https://www.ca5.uscourts.gov/opinions/pub/20/20-60081-CV0.pdf
PANEL: Jolly, Elrod, and Oldham, Circuit Judges.
OPINION: Jennifer Walker Elrod, Circuit Judge
KEY QOUTE:
We will start, as we did in Gonzales-Veliz, with the state of immigration law. In Matter of M-E-V-G-, the BIA synthesized prior BIA decisions addressing the definition of “particular social group.” 26 I. & N. Dec. 227, 228 (BIA 2014). In doing so, it clarified that an applicant must show that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. Id. at 237. Furthermore, there must
3 The Attorney General issued A-B-II to clarify questions arising from A-B-I. Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (A-B-II).
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be a nexus between the particular social group and its persecution; the persecution must be “on account of” membership in the group. Id. at 242; 8 U.S.C. § 1101(a)(42).
In clarifying these requirements, the BIA carefully distinguished between the existence of a social group and the nexus between that social group and its persecution. As to the existence of a social group, drawing on the language of the statute, prior BIA decisions, and federal circuit court decisions, the BIA stated that the “social group must exist independently of the fact of persecution,” and that “this criterion is well established in our prior precedents and is already a part of the social group analysis.” M-E-V-G-, 26 I. & N. Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007) and Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003)); see also id. at 242 (referencing the text and structure of 8 U.S.C. § 1101(a)(42)).
This does not mean that past persecution is irrelevant. Rather, it means that the group must be sufficiently defined and particularized by characteristics other than persecution. See W-G-R-, 26 I. & N. Dec. at 216 (“Circuit courts have long recognized that a social group must have ‘defined boundaries’ or a ‘limiting characteristic,’ other than the risk of being persecuted, in order to be recognized.”). To illustrate, the BIA considered a hypothetical group of former employees of a country’s attorney general. M-E-V-G-, 26 I. & N. Dec. at 242–43. The employees’ shared experience of working for the attorney general satisfied the requirement of an immutable characteristic. And the group would also be sufficiently particularized. But the group, without more, may not be considered sufficiently distinct in its society. In this case, government persecution may “cataly[ze] the society to distinguish the former employees in a meaningful way and consider them a distinct group.” Id. at 243. But “the immutable characteristic of their shared past experience exists independent of the persecution.” Id.
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In a decision released on the same day as M-E-V-G-, the BIA elaborated on the nexus requirement. W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). In W-G-R-, the BIA stated that “membership in a particular social group [must be] a central reason for [the] persecution.” Id. at 224. This common-sense definition highlights the importance of the distinction between the existence of a group and the persecution that it suffers. In the BIA’s words: “The structure of the Act supports preserving this distinction, which should not be blurred by defining a social group based solely on the perception of the persecutor.” Id. at 218. To define a social group by its persecution collapses the “particular social group” and “persecution on account of membership” inquiries into the same question, contrary to the structure of the INA. See 8 U.S.C. § 1101(a)(42).
Nevertheless, later in the same year the BIA decided A-R-C-G-. 26 I. & N. Dec. 388 (BIA 2014). In A-R-C-G-, the petitioner claimed that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group. Id. at 388–89. Whereas the IJ determined that the woman’s husband did not abuse her “on account of” her membership in this group, the BIA reversed on appeal. Professing to apply M-E-V-G-, it determined that the “immutable characteristics” of “gender,” “marital status,” and “the inability to leave the relationship” combined “to create a group with discrete and definable boundaries.” A-R-C-G-, 26 I. & N. Dec. at 393.
In 2018, however, the Attorney General overruled A-R-C-G- in A-B-I. 27 I. & N. Dec. at 316. After the BIA recognized the group “El Salvadoran women who are unable to leave their domestic relationships where they have children in common [with their partners],” the Attorney General directed the BIA to refer the decision for his review. Id. at 316–17, 321; see also 8 C.F.R. § 1003.1(h)(1)(i). Upon review, the Attorney General reversed. He reiterated that “[t]o be cognizable, a particular social group must ‘exist
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independently’ of the harm asserted in an application for asylum or statutory withholding of removal.” Id. at 334 (citing M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; W-G-R-, 26 I. & N. Dec. at 215; and a collection of federal circuit court cases). He reasoned that “[i]f a group is defined by the persecution of its members, then the definition of the group moots the need to establish actual persecution.” Id. at 335. For this reason, he concluded that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Id. at 320.
A-B-I, however, was itself overruled by the Attorney General in 2021. On February 2, 2021, the President issued an executive order directing the Attorney General and the Secretary of Homeland Security to address the definition of “a particular social group.” Exec. Order No. 14010, § 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). Because A-B-I and A-B-II addressed that definition, the Attorney General vacated both decisions in anticipation of further rulemaking. He also instructed immigration judges and the BIA to follow “pre-A-B-I precedent, including A-R-C-G-.” A-B-III, 28 I. & N. Dec. at 307.
B.
Swept up in this flurry of overrulings is our decision in Gonzales-Veliz. In that case, we faced the question whether the group “Honduran women unable to leave their relationship”—defined identically to Jaco’s proposed social group—qualified as a particular social group. 938 F.3d at 223. Issued after A-B-I but before A-B-III, we relied in part on A-B-I in concluding that the group was not cognizable. Thus, keeping in mind our duty to exercise Chevron deference, we must determine whether the overruling of A-B-I gives us reason to depart from our decision in Gonzales-Veliz. We hold that it does not.
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In holding that the group in Gonzales-Veliz was not cognizable, we relied in part on A-B-I. Yet we relied on A-B-I not out of deference to it but based on the quality of its reasoning. Indeed, our decision hinged on the inherent circularity involved in defining a particular social group by reference to the very persecution from which it flees. We held that the group was “impermissibly defined in a circular manner. The group is defined by, and does not exist independently of, the harm—i.e., the inability to leave.” Id. at 232. For this reason, we concluded that such an interpretation would “render the asylum statute unrecognizable.” Id. at 235.
In contrast, we recognized that the Attorney General’s “interpretation of the INA in [A-B-I] is . . . a much more faithful interpretation” of the statute. Id. This interpretation was, we said, “a return to the statutory text as Congress created it and as it had existed before the BIA’s A-R-C-G- decision.” Id. That our conclusion had support in the overwhelming weight of BIA precedents shows only that our reading of the statute was correct, not that A-B-I or any other decision was necessary for our conclusion.
Nor does Chevron deference affect our conclusion here. Although we review the BIA’s legal conclusions de novo, we grant Chevron deference to the BIA’s precedential decisions interpreting statutes that it administers. E.g., Rodriguez-Avalos v. Holder, 788 F.3d 444, 449 (5th Cir. 2015). Chevron entails a two-step process for determining whether deference is appropriate. First, the relevant statutory provision must be ambiguous. And second, the agency’s interpretation must be reasonable. E.g., Dhuka v. Holder, 716 F.3d 149, 154 (5th Cir. 2013). Here, even assuming arguendo that the phrase “particular social group” is ambiguous and that A-R-C-G- requires upholding the cognizability of Jaco’s group, that interpretation would be unreasonable for the reasons we gave in Gonzales-Veliz. Relying on circular reasoning is a logical fallacy. An interpretation that renders circular a
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statute’s reasoning is unreasonable and therefore unworthy of deference
under Chevron.4
In the alternative, we hold that even if Gonzales-Veliz were not good law, Jaco’s petition would still be denied.5 Following pre-A-B-I precedent, as A-B-III instructs, would not change the result. In A-B-III, the Attorney General instructed immigration judges and the BIA to follow “pre-A-B-I precedent, including [A-R-C-G-].” A-B-III, 28 I. & N. Dec. at 307. This was also the relevant law at the time of the IJ’s decision, and the IJ correctly distinguished Jaco’s case from that upheld in A-R-C-G-. Because A-R-C-G- is not clearly on point and did not overrule prior case law, we must
4 Our circuit has consistently refused to recognize particular social groups defined primarily by the persecution they suffer. This is true before and after both A-R-C-G- and Gonzales-Veliz. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 518–19 (5th Cir. 2012); De Leon-Saj v. Holder, 583 F. App’x 429, 430–31 (5th Cir. 2014) (per curiam); Suate-Orellana v. Barr, 979 F.3d 1056, 1061 (5th Cir. 2020); Gomez-De Saravia v. Barr, 793 F. App’x 338, 339–40 (5th Cir. 2020) (per curiam); Serrano-de Portillo v. Barr, 792 F. App’x 341, 342 (5th Cir. 2020) (per curiam); Hercules v. Garland, 855 F. App’x 940, 942 (5th Cir. 2021) (per curiam); Argueta-Luna v. Garland, 847 F. App’x 260, 261 (5th Cir. 2021) (per curiam).
This is true even after A-B-III. See Castillo-Martinez v. Garland, No. 20-60276, 2021 WL 4186411, at *2 (5th Cir. Sept. 14, 2021) (per curiam); Santos-Palacios v. Garland, No. 20-60123, 2021 WL 3501985, at *1–2 (5th Cir. Aug. 9, 2021); Temaj-Augustin v. Garland, 854 F. App’x 631, 632 (5th Cir. 2021) (per curiam).
Some, but not all, of our sister circuits have agreed with this anti-circularity principle. Sanchez-Lopez v. Garland, No. 18-72221, 2021 WL 3912145, at *1 (9th Cir. Sept. 1, 2021); Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 217–18 (4th Cir. 2020); Amezcua-Preciado v. United States Attorney General, 943 F.3d 1337, 1345–46 & n.3 (11th Cir. 2019) (per curiam); but see Juan Antonio v. Barr, 959 F.3d 778, 789 n.2, 791–92 (6th Cir. 2020) (observing that “married indigenous women in Guatemala who are unable to leave their relationship” constitutes a cognizable particular social group); Corea v. Garland, No. 19-3537/20-3252, 2021 WL 2774260, at *3–4 (6th Cir. July 2, 2021) (remanding to the BIA to consider whether “Honduran women unable to leave their relationships” is a cognizable social group in light of A-B-III).
5 Alternative holdings are not dicta and are binding in this circuit. Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015).
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read it in light of prior BIA decisions, including M-E-V-G-. Cf. Gonzales- Veliz, 938 F.3d at 235 (“[A-B-I] did not alter [prior immigration law]; it simply restated established legal principles and overruled A-R-C-G- because A-R-C-G- deviated from those principles.”).
Indeed, multiple factors counsel toward reading A-R-C-G- narrowly, including (1) the fact that DHS had conceded the existence of a particular social group, and (2) A-R-C-G-’s own statement that “where concessions are not made and accepted as binding, these issues will be decided based on the particular facts and evidence on a case-by-case basis as addressed by the Immigration Judge in the first instance.” 26 I. & N. Dec. at 392–93, 395. For these reasons, Jaco’s group would not be recognized even if Gonzales-Veliz were not the law of this circuit.
We also reject Jaco’s argument that intervening BIA decisions since the time of the IJ’s decision require a remand of her case. A-R-C-G- was the relevant law at the time of the IJ’s decision. Now that A-R-C-G- has been revived, a remand would place Jaco back where she started. And her claims have already been correctly rejected under that standard. Alternatively, regardless of the controlling decision, only an unreasonable interpretation of the INA can support her proposed group.
A remand is also inappropriate because it would be futile. See, e.g., United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (per curiam) (declining to remand where a remand would be futile); see also Villegas v. Stephens, 631 F. App’x 213, 214 (5th Cir. 2015) (per curiam) (same). Applicants for asylum or withholding of removal must show that the government “is unable or unwilling to control” the applicant’s persecution. See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citing 8 C.F.R. § 1208.13(b)(1)). As the IJ held—and as the BIA affirmed in its first decision—Jaco failed to make this showing. Jaco received child support and
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a restraining order from the Honduran government against her former partner. While her former partner appeared to violate the restraining order on at least two occasions, Jaco reported only one occasion to the judge, and never informed the police. Rather than being unable or unwilling to protect her, the record reflects that the government was responsive to her fears when apprised of them. Therefore, even if Jaco could show membership in a cognizable particular social group, a remand would be futile because it would not change the disposition of her case.6
In holding that Jaco’s proposed group is not cognizable, we do not hold that women who have suffered from domestic violence are categorically precluded from membership in a particular social group. We hold only that a particular social group’s immutable characteristics must make the group sufficiently particularized and socially distinct without reference to the very persecution from which its members flee. E.g., Perez-Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently distinct social group must exist independent of the persecution claimed to have been suffered by the alien and must have existed before the alleged persecution began.”); Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005) (“The individuals in the group must share a narrowing characteristic other than their risk of being persecuted.”).
Accordingly, even if Jaco’s group meets the immutable characteristic and nexus requirements, we still hold that her group is neither particularized nor socially distinct.7 In Gonzales-Veliz, we determined that—even as defined by the persecution that it suffers—the group “Honduran women unable to leave their relationships” lacked the requisite particularity and
6 See supra note 5. 7 See supra note 5.
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social distinction. 938 F.3d at 232; see also Suate-Orellana v. Barr, 979 F.3d 1056, 1061 (5th Cir. 2020); Orellana-Monson v. Holder, 685 F.3d 511, 521–22 (5th Cir. 2012). The same is true here. Substantial evidence supports the BIA’s conclusion that her group is neither particularized nor distinct. And without the illicit element of persecution, the group “Honduran women” is even less particularized. Jaco’s proposed group fails this test.
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Judge Elrod’s opinion is as preposterous as it is intellectually dishonest and legally wrong. Of course “Honduran women” — whether in a relationship or not — are both socially distinct in society and “particularized” as it excludes men and women of other nationalities. And, there can be little doubt based on empirical reports about femicide and its causes that Honduran women suffer disproportionately.
Indeed, until the BIA went to work restricting the definition following the “Ashcroft Purge of ‘03” the “touchstone” for recognizing a particular social group was “immutability” (including “fundamental to identity”). See,e.g., Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
Indeed, most refugee NGOs and experts view the BIA’s departure from the “immutability test” as both improper and intellectually dishonest. “Social visibility” actually was put forward by the UNHCR as a way of expanding the refugee coverage by insuring the inclusion of groups that strictly speaking might not be “immutable” or “fundamental to identity.”
Contrary to Judge Elrod’s claim, the 1951 Refugee Convention, upon which our Refugee Act of 1980 was modeled, was intended to protect, not reject, refugees to insure that there would be no repetition of the Western democracies’ disgraceful performance prior to and during the Holocaust!
The best comment I have seen so far is from my friend and immigration guru Dan Kowalski:
This is a travesty. For such an important case, the Court should have appointed counsel. I hope pro bono counsel will step in to petition for rehearing and/or en banc review.
“Travesties of justice” are what right wing Federal Judges and White Nationalist restrictionist politicos stand for. The only question is when, if ever, is Congress finally going to act to put an end to this continuing national disgrace that actually harms and kills refugees?
🇺🇸Due Process Forever!
PWS
10-27-21