Idania Archila-Portillo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IDANIA PATRICA ARCHILA- No. 20-71605
PORTILLO; et al.,
Agency Nos. A203-607-953
Petitioners, A203-607-954
A203-607-955
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 2, 2021
Pasadena, California
Before: PAEZ, CALLAHAN, and OWENS, Circuit Judges.
Idania Patricia Archila-Portillo (“Archila-Portillo”) and her two daughters,
Idania Michelle Ponce-Archila and Genesis Nicolle Ponce-Archila1, petition for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing their
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Because Archila-Portillo’s daughters are derivative beneficiaries of her asylum
application, our references to “Archila-Portillo” also include her daughters unless
otherwise indicated.
appeal from a decision of an Immigration Judge (“IJ”) denying Archila-Portillo’s
application for asylum, withholding of removal, protection under the Convention
Against Torture (“CAT”), and ordering them removed to Honduras under 8 U.S.C
§ 1182(a)(7)(A)(i)(I).
We grant the petition in part, deny it in part, and remand for further
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(5). Where the BIA
adopts and affirms the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec.
872, 874 (BIA 1994), as here, we review the IJ’s decision to the extent it is adopted
by the BIA. Joseph v. Holder, 600 F.3d 1235, 1239-40 (9th Cir. 2010).
1. Archila-Portillo argues that she should be classified as an “alien present
in the United States without being admitted or paroled” under 8 U.S.C §
1182(a)(6)(A)(i) because she entered the United States before allegedly being
coerced by the Department of Homeland Security (“DHS”) into conceding her
removability under 8 U.S.C § 1182(a)(7)(A)(i)(I). The BIA declined to address
this argument, noting that DHS’ decision to remove Archila-Portillo to Mexico
pursuant to the Migrant Protection Protocol was a matter committed to DHS’
prosecutorial discretion and not subject to the BIA’s review. Because Archila-
Portillo is removable under either statute, she is unable to show that the outcome of
her proceeding was affected by DHS charging her as removable under 8 U.S.C §
2
1182(a)(7)(A)(i)(I) instead of 8 U.S.C § 1182(a)(6)(A)(i). As a result, the BIA did
not err in declining to address the merits of this issue.
2. Archila-Portillo seeks asylum and withholding of removal on the basis of
the persecution she experienced on account of her membership in a particular
social group. To demonstrate membership in a particular social group, “[t]he
applicant 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.’” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th
Cir. 2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).
Archila-Portillo alleged that she was a member of six different social groups,
namely: 1) “women in Honduras”; 2) “single women in Honduras”; 3) “Honduran
business owners and operators”; 4) “Hondurans who have taken concrete steps to
oppose the gangs”; 5) “returnees from the U.S. to Honduras”; and 6) Hondurans
who have a “political opinion that is imputed to them as being anti-gang and/or . . .
anti-patriarchal.”2
In concluding that the proposed gender-based social groups were not
cognizable, the IJ relied on the now-vacated Matter of A-B-, 27 I. & N. Dec. 3162
In discussing nexus, the IJ separately addressed the proposed social groups of 1)
Hondurans who have a political opinion that is imputed to them as being anti-gang
and 2) Hondurans who have a political opinion that is imputed to them as being
anti-patriarchal. Accordingly, we consider each independently in our analysis.
3
(A.G. 2018) (“A-B-I”). The IJ understood Matter of A-B-I to foreclose gender as a
basis for a particular social group. Attorney General Garland has since vacated
Matter of A-B-I and the subsequent decision in Matter of A-B-, 28 I. & N. Dec. 199(A.G. 2021) (“A-B-II”) in their entirety and instructed IJs and the BIA to “no
longer follow A-B-I or A-B-II when adjudicating pending or future cases.” Matter
of A-B-, 28 I. & N. Dec. 307, 309 (A.G. 2021) (“A-B-III”). Thus, Archila-
Portillo’s gender-based claims must be remanded to the agency for reconsideration
of their cognizability under pre-Matter of A-B-I law. This includes Archila-
Portillo’s proposed social group based on anti-patriarchal political opinion, as the
IJ found that it was “really gender attempted to be rearticulated in the context of a
political opinion” and thus failed for the same reasons as Archila-Portillo’s other
gender-based groups.
3. Archila-Portillo also must show a causal connection between the harm
she suffered and a protected social group. For purposes of asylum, she must show
that a protected ground “was or will be at least one central reason” for persecution.
8 U.S.C § 1158(b)(1)(B)(i). For withholding of removal, she must show that a
protected ground is a “reason” for threats to her life or freedom. See Barajas-
Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). The BIA concluded that the
IJ properly determined that Archila-Portillo failed to establish a nexus between her
past harm and fear of future harm and her membership in any of the gender-based
4
groups. The government argues that we should affirm the BIA’s denial of those
claims on that basis. We conclude, however, that the issue of nexus should also be
remanded to the agency for further consideration. If the BIA determines that any
of Archila-Portillo’s gender-based groups are cognizable, the harm she
experienced and the related record evidence documenting the violence against
women in Honduras should be evaluated in light of the particular cognizable social
group(s). On remand, the parties should be allowed to address both cognizability
and nexus. We express no views on either cognizability or nexus.
As to Archila-Portillo’s other bases for asylum and withholding of removal,
we deny the petition for review. The IJ found that the proposed social groups of
“Honduran business owners and operators” and “Hondurans who have taken
concrete steps to oppose the gangs” lacked “particularity and [] social distinction”
and were “amorphous and [lacking in] definable boundaries.” And for the
proposed social group of “returnees from the U.S. to Honduras,” the IJ found that it
had no “definable boundaries.” The IJ’s findings on particularity and social
distinction for these social groups were supported by substantial evidence. Further,
the IJ found that the proposed social group of Hondurans who have a “political
opinion that is imputed to them as being anti-gang” lacked nexus because the
evidence did not show that any harm Archila-Portillo experienced was on account
of her anti-gang actions. This finding is also supported by substantial evidence.
5
4. To qualify for CAT relief, Archila-Portillo must establish that it is more
likely than not that she would be tortured if returned to Honduras. Garcia-Milian
v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (citing 8 C.F.R. § 208.16(c)(2)).
Torture must be inflicted by, at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity.
Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003) (citing 8 C.F.R.
§ 208.18(a)(1)).
The IJ denied CAT relief because “[t]he past harm that the [Archila-Portillo]
family has faced or that they might face in the future has not been shown to be at
the instigation of or with the consent or acquiescence of a government official or
other person acting in an official capacity in Honduras.” Although the IJ referred
to Archila-Portillo’s testimony that the police had been ineffective in investigating
the crimes perpetuated against her family, he determined that the evidence did not
establish that the government and Mara 18 gang were working together in any
capacity. On appeal, Archila-Portillo points to record evidence that she and her
daughters have been identified by Mara 18 as targets for rape and death, police did
not arrest anyone for her husband’s murder, and the government in Honduras has a
long history of allowing violence against women. But this evidence is insufficient
to undermine the IJ’s finding that the evidence does not establish acquiescence by
the government in Mara 18’s actions.
6
Although the police may not have pursued a thorough investigation of the
murder of her husband, “a general ineffectiveness on the government’s part to
investigate and prevent crime will not suffice to show acquiescence.” Andrade-
Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). Notably, there is no record
evidence that the police were alerted to, and refused to investigate, reports related
to Mara 18. This is significant, as generalized reports of violence in Honduras
cannot establish that, upon return to Honduras, Archila-Portillo and her daughters
would more likely than not experience torture. Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010) (per curiam) (“Petitioners’ generalized evidence of
violence and crime in Mexico is not particular to Petitioners and is insufficient to
meet [the CAT] standard.”). Accordingly, we deny the petition as to Archila-
Portillo’s CAT claim.
Additionally, Archila-Portillo’s motion for a stay of removal is granted.
Archila-Portillo’s removal is stayed pending issuance of the mandate.
The petition for review is GRANTED in part, DENIED in part, and
REMANDED. The parties shall bear their own costs on appeal.
7