Monica Cassis Velando v. U.S. Attorney General General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 28, 2019
• Docket: 18-12298
• Status: Unpublished

Opinion

Case: 18-12298 Date Filed: 06/28/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12298 Non-Argument Calendar ________________________

Agency No. A209-909-826

MONICA CASSIS VELANDO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(June 28, 2019)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Monica Cassis Velando petitions for review of the Board of Immigration

Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of her Case: 18-12298 Date Filed: 06/28/2019 Page: 2 of 10

application for asylum and withholding of removal. The BIA concluded that Cassis

Velando was not eligible for asylum or withholding because she was not a member

of a “particular social group” within the meaning of that phrase in the Immigration

and Nationality Act (“INA”). After careful review, we deny the petition.

I.

Cassis Velando is a native and citizen of Bolivia who was admitted to the

United States in November 2015 with permission to remain until May 2016. She

remained in the United States without authorization after that date, however,

prompting the government to initiate removal proceedings in February 2017.

In response, Cassis Velando applied for asylum and withholding of removal.1

She claimed that she had suffered past persecution and would suffer future

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

The record demonstrates the following basis for her application. Cassis

Velando was a physical therapist and teacher in Bolivia who, due to deteriorating

financial conditions, decided to borrow money to invest in a venture proposed by a

friend from high school. Excited by the friend’s promises and bolstered by her early

returns, she encouraged her friends and family to invest money into the venture.

They did so. But it turned out that her friend was running a fraud. All the money

1 Cassis Velando also applied for protection under the United Nations Convention Against Torture (“CAT”). She does not address the denial of CAT relief on appeal, though, so we omit further discussion of this matter. 2 Case: 18-12298 Date Filed: 06/28/2019 Page: 3 of 10

was lost. After speaking with the other victims, Cassis Velando decided to file a

complaint with the police. When she attempted to do so, however, a police officer

demanded a bribe to investigate the case and threatened to accuse her of the fraud if

she did not pay.

The other victims were initially supportive of Cassis Velando after the fraud

was discovered. But as time went by, they began to turn on her and hold her

responsible for their losses. She began receiving threatening phone calls and insults,

which occurred nearly daily from March 2015 until she left for the United States in

November 2015. Some of the victims warned her that if she did not return their

money they would harm her and her children. One of the victims spoke on television

about her involvement in the scheme, denouncing and blaming her. That same

victim showed up at her house and tried to hit her with a car. Her daughter also

suffered harassment. These experiences caused her to leave Bolivia.

Cassis Velando’s evidence showed that vigilante justice, including lynching,

was prevalent in Bolivia. Vigilantism developed due to rising crime rates and a

perception that the police and the judiciary were ineffective, corrupt, or both.

After Cassis Velando came to the United States, a criminal prosecution

against her was initiated in Bolivia. News reports and wanted posters identified her

as part of the fraud scheme and a fugitive. In January 2017, an Interpol “Red Notice”

was issued for her arrest as a “Fugitive Sought for a Criminal Trial.”

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Cassis Velando argued that these facts merited the grant of asylum and

withholding of removal because her widespread denunciation as an accomplice of

her friend’s fraud scheme exposed her to persecution by both victims of the scheme

and other members of society who believed in vigilante justice. She argued that

members of her proposed social group—women accused of criminal activity and

condemned in the media, thus making them subject to vigilante justice in a state with

a judiciary prone to corruption—shared the immutable characteristic of

stigmatization of criminal accusations. She also argued that her proposed social

group was distinctly recognizable in society because she, like other members of the

group, had been publicly branded a criminal.

After a merits hearing conducted by telephone, the IJ denied asylum and

withholding of removal.2 Despite finding that Cassis Velando qualified as a

“refugee”—thus accepting as valid her proposed social group—the IJ concluded that

her asylum application was untimely and that, as a result, she also was not eligible

for withholding of removal. The IJ later granted Cassis Velando’s motion for

reconsideration in part, changing his reasons for denying withholding of removal but

not the ultimate result.

2 The Administrative Record contains no transcript of this hearing. Nevertheless, in his written decision, the IJ summarized Cassis Velando’s hearing testimony, and she does not contend that the IJ mischaracterized her testimony or omitted relevant facts. Accordingly, we resolve her petition based on the current record. 4 Case: 18-12298 Date Filed: 06/28/2019 Page: 5 of 10

Cassis Velando appealed to the BIA, which dismissed her appeal. The BIA

found error by the IJ, but not an error that favored Cassis Velando. Specifically, the

BIA agreed with the government that the IJ erred in his original decision by

concluding that her proposed social group was a cognizable “particular social group”

for purposes of establishing eligibility for asylum or withholding of removal.

The BIA cited three reasons for concluding that the proposed group was not a

legally cognizable particular social group. First, it was “overbroad because it

includes every woman in Bolivia accused of any type of crime reported on by the

media who has suffered threats by her victims seeking revenge.” Second, “the

concepts of being ‘condemned in the media’ and having this occur in a ‘state with a

judiciary prone to corruption’ are amorphous with subjective boundaries.” And

third, the proposed group was “circularly defined by persecutory conduct aimed at

members of the group, which does not exist independently of the persecution.”

Because Cassis Velando had not established persecution on account of a

protected ground, the BIA affirmed the denial of her application for asylum and

withholding of removal, even though it was “undisputed that [she] suffered harm

which was sufficiently egregious to constitute past persecution.” The BIA also

found it unnecessary to address the IJ’s determinations regarding the timeliness of

her asylum application and the likelihood that she would suffer persecution in the

future. Cassis Velando now petitions this Court for review of the BIA’s decision.

5 Case: 18-12298 Date Filed: 06/28/2019 Page: 6 of 10

II.

The sole issue before us is whether the BIA correctly concluded that Cassis

Velando’s proposed social group does not qualify as a “particular social group”

within the meaning of the INA. This is a legal question that we review de novo, with

appropriate deference to the BIA’s reasonable interpretation of the INA. Gonzalez

v. U.S. Att’y Gen., 820 F.3d 399, 403–04 (11th Cir. 2016).

The government has the discretion to grant asylum if the asylum applicant

establishes that she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is

someone who is unable or unwilling to return to her country of nationality “because

of persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” Id.

§ 1101(a)(42)(A). With regard to withholding of removal, the government may not

remove a person if her “life or freedom would be threatened in [her] country because

of [her] race, religion, nationality, membership in a particular social group, or

political opinion.” Id. § 1231(b)(3)(A).

Cassis Velando rests her application for asylum and withholding of removal

on her “membership in a particular social group.” In proceedings below, she defined

the group as women accused of criminal activity and condemned in the media, thus

making them subject to vigilante justice in a state with a judiciary prone to

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corruption.3 Liberally construing her pro se brief on appeal, she argues that the

group is clearly defined enough to qualify under the INA.

Because Congress did not speak to the issue of what constitutes a “particular

social group” under the INA, we have deferred to the BIA’s reasonable formulation

of that term. Gonzalez, 820 F.3d at 404. In Castillo-Arias, we approved as

reasonable the BIA’s definition of the term as a group of persons who share a

common characteristic that is either immutable or fundamental to its members’

individual identities or consciences. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d

1190, 1196–97 (11th Cir. 2006) (citing Matter of Acosta, 19 I. & N. Dec. 211, 233

(BIA 1985), overruled on other grounds, Matter of Mogharrabi, 19 I. & N. Dec. 439

(BIA 1987)). Furthermore, the group must have sufficient “social visibility” but

must not be “too numerous or inchoate.” Castillo-Arias, 446 F.3d at 1197–98; see

Gonzalez, 820 F.3d at 404 (stating that the group must “be discrete and have

definable boundaries—it must not be amorphous, overbroad, diffuse, or subjective”)

(quoting and deferring to Matter of W-G-R-, 26 I. & N. Dec. 208, 214 (BIA 2014)).

In other words, a “particular social group,” in the BIA’s formulation, has three

3 Cassis Velando employs somewhat different phrasing in her pro se brief on appeal, describing the group as women who have been helping people and then accused of criminal activity. She suggests that these women are more at risk of vigilante justice because their intentions may be misconstrued and turned against them. This proposed definition was not raised before the BIA or IJ, however, so we lack jurisdiction to consider it. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted [her] administrative remedies with respect thereto.”). 7 Case: 18-12298 Date Filed: 06/28/2019 Page: 8 of 10

defining characteristics: (1) immutability; (2) social distinction; and (3) and

particularity. See Gonzalez, 820 F.3d at 404.

More recently, we examined the term independently of the BIA and observed

that “the phrase ‘social group’ implies a subset of the population bound together by

some discrete and palpable characteristics.” Perez-Zenteno v. U.S. Att’y Gen., 913

F.3d 1301, 1310 (11th Cir. 2019). Further, we noted that the use of “particular”

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

majority of society.” Id. Thus, a “particular social group” “should not be a ‘catch

all’ for all persons alleging persecution who do not fit elsewhere.” Id. Rather, based

on the plain language of the statute, “a ‘particular social group’ must be more

narrowly defined.” Id. at 1310–11. To give meaning to the term, we, like the BIA,

“turn to such obvious, discrete and measurable factors as immutability, identity,

visibility, homogeneity, and cohesiveness.” Id. at 1311. Importantly, “[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.

Here, the BIA did not err in determining that Cassis Velando’s proposed social

group was not cognizable. Members of Cassis Velando’s proposed group may share

an immutable characteristic, in the sense that they cannot change that they are

women who in the past were accused of criminal activity and condemned in the

media. But “sharing a common, immutable characteristic is a necessary, but not

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sufficient, condition to qualify as a particular social group under BIA precedent.”

Gonzalez, 820 F.3d at 405. And we agree with the BIA that the proposed group is

overbroad because it potentially includes “every woman in Bolivia accused of any

type of crime reported on by the media.” To the extent being “condemned in the

media” implies some narrowing of that group, the concept is too amorphous and

subjective to adequately narrow this diverse and disconnected group.

Nor does the addition of being “subject to vigilante justice in a state with a

judiciary prone to corruption” help Cassis Velando’s position in this case. A

particular social group cannot be defined by “[t]he risk of persecution alone.”

Castillo-Arias, 446 F.3d at 1198. In other words, the group must have some

existence independent of the persecutory conduct. So if we exclude the risk of

persecution—here, the risk of vigilante justice—from Cassis Velando’s definition,

we are left with a definition that potentially includes, as the BIA stated, any Bolivian

woman negatively reported upon by the media after being accused of criminal

activity. For the reasons explained above, this definition is too overbroad and

amorphous to qualify as a “particular social group.” See Gonzalez, 820 F.3d at 404.

In sum, the BIA did not err in denying Cassis Velando’s application for

asylum and withholding of removal. Cassis Velando has not shown that she was a

member of a “particular social group” within the meaning of that phrase in the INA.

For that reason, we, like the BIA, need not address her arguments that the

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untimeliness of her asylum petition should be excused and that she proved more than

a clear probability of future harm. Even if Cassis Velando was correct on these

points, she still would not be eligible for asylum or withholding of removal.

PETITION DENIED.