Maria Velasquez v. Jefferson Sessions III

866 F.3d 188, 2017 WL 3221643, 2017 U.S. App. LEXIS 13826
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 31, 2017
Docket16-1669
StatusPublished
Cited by37 cases

This text of 866 F.3d 188 (Maria Velasquez v. Jefferson Sessions III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maria Velasquez v. Jefferson Sessions III, 866 F.3d 188, 2017 WL 3221643, 2017 U.S. App. LEXIS 13826 (4th Cir. 2017).

Opinions

AGEE, Circuit Judge:

Maria Suyapa Velasquez, a citizen and native of Honduras, entered the United States unlawfully in 2014 with her minor son D.A.E.V.; they were detained by U.S. Customs and Border Patrol at the time of entry. The Government issued a Notice to Appear, charging Velasquez and D.A.E.V. with removability under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (the “INA”). See generally 8 U.S.C. § 1182(a)(7)(A)(i)(I). Velasquez conceded her removability, but applied for asylum and withholding of removal, and attached D.A.E.V. as a rider on her petition.1 An Immigration Judge (“IJ”) rejected her claims, and a single-member panel of the Board of Immigration Appeals (the “BIA” or “Board”) dismissed her appeal. Velasquez now petitions this Court for review. For the reasons that follow, we deny the petition.

I.

A.

We recount the facts set out in the record, which are not disputed.

Velasquez and D.A.E.V. fled Honduras because the mother of D.A.E.V.’s late fa[192]*192ther, Maria Estrada, demanded custody of D.A.E.V. For nearly a decade, Estrada implored Velasquez to turn D.A.E.V. over to her, but each time Estrada made such a. request Velasquez denied it. In 2013, Estrada’s attempts to take custody of D.A.E.V. became more forceful. On more than one occasion, Estrada kidnapped D.A.E.V.' from Velasquez’ home while Velasquez was away. Each time, D.A.E.V. escaped and walked back home. Shortly before Velasquez fled Honduras, Estrada began threatening to kill Velasquez if she did not relinquish custody of D.A.E.V. to her.

The escalating tension between Velasquez and Estrada prompted Velasquez to relocate to the United States. In April 2014, Velasquez and D.A.E.V. unlawfully crossed the United States’ border with Mexico and were detained shortly after. While detained, Velasquez’ mother communicated to her that Estrada’s son Oscar (D.A.E.V.’s uncle) murdered Velasquez’ sister.. The murder, according to Velasquez’ mother, was a case of mistaken identity: Oscar believed his victim was Velasquez.

B.

The Government issued Velasquez a Notice to Appear and charged her with being removable under section 212 of the INA. Velasquez conceded her removability, but argued she was a “refugee,” entitled to either asylum or withholding of removal under sections 208 and 241 of the INA. See generally 8 U.S.C. § 1158(b)(1)(A) (setting standard for asylum); id. § 1231(b)(3) (setting standard for withholding of removal); see also generally id, § 1101(a)(42)(A) (defining “refugee”). Velasquez based.her per tition for asylum and withholding of removal on alleged persecution “on account of’ her membership in a “particular social group,” which she contended was her nuclear family. See 8 U.S.C. §§ 1101(a)(42). She claimed D.A.E.V. as a derivative beneficiary on her petition for asylum under INA section 208(b)(3)(A). See generally 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 208.21.2

Velasquez’ petition for asylum and withholding of removal was heard by an IJ, who denied the petition on both bases. First, the IJ found that Velasquez was not entitled to asylum because the dispute between Velasquez and Estrada was not “on account of’ Velasquez’ membership in her claimed particular social group, her nuclear family, but rather was “an intra-family custody dispute over” D.A.E.V. A.R. 93. In particular, the IJ held that. Velasquez “failed to proffer evidence that the motivation for the conduct'of the Estrada family was to persecute [her], on account of her family membership.” A.R. 93. It observed, for example, that Oscar had killed Velasquez’ sister “in the presence of [her] mother, who remained untargeted and intact” and that Velasquez’ “four other. children [by a different father] remain in Honduras and are unharmed.” A.R. 93. Because the IJ denied Velasquez’ application for asylum, it necessarily also denied D.A.E.V.’s derivative claim. In addition, because withholding of removal employs a more stringent standard than asylum, it held Velasqúéz could not meet her burden of proof as to withholding of removal. Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) (“[A]n applicant who is ineligible for asy[193]*193lum is necessarily ineligible for withholding of removal.”). Compare 8 U.S.C. § 1231(b)(3)(A) (providing that an alien cannot be removed if she demonstrates that her “life or freedom would be threatened” because of her “membership in a particular social group”), with 8 U.S.C. § 1158(b)(1) (stating that an alien may be granted asylum if she can demonstrate that membership ■ in a particular social group “was or will be at least one central reason” for persecution in her native country).

Velasquez timely appealed the IJ’s adverse decision to the Board, which dismissed her appeal in a single-member decision. The Board adopted and supplemented the IJ’s reasoning, stating: “The [IJ’s] finding that the criminal acts committed by ..[Velasquez’], deceased husband’s family against [her] . d[id] not constitute persecution on account of a statutorily protected ground is not clearly erroneous inasmuch as the record supports the finding that [Velasquez] was targeted due to a personal dispute over who should have custody of [D.A.E.V.].” A.R. 437. The Board reiterated the IJ’s conclusion that “the current facts involve a dispute over a personal matter within the family.” A.R, 437.

Velasquez timely petitioned this Court for review of the Board’s decision. We have jurisdiction to consider her petition under section 242 of the INA. See generally 8 U.S.C. § 1252.

II.

“The decisions of the BIÁ concerning asylum eligibility or withholding of removal are deemed conclusive if supported by reasonable, substantial arid probative evidence on the record considered as a whole.” Abdel-Rahman v. Gonzales, 493 F.3d 444, 448 (4th Cir. 2007) (internal quotation marks omitted). “Where[, as here,] the BIA has adopted and supplemented an IJ’s decision, [the Court] review[s] both rulings and accord[s] them appropriate deference.” Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010). We review the IJ’s findings of fact for substantial evidence; we must affirm unless the record would compel “any reasonable adjudicator ... to conclude to the contrary.” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). We review legal issues de novo. Id.

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866 F.3d 188, 2017 WL 3221643, 2017 U.S. App. LEXIS 13826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maria-velasquez-v-jefferson-sessions-iii-ca4-2017.