawful arrival, the Department of Homeland Security initiated removal proceedings pursuant to INA § 212(a)(6)(A)(i).[3] S.E.R.L. conceded removability, and timely applied for asylum and statutory withholding of removal.[4] In support of her claims for relief, she alleged past persecution and a fear of future persecution based on the relationships just noted.

         An immigration judge ("IJ") reviewed S.E.R.L.'s application and conducted a merits hearing. Although finding her credible, the IJ concluded that S.E.R.L. had not met her burden to establish eligibility for any of the relief she had requested. According to the IJ, S.E.R.L. had not established past persecution or an objectively reasonable fear of future persecution by Jose Angel, given that he had targeted S.E.R.L.'s daughter, not her. Though crediting S.E.R.L.'s testimony about Juan Orellana's abuse of her mother and past threats directed at S.E.R.L., herself, the IJ also noted that S.E.R.L. said "her stepfather never physically harmed her." (Administrative Record ("AR") at 86.) The IJ did not state whether S.E.R.L. had established past persecution by Juan Orellana.

         The IJ did say that, even if she had suffered past persecution, S.E.R.L. failed to establish that the harm she suffered was on account of a protected ground. Applying the BIA's newly clarified three-part test from M-E-V-G-, the IJ rejected S.E.R.L.'s argument that "immediate family members of Honduran women unable to leave a domestic relationship" constituted a cognizable group. (AR at 89-90.) According to the IJ, the group "lack[ed] the requisite level of particularity and social distinction" and thus failed the test's second and third requirements. (AR at 90.) The IJ also noted that "asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions." (AR at 90 (quoting M-E-V-G-, 26 I. & N. Dec. at 235).) Consequently, the IJ denied relief and ordered that S.E.R.L. be removed.[5]

         She appealed that decision to the BIA. It too concluded that she had not met her burden to establish eligibility for either asylum or withholding of removal. It agreed with the IJ's conclusion that she had not established past persecution by Jose Angel, and it further concluded that she had not established past persecution by Juan Orellana, because any threats he made "d[id] not rise to the level of persecution[.]" (AR at 4.)

         The BIA also agreed that S.E.R.L.'s proposed particular social group - immediate family members of Honduran women unable to leave a domestic relationship - lacked the requisite particularity and social distinction. As to particularity, the BIA observed that "[the] proposed group could include individuals of any age, sex, or background, and it is not limited to those who … take overt action to assist, or are meaningfully involved with, the family member who is unable to leave a domestic relationship." (AR at 5.) The BIA further "agree[d] that [S.E.R.L.] ha[d] not presented evidence that this group is socially distinct within Honduran society, as the record does not reflect that members of such a group would be perceived, considered, or recognized in Honduras as a distinct group[.]" (AR at 5.) Even assuming a cognizable particular social group, the Board "discern[ed] no legal error or clear factual error" in the IJ's determination that S.E.R.L. had not established a well-founded fear of future persecution by Jose Angel. (AR at 5-6.) The Board did not, however, reach the issue of future persecution by Juan Orellana.

         It turned last to the question of withholding of removal and concluded that, "[i]nasmuch as [S.E.R.L.] has failed to satisfy the lower burden of proof required for asylum, it follows that she has failed to satisfy the more stringent standard required for withholding of removal[.]" (AR at 6.) The Board thus dismissed the appeal. S.E.R.L. has timely petitioned for review.

         II. DISCUSSION[6]

         S.E.R.L. contends that she is entitled to asylum and withholding of removal because she has established a well-founded fear of future persecution on account of her membership in a legally cognizable particular social group, that again being "immediate family members of Honduran women unable to leave a domestic relationship[.]" (Opening Br. at 21.) The parties' primary dispute is whether the BIA's revised interpretation of "particular social group," as set forth in Matter of M-E-V-G-, warrants Chevron deference. S.E.R.L., supported by amici, [7] asks us to reject the test from M-E-V-G- because it is "deeply flawed," "has no basis in the asylum statute," and fails to resolve the concerns raised in our decision in Valdiviezo-Galdamez. (Opening Br. at 1-2.) Instead, S.E.R.L. argues, we should continue to apply the test from Matter of Acosta, which she claims to "satisf[y] … with ease." (Opening Br. at 22.) She also says that, in the event the Board's new interpretation is given deference, she has met its particularity and social distinction requirements. Finally, she contends that remand is required, if for no other reason, because neither the IJ nor the BIA addressed whether she has a well-founded fear of future persecution by Juan Orellana.

         Before we address those arguments, we first discuss the governing legal principles and provide a review of our Valdiviezo-Galdamez decision and the BIA's response in M-E-V-G-.

         A. General Legal Principles

         1. Standard of Review

         Whether a petitioner's "proffered particular social group is cognizable under [8 U.S.C. § 1101(a)(42)(A)] is a question of law … subject to de novo review," which, we have said, is "subject to established principles of [Chevron] deference[.]" Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 339 (3d Cir. 2008) (internal quotation marks and citation omitted).[8] More precisely, the existence of a cognizable particular social group presents a mixed question of law and fact, since the ultimate legal question of cognizability depends on underlying factual questions concerning the group and the society of which it is a part. Cf. Fatin, 12 F.3d at 1240-41 (noting the "sparse" evidence supporting the petitioner's proposed particular social group, and concluding that, even if cognizable, "the administrative record does not establish that she is a member of [her proposed] group"). We thus review de novo the ultimate legal conclusion as to the existence of a particular social group, while we review the underlying factual findings for "substantial evidence[.]" See Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003) (reviewing the BIA's statutory interpretation of "particular social group" in accordance with Chevron principles, and stating, "[o]n the other hand, we must treat the BIA's findings of fact as 'conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary'" (quoting 8 U.S.C. § 1252(b)(4)(B))).

         Whether a petitioner has established membership in a particular social group also involves agency fact-finding. Id. at 167, 178-79. "Our review is confined solely to the administrative record," Gomez-Zuluaga, 527 F.3d at 340, and administrative findings of fact are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," id. (quoting 8 U.S.C. § 1252(b)(4)(B)). That means that factual "determinations will be upheld if they are supported by reasonable, substantial, and probative evidence in the record considered as a whole." Kang v. Att'y Gen., 611 F.3d 157, 164 (3d Cir. 2010) (citation omitted).

         Because here "the BIA adopted and affirmed the IJ's decisions and orders as well as [conducting] an independent analysis, we review both the IJ's and the BIA's decisions and orders." Ordonez-Tevalan v. Att'y Gen., 837 F.3d 331, 340-41 (3d Cir. 2016). But we look to the IJ's opinion "only where the BIA has substantially relied on that opinion." Camara v. Att'y Gen., 580 F.3d 196, 201 (3d Cir. 2009), as amended (Nov. 4, 2009).

         2. Asylum and Withholding of Removal

         Under the INA, the Attorney General has the discretion to grant asylum to a removable alien, 8 U.S.C. § 1158(b)(1)(A), as long as the alien meets the INA's definition of "refugee." That definition is as follows:

Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]

Id. § 1101(a)(42)(A).

         A petitioner has the burden to establish that she is a refugee, and thus eligible for asylum relief under the INA. Id. § 1158(b)(1)(B). One way of doing so is to show "a well-founded fear of persecution on account of … membership in a particular social group[.]" Id. § 1101(a)(42)(A). That is the route S.E.R.L. chose to pursue, and so she bore the burden of establishing the following elements: (1) a particular social group that is legally cognizable; (2) membership in that group; (3) a well-founded fear of persecution, which must be subjectively genuine and objectively reasonable; and (4) a nexus, or causal link, between the persecution and membership in the particular social group. Fatin, 12 F.3d at 1240.[9]

         As for withholding of removal, under 8 U.S.C. § 1231(b)(3), an alien must "establish a 'clear probability of persecution,' i.e., that it is more likely than not, that s/he would suffer persecution upon returning home." Valdiviezo-Galdamez, 663 F.3d at 591 (citing I.N.S. v. Stevic, 467 U.S. 407, 429-30 (1984)). "Since [that] standard is more demanding than that governing eligibility for asylum, an alien who fails to qualify for asylum is necessarily ineligible for withholding of removal." Id.

         B. Our Decision in Valdiviezo-Galdamez and the BIA's Response in Matter of M-E-V-G-

         In Valdiviezo-Galdamez, we reviewed at length the BIA's evolving efforts to interpret the term "particular social group," beginning with the definition it set forth in Matter of Acosta. We need not fully repeat that history here but, for purposes of our analysis, will ...


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