Hernan Hurtado v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-3908
________________
HERNAN DARIO HURTADO;
JANET GOMEZ-PARA,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A098-365-240 and A098-365-241)
Immigration Judge: Rosalind K. Malloy
________________
Argued on October 3, 2017
Before: MCKEE, AMBRO and ROTH, Circuit Judges
(Opinion filed: November 2, 2018)
Joseph C. Hohenstein [ARGUED]
Landau Hess Simon & Choi
190 North Independence Mall West
Suite 602
Philadelphia, PA 19106
Counsel for Petitioners
Ashley Huebner [ARGUED]
Charles Roth
Lisa Koop
National Immigration Justice Center
208 South LaSalle Street
Suite 1300
Chicago, IL 60604
Counsel for Amicus-Petitioners
Chad A. Readler, Acting Assistant Attorney General
Alison R. Drucker, Senior Litigation Counsel
Aimee J. Carmichael, Senior Litigation Counsel
Susan B. Green [ARGUED]
Jem C. Sponzo
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION*
________________
ROTH, Circuit Judge
To qualify for asylum or withholding of removal under the Immigration and
Nationality Act (INA), an alien must establish that he or she is a “refugee” under the
Act.1 In relevant part, such an alien must show “persecution or a well-founded fear of
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
8 U.S.C. § 1158(b)(1)(B).
2
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.”2
Hernan Dario Hurtado and his wife Janet Gomez Parra (Petitioners) seek relief as
members of “a particular social group” subjected to persecution in Colombia. The
proposed group to which they belong consists of “architect[s]/engineer[s] and project
manage[rs] . . . forced to provide FARC with jobs, materials, and/or money and [who are]
no longer able to meet FARC’s demands.”3
On appeal from an Immigration Judge’s denial of a motion to reconsider and
reopen their applications for asylum and withholding of removal, the Board of
Immigration Appeals (BIA) held that Petitioners did not meet a central prerequisite for “a
particular social group,” namely, “social distinction.” To satisfy that requirement, a
proposed group must be perceived by “the people of a given society . . . as sufficiently
separate or distinct.”4
Petitioners seek review of the BIA’s decision. Because the BIA did not abuse its
discretion, we will deny the petition for review.
I. BACKGROUND
Petitioners entered the United States in 2003 as visitors authorized to remain in the
country until June 2004. In April 2004, Petitioners applied for asylum and withholding
of removal. Approximately four months later, they were each charged with removability
2
Id. § 1101(a)(42)(A).
3
Ohio App. 23.
4
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 241 (BIA 2014).
3
under 8 U.S.C. § 1227(a)(1)(B) and received a Notice to Appear before an Immigration
Judge (IJ).
At a December 2006 hearing, Petitioners testified before an IJ in support of their
applications. Petitioner Hernan Hurtado was an engineer and project manager who ran
construction projects in Colombia; his wife was a fashion designer. After crossing paths
with the insurgent Revolutionary Armed Forces of Colombia (FARC), Petitioners were
kidnapped, robbed, and subjected to a series of extortive threats for work, money, and
building materials, culminating in their decision to flee the country to escape FARC.
After the hearing, the IJ found that although Petitioners possessed “a subjective
fear of persecution,” they had failed to meet their burden of establishing that they were
persecuted because of their membership in a particular social group.5 On that basis, the
IJ denied Petitioners’ applications for asylum and withholding of removal. In August
2011, agreeing with that determination, the BIA dismissed Petitioners’ appeal.
Shortly thereafter, in Valdiviezo-Galdamez v. Attorney General, we rejected two
of the BIA’s three constituent requirements for a “particular social group”:
“particularity” and “social visibility.”6 In relevant part, we held that the “social
visibility” requirement—the precursor to the current “social distinction” requirement—
had been applied inconsistently and was therefore not entitled to Chevron deference.7
We reasoned that certain groups—including homosexuals in Cuba, women opposed to
female genital mutilation, and former members of the El Salvador national police—had
5
A. 722.
6
663 F.3d 582, 608-09 (3d Cir. 2018).
7
Id. at 607.
4
been deemed to satisfy the “particular social group” requirement even though their
members had defining attributes that were not outwardly perceptible or “socially
visible.”8
In March 2012, the government filed an unopposed motion to remand this case to
the BIA to consider the impact of Valdiviezo-Galdamez, and we granted that motion.
In February 2014, the BIA responded to the concerns we articulated in Valdiviezo-
Galdamez in a pair of decisions: Matter of M-E-V-G- and Matter of W-G-R-. The BIA
clarified that the social visibility requirement did not refer to “literal” or “ocular”
visibility; rather, it referred to “social distinction” and whether society perceived a group
as distinct.9 To avoid such a “misconception” in the future, the BIA renamed the social
visibility requirement “social distinction.”10 The BIA added that social distinction had to
be gauged from the vantage point of “the society in question, rather than by the
perception of the persecutor.”11
In November 2014, the BIA remanded this case to the IJ to consider whether
Petitioners were members of a socially distinct “particular social group” in view of the
BIA’s intervening decisions.
In February 2015, the IJ once again denied Petitioners’ applications for relief,
holding that they had failed to establish that their proposed group—“Colombian
architects/engineers who are extorted”—was “a distinct group recognized by Colombian
8
Id. at 603-07.
9
Matter of M-E-V-G-, 26 I. & N. Dec. at 236, 240.
10
Id. at 236.
11
Id. at 242.
5
society.”12 Rather, the IJ found that Petitioners “were unfortunate targets of generalized
crime[.]”13
Rather than appealing the IJ’s decision, Petitioners filed a motion to reconsider
and reopen their applications for asylum and withholding of removal, this time framing
the proposed group as “architect[s]/engineer[s] and project manage[rs] . . . forced to
provide FARC with jobs, materials, and/or money and [who are] no longer able to meet
FARC’s demands.”14
On April 2, 2015, the IJ denied their motion to reconsider. She reiterated the
BIA’s admonition that “[s]ocial distinction may not be determined solely by the
perception of [Petitioners’] persecutors” and found that Petitioners had failed to establish
that Colombian society regarded their proposed group as distinct, even as reframed.15
She found that “[w]hile there is some evidence that engineers have been targeted for
kidnapping by FARC, the country conditions evidence demonstrates that FARC has a
broad scope of potential victims. Thus, it appears that FARC targets a broader swath of
the Colombian population. Such victimhood is too broad and vague to be a particular
social group since acts of violence are not limited to discrete segments of society and
many are at risk.”16
On September 16, 2016, the BIA dismissed Petitioners’ appeal from that decision
based solely on Petitioners’ failure to show that “Colombian society recognizes [their]
12
A. 110.
13
Id.
14
A.R. 80.
15
Ohio App. 25.
16
Id.
6
proposed particular social group as a distinct social group.”17 The BIA agreed with the
IJ’s social distinction determination and reiterated that “a persecutor’s perception alone is
not enough to establish a cognizable social group.”18
II. SCOPE OF REVIEW
A motion to reconsider is a request to “reexamine [a] decision in light of
additional legal arguments, a change of law, or perhaps an argument or aspect of the case
which was overlooked.”19 The denial of a motion to reconsider is reviewed for abuse of
discretion.20 “The BIA abuses its discretion when it acts in a manner that is arbitrary,
irrational, or contrary to the law.”21
Our review is limited to the BIA’s final decision, except to the extent the BIA
expressly adopted a portion of the IJ’s reasoning.22 Our review is further limited to only
those reasons given by the BIA to justify its decision.23
Because the BIA’s latest decision turned solely on Petitioners’ failure to satisfy the
social distinction requirement, that is our focus.
17
Ohio App. 7.
18
Id.
19
In re O-S-G, 24 I. & N. Dec. 56, 57 (BIA 2006) (quoting Matter of Ramos, 23 I. & N.
Dec. 336, 338 (BIA 2002)).
20
Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (quoting Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004)).
21
Id. at 365.
22
Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011).
23
Id. (“[W]e may affirm the BIA’s decision only if we find that its stated reasons are
correct[.]”); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[I]n dealing with
a determination or judgment which an administrative agency alone is authorized to make,
[we] must judge the propriety of such action solely by the grounds invoked by the
agency.”).
7
III. DISCUSSION
Petitioners raise two principal arguments on appeal. First, they contend that the
BIA has failed to address the concerns we articulated in Valdiviezo-Galdamez and that
the social distinction requirement is no different from the social visibility requirement we
rejected in Valdiviezo-Galdamez. Second, they argue that the BIA and IJ erred by failing
to consider “social distinction” from the perspective of the persecutor, in this case FARC.
In our recent decision in S.E.R.L. v. Attorney General, we squarely considered and
rejected both of those arguments.
First, we held that the BIA had “resolve[d] any misconception” that the now-
renamed social visibility requirement referred to the literal visibility of a proposed
group’s defining attributes.24 For that reason, we rejected the argument that “social
distinction” is functionally no different from “social visibility,” as construed in
Valdiviezo-Galdamez.25 We also held that the social distinction requirement was capable
of rational application and, for all those reasons, elected to extend the requirement
Chevron deference.26
Second, we embraced the view that “social distinction” should not be considered
from the perspective of a persecutor alone. Such an approach, we explained, would
conflate the distinction between membership in a particular social group and persecution
on account of that membership, both of which require separate showings by an
24
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 550-51 (3d Cir. 2018).
25
Id.
26
Id. at 552.
8
applicant.27 It would also, by itself, fail to capture the perception of a given society—the
relevant inquiry—because “one bad actor’s twisted views should not be attributed to a
whole society.”28 For those technical and pragmatic reasons, we rejected the approach
Petitioners propose.
The BIA did not act “in a manner that is arbitrary, irrational, or contrary to the
law”29 by agreeing with the IJ’s determination that Petitioners had failed to meet their
burden of proof as to the social distinction requirement. The IJ considered country
conditions evidence, among other record evidence, before finding that Petitioners’
proposed group—“architect[s]/engineer[s] and project manage[rs] . . . forced to provide
FARC with jobs, materials, and/or money and [who are] no longer able to meet FARC’s
demands”—was not perceived as distinct by Colombian society.30 Rather, the proposed
group was merely a subset of a much broader and more diffuse “swath of the Colombian
population” victimized by FARC.31
27
Id. at 551.
28
Id. at 552.
29
Castro, 671 F.3d at 365.
30
Ohio App. 25.
31
Id.
9
Finally, Petitioners raise certain procedural concerns that are belied by the record,
without merit, or both.32
IV. CONCLUSION
Because the BIA did not abuse its discretion for the reasons above, we will deny
the petition for review.
32
Petitioners argue that the IJ considered an excised definition of their proposed group.
Not only did the IJ and BIA consider their proposed group, as amended, on their motion
to reconsider, we are not convinced the nomenclature used for each proposed group—
“Colombian architects/engineers who are extorted” versus “architect[s]/engineer[s] and
project manage[rs] . . . forced to provide FARC with jobs, materials, and/or money and
[who are] no longer able to meet FARC’s demands”—makes a difference. Petitioners
also argue that the IJ erred by issuing a decision before holding a master calendar
hearing. Once again, because Petitioners had ample opportunity to present evidence and
have not made a sufficient showing of prejudice, we do not discern any error.
10