Carla Elia Munguia Mejia v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 12, 2019
• Docket: 18-13989
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13989 Non-Argument Calendar ________________________

Agency No. A206-243-690

CARLA ELIA MUNGUIA-MEJIA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(July 12, 2019)

Before MARCUS, MARTIN and BRANCH, Circuit Judges.

PER CURIAM:

Carla Munguia-Mejia (“Munguia”) seeks review of the Board of Immigration

Appeals’ (“BIA”) final order dismissing her appeal of an immigration judge’s (“IJ”) Case: 18-13989 Date Filed: 07/12/2019 Page: 2 of 10

denial of her application for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment. In her petition, she argues that: (1) the BIA erred in

holding as a matter of law that her specified particular social group -- women in a de

facto union who are unable to leave the relationship with their male partner -- was

not legally cognizable in light of Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018),

which was issued during the pendency of her appeal; (2) the BIA should have

remanded her case to the IJ for further proceedings in the interests of justice, since

she had articulated claims consistent with the precedent overruled by Matter of A-

B-; (3) she was deprived of due process when she was not given the ability to present

arguments to the IJ or BIA as to why the persecution she suffered met the new

standards set forth in Matter of A-B-; and (4) the BIA denied her meaningful review

of her challenge to the IJ’s adverse credibility finding by declining to address that

issue after concluding that Matter of A-B- independently foreclosed her asylum

claim. After careful review, we dismiss the petition in part and deny it in part.

Before addressing a petitioner’s arguments on the merits, we must assess our

subject matter jurisdiction de novo. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284,

1297 (11th Cir. 2015). We review alleged due process violations de novo. Lapaix

v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).

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We lack jurisdiction to review final orders in immigration cases unless “the

alien has exhausted all administrative remedies available to the alien as of right.” 8

U.S.C. § 1252(d)(1). A petitioner fails to exhaust her administrative remedies for a

particular claim when she does not raise that claim before the BIA. Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006). To

exhaust a claim, she must have previously argued “the core issue now on appeal” to

the BIA. Indrawati, 779 F.3d at 1297 (quotations omitted).

Even where the BIA sua sponte addresses a claim not raised before it, we will

dismiss that claim on review, because the BIA did not have the opportunity to fully

consider the claim and to compile a record adequate for judicial review. Amaya-

Artunduaga, 463 F.3d at 1250–51. In Amaya-Artunduaga, the petitioner failed to

challenge, without excuse or exception, the IJ’s adverse credibility finding before

the BIA, but the BIA nevertheless addressed the issue sua sponte and held that

inconsistencies in the petitioner’s narrative supported the IJ’s finding. Id. at 1249-

50. When the petitioner sought review of the adverse credibility finding in our

Court, the government argued that we lacked jurisdiction over the claim because the

petitioner had not raised the issue before the BIA. Id. We agreed, based on the

exhaustion requirement found in the Immigration and Nationality Act, 8 U.S.C. §

1252(d)(1), even though the BIA had considered the issue sua sponte. Id. at 1251.

We reasoned that reviewing the unexhausted claim would frustrate the goals of

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avoiding premature interference with administrative processes and the consideration

of the relevant issues by the agency; ensuring that the agency has a full opportunity

to address the petitioner’s claims; and allowing the BIA to compile a record

sufficient for judicial review. Id. at 1250–51. In other words, we could not say

whether the BIA had fully considered claims raised sua sponte since it did not have

an opportunity to address the petitioner’s arguments as to those claims. Id.

Where a petitioner seeks from us in the first instance a remedy the BIA was

empowered to provide, she has failed to exhaust her administrative remedies. See

Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (holding that the petitioner

should have asked the BIA to reconsider and change its decision in a prior case where

it possessed the authority to do so). The BIA may at any time reopen or reconsider

on its own motion any case in which it has rendered a decision. 8 C.F.R. § 1003.2(a).

A motion to reconsider must be filed within 30 days after the mailing of a BIA

decision. Id. § 1003.2(b)(2).

To be eligible for asylum, an alien “must establish that race, religion,

nationality, membership in a particular social group, or political opinion was or will

be at least one central reason for persecuting [her].” 8 U.S.C. § 1158(b)(1)(B)(i). In

other words, the alien must establish a nexus between the persecution and a

statutorily protected ground. Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th

Cir. 2009). The alien bears the burden of showing her eligibility for asylum through

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credible, direct, and specific evidence. Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d

486, 492–93 (11th Cir. 2013); 8 U.S.C. § 1158(b)(1)(B)(ii).

In 2014, the BIA held that the particular social group of “married women in

Guatemala who are unable to leave their relationship” was legally cognizable.

Matter of A-R-C-G-, 26 I. & N. Dec. 388, 389, 392–94 (BIA 2014). But on June

11, 2018, the Attorney General reversed course and overruled Matter of A-R-C-G-,

deciding that the particular social group of “El Salvadoran women who are unable

to leave their domestic relationships where they have children in common” was

legally incognizable. Matter of A-B-, 27 I. & N. at 319, 326, 346. The Attorney

General reasoned that the expansive category of particular social groups based on

private violence was legally incognizable because it did not exist independently of

the persecution members of the group experienced. Id. at 319, 334–36. As a result,

members of that group were not persecuted on account of their membership in that

group, contrary to the statutory requirements. Id. at 338–39.

The Attorney General clarified that an applicant seeking asylum on the basis

of membership in a particular social group must show: (1) membership in a particular

group that is comprised of members with an immutable characteristic, is defined

with particularity, and is socially distinct within the relevant society; (2) membership

in the group is a central reason for her persecution; and (3) the harm is inflicted by

the government or by persons that the government is unable or unwilling to control.

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Id. at 320. Additionally, where the alien is a victim of private criminal activity, the

Attorney General explained that the analysis must consider the availability of

government protection, the possibility of internal relocation, and whether the

persecution exists nationwide. Id. The Attorney General added that asylum claims

stemming from domestic violence perpetrated by nongovernmental actors generally

will not qualify for asylum because it is unlikely that the alien can show that the

violence is an issue that the government is unwilling or unable to address, even if it

is true that the government has problems effectively policing certain crimes or

certain groups are more likely to be the victim of crimes. Id.

Here, we lack jurisdiction to review the merits of Munguia’s “social group”

arguments -- that remand to the IJ was appropriate given her reliance on the previous

precedent found in Matter of A-R-C-G-, and that the BIA improperly concluded that

her asylum claim was precluded by Matter of A-B- -- because she did not raise them

before the BIA. For starters, Matter of A-B-, which directly addressed the viability

of the specific type of particular social group under which Munguia sought asylum,

was issued more than two months before the BIA dismissed her case. See Matter of

A-B-, 27 I. & N. at 316. During that time she could have filed supplemental

materials with the BIA that addressed Matter of A-B-’s impact or sought to establish

her eligibility for asylum based on another protected ground, but she failed to do so.

Or, Munguia could have filed a motion for reconsideration with the BIA seeking

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remand based on the change in the law upon which she relied within 30 days of the

BIA’s dismissal, but she did not do so. 8 C.F.R. § 1003.2(a), (b)(2).

In Indrawati, we rejected the government’s argument that the petitioner had

not exhausted her claim that the BIA failed to provide reasoned consideration for its

decision. 779 F.3d at 1299. This was because it was “facially nonsensical” to fault

her for not raising an argument about the lack of reasoned consideration displayed

by a decision that was not yet in existence. Id. But Munguia’s claims are

distinguishable from the “reasoned consideration” claims presented in Indrawati. To

begin with, her decision to rely on Matter of A-R-C-G- does not constitute grounds

for reversal or remand that arose only after the issuance of the BIA’s decision.

Munguia, as the applicant, bore the burden of demonstrating that she was eligible

for asylum on any of the statutorily authorized grounds, and while she initially

asserted an alternative basis for asylum -- political opinion -- she did not pursue that

claim before the IJ or the BIA. Xiu Ying Wu, 712 F.3d at 492–93; 8 U.S.C. §

1158(b)(1)(B)(i)–(ii). Thus, her failure to assert every ground on which she may

have been eligible for asylum is not a legal error attributable to the BIA -- as is the

case in a reasoned consideration claim -- but rather a failure on her part to carry her

burden by demonstrating her eligibility on each of the applicable grounds.

Further, unlike “reasoned consideration” claims that allege a procedural error

in the BIA’s decision that necessarily springs into existence only upon the issuance

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of that decision, Munguia challenges the substantive application of Matter of A-B-

to her claim. But Matter of A-B- was issued more than two months before the BIA’s

dismissal of Munguia’s appeal, which means she had the opportunity to address the

impact of that decision on her appeal. Munguia never presented to the BIA any

argument about the applicability of Matter of A-B- to her case, either during the

pendency of her appeal or in a subsequent motion for reconsideration, which means

that the BIA did not have an opportunity to fully consider the arguments she now

raises for the first time in her petition for review. Amaya-Artunduaga, 463 F.3d at

1250–51. Accordingly, we dismiss Munguia’s petition for lack of jurisdiction as to

her Matter of A-B- related claims.

As for Munguia’s due process claims, we are unpersuaded. A colorable due

process violation requires the petitioner to show she was deprived of liberty without

due process and the asserted error caused her substantial prejudice. Lapaix, 605 F.3d

at 1143. To establish substantial prejudice, she must show that the outcome of the

proceedings would have been different in the absence of the alleged violation. Id.

In deciding whether the BIA’s decision was the result of reasoned consideration, we

look to see whether the BIA announced the decision in terms sufficient to allow for

a reviewing court to see that it “heard and thought and not merely reacted.”

Indrawati, 779 F.3d at 1299 (quotations omitted).

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In this case, the BIA did not violate Munguia’s due process rights by failing

to give reasoned consideration to her credibility claim. As the record reflects, the

BIA explained that it declined to address her credibility argument because that issue

was irrelevant in light of Matter of A-B-, which independently foreclosed her asylum

claim. Nor did the BIA violate Munguia’s due process rights by declining to remand

her case to the IJ because she has not shown that the outcome would have been

different in the absence of the alleged violation. Munguia bore the burden of

establishing her eligibility for asylum on the basis of a protected ground. Xiu Ying

Wu, 712 F.3d at 492–93; 8 U.S.C. § 1158(b)(1)(B)(i)–(ii). Although she initially

sought asylum on the basis of both political opinion and membership in a particular

social group, she abandoned her political opinion asylum claim during the

proceedings before the IJ and did not challenge the IJ’s conclusion that the claim

was abandoned before the BIA. Similarly, the BIA determined that she abandoned

her claim to CAT relief by not challenging it on appeal before the BIA, and she does

not contest that determination in her petition for review.

Thus, the only basis for asylum that remained from her original application

was her membership in the particular social group of women in Honduras in a de

facto union who are unable to leave the relationship with their male partner.

However, she cannot show and does not argue that remand would result in a different

outcome in light of Matter of A-B-, which would preclude the BIA or IJ from

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concluding that her proposed group was legally cognizable. Matter of A-B-, 27 I. &

N. at 319. Further, she has offered no argument that her particular social group is

not impermissibly circularly defined, nor that its cognizability is not foreclosed by

Matter of A-B-. Thus, she cannot show she was substantially prejudiced by the

BIA’s decision not to remand her case because she did not and cannot establish the

required nexus between her persecution and her asserted protected ground. 8 U.S.C.

§ 1158(b)(1)(B)(i); Mehmeti, 572 F.3d at 1200; Lapaix, 605 F.3d at 1143.

Accordingly, because remand to the BIA would be futile, we deny her petition as to

her due process claim.

PETITION DISMISSED IN PART AND DENIED IN PART.