Maria D. Amezcua-Preciado v. U.S. Attorney General

943 F.3d 1337

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 2019
• Docket: 18-14788
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14788 Non-Argument Calendar ________________________

Agency No. A209-383-402

MARIA D. AMEZCUA-PRECIADO, GERARDO M. BUSTOS-AMEZCUA, JESUS D. BUSTOS-AMEZCUA,

Petitioners,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent. ________________________

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

(December 3, 2019)

Before BRANCH, FAY and HULL, Circuit Judges.

PER CURIAM: Case: 18-14788 Date Filed: 12/03/2019 Page: 2 of 16

Maria Amezcua-Preciado, a native and citizen of Mexico, along with her

two minor children, petitions for review of the Board of Immigration Appeals’

(“BIA”) final order reversing the Immigration Judge’s (“IJ”) grant of her

application for asylum and denying her withholding of removal. The BIA

concluded, based on recent precedent from the Attorney General, Matter of A-B-,

27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group

of “women in Mexico who are unable to leave their domestic relationships” was

not a cognizable particular social group under the Immigration and Nationality Act

(“INA”). After review, we agree with the BIA that Amezcua-Preciado failed to

establish membership in a particular social group. We thus deny Amezcua-

Preciado’s petition for review.

I. BACKGROUND

A. Asylum Application

In July 2016, Amezcua-Preciado, traveling with her two minor children,

arrived at the San Ysidro Port of Entry and applied for admission to the United

States. The Department of Homeland Security issued notices to appear (“NTAs”),

alleging that Amezcua-Preciado and her children were removable under INA

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as immigrants not in

possession of valid entry or travel documents. They admitted the allegations in the

NTAs and conceded removability as charged.

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Amezcua-Preciado applied for asylum and withholding of removal, asserting

persecution on account of her membership in a particular social group. Amezcua-

Preciado stated, among other things, that her husband physically and

psychologically abused her and did not economically support her. Amezcua-

Preciado submitted affidavits from: (1) her half-brother stating that Amezcua-

Preciado’s husband was an abusive drug addict who would kick her and her

children out of the house; and (2) two lawyers who knew her in Mexico who stated

that Amezcua-Preciado left her husband because he was physically and

psychologically abusive.

Amezcua-Preciado also submitted the 2015 Human Rights Report for

Mexico from the United States Department of State (“Country Report”). The

Country Report indicated, in relevant part, that: (1) Mexican federal law

criminalized domestic violence, including spousal rape, but state and municipal

domestic violence laws “largely failed to meet the required federal standards and

often were unenforced”; (2) human rights organizations reported that Mexican

authorities did not take rape reports seriously, and victims were “socially

stigmatized and ostracized”; (3) the Mexican federal government, and every

Mexican state, criminalized femicide, and 40 federal prosecutors were assigned to

cases of violence against women; (4) Mexico had established a “gender alert”

system to collect gender-based violence information to support investigations, and

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there were 72 shelters across the country; and (5) domestic violence victims in

rural communities “often did not report abuses due to fear of spousal reprisal,

stigma, and societal beliefs that abuse did not merit a complaint.”

B. Asylum Hearing

At her merits hearing, Amezcua-Preciado testified about her husband’s

abuse, which included beatings about once a week and sometimes locking her up

without food. Because her husband provided no financial support, Amezcua-

Preciado worked two jobs in order to feed herself and her children. Approximately

five times, Amezcua-Preciado went to her aunt’s home to get away from the abuse,

but her aunt would kick her out, stating that Amezcua-Preciado “was already

married and that [she] had to be there with [her husband].” Amezcua-Preciado

tried to find another place to live, but she could not afford one.

In one incident about two years before Amezcua-Preciado left Mexico, her

husband chased her from her home with a knife. Although Amezcua-Preciado told

the police about the incident, they did not pay attention to her. Amezcua-Preciado

admitted, however, that she did not file a police report of the incident.

Amezcua-Preciado testified she was afraid to return to Mexico because her

husband told her if she left, he would kill her. Although Amezcua-Preciado had

never tried to relocate within Mexico, she believed she was not safe anywhere in

Mexico because her husband would find her.

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C. IJ’s Decision Granting Asylum

The IJ granted Amezcua-Preciado’s asylum application, but declined to

address her claim for withholding of removal The IJ found Amezcua-Preciado

credible and determined that, while she had not shown abuse rising to the level of

past persecution, she had shown a well-founded fear of future persecution based on

her husband’s escalating violence and threat to kill her if she left him.

The IJ determined, inter alia, that Amezcua-Preciado’s proposed particular

social group—women in Mexico who cannot leave domestic relationships—

qualified under Matter of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014). In A-R-C-G-

the BIA concluded that “married women in Guatemala who are unable to leave

their relationship” is a cognizable particular social group. The IJ stated that

Amezcua-Preciado’s aunt’s reactions were “indicative of societal views in Mexico

of domestic violence” and that it was clear this group was viewed as a particular

segment of Mexican society.

D. BIA’s Decision Reversing IJ

The DHS appealed to the BIA. While the appeal was pending, the Attorney

General issued Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which overruled

A-R-C-G- as wrongly decided. In light of A-B-, the BIA determined, in a single-

member decision, that Amezcua-Preciado’s particular social group was not

cognizable because it was impermissibly defined by the harm directed at its

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members. The BIA also concluded that Amezcua-Preciado’s proposed group was

not cognizable because the group was defined by reference to private criminal

conduct to which broad swaths of society were susceptible. As a result, the BIA

concluded that Amezcua-Preciado did not show a nexus between her persecution

and a protected ground and was ineligible for both asylum and withholding of

removal.

II. DISCUSSION

A. Standard of Review

Here, because the BIA issued its own decision reversing the IJ, we review

only the BIA’s decision. See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301,

1306 (11th Cir. 2019) (explaining that this Court reviews the BIA’s decision,

unless the BIA expressly adopts the IJ’s opinion or agreed with the IJ’s reasoning).

We review de novo whether a group proffered by an asylum applicant constitutes a

particular social group under the INA. Id. However, our de novo review is

informed by Chevron deference, that is, we defer to the reasonable interpretation of

the ambiguous statutory phrase “particular social group” made by three-member

panel, precedential BIA decisions. Id. at 1306, 1308; see Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2278, 2781-83

(1984) (requiring deference to an agency’s reasonable interpretation of ambiguous

terms in the statute that it administers). Likewise, the Attorney General’s

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interpretations of the INA are entitled to Chevron deference. INS v. Aguirre-

Aguirre, 526 U.S. 415, 424-25, 119 S. Ct. 1439, 1445 (1999) (explaining that the

Attorney General’s decision was entitled to Chevron deference because the INA

provides that “[t]he Attorney General shall be charged with the administration and

enforcement” of the statute and the “determination and ruling by the Attorney

General with respect to all questions of law shall be controlling.” (quoting INA

§ 103(a)(1), 8 U.S.C. § 1103(a)(1)). 1

B. General Principles

An applicant for asylum must meet the INA’s definition of refugee. INA

§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The definition of “refugee” includes any

person “who is unable or unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of,” her country of nationality “because of

persecution or a well-founded fear of persecution on account of” a protected

ground, including membership in a particular social group. INA § 101(a)(42)(A),

8 U.S.C. § 1101(a)(42)(A). The protected ground must have been, or will be, “at

least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i), 8

1 A single-member BIA decision resting on existing BIA or federal court precedent may also warrant Chevron deference. Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). However, as in Perez-Zenteno, we need not decide whether to defer to the BIA’s single- member decision here because Amezcua-Preciado’s petition fails both with or without Chevron deference. See Perez-Zenteno, 913 F.3d at 1308 (concluding with and without Chevron deference to the single-member decision, “the proffered group – ‘Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States’ – is not legally cognizable as a particular social group”). 7 Case: 18-14788 Date Filed: 12/03/2019 Page: 8 of 16

U.S.C. § 1158(b)(1)(B)(i). The asylum applicant bears the burden of showing

“refugee” status. Id.

Similarly, under the withholding of removal provision of the INA, the

Attorney General may not remove an alien to a country if the alien’s “life or

freedom would be threatened” there because of a protected ground, such as

membership in a particular social group. INA § 241(b)(3)(A), 8 U.S.C.

§ 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is more

likely than not she will be persecuted or tortured upon returning to her country.”

Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (internal quotation

marks omitted). This is a higher evidentiary standard than what is required for

asylum. Id.

Here, the sole issue raised on appeal is whether the BIA correctly concluded

that Amezcua-Preciado’s proposed social group does not qualify as a “particular

social group” within the meaning of the INA. The INA statute itself does not

define particular social group, but we have deferred to the BIA’s formulation of

criteria for determining whether a particular group qualifies. Castillo-Arias v. U.S.

Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006) (explaining that the BIA first

formulated the criteria in Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA

1985)); see also Perez-Zenteno, 913 F.3d at 1308-09. Under the first of these

criteria, the group’s members must have a “common characteristic other than their

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risk of being persecuted,” and that characteristic must be immutable or

fundamental to a member’s individual conscience or identity. Castillo-Arias, 446

F.3d at 1193-94, 1196-97. However, because “‘particular social group’ should not

be a catch-all for all persons alleging persecution who do not fit elsewhere,” the

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

meaning of the INA . . . .” Id. at 1198.

Second, a group must have sufficient social distinction. Id. at 1194, 1197-

98. Social distinction requires the particular social group to be perceived as a

distinct group by society. Matter of W-G-R-, 26 I. & N. Dec. 208, 216 (BIA

2014). Thus, whether a group is socially distinct is determined by the perception

of the society as a whole. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA

2014). Third, a group must be “defined with particularity,” meaning it must “be

discrete and have definable boundaries,” and not be “amorphous, overbroad,

diffuse, or subjective.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404 (11th Cir.

2016) (quoting W-G-R-, 26 I. & N. Dec. at 214).

In the 2018 A-B- decision, the Attorney General addressed whether, and

under what circumstances, victims of private criminal activity such as domestic

violence constitute “a cognizable ‘particular social group’ for purposes of an

application for asylum or withholding of removal.” 27 I. & N. Dec. at 316-17.

The Attorney General explained that, absent exceptional circumstances,

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“[g]enerally, claims by aliens pertaining to domestic violence or gang violence

perpetrated by non-governmental actors will not qualify for asylum.” Id. at 317,

320. The Attorney General stressed—based on established binding precedent

(some of which is recounted above)—that “[t]o be cognizable, a particular social

group must ‘exist independently’ of the harm asserted in an application for asylum

or statutory withholding of removal.” Id. at 334-35. The group cannot be 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.” Id. at

335 (internal alterations and quotation marks omitted).

In so holding, the Attorney General determined that, in A-R-C-G-, the BIA

broke with its prior precedent applying and refining the Acosta criteria (including

M-E-V-G- and W-G-R- discussed above) and wrongly decided that “married

women in Guatemala who are unable to leave their relationship” was a cognizable

particular social group. Id. at 331-33. The Attorney General explained that under

the BIA’s prior precedent, the proffered group must be independent of, and cannot

be defined by, the persecution. The Attorney General also stated 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

the harm or threatened harm. Id. at 334-35.

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In A-B-, the Attorney General further explained that groups that are “defined

by their vulnerability to private criminal activity” will likely lack the required

particularity because they will come from all segments of society and lack

distinguishing characteristics or concrete traits. Id. at 335. Further, even if the

group is defined more narrowly to avoid particularity problems, such as

Guatemalan women who are unable to leave domestic relationships with children

in common, the proffered group “will often lack sufficient social distinction to be

cognizable as a distinct social group, rather than a description of individuals

sharing certain traits or experiences,” that are not “recognizable by society at

large.” Id. at 336. 2

More recently, this Court, in examining the statutory phrase independently

of the BIA, observed that “the phrase ‘social group’ implies a subset of the

population bound together by some discrete and palpable characteristics.” Perez-

Zenteno, 913 F.3d at 1310. We noted that the modifier “particular” suggests some

narrowing from the breadth otherwise found in the term “social group” and thus

“denotes some characteristic setting the group off in a definite way from the vast

majority of society.” Id. We cautioned that a particular social group “must be

2 In A-B-, the Attorney General vacated the BIA’s opinion that had concluded, based on A-R-C-G-, that El Salvadoran women who are unable to leave their domestic relationships where they have children in common with their partners constituted a particular social group. A-B-, 27 I. & N. Dec. at 340. The Attorney General remanded the case to the IJ for consideration of the proposed social group using the standards articulated in the Attorney General’s opinion. Id. at 340, 346. 11 Case: 18-14788 Date Filed: 12/03/2019 Page: 12 of 16

more narrowly defined” and “should not be a ‘catch all’ for all persons alleging

persecution who do not fit elsewhere.” Id. at 1310-11 (quoting Castillo-Arias, 446

F.3d at 1198). We, “[l]ike the BIA, . . . turn[ed] to such obvious, discrete and

measurable factors as immutability, identity, visibility, homogeneity, and

cohesiveness in order to give meaning to the term.” Perez-Zenteno, 913 F.3d at

1311.

Perhaps most importantly, this Court, like the Attorney General in A-B-, has

emphasized repeatedly that “[t]he risk of persecution alone does not create a

particular social group within the meaning of the INA.” Castillo-Arias, 446 F.3d at

1198 (concluding noncriminal informants working against a drug cartel did not

constitute a particular social group under the INA); see also Rodriguez v. U.S.

Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (concluding that family members

who are targeted by a drug trafficking organization in retaliation for seeking

criminal justice did not constitute a particular social group, as the group was

created solely from the risk of persecution).

After A-B-, at least two circuits have acknowledged in published decisions

that A-B- overruled A-R-C-G-, and those circuits have concluded, based on A-B-,

that similar proposed social groups of women unable to leave domestic

relationships were not cognizable under the INA. See Gonzales-Veliz v. Barr, 938

F.3d 219, 231-32, 234-35 (5th Cir. 2019) (addressing proposed group of

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“Honduran women unable to leave their relationship”); S.E.R.L. v. U.S. Att’y

Gen., 894 F.3d 535, 555-57 (3d Cir. 2018) (addressing proposed group of

“immediate family members of Honduran women unable to leave a domestic

relationship”).

C. Amezcua-Preciado’s Proposed Particular Social Group

As an initial matter, we defer to the Attorney General’s interpretation of the

phrase “particular social group” in A-B- because it is reasonable and consistent

with both the BIA’s and this Court’s prior precedent. And, in light of A-B- and

this Court’s particular-social-group precedent, the BIA did not err in determining

that Amezcua-Preciado’s proffered social group was not cognizable under the INA.

Amezcua-Preciado’s proposed social group—“women in Mexico who are

unable to leave their domestic relationship”—closely mirrors the proposed group

in A-R-C-G- of “[m]arried women in Guatemala who are unable to leave their

relationship” that the Attorney General already found not cognizable. See A-B-,

27 I. & N. Dec. at 335 (stating that if the BIA had “properly analyzed the issues [in

A-R-C-G-], then it would have been clear that the particular social group was not

cognizable”). Moreover, Amezcua-Preciado’s proposed social group suffers from

the kinds of problems the Attorney General identified in A-B- as likely to render

most groups of victims of private violence not cognizable.

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First, while the members of Amezcua-Preciado’s proposed social group

arguably share the immutable characteristic of being women, that characteristic

alone is insufficient to make them cognizable as a particular social group under the

INA. Further, nothing in the country conditions evidence indicates that Amezcua-

Preciado’s proposed social group is socially distinct within Mexican society. See

A-B-, 27 I. & N. Dec. at 336 (stating that the “key thread running through the

particular social group framework is that social groups must be classes

recognizable by society at large”); Castillo-Arias, 446 F.3d at 1194, 1197-98

(explaining that the BIA’s precedent requires the social group’s characteristics to

be “recognizable by others in the country in question” (quotation marks omitted)).

The belief of Amezcua-Preciado’s aunt that Amezcua-Preciado should return to

her husband despite being abused is insufficient to determine that Mexican society

as a whole perceives women who are unable to leave their relationships as a

distinct group. See A-B-, 27 I. & N. Dec. at 336 (stating that “there is significant

room for doubt that Guatemalan society views these women, as horrible as their

personal circumstances may be, as members of a distinct group in society, rather

than each as a victim of a particular abuser in highly individualized

circumstances”); W-G-R-, 26 I. & N. Dec. at 216 (explaining that to establish

social distinction, “there must be evidence showing that society in general

perceives, considers, or recognizes persons sharing the particular characteristic to

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be a group,” and “it must be commonly recognized that the shared characteristic is

one that defines the group”).

In addition, Amezcua-Preciado’s group is not defined with sufficient

particularity because its boundaries are amorphous, overbroad, and subjective. See

M-E-V-G-, 26 I. & N. Dec. at 214 (stating that to satisfy the particularity

requirement, the group “must not be amorphous, overbroad, diffuse, or subjective);

Gonzalez, 820 F.3d at 404 (noting same). As she defines it, Amezcua-Preciado’s

group includes all Mexican women who cannot leave any domestic relationship,

whether that is a wife unable to leave her husband or a daughter unable to leave her

parents. It covers women who are “unable to leave” a relationship for any reason,

including for physical, legal, economic, cultural, or psychological reasons. The

fact that a woman could be prevented from leaving a relationship by her

psychological or economic dependence reinforces the subjective nature of this

group.

Finally, to the extent Amezcua-Preciado’s proposed group of Mexican

women who are unable to leave their domestic relationships because they fear

physical or psychological abuse by their spouse or domestic partner, this group is

defined by the underlying harm asserted as persecution in Amezcua-Preciado’s

application for asylum and withholding of removal. The women share no

“narrowing characteristic” other than their risk of being persecuted. This is the

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kind of circular definition of a social group, created by reference to the alleged

persecution, that cannot create a cognizable particular social group. See Perez-

Zenteno, 913 F.3d at 1309-10 (concluding that the BIA reasonably determined that

the applicant’s formulation of her proposed group of Mexican citizens targeted by

criminal groups was impermissibly circular because the “defining attribute” of the

social group cannot be its persecution or risk of persecution); A-B-, 27 I. & N.

Dec. at 334 (stating that the proper inquiry is whether the applicant “could

establish the existence of a cognizable particular social group without defining the

group by the fact of persecution”).

In sum, because Amezcua-Preciado’s proposed group is not cognizable as a

particular social group under the INA, the BIA correctly concluded that she was

ineligible for either asylum or withholding of removal.3

PETITION DENIED.

3 We reject Amezcua-Preciado’s argument that the BIA in her case misread A-B- to create a per se rule foreclosing all particular social groups based on domestic violence. Rather, the BIA made an individualized assessment of Amezcua-Preciado’s proposed social group and concluded it was not cognizable because the group was “impermissibly defined by the harm directed at its members” and was “defined by private criminal activity where broad swaths of society may be susceptible to victimization.” 16