UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1525
GLORIA MARIBEL AGUILAR-AVILA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: May 7, 2019 Decided: August 9, 2019
Before MOTZ, KING, and THACKER, Circuit Judges.
Petition for review granted and remanded for further proceedings by unpublished per curiam opinion.
ARGUED: Japheth Nthautha Matemu, MATEMU LAW OFFICE, P.C., Raleigh, North Carolina, for Petitioner. Julia J. Tyler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Gloria Maribel Aguilar-Avila (“Petitioner”), a native and citizen of Honduras,
illegally entered the United States in December 2015. In February 2016, the Government
initiated removal proceedings against Petitioner. Petitioner conceded removability but
alleged that she was fleeing an abusive relationship. She alleged that her former partner
beat her, leaving her with bruises and scars, and threatened to kill her and her family
members. She also alleged that her abuser was connected to gang activity in Honduras
and Mexico. On that basis, Petitioner sought relief from removal.
The Immigration Judge (“IJ”) denied Petitioner’s application for relief, and the
Board of Immigration Appeals (“BIA”) affirmed that denial. Petitioner now seeks review
of the final order of the BIA. For the reasons that follow, we grant her petition for review
and remand the case to the BIA for further proceedings consistent with this opinion.
I.
A.
Petitioner met Elvis Omar Reyes Lopez 17 years ago. Over the course of their
relationship, the pair lived in Lopez’s mother’s home in Tegucigalpa, Honduras, with
their two daughters. 1 According to Petitioner, Lopez was abusive. Petitioner testified
that Lopez used cocaine and would succumb to fits of anger and rage. She testified that
he verbally abused her (called her “[u]gly things, lots of ugly things” including referring
to her as his “property”), beat her (including, at times, in front of her children), hit her in
1 Petitioner’s daughters were born in 2008 and 2004, respectively.
2 the head with a lock (resulting in a hematoma), struck her in the jaw until she lost all of
her back teeth (“[h]e would always grab me by the jaw . . . [and] hit me with whatever he
had”), grabbed her genitals without consent (“to see if I had come from being with
someone”), and stuck a machete into her ribs, threatening to kill her and her family
members. A.R. 77, 80. 2 Petitioner further testified that she believed that Lopez was
associated with the Mara 18 gang 3 and also had connections to Zetas 4 in Mexico. She
testified that Lopez threatened to use his gang affiliations against her if she ever
attempted to leave him.
Nonetheless, Petitioner left Lopez in 2011. That year, Petitioner’s mother passed
away, and Petitioner and her daughters moved into Petitioner’s father’s home. Petitioner
testified that Lopez, incensed because Petitioner left him, stalked her and her daughters.
Per Petitioner, Lopez incessantly called her (up to 80 times per day) and demanded that
she bring their daughters to him. But when Petitioner brought their daughters to visit
2 Citations to the “A.R.” refer to the Administrative Record filed by the parties in this appeal. 3 The Mara 18 gang is a multi-ethnic, transnational criminal organization. See U.S. Agency for Int’l Dev., Central America and Mexico Gang Assessment (2006), https://pdf.usaid.gov/pdf_docs/PNADG834.pdf. Mara 18 originated in Los Angeles but has acquired “arms, power, and influence across the United States, Mexico, and Central America.” Id. 4 The Zetas are significant narcotics traffickers in Mexico. See U.S. Dep’t of Treas. News Release TG-605 (Mar. 24, 2010), https://www.treasury.gov/press- center/press-releases/Pages/tg605.aspx. The Zetas “are responsible for much of the current bloodshed in Mexico.” Id.
3 Lopez, he would beat her and also beat their daughters. Indeed, Petitioner testified that
Lopez once broke a broomstick on their younger daughter’s foot.
Although Petitioner and her daughters often saw doctors following instances of
abuse, Petitioner would lie to cover up Lopez’s behavior. Because she was afraid that
Lopez would seek revenge if she reported him, Petitioner told her doctors that the injuries
were from falls.
Eventually, Petitioner reported Lopez to the police. But the police told her that
there was nothing they could do because it was a “matrimonial situation between a man
and woman.” A.R. 87. Moreover, Petitioner testified that she did not trust the police
because they were corrupt and “infiltrated with the Maras [gang].” Id. at 97. And when
Petitioner filed a court complaint against Lopez, an attorney informed her that it was “a
very long process” to report marital abuse. Id. at 87–88. According to Petitioner, the
court system was unwilling to protect her because “a number of [j]udges have died
[adjudicating cases like hers].” Id. at 98.
Petitioner’s fear of Lopez increased following her father’s death in 2015.
Petitioner’s father suffered a stroke two hours after he got into an argument with Lopez
about Lopez’s abuse of Petitioner. Petitioner testified that, once her father died, she did
not have any place to go in Honduras. When Petitioner told Lopez of her plan to leave
for the United States, Lopez responded that he “kn[e]w some Zetas in Mexico” whom he
could command to “disappear [her].” A.R. 108–09.
4 B.
Petitioner ultimately left Honduras to escape her abusive relationship. She entered
the United States illegally on December 15, 2015. After having been in the United States
for three and a half years, Petitioner says she fears Lopez might kill her or harm her
daughters if she returned to Honduras. Petitioner’s two daughters are still in Honduras
with Lopez’s mother. Petitioner explained that she did not leave her daughters with any
of her siblings because she was afraid that Lopez would harm her siblings if she did so.
Two months after Petitioner entered the United States, the Government charged her as an
alien present in the United States without a valid entry document in violation of 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) and served her with a Notice to Appear for removal proceedings.
Petitioner conceded the Government’s allegations. Accordingly, the IJ found
removability by clear and convincing evidence.
C.
Petitioner sought three forms of relief from removal: asylum pursuant to 8 U.S.C.
§ 1158, withholding of removal pursuant to 8 U.S.C. § 1231, and Convention Against
Torture (“CAT”) relief pursuant to 8 C.F.R. § 1208.16(c). In a credible fear interview,
application, declaration, and testimony, Aguilar-Avila explained she fled Honduras after
years of violent physical and emotional abuse by her former partner and due to fear of his
gang affiliation. Before the IJ, Petitioner’s attorney asked her direct examination
questions but declined the opportunity to ask her any rebuttal questions. And when the IJ
asked Petitioner’s attorney if he wished to offer closing argument, he said, “No, Judge.
I’ll leave it.” A.R. 118.
5 The IJ issued an oral decision denying Petitioner all three forms of relief, and the
BIA dismissed Petitioner’s appeal of that decision. Two findings underlying the IJ and
BIA decisions are relevant for our purposes here.
First, the IJ concluded that Petitioner failed to demonstrate membership in a
particular social group. Before the IJ, Petitioner premised her asylum claim on
membership in the particular social group of “Women in Honduras who suffer from
domestic violence and are unable to leave their relationship.” A.R. 130, 133. Although
the IJ acknowledged that Petitioner “clearly testified about abuse” that she suffered, the IJ
concluded that she had “not shown that she is entitled to relief based on being in a
particular social group that has been recognized as entitled to the relief that she seeks.”
Id. at 49. The BIA affirmed that finding without further explanation. Before the BIA,
Petitioner premised her asylum claim on membership in a different particular social
group, one based on her status as “a working lower class woman of Honduras targeted by
gang activity.” Id. at 10. The BIA also considered and rejected that particular social
group.
Second, the IJ concluded that Petitioner failed to demonstrate that the authorities
were unwilling and unable to protect her or that she was unable to reasonably relocate
within Honduras. Although the IJ “believe[d] that [Petitioner] over a long term has been
subjected to domestic abuse of some form, either physical or mental, through verbal
statements made to her,” the IJ denied her claim because “[Petitioner] never gave the
government [of Honduras] an opportunity to protect her from her partner or to take other
steps so that she was protected.” A.R. 48–49. Again, the BIA affirmed the IJ’s
6 conclusion without any additional explanation. The BIA merely noted that the IJ “denied
relief in part because [Petitioner] did not show that the authorities were unable or
unwilling to protect her or that she could not reasonably relocate.” Id. at 3.
D.
Petitioner timely petitioned for review. But Petitioner’s attorney failed to timely
file an opening brief. And, once filed, the argument section of the opening brief totaled
just one and a half pages in length. Indeed, it was composed of only 17 lines of text. In
her brief before us, Petitioner also, for the first time, asserted that her asylum claim was
rooted in her membership in her nuclear family. Further, Petitioner did not file a reply
brief or otherwise rebut the Government’s exhaustion and waiver arguments. In fact,
Petitioner’s attorney conceded at oral argument that Petitioner waived all but her asylum
claim. See Oral Argument at 27:00–28:00, Aguilar-Avila v. Sessions, No. 18-1525 (4th
Cir. May 7, 2019), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.
II.
This court is charged with reviewing both the final decision of the BIA and the
underlying decision of the IJ. See Ai Hua Chen v. Holder, 742 F.3d 171, 177 (4th Cir.
2014) (“Because the BIA adopted and affirmed the decision of the IJ but supplemented
that decision with its own opinion, the factual findings and reasoning contained in both
decisions are subject to judicial review.” (internal quotation marks omitted)). We uphold
agency determinations unless “manifestly contrary to the law and an abuse of discretion.”
Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014) (internal quotation marks omitted).
The agency abuses its discretion when “it fail[s] to offer a reasoned explanation for its
7 decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.”
Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011).
III.
As a threshold matter, we must address the Government’s waiver and exhaustion
arguments. First, the Government argues that, by failing to raise them in her opening
brief to this court, Petitioner abandoned the two particular social groups she raised below
-- women in Honduras who suffer from domestic violence and are unable to leave their
relationship (presented to the IJ) and working lower class women in Honduras targeted
by gang violence (presented to the BIA). Second, the Government argues that Petitioner
failed to exhaust her claim with respect to the particular social group that Petitioner raised
in her brief to this court -- her nuclear family -- because she failed to present that
particular social group to the IJ or BIA.
Although we may not consider a claim that Petitioner has not exhausted, see 8
U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the
[petitioner] has exhausted all administrate remedies . . . .”), abandonment and waiver
rules are “not jurisdictional in the sense that they encroach in any fashion upon our
inherent authority to consider and decide pertinent matters.” United States v. Holness,
706 F.3d 579, 592 (4th Cir. 2013). Thus, we may exercise our discretion, when the
circumstances call for it, to disregard a party’s inattention to an argument or issue. See
id. The circumstances may call for such a departure from our waiver and abandonment
rules when the record is sufficient to permit evaluation of the argument or issue and
considering the argument or issue would enhance “the efficiency of the decision-making
8 process.” Id. Further, we should consider whether, if we did not reach the argument or
issue, a miscarriage of justice would result. See Suarez-Valenzuela v. Holder, 714 F.3d
241, 248 (4th Cir. 2013).
Because Petitioner raised the particular social group of membership in her nuclear
family for the first time before this court, we cannot consider it. See 8 U.S.C.
§ 1252(d)(1); Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (noting that we may
consider such a claim only if the petitioner “has exhausted all administrative remedies
available . . . as of right.”). But we conclude that the circumstances of this case call for
us to consider the particular social group that petitioner presented to the BIA: working
lower class women in Honduras targeted by gang violence.
First, the record permits evaluation of Petitioner’s membership in that particular
social group. During her credible fear interview, in her application and declaration, and
throughout her testimony before the IJ, Petitioner described years of violent physical and
emotional abuse by her former partner. She testified that her former partner would
regularly beat her so viciously that her back teeth and molars fell out. She testified that
he grabbed her by the genitals to determine whether she had sex with anyone else. She
testified that he stuck a machete in her ribs and threated to stab her.
And, significantly, Petitioner also testified about her former partner’s association
with the Mara 18 gang and his connections to Zetas in Mexico. Petitioner testified that
her former partner asserted that he was having gang members watch her and threatened to
have those gang members kill her. Petitioner presented this testimony to the BIA in
9 support of her membership in the particular social group of working lower class women
in Honduras targeted by gang violence, but the BIA considered and then dismissed it in
its written decision, reasoning that “individuals who are feeling general conditions of
violence in a country do not qualify for asylum or withholding of removal.” See A.R. 3.
Accordingly, both the facts underlying the argument and the BIA’s resolution of it are
clear from the face of the record.
B.
Further, permitting the poor performance of Petitioner’s attorney to prevent us
from considering on the merits the sole claim standing between Petitioner and deportation
would be a miscarriage of justice. Deportation “visits a great hardship on the individual
and deprives him of the right to stay and live and work in this land of freedom.” Bridges
v. Wixon, 326 U.S. 135, 154 (1945). For that reason, “[m]eticulous care must be
exercised lest the procedure by which he is deprived of that liberty not meet the essential
standards of fairness.” Id. As explained below, review of the IJ and BIA’s resolution of
Petitioner’s asylum claim reveals clear errors. We deem Petitioner’s particular social
group argument here the rare exception to this court’s waiver rule.
IV.
The Immigration and Nationality Act authorizes the Government to grant asylum
to any eligible applicant. See 8 U.S.C. § 1158. An applicant is eligible for asylum if she
is able to demonstrate “that it is more likely than not that her life or freedom would be
threatened in the proposed country of removal because of her race, religion, nationality,
membership in a particular social group, or political opinion.” Niang v. Gonzales, 492
10 F.3d 505, 510 (4th Cir. 2007); see also 8 U.S.C. § 1158(a)(2)(A). An asylum applicant
must also demonstrate that the past persecution “was inflicted by the government or by
others whom the government is unable or unwilling to control.” See Mulyani v. Holder,
771 F.3d 190, 197–98 (4th Cir. 2014).
We first consider the conclusions of the BIA regarding Petitioner’s membership in
a particular social group. Although the statute does not define “particular social group,”
the BIA has defined it to include three criteria: “(1) its members share common,
immutable characteristics, (2) the common characteristics give its members social
visibility, and (3) the group is defined with sufficient particularity to delimit its
membership.” Cordova, 759 F.3d at 337 (internal quotation marks omitted).
Before both the IJ and BIA, Petitioner asserted her particular social group was
based on her abusive relationship and its connections to gang violence. In support of its
conclusion that Petitioner failed to demonstrate membership in a particular social group,
the IJ stated,
While [Petitioner] has clearly testified about abuse that she supposedly has suffered at the hands of her domestic partner, what she has testified about, she has not shown that she is entitled to relief based on being in a particular social group that has been recognized as entitled to the relief that she seeks.
11 A.R. 49. In affirming the decision of the IJ, the BIA stated simply, “[Petitioner] did not
demonstrate membership in a particular social group composed of ‘working class women
of Honduras who are targeted by gang activity.’” 5 Id. at 3.
Although our review of these decisions is deferential, the BIA abuses its discretion
if it fails “to offer a reasoned explanation for its decision.” Cordova, 759 F.3d at 337
(internal quotation marks omitted). Indeed, “when a BIA order does not demonstrate that
the agency has considered an issue, the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.” Id. at 338 (internal
quotation marks omitted).
Here, we conclude the BIA failed to explain why Petitioner’s purported social
group does not satisfy the criteria set forth by the BIA. The evidence demonstrated that,
after Petitioner attempted to leave Lopez in 2011, he continued to harass her, threatening
to abuse her when he saw her in person and threatening that he was having her watched
by gang members. At minimum, the BIA should have explained why -- in light of these
facts -- Petitioner failed to sufficiently prove her membership in a particular social group.
5 Before the IJ, Petitioner’s attorney characterized her particular social group as “wom[e]n in Honduras who suffer from domestic violence and are unable to leave their relationship.” J.A. 10. But before the BIA, her counsel characterized her particular social group as “working lower class of wom[e]n of Honduras targeted by gang activity.” J.A. 130. The BIA considered both particular social groups, nonetheless. Regarding the particular social group presented to the IJ, the BIA noted that Petitioner could not demonstrate membership in a particular social group composed of “women unable to leave their relationships” because Petitioner “did, in fact, leave the relationship.” Id. at 3 n.1.
12 See Cordova, 759 F.3d at 338 (finding the BIA’s failure to analyze a petitioner’s
purported social group warranted remand).
We next consider the conclusions of the IJ and the BIA that Petitioner failed to
demonstrate government acquiescence. On this point, Petitioner must demonstrate that
her past persecution was inflicted “by the government or by others whom the government
was unable or unwilling to control.” Mulyani, 771 F.3d at 197–98. Both the IJ and the
BIA rejected Petitioner’s allegations of government acquiescence. In doing so, the IJ and
the BIA erred in two ways.
1.
First, the IJ and BIA required more of Petitioner than the law demands. Both the
IJ and the BIA hinged its ruling on its view that Petitioner failed to demonstrate that she
could not reasonably relocate. But inability to relocate is only required when an
applicant is attempting to show a well-founded fear of future persecution, not when she is
demonstrating past persecution. Cf. 8 C.F.R. § 1208.13(b)(3)(i) (“In cases in which the
applicant has not established past persecution, the applicant shall bear the burden of
establishing that it would not be reasonable to relocate, unless the persecution is by a
government or is government-sponsored.” (emphasis supplied)).
2.
Second, both the IJ and BIA failed to address evidence pertinent to the
requirement that Petitioner demonstrate government acquiescence. In this regard, the
relevant question is whether the government of Honduras is willing and able to help
13 Petitioner avoid further abuse at the hands of her former partner. Nonetheless, both the IJ
and BIA neglected to address evidence that Petitioner did seek help from the government
of Honduras, to no avail. Petitioner testified that she attempted to report the violence to
the police, but the police told her that there was nothing they could do because it was a
“matrimonial situation between a man and woman.” A.R. 87.
Further, Petitioner testified that the police in Honduras are corrupt and “infiltrated
with the Maras.” A.R. 97. According to Petitioner, the court system was unwilling to
protect her because “a number of [j]udges have died” adjudicating cases like hers. Id. at
98. Such disregard of important aspects of an applicant’s claim amounts to an abuse of
discretion. See Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011) (“[A]n IJ is not
entitled to base a decision on only isolated snippets of the record while disregarding the
rest.” (internal quotation marks omitted)).
For the foregoing reasons, we grant Petitioner’s petition for review and remand the
case to the BIA for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; REMANDED FOR FURTHER PROCEEDINGS