Nery Quintanilla-Miranda v. William Barr, U. S. At ( 2019 )

Case: 18-60613 Document: 00515055054 Page: 1 Date Filed: 07/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2019
No. 18-60613
Lyle W. Cayce
Clerk
NERY NOLASCO QUINTANILLA-MIRANDA, also known as Nery
Quintanilla,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A204-650-077
Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
Judge.*
STEPHEN A. HIGGINSON, Circuit Judge:**
Nery Nolasco Quintanilla Miranda petitions for review of a Board of
Immigration Appeals (BIA) decision denying his requests for withholding of
removal and voluntary departure. We deny the petition.
* District Judge of the Northern District of Mississippi, sitting by designation.
**Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60613 Document: 00515055054 Page: 2 Date Filed: 07/30/2019
No. 18-60613
Quintanilla Miranda is a native and citizen of Honduras. As a child, he
was the victim of severe abuse by his father. In 2007, at the age of fifteen, he
left Honduras and entered the United States unlawfully. In 2014, the
Department of Homeland Security initiated removal proceedings against him
based on his unlawful presence in the United States. Quintanilla Miranda
acknowledged entering the country illegally but applied for withholding of
removal under both Section 241(b)(3) of the Immigration and Nationality Act
(INA) and the Convention Against Torture (CAT). In the alternative, he
requested voluntary departure. The immigration judge denied all relief and
ordered Quintanilla Miranda removed to Honduras. The BIA dismissed his
appeal, and this petition for review followed.
I.
To qualify for withholding of removal under the INA, Quintanilla
Miranda bears the burden to show that his “life or freedom would be
threatened in the proposed country of removal on account of race, religion,
nationality, membership in a particular social group, or political opinion.”
8 CFR § 208.16(b) (emphasis added). Under BIA precedent, “an applicant for
asylum or withholding of removal seeking relief based on ‘membership in a
particular social group’ must establish that the group is (1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question.” Matter of
M-E-V-G-, 26 I & N Dec. 227, 237 (BIA 2014).
We have approved this framework as a reasonable interpretation of the
INA. See Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786–87 & n.1 (5th Cir.
2016); Orellana-Monson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012). In a
recent precedential opinion, the Attorney General reaffirmed that “an
applicant seeking to establish persecution on account of membership in a
‘particular social group’ . . . must demonstrate membership in a group, which
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is composed of members who share a common immutable characteristic, is
defined with particularity, and is socially distinct within the society in
question.” Matter of A-B-, 27 I & N Dec. 316, 317 (A.G. 2018); see also id. at 330(explaining and approving the M-E-V-G- standard). The Attorney General
directed immigration judges and the BIA to conduct a “rigorous analysis” in
every case and to carefully apply the standards set out in M-E-V-G- and other
precedential opinions. Id. at 340.
Quintanilla Miranda asserts that he suffered past persecution based on
a proposed social group of “Honduran sons in domestic familial relationships
who are unable to leave.” The immigration judge denied Quintanilla Miranda’s
application for withholding of removal on multiple grounds, including that he
failed to establish the existence of a particular social group. The BIA agreed,
holding “that the respondent’s proposed social group is not cognizable under
Matter of A-B-.” “We review the BIA’s decision and only consider the
[immigration judge’s] decision to the extent that it influenced the BIA.” Luna-
Garcia De Garcia v. Barr, 921 F.3d 559, 565 (5th Cir. 2019) (quoting Shaikh v.
Holder, 588 F.3d 861, 863 (5th Cir. 2009)). Because the BIA’s denial of relief
rested solely on the absence of a cognizable social group, our review is limited
to that issue. 1 See Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir.
2010).
The BIA correctly determined that Quintanilla Miranda’s proposed
social group is not legally cognizable. To satisfy the “particularity” requirement
of a particular social group, a “group must not be ‘amorphous, overbroad,
diffuse, or subjective.’” A-B-, 27 I & N Dec. at 335 (quoting M-E-V-G-, 26 I & N
1 We do not consider Quintanilla Miranda’s challenge to alternative holdings by the
immigration judge not passed on by the BIA, such as the immigration judge’s determination
that he did not suffer past persecution. Nor do we express any opinion regarding other aspects
of asylum law discussed in A-B-, 27 I & N Dec. 316, but not necessary to the BIA’s decision
in this case.
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Dec. at 239). This standard, although recently reiterated in A-B-, reflects well-
established Fifth Circuit and BIA precedent. See Hernandez-De La Cruz, 819
F.3d at 786–87; M-E-V-G-, 26 I & N Dec. at 239. In Orellana-Monson, for
example, we held that a proposed group of “men who were recruited but refused
to join Mara 18” is insufficiently particular because the group “is exceedingly
broad” and “too amorphous,” given that “it encompasses a wide swath of society
crossing many political orientations, lifestyles, and identifying factors.” 685
F.3d at 521–22.
The category of “Honduran sons in domestic familial relationships who
are unable to leave” similarly lacks particularity. As Quintanilla Miranda
himself acknowledges, this group could include almost any Honduran son. We
recently observed that a similar proposed group of “Honduran women and girls
who cannot sever family ties . . . is either incomprehensibly vague or
impermissibly overbroad.” Cantarero-Lagos v. Barr, 924 F.3d 145, 150–51 (5th
Cir. 2019). “Being unable to ‘sever family ties’ can mean anything from a
requirement to care for a debilitated family member to a social system that
forbids marriage without patriarchal consent.” Id.; see also Orellana v.
Sessions, 722 F. App’x 443, 449 (6th Cir. 2018) (holding that “the group
‘children who are unable to leave their families’ is not sufficiently
particularized” because “[t]he fact that children cannot leave home is a near-
universal reality of childhood”). Because Quintanilla Miranda failed to
establish membership in a cognizable particular social group, the BIA did not
err in denying withholding of removal under the INA. 2
2 At oral argument, the government asked us to hold as a matter of law that all groups
involving an inability to leave a relationship are not cognizable because such groups are
circularly defined in terms of the persecution of group members. See Orellana-Monson, 685
F.3d at 518–19 (explaining that “the risk of persecution alone does not create a particular
social group”) (quotation omitted). We do not read either A-B-, 27 I & N Dec. 316, or the BIA’s
decision in this case to set forth such a categorical rule. In any event, we do not perceive a
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II.
Quintanilla Miranda also seeks to challenge the denial of his requests
for withholding of removal under the Convention Against Torture and for
voluntary departure. We lack jurisdiction to review either claim.
The BIA deemed Quintanilla Miranda’s CAT claim abandoned because
he failed to meaningfully contest the immigration judge’s denial of this relief.
We do not have jurisdiction to consider issues that were not first raised before
the BIA. See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009); see also 8
U.S.C. § 1252(d). A petitioner “must fairly present an issue to the BIA to satisfy
§ 1252(d)’s exhaustion requirement.” Vazquez v. Sessions, 885 F.3d 862, 868
(5th Cir. 2018) (quoting Omari, 562 F.3d at 321). Quintanilla Miranda offered
no substantive argument to the BIA regarding his CAT claim, and he does not
contest the BIA’s finding of abandonment. Because he failed to exhaust this
claim, we cannot consider it.
Finally, Quintanilla Miranda argues that he is entitled to voluntary
departure because the immigration judge erroneously classified his conviction
for aggravated flight from an officer as a crime involving moral turpitude. But
the BIA’s decision did not rely on this legal determination. The BIA instead
affirmed the immigration judge’s alternative holding that voluntary departure
was unwarranted as a matter of discretion. We “lack jurisdiction to review
claims for discretionary relief, including claims regarding voluntary
departure.” Eyoum v. INS, 125 F.3d 889, 891 (5th Cir. 1997) (citing 8 U.S.C.
§ 1252(a)(2)(B)).
Accordingly, the petition for review is DENIED.
circularity problem in the specific proposed group at issue in this case. As discussed above, a
child may be unable to leave a familial relationship for multiple reasons unrelated to
persecution.
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