Ivezeth C. Velasquez Alvarado v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 9, 2020
• Docket: 20-10599
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10599 Non-Argument Calendar ________________________

Agency No. A206-702-149

IVEZETH C. VELASQUEZ ALVARADO, a.k.a. Carolina Velasquez Alvarado, KENSY Y. MARTINEZ VELASQUEZ, SINDY C. MARTINEZ VELASQUEZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

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

(October 9, 2020)

Before JORDAN, NEWSOM and HULL, Circuit Judges.

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Ivezeth C. Velasquez Alvarado (“Alvarado”) and her two daughters1 petition

for review of the Board of Immigration Appeals’s (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of their applications for asylum. 2 In her

counseled petition for review, Alvarado argues that the BIA erred in concluding

that: (1) Alvarado’s proposed particular social group of “Honduran women who

are unable to leave a domestic relationship” was not cognizable under the

Immigration and Nationality Act (“INA”) § 208(b)(1), 8 U.S.C. § 1158(b)(1);

(2) Alvarado’s proposed alternate particular social group of “Honduran women

who are viewed as property” was not cognizable under the INA; and (3) Alvarado

was not eligible for humanitarian asylum. After review, we deny the petition.

I. BACKGROUND

A. Asylum Applications

In May 2014, Alvarado and her daughters Kensy and Sindy—natives and

citizens of Honduras—arrived at a port of entry at the Texas border seeking

admission to the United States without a visa or entry document. Alvarado

1 Alvarado was the lead respondent in the immigration proceedings below, and her daughters Kensy Y. Martinez Velasquez (“Kensy”) and Sindy C. Martinez Velasquez (“Sindy”) were derivative applicants on Alvarado’s asylum application as well as applicants in their own right. For ease of reference, we refer to the petitioners collectively as Alvarado. 2 While Alvarado also applied for withholding of removal and for protection under the Convention Against Torture, she explicitly abandoned appellate review of the BIA’s and the IJ’s denials of those applications.

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expressed fear of returning to Honduras and underwent a credible fear interview,

after which she and her daughters were paroled into the United States.

In April 2015, Alvarado timely applied for asylum on her and her daughters’

behalf under the INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). In September 2016, the

Department of Homeland Security charged Alvarado with being removable as an

arriving alien not in possession of valid entry or travel documents under INA

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), and initiated removal

proceedings. Alvarado conceded removability.

In December 2016, Alvarado filed a second asylum application on her and

her daughters’ behalf based in part on Alvarado’s membership in a “particular

social group,” without specifying the group. Alvarado alleged that, before she

escaped to the United States, she had been in a “civil union” with Erick Menjivar,3

who subjected her to verbal, physical, and sexual abuse and threatened her and her

daughters. Alvarado claimed that she was afraid to return to Honduras because

Menjivar had threatened to kill her and rape and kill her daughters.

In support, Alvarado attached her declaration, her psychological evaluation,

her credible fear interview, declarations of her neighbors, and photographs of the

scars she received from Menjivar’s abuse. These supporting materials

3 Menjivar is not the father of Alvarado’s daughters, and Alvarado was in a relationship with him for only approximately 15 months from February 2013 to May 2014.

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demonstrated that: (1) Menjivar had verbally, physically, and sexually abused

Alvarado; (2) Menjivar had threatened to hurt, kill, and/or sexually abuse Alvarado

and her daughters; (3) Alvarado feared returning to Honduras because she believed

Menjivar would find and kill her; and (4) Alvarado suffered from Post-Traumatic

Stress Disorder because of Menjivar’s threats and abuse.

Alvarado also attached various reports and expert affidavits on the

conditions in Honduras. These materials established that Honduras had serious

and pervasive problems with: violence against women; domestic violence; child

abuse and sexual exploitation of children; rape; underreporting of spousal rape and

domestic violence crimes due to fear, stigma, and lack of protective services;

impunity for the perpetrators of violence against women and children;

marginalization of and discrimination against women; violations of women’s

sexual and reproductive rights; and treating women and children as “property.”

B. Hearing on Applications

At a merits hearing, Alvarado’s counsel informed that Alvardo was applying

for asylum on the grounds that she suffered extreme persecution by Menjivar

because of her membership in two particular social groups: (1) “a Honduran

woman [who] was unable to leave a domestic relationship”; and (2) “a Honduran

woman [who] was viewed as property.”

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In support, Alvarado testified to the verbal, physical, and sexual abuse she

suffered while living with Menjivar in Honduras. Alvarado also said that Menjivar

left marks on her body to demonstrate to others that she was his “property,”

prevented her from leaving the house except to go to work, and threatened to kill

her and rape and kill her daughters if she left or disobeyed him. Alvarado tried to

escape once and hide at her mother’s house, but Menjivar found her and threatened

to hurt her family if she did not return. When Menjivar actually attempted to rape

one of Alvarado’s daughters, she and her daughters finally escaped for good and

fled to the United States. Alvarado said she never reported Menjivar to Honduran

police because (1) he had hurt her with a knife when she tried to file a complaint

against him before, (2) she knew he had previously killed two people, and (3)

Menjivar said he was friends with the police and paid them off. She did not seek

her family’s help because they too were abusive towards her, were unsupportive of

her, and also were afraid of Menjivar. Alvarado stated she feared that, if she

returned to Honduras, Menjivar would kill her.

C. IJ Decision

Following the hearing, the IJ issued a written decision denying Alvarado’s

claim for asylum. The IJ concluded that Alvarado was not a credible witness

because of various inconsistencies and because she did not sufficiently corroborate

her claims. Alternatively, the IJ concluded that, even if Alvarado was credible, she

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failed to meet her burden of proving statutory eligibility for asylum because the

past persecution she suffered at the hands of Menjivar was not on account of her

membership in a cognizable “particular social group” as required to qualify as a

“refugee” under INA § 101(a)(42)(A).

The IJ concluded that Alvarado’s first proposed social group, “Honduran

women who are unable to leave a domestic relationship,” was a cognizable social

group, but Alvarado had not established that she was a member of that group

because she was not in a “domestic relationship” with Menjivar. The IJ concluded

that Alvarado’s second proposed social group, “Honduran women who are viewed

as property,” was not a cognizable social group because that group did not contain

immutable characteristics, lacked particularity, and lacked social distinction. The

IJ also denied Alvarado’s claim for humanitarian asylum because she had not

demonstrated that she was a “refugee” under the INA. Alvarado appealed to the

BIA.

D. BIA Decision

In a January 21, 2020 decision, the BIA affirmed the IJ’s denial of asylum,

albeit on different grounds. The BIA declined to reach the IJ’s adverse credibility

determination but agreed with the IJ’s alterative holding that, even if credible,

Alvarado failed to prove her statutory eligibility for asylum. The BIA disagreed

with the IJ’s assessment that Alvarado was not in a “domestic relationship” with

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Menjivar. Instead, the BIA concluded that “Honduran women [who are] unable to

leave a domestic relationship” is not a cognizable particular social group. The BIA

explained that this proposed group was “impermissibly circularly defined by the

fact that its members have been persecuted,” citing the BIA’s Matter of A-B-, 27 I.

& N. Dec. 316 (AG 2018), and this Court’s Amezcua-Preciado v. U.S. Att’y Gen.,

943 F.3d 1337 (11th Cir. 2019).

The BIA agreed with the IJ’s assessment that “Honduran women who are

viewed as property” was not a cognizable group because it “lack[ed] the requisite

particularity.” Seemingly, the group could encompass “woman of all ages,

ethnicities, and social strata, who are in various types of relationships or no

relationship at all” and it was unclear “what actions indicate a woman is viewed as

property or who must view the woman as property.” Thus, Alvarado’s abuse,

while significant, lacked a nexus to a protected ground and thereby did not

constitute past persecution or support eligibility for humanitarian asylum.

Accordingly, the BIA dismissed Alvarado’s appeal.

II. STANDARD OF REVIEW

Generally, this Court reviews only the BIA’s decision, except to the extent

the BIA expressly adopted the IJ’s opinion or agreed with the IJ’s reasoning.

Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). The

BIA’s and IJ’s factual findings are reviewed for substantial evidence and their

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legal conclusions are reviewed de novo. Mu Ying Wu v. U.S. Att’y Gen., 745

F.3d 1140, 1152 (11th Cir. 2014). Whether a proffered group constitutes a

“particular social group” under the INA is a question of law. Perez-Zenteno, 913

F.3d at 1306.

Here, the BIA rendered its own opinion and its own reasoning regarding

Alvarado’s proposed social group of “Honduran women who are unable to leave a

domestic relationship,” but agreed with the IJ’s reasoning regarding both

Alvarado’s alternatively proposed social group of “Honduran women who are

viewed as property” and her request for humanitarian asylum. Thus, we review

only the BIA’s decision as to the first social group and both the BIA’s and IJ’s

decisions as to the second social group and humanitarian asylum eligibility.

III. ASYLUM BASED ON MEMBERSHIP IN PARTICULAR SOCIAL GROUP: “HONDURAN WOMEN WHO ARE UNABLE TO LEAVE A DOMESTIC RELATIONSHIP”

A. Particular Social Group

An alien establishes asylum eligibility when she shows, with specific and

credible evidence, that she is a “refugee” because she either has suffered past

persecution or has a “well-founded fear” of future persecution based on one of the

statutorily listed factors. Mu Ying Wu, 745 F.3d at 1155; see INA § 208.13(a),

(b); 8 U.S.C. § 1158(a)(1), (b)(1). One such factor is the alien’s “membership in a

particular social group.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The

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alien’s membership in a particular social group must have been, or will be, “at least

one central reason for persecuting the applicant.” Amezcua-Preciado, 943 F.3d at

1342 (quotation marks omitted). It is the asylum applicant’s burden to establish

her “refugee” status. Id.

Because the INA itself does not define “particular social group,” this Court

has deferred to the agency’s interpretation of that phrase and its “formulation of

criteria for determining whether a particular social group qualifies.” Id. at 1342,

1344; Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404 (11th Cir. 2016). A

“particular social group” must be: (1) composed of “a group of persons all of

whom share a common, immutable characteristic”; (2) “defined with particularity”;

and (3) “socially distinct within the society in question.” Perez-Zenteno, 913 F.3d

at 1308-09 (quotation marks omitted); Matter of M-E-V-G-, 26 I. & N. Dec. 227,

237 (BIA 2014).

As to the first requirement, the common characteristic “must be immutable

or fundamental to a member’s individual conscience or identity,” and, importantly

for this case, that defining attribute must be independent of the persecution or risk

of persecution alleged. Amezcua-Preciado, 943 F.3d at 1342; Perez-Zenteno, 913

F.3d at 1308-09. In other words, “[t]he group cannot be [circularly] defined by the

persecution of its members, but rather ‘the individuals in the group must share a

narrowing characteristic other than their risk of being persecuted.’” Amezcua-

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Preciado, 943 F.3d at 1343 (quoting Matter of A-B-, 27 I. & N. Dec. at 335). This

is so because, as this Court has cautioned, a particular social group “should not be

a ‘catch all’ for persons alleging persecution who do not fit elsewhere” within the

protected grounds, as that would “render the other four categories meaningless.”

Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1197-98 (11th Cir. 2006) (“The

risk of persecution alone does not create a particular social group within the

meaning of the INA.”).

As to the second requirement, a group is “defined with particularity” when it

is “discrete,” has “definable boundaries,” and is not “amorphous, overbroad,

diffuse, or subjective.” Gonzalez, 820 F.3d at 404 (quotation marks omitted); see

also M-E-V-G-, 26 I. & N. Dec. at 239 (“A particular social group must be defined

by characteristics that provide a clear benchmark for determining who falls within

the group.”). And, a group is socially distinct for purposes of the third requirement

when society as a whole perceives it as a distinct group. Amezcua-Preciado, 943

F.3d at 1342-43.

Recently, in Amezcua-Preciado, this Court upheld the BIA’s determination

that the proposed group of “women in Mexico who are unable to leave their

domestic relationships” was not a cognizable particular social group. 943 F.3d at

1339-40. Specifically, the Court concluded that: (1) “the immutable characteristic

of being women . . . alone is insufficient to make them cognizable as a particular

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social group” and there was no evidence that Mexican society perceived women

who were unable to leave their relationships to be a distinct group; (2) the group

was not defined with sufficient particularity because it included all Mexican

women in any domestic relationship who are unable to leave for “any reason,

including for physical, legal, economic, cultural, or psychological reasons”; and (3)

to the extent the Mexican women were unable to leave their domestic relationship

“because they fear physical or psychological abuse by their spouse or domestic

partner,” the group is circularly defined and does not share a “‘narrowing

characteristic’ other than their risk of being persecuted.” Id. at 1344-45.

B. Matter of A-B-

On appeal, Alvarado argues that the BIA erred in concluding that “Honduran

women who are unable to leave a domestic relationship” is not a cognizable

particular social group under the INA. As a threshold matter, we first conclude

there is no merit to Alvarado’s contention that the BIA erred in applying the

Attorney General’s decision in Matter of A-B- retroactively to her case and instead

should have applied Matter of A-R-C-G-, 26 I & N. Dec. 338 (BIA 2014). 4

4 The government contends we lack jurisdiction to consider any argument concerning the retroactivity of A-B- because Alvarado did not argue this issue before the BIA. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (providing that this Court lacks jurisdiction to review and consider claims that were not raised before the BIA). However, a review of the record reveals that Alvarado, while not using the word “retroactive,” argued in her appeal to the BIA that A-B- did not apply because it was issued after the IJ’s decision in this case. This is sufficient for exhaustion purposes, and the retroactivity argument is therefore preserved. See id.; Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016).

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Matter of A-R-C-G- was the BIA’s most relevant precedential decision

when Alvarado’s asylum claim was pending before the IJ. In Matter of A-R-C-G-,

the BIA held that the alien’s proposed group of “married women in Guatemala

who are unable to leave their relationship” was a cognizable particular social

group. 26 I & N. Dec. at 388, 392-95. In 2018, however, while Alvarado’s BIA

appeal was pending, the Attorney General decided Matter of A-B-, which

explicitly overruled Matter of A-R-C-G-. 27 I. & N. Dec. at 317.

In Matter of A-B- the alien had proposed a social group of “El Salvadoran

women who are unable to leave their domestic relationships where they have

children in common with their partners.” Id. at 321. The BIA, relying on A-R-C-

G-, had concluded her group qualified as a particular social group. Id. The

Attorney General directed the BIA to refer Matter of A-B- for his review and used

it to address whether, and under what circumstances, being a victim of private

criminal activity, such as domestic violence, constitutes a cognizable particular

social group. Id. at 317. The Attorney General held that victims of private criminal

activity, such as domestic violence, could seek asylum only if, in relevant part,

they “establish membership in a particular and socially distinct group that exists

independently of the alleged underlying harm.” Id. (emphasis added).

In so holding, the Attorney General determined that A-R-C-G- was wrongly

decided, and overruled it, because that opinion recognized a new particular social

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group without correctly applying this and the other standards developed in its prior

precedent and instead had merely accepted the Department of Homeland Security’s

concession that the petitioner was a member of a qualifying particular social group.

Id. at 319. Further, in Matter of A-B-, the Attorney General pointed out that, in A-

R-C-G-, the BIA “never considered that ‘married women in Guatemala who are

unable to leave their relationship’ was effectively defined to consist of women in

Guatemala who are victims of domestic abuse because the inability ‘to leave’ was

created by harm or threatened harm.” Id. at 335. Yet, “[s]ocial groups defined by

their vulnerability to private criminal activity likely lack the particularity required

under M-E-V-G-, given that broad swaths of society may be susceptible to

victimization.” Id. Moreover, there was “significant room for doubt that

Guatemalan society view[ed] these women . . . as members of a distinct group in

society, rather than each as a victim of a particular abuser in highly individualized

circumstances.” Id. at 336. The Attorney General vacated the BIA’s opinion

relying on A-R-C-G- and remanded the case to the IJ to consider the proposed

group using the standards articulated in the Attorney General’s opinion. Id. at 340,

346.

Here, the BIA properly applied A-B- to Alvarado’s asylum claim. In

overruling A-R-C-G-, the Attorney General in A-B- explained that the BIA had

strayed from its prior precedent setting forth the legal standards for what

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constitutes a particular social group and clarified that particular social groups

cannot be circularly defined by their persecution. See id. at 318-19. The Attorney

General’s ruling in A-B- “clarified the correct interpretation of the law; it did not

change the law.” See Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1333 (11th Cir. 2009)

(rejecting a similar argument that the BIA erred in retroactively applying an

intervening decision of the Attorney General overruling BIA precedent). Once the

Attorney General clarified the meaning of the statutory phrase “particular social

group” in Matter of A-B-, “that decision became the controlling interpretation of

the law and was entitled to full retroactive effect in all cases still open on direct

review, regardless of whether the events predated the Attorney General’s

decision.” See id. (stating that the Attorney General’s intervening decision “may

have dashed [the alien’s] hopes of success but it did not impair any vested right”).

C. Analysis of Alvarado’s Proposed Group

Further, given both this Court’s and its own precedent, the BIA did not err in

concluding in Alvarado’s case that “Honduran women who are unable to leave a

domestic relationship” is not a cognizable particular social group under the INA.

Alvarado’s proposed group closely mirrors the proposed group in Amezcua-

Preciado of “women in Mexico who are unable to leave their domestic

relationship,” which this Court held was not cognizable under the INA. See 943

F.3d at 1344-45. It also closely mirrors the proposed group in A-R-C-G- of

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“married women in Guatemala who are unable to leave their relationship” that the

Attorney General determined was not cognizable in A-B- when “properly

analyzed.” See A-B-, 27 I. & N. Dec. at 335.

Alvarado’s proposed group shares several fatal flaws that were found in the

aforementioned decisions. First, as Alvarado defines her proposed group, it would

include all women in Honduras who are unable to leave any domestic relationship,

whether it be for physical, economic, cultural, or psychological reasons. Thus, her

proposed group lacks sufficient particularity because its boundaries are

“amorphous, overbroad, and subjective.” See Amezcua-Preciado, 943 F.3d at

1345.

Second, as the BIA concluded, Alvarado’s proposed group is impermissibly

circular to the extent it is defined by the underlying harm asserted as persecution in

her asylum application. See Perez-Zenteno, 913 F.3d at 1309-10. Alvarado cannot

establish the existence of her proposed social group independent of the fact that its

members are persecuted. See A-B-, 27 I. & N. Dec. at 334. Accordingly, the BIA

did not err in concluding her proposed group is not cognizable under the INA and

that she was ineligible for asylum on this ground.

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IV. ASYLUM BASED ON MEMBERSHIP IN PARTICULAR SOCIAL GROUP: “HONDURAN WOMEN WHO ARE VIEWED AS PROPERTY”

Likewise, the BIA and the IJ did not err in concluding that Alvarado’s

alternatively proposed group of “Honduran women who are viewed as property”

also was not cognizable under the INA. The IJ concluded, and the BIA agreed,

that this proposed group lacked particularity. The BIA explained that, as defined,

the group has no “clear benchmark for determining who falls within [it]” and it

“could include women of all ages, ethnicities, and social strata, who are in various

types of relationships or no relationship at all.” See M-E-V-G-, 26 I. & N. Dec. at

239-40 (requiring a particular social group to be defined by characteristics “that

provide a clear benchmark for determining who falls within the group”).

Indeed, Alvarado presented evidence from a legal expert on violence against

women in Honduras that, because of a culture of machismo in Honduras, all

Honduran women (and their children) are perceived as property of their husbands

and fathers. See Perez-Zenteno, 913 F.3d at 1308-09 (rejecting a proposed group

of Mexican citizens who are targeted by criminal groups because they have been in

the United States and have family in the United States because it “lacked any

definable boundaries and actually encompassed a very large percentage of the

Mexican population,” perhaps numbering in the millions); Amezcua-Preciado, 943

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F.3d at 1343 (stating that a group that is overbroad or diffuse does not meet the

particularity requirement).

Moreover, as the IJ noted, it was unclear who must view the women as

property for them to be members of the group. To the extent Alvarado intends

“viewed as property” to mean treated as property by her domestic partner and thus

mistreated, her definition lacks a “narrowing characteristic” other than the risk of

persecution and is impermissibly circular. See Perez-Zenteno, 913 F.3d at 1309-

10; A-B-, 27 I. & N. Dec. at 334.

In sum, the IJ and the BIA correctly concluded that Alvarado’s proposed

group of “Honduran women who are viewed as property” is not cognizable under

the INA and thus she is statutorily ineligible for asylum on this ground as well.5

V. CONCLUSION

For all these reasons, we agree with the BIA that Alvarado did not meet her

burden to show she has suffered past persecution or has a well-founded fear of

future persecution on account of her membership in a “particular social group.”

Thus, we deny Alvarado’s petition for review.

PETITION DENIED.

5 Because Alvarado failed to establish membership in a cognizable particular social group, or otherwise establish her status as a refugee under the INA, her claim to humanitarian asylum is also foreclosed. See Perez-Zenteno, 913 F.3d at 1311 n.3 (“[H]umanitarian asylum does not allow an applicant to receive asylum based on persecution unconnected to any statutorily protected ground. She still must establish she is a refugee, which requires a showing of past persecution on account of a statutorily protected ground.”).