Rosbelinda Gutierrez-Hernandez v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: February 23, 2021
• Docket: 20-1486
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________

No. 20-1486 ________________

ROSBELINDA GUTIERREZ-HERNANDEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

________________ On Petition for Review of a Final Order of the Board of Immigration Appeals (No. A73-641-233) ________________

Submitted Under Third Circuit L.A.R. 34.1(a) September 25, 2020

Before: AMBRO, PORTER and ROTH, Circuit Judges

(Opinion filed: February 23, 2021) __________

OPINION* _________

AMBRO, Circuit Judge,

Petitioner Rosbelinda Gutierrez-Hernandez seeks our review of the denial by the

Board of Immigration Appeals (“BIA”) of her motion to reopen removal proceedings. We

deny in part and dismiss in part her petition for review.

I.

Gutierrez-Hernandez, a native of Guatemala, had several harrowing experiences

with violence in her home village. First, in 1992 Gutierrez-Hernandez’s neighbors found

the body of a young woman lying in the street; she had been choked to death. Second, in

1993 gang members killed one of Gutierrez-Hernandez’s male neighbors who ran a

currency-exchange business. Third, shortly after the neighbor’s murder, two gang

members attacked Gutierrez-Hernandez in her home. They held Gutierrez-Hernandez at

gunpoint, demanded money, beat her, and threatened to rape and kill her.

After these experiences, Gutierrez-Hernandez entered the United States in 1994.

Eight years later, the BIA ordered her removal. During removal proceedings Gutierrez-

Hernandez sought asylum and withholding of removal on the ground that she had opposed

violent Guatemalan guerilla fighters. The BIA denied her relief.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Fast forward to 2019, when Gutierrez-Hernandez filed a motion to reopen her

removal proceedings under 8 U.S.C. § 1229a(c)(7); she also requested that the BIA

exercise its authority to reopen sua sponte the proceedings under 8 C.F.R. § 1003.2(a). She

again sought asylum and withholding of removal, plus withholding under the Convention

Against Torture (“CAT”). As to her asylum and withholding-of-removal claims,

Gutierrez-Hernandez sought protection as a member of the particular social group of

“Guatemalan women.” However, the BIA denied the motion to reopen and declined to

exercise its authority sua sponte. She now petitions us for review, arguing she is entitled

to either asylum or withholding relief.1 Gutierrez-Hernandez cites her previous

experiences with violence, as well as her male cousin’s recent murder by gang members,

as evidence that it is not safe for her to return to Guatemala.

II.

A. Statutory Motion to Reopen

We have jurisdiction to review the BIA’s denial of a statutory motion to reopen

under 8 U.S.C. § 1252(a). Alzaarir v. Att’y Gen., 639 F.3d 86, 89 (3d Cir. 2011). We

review denials of statutory motions to reopen for abuse of discretion. Zheng v. Att’y Gen.,

549 F.3d 260, 264–65 (3d Cir. 2008). Under this standard, denials of motions to reopen

“will not be disturbed unless they are found to be arbitrary, irrational, or contrary to law.”

1 Gutierrez-Hernandez also renews her CAT claim here. However, her briefing fails to explain how the BIA erred in its CAT analysis. Gutierrez-Hernandez does not argue, for example, that she would be subjected to torture upon return to Guatemala or that the Guatemalan government would acquiesce in or be willfully blind to her torture. We therefore deny her petition for review of that claim. 3 Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (quoting Tipu v. INS, 20 F.3d 580, 582

(3d Cir. 1994)).

Generally, a motion to reopen “must be filed no later than 90 days after the date on

which the final administrative decision was rendered in the proceeding sought to be

reopened.” 8 C.F.R. § 1003.2(c)(2). Here, Gutierrez-Hernandez filed her motion to reopen

seventeen years after the BIA entered its final order of removal. However,

[t]here is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for [asylum or withholding of removal] and [the motion] is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.

8 U.S.C. § 1229a(c)(7)(C)(ii). Gutierrez-Hernandez argues, among other things, she

presented sufficient evidence to the BIA that conditions have materially changed in

Guatemala since her previous proceeding.

But a showing of changed country conditions is not enough to prevail on a statutory

motion to reopen—the motion must also establish prima facie eligibility for the relief

sought. Guo, 386 F.3d at 563. This standard requires an applicant to demonstrate a

“reasonable likelihood,” or a “realistic chance,” she is entitled to relief. Id. at 563–64

(internal quotations marks omitted). Because Gutierrez-Hernandez seeks protection as part

of a particular social group, her asylum and withholding claims require her to establish

(1) “a particular social group that is legally cognizable” and (2) “a nexus, or causal link,

between the persecution and membership in the particular social group.” S.E.R.L. v. Att’y

Gen., 894 F.3d 535, 544 (3d Cir. 2018).

4 To constitute a particular social group, a group must be “(1) composed of members

who share a common immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question.” Id. at 540 (quoting In re M-E-V-G-, 26 I.

& N. Dec. 227, 237 (BIA 2014)). We ordinarily give a fresh review for the BIA’s legal

determination of the existence of a cognizable social group. Guzman Orellana v. Att’y

Gen., 956 F.3d 171, 177 (3d Cir. 2020). But here, because this is a motion to reopen, we

apply the more rigorous abuse-of-discretion standard in deciding whether the BIA erred in

denying the motion. See, e.g., Khan v. Att’y Gen., 691 F.3d 488, 498–99 (3d Cir. 2012)

(concluding, after a discussion of the BIA’s social-group analysis, that the BIA did not

abuse its discretion in denying a motion to reopen on that ground). We review its factual

findings related to the motion for “substantial evidence.” Filja v. Gonzales, 447 F.3d 241,

251 (3d Cir. 2006).

We are unpersuaded that the BIA abused its discretion here. First, we doubt that

Gutierrez-Hernandez’s proposed social group of “Guatemalan women” is legally

cognizable. The Eighth Circuit has held that “Somali women” constitute a cognizable

social group. Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007). However, that case

involved an applicant who had suffered female genital mutilation. Id. The Court held that

“a factfinder could reasonably conclude that all Somali females have a well-founded fear

of persecution based solely on gender given the prevalence of [female genital mutilation].”

Id. The Court contrasted its holding with that of the Court in Safaie v. INS, 25 F.3d 636

(8th Cir. 1994), which held that “Iranian women” did not constitute a cognizable social

group despite evidence that the Iranian government specifically oppressed women. Id. at

5 640. The Court reasoned that the applicant in that case had not shown that all Iranian

women were persecuted “based solely on their gender.” Id. Our Court followed a similar

line of reasoning in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), concluding that “Iranian

women” were not a particular social group because the applicant did not establish she

would be persecuted “based solely on her gender.” Id. at 1240–41.

We acknowledge that circuits are divided over whether proposed groups of women

with other identifying characteristics qualify as particular social groups. See, e.g., De

Pena-Paniagua v. Barr, 957 F.3d 88, 92 (1st Cir. 2020) (recognizing that “Dominican

women unable to leave a relationship with the man who abuses them” could constitute a

particular social group); Paloka v. Holder, 762 F.3d 191, 197 (2d Cir. 2014) (collecting

cases). The Ninth Circuit has also held that the group of “Guatemalan women” meets the

particularity requirement in the social-group analysis. See Perdomo v. Holder, 611 F.3d

662, 668–69 (9th Cir. 2010) (rejecting the BIA’s conclusion that the group of “Guatemalan

women” was overly broad and remanding for the BIA to reconsider whether the group met

other prongs of the cognizability test). But other than Hassan with its very different facts,

Gutierrez-Hernandez does not cite any published circuit-level authority recognizing groups

as broad as all women of a particular nationality. The BIA therefore did not abuse its

discretion in denying Gutierrez-Hernandez’s motion to reopen on this ground.

There is also a second, independent ground for concluding that the BIA did not

abuse its discretion here: Gutierrez-Hernandez has not shown “a nexus, or causal link,

between the persecution and membership in the particular social group” of Guatemalan

women. S.E.R.L., 894 F.3d at 544. “We review the BIA’s denial of a motion to reopen for

6 abuse of discretion and review its underlying factual findings related to the motion for

substantial evidence.” Filja, 447 F.3d at 251 (citations omitted). “We will reverse only if

the evidence not only supports [a contrary] conclusion, but compels it.” Guo, 386 F.3d at

561 (alteration in original) (internal quotation marks omitted). Here, the BIA found that

Gutierrez-Hernandez’s evidence “does not support the contention that [she] would

specifically be targeted” because of her membership in a particular social group. A.R. 4.

It acknowledged her evidence of pervasive violence in Guatemala but concluded the

evidence did not support Gutierrez-Hernandez’s assertion that she personally would be

targeted because of membership in a protected class. Id.

The record underscores this finding. Gutierrez-Hernandez herself testified she

would be targeted for gang violence in Guatemala because the gangs would “believe [her]

to have lots of money.” A.R. 81. While she noted that “women are considered less than

men” in Guatemala, she primarily testified that gangs “go after people for money.” Id.

Moreover, two of the incidents Gutierrez-Hernandez cites to support her fear of violence

involved only male victims.

The record does reflect that violence against women is rampant in Guatemala as a

whole and that Guatemalan gang violence also includes some gender-based violence, such

as sex trafficking. But this violence looks much more like the violence against Iranian

women at the hands of a generally oppressive regime, see Fatin, 12 F.3d at 1240–41, than

the specific, gendered violence of female genital mutilation in Hassan. Because the

evidence does not “compel” a contrary conclusion, we cannot disturb the BIA’s finding

that Gutierrez-Hernandez failed to establish a causal link between her membership in a

7 protected class (Guatemalan women) and her feared harm (violence from gangs). See Guo,

386 F.3d at 561.

In short, Gutierrez-Hernandez does not have a “realistic chance” of being entitled

to relief. Id. at 563–64. She has not established a reasonable likelihood that she is a

member of a particular social group or that she will be persecuted because of her

membership in that group. The BIA therefore did not abuse its discretion in denying

Gutierrez-Hernandez’s motion to reopen.2 See Zheng, 549 F.3d at 264–65.

B. Motion to Reopen Sua Sponte

Gutierrez-Hernandez also petitions for our review of the BIA’s denial of her motion

to reopen sua sponte under 8 C.F.R. § 1003.2(a). However, because the BIA’s discretion

in this context is “essentially unlimited,” we do not have jurisdiction to review its denial

order and thus dismiss the petition as to this issue. Sang Goo Park v. Att’y Gen., 846 F.3d

645, 651 (3d Cir. 2017). Gutierrez-Hernandez’s cited authorities are not on point. See,

e.g., Mata v. Lynch, 576 U.S. 143 (2015) (holding that, when the BIA denies a statutory

motion to reopen and declines to exercise its sua sponte reopening power, the circuit court

retains jurisdiction over the statutory motion to reopen).

In her reply brief, Gutierrez-Hernandez makes a cursory argument that her case

meets one of two narrow exceptions to this jurisdictional bar. Because she did not make

2 Gutierrez-Hernandez also argues that the BIA misapplied the “reasonable likelihood” standard by requiring her to meet “the higher standard needed to be granted asylum on the merits rather than the lower prima facie case standard.” Pet’r’s Br. 25. But the BIA’s decision here repeatedly acknowledges that Gutierrez-Hernandez needed only to establish a prima facie case, and she fails to explain how this purported error affected the BIA’s analysis. 8 this argument in her opening brief, the argument is forfeited. See Barna v. Bd. of Sch.

Dirs., 877 F.3d 136, 145 (3d Cir. 2017) (“We have long recognized, consistent with Federal

Rule of Appellate Procedure 28(a) and Third Circuit Local Appellate Rule 28.1, that an

appellant’s opening brief must set forth and address each argument the appellant wishes to

pursue in an appeal.”).

* * * * *

We thus deny in part and dismiss in part Gutierrez-Hernandez’s petition for review.