Gonzalez Aguilar v. Garland

Appellate Case: 18-9570 Document: 010110663824 Date Filed: 03/29/2022 Page: 1
FILED
United States Court of
PUBLISH Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 29, 2022
FOR THE TENTH CIRCUIT Christopher M. Wolpert
_________________________________ Clerk of Court
KELLY CAMILA GONZALEZ
AGUILAR, f/k/a Oscar Alexis
Gonzalez Aguilar,
Petitioner, No. 18-9570
v.
MERRICK B. GARLAND, Attorney
General of the United States, ∗
Respondent.
_________________________________
Appeal from the Board of Immigration Appeals
(Petition for Review)
_________________________________
Nicole Henning, Jones Day, Chicago, Illinois (Dennis D’Aquila, Jones
Day, and Keren Zwick and Tania Linares Garcia, National Immigrant
Justice Center, with her on the briefs), on behalf of the Petitioner.
Scott Stewart, Deputy Assistant Attorney General, Civil Division, U.S.
Department of Justice, Washington, D.C. (Joseph H. Hunt, Assistant
Attorney General, Civil Division; Claire L. Workman, Senior Litigation
Counsel; Rosanne M. Perry, Trial Attorney, Office of Immigration
Litigation, Civil Division, with him on the brief), on behalf of the
Respondent.
_______________________
∗
After oral argument, the Honorable Merrick B. Garland became the
Attorney General of the United States. We thus substitute Attorney General
Garland as the respondent.
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Before BACHARACH, PHILLIPS, and CARSON, Circuit Judges. ∗ ∗
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Kelly Gonzalez Aguilar is a transgender woman from Honduras. She
came to the United States and applied for asylum, withholding of removal,
and deferral of removal. In support, Kelly claimed
• past persecution in Honduras from her uncle’s abuse,
• fear of future persecution from pervasive discrimination and
violence against transgender women in Honduras, and
• likely torture upon return to Honduras.
The immigration judge denied the applications and ordered removal
to Honduras. In denying asylum, the immigration judge found no pattern or
practice of persecution. Kelly appealed the denial of each application, and
the Board of Immigration Appeals dismissed the appeal. The dismissal led
Kelly to petition for judicial review.
We grant the petition. On the asylum claim, any reasonable
adjudicator would be compelled to find a pattern or practice of persecution
against transgender women in Honduras.
∗∗
The Honorable Monroe G. McKay participated on the panel, but he
passed away during the pendency of the appeal. The Honorable Gregory A.
Phillips replaced Judge McKay on the panel.
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I. Kelly fled Honduras and sought asylum in the United States.
Kelly was born a male and named “Oscar” at birth. 1 From an early
age, however, Oscar displayed many feminine qualities, creating tensions
at home. These tensions flared when Oscar’s mother left for Mexico. When
she left, Oscar went to live with his uncle, a violent man who often beat
Oscar and expressed disgust for his feminine behavior. The uncle told
Oscar that he was creating “bad luck for the family” and forced him to stop
spending time on feminine activities, such as talking to girls and watching
soap operas. R. at 106, 217. The uncle cut Oscar’s hair and beat him,
calling him derogatory names and promising to “make him a man.” Id. at
106, 218. Oscar’s sister intervened, but she too was beaten.
When Oscar was twelve, he and his sister fled to Mexico to look for
their mother. But Oscar and his sister suffered further abuse in Mexico,
leading them to flee again—this time for the United States. While in the
United States, Oscar publicly identified as a woman, changing her name to
“Kelly,” taking hormonal treatments, and wearing female clothes.
1
Kelly uses feminine pronouns (she/her), and we use those pronouns
for the time that she has publicly identified as a transgender woman.
In describing Kelly during her early years as a boy named Oscar, we
mean no disrespect. We do so for clarity: Kelly allegedly suffered because
she was viewed as a boy who engaged in feminine activities.
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The government brought removal proceedings against Kelly, and she
sought asylum, withholding of removal, and deferral of removal. At her
hearing, Kelly explained her fear of returning to Honduras, describing life
there as “very difficult” for transgender women. Id. at 107, 231. The
immigration judge found Kelly’s testimony credible, but denied asylum,
withholding of removal, and deferral of removal. She appealed, and a
member of the Board of Immigration Appeals issued a brief order
dismissing the appeal. On the asylum claim, the Board rejected Kelly’s
claims of past persecution and a fear of future persecution.
II. We review the Board’s findings but can consult the immigration
judge’s opinion.
Though we review the Board’s order, we “may consult the
[immigration judge]’s opinion to the extent that the [Board] relied upon or
incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007); see
also Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (“We
also look to the [immigration judge’s] decision in . . . cases where the
[Board’s] reasoning is difficult to discern and the [immigration judge]’s
analysis is all that can give substance to the [Board]’s reasoning in its
order of affirmance.”). We consider the Board’s “factual findings [as]
conclusive unless any reasonable adjudicator would be compelled to” reach
a contrary conclusion. Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir.
2010) (quoting Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009)).
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III. The Board erred in deeming Kelly ineligible for asylum.
To obtain eligibility for asylum, an applicant must establish status as
a refugee. Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004); 8
U.S.C. § 1158(b)(1)(A). An applicant can obtain this status by proving past
persecution or a well-founded fear of future persecution. Wiransane, 366
F.3d at 893; 8 C.F.R. § 1208.13(b)(1), (2).
A. The Board had substantial evidence to deny Kelly’s claim of
past persecution.
Kelly argues that the Board should have found past persecution from
her uncle’s beatings and her expulsion from a Honduran school.
1. The Board had substantial evidence to reject Kelly’s gender
identity as a central reason for her uncle’s beatings.
Kelly argues that her gender identity was a primary reason for her
uncle’s beatings. The Board disagreed.
To show past persecution, an applicant for asylum must establish
membership in a particular social group that is “at least one central reason
for” the persecution. 8 U.S.C. § 1158(b)(1)(B)(i); Dallakoti v. Holder, 619
F.3d 1264, 1268 (10th Cir. 2010). The reason “cannot be incidental,
tangential, superficial, or subordinate to another reason for harm.” Id.(quoting In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)).
The immigration judge found that Kelly’s gender identity was not a
central reason for her uncle’s beatings:
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[Kelly] states that her uncle was “physically abusive to my sister
and I,” and that he “would hit us with his fists.” [R. at 319]
(emphasis added). Even though [Kelly’s] sister was not a
transgender woman, their uncle abused her the same as [Kelly].
This indicates that [Kelly]’s transgender identity was not a
“central reason” for her persecution. Instead, the facts suggest
other factors—such as the financial burden [she] and her sister
placed on their uncle, not to mention the generally brutish
character of the uncle—were the central reasons underlying the
harm they suffered in Honduras. See [id. at 320] (“After my
mother stopped sending money, my uncle became frustrated and
began to physically mistreat us even more.”).
R. at 112–13. The Board upheld this finding. Id. at 4.
This finding was supported by substantial evidence. Kelly points to
evidence of the uncle’s slurs and threats, attributing his violence to disgust
with Kelly’s feminine behavior. But other evidence suggested that the
uncle would have abused Kelly anyway: the uncle abused not just Kelly but
also her sister and brother, the uncle often resorted to violence when
drunk, and the uncle became increasingly violent when he stopped getting
money for Kelly’s care. A reasonable adjudicator could thus regard gender
identity as subordinate or incidental to the uncle’s other reasons for
beating Kelly. See Dallakoti, 619 F.3d at 1268. So we conclude that the
Board had substantial evidence to reject Kelly’s claim of past persecution
based on the uncle’s abuse.
2. In appealing to the Board, Kelly did not characterize her
expulsion from school as past persecution.
Kelly also alleges past persecution based on her expulsion from a
Honduran school. We can consider this allegation only if Kelly exhausted
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it when appealing to the Board. See Torres de la Cruz v. Maurer, 483 F.3d
1013, 1018 (10th Cir. 2007) (concluding that an issue is exhausted only if
it’s presented to the Board or otherwise addressed by the Board).
Kelly did not present this theory to the Board, but she did refer to her
Honduran education when stating that
• other students had called her “gay” and
• she’d been expelled for refusing to cut her hair or wear male
clothing.
R. at 31, 34. Despite these two references to harm at school based on her
gender identity, Kelly never characterized the denial of educational access
as persecution. So these two references did not present a distinct theory of
past persecution involving the denial of education. See Garcia-Carbajal v.
Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (Gorsuch, J.) (stating that
exhaustion requires the noncitizen to “present the same specific legal
theory to the [Board of Immigration Appeals] before he or she may
advance it in court”) (emphasis in original).
** *
Given the record as a whole, the Board had substantial evidence to
find that Kelly had not shown past persecution on account of her gender
identity. 2
2
The Board also concluded that the Honduran government was able
and willing to protect children who are lesbian, gay, bisexual, transgender,
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B. The Board erred in rejecting Kelly’s claim based on a fear
of future persecution.
Kelly also claims a well-founded fear of future persecution in
Honduras on account of her identity as a transgender woman. The Board
rejected this claim, reasoning that Kelly had failed to show a pattern or
practice of persecution against transgender adults in Honduras.
1. A well-founded fear of future persecution may come from a
pattern or practice of persecution.
To establish a well-founded fear, an applicant must show (1) “a
genuine, subjective fear of persecution” that is (2) objectively reasonable
based on “‘credible, direct, and specific evidence in the record.’”
Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (quoting Yuk v.
Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004)). For the second element,
an applicant must demonstrate a reasonable possibility of future
persecution. Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir. 2006).
The possibility can be reasonable even when the chance of future
persecution is as low as 10 percent. INS v. Cardoza-Fonseca, 480 U.S. 421,
440 (1987).
Applicants may show that their fears are objectively reasonable based
on membership in a group subject to “a pattern or practice” of persecution
and intersex. R. at 4. We need not address this conclusion because Kelly’s
claim of past persecution fails for other reasons.
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in the country of removal. Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th
Cir. 2001); 8 C.F.R. § 1208.13(b)(2)(iii). A pattern or practice exists when
the persecution is “systemic or pervasive.” Woldemeskel, 257 F.3d at 1191(quoting Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995)); In re
A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005).
2. The Board found no pattern or practice of persecution.
In rejecting Kelly’s claim of a well-founded fear, the Board upheld
the immigration judge’s conclusion that Kelly had not demonstrated a
pattern or practice of persecution against transgender individuals in
Honduras. But the Board supplied no explanation. We can thus “consult[]
the [immigration judge]’s more complete explanation.” Sidabutar v.
Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007); see Part II, above.
The immigration judge “recognize[d] that transgender women face
hardships in Honduras,” but observed that the government had enacted
anti-discrimination laws and prosecuted some individuals who had
committed crimes against lesbian, gay, bisexual, and transgender
individuals. R. at 114. Based on this observation, the immigration judge
concluded that transgender individuals did not face “systemic or pervasive
persecution.” Id. (quoting Woldemeskel, 257 F.3d at 1191).
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3. There is pervasive violence against transgender women in
Honduras.
The agency found that Kelly had not shown a pattern or practice of
persecution against transgender individuals in Honduras. We disagree. The
acts of violence are so widespread that any reasonable adjudicator would
find a pattern or practice of persecution against transgender women in
Honduras. See Doe v. Att’y Gen. U.S., 956 F.3d 135, 152 (3d Cir. 2020)
(concluding that the Board erroneously failed to find a pattern or practice
in Ghana of persecution against members of the lesbian, gay, bisexual,
transgender, and intersex community); Bromfield v. Mukasey, 543 F.3d
1071, 1078 (9th Cir. 2008) (concluding that the Board erroneously failed to
find a pattern or practice of persecution against gay men in Jamaica).
The record shows extensive evidence of widespread violence against
transgender individuals in Honduras. See R. at 264 (2016 State Dep’t
Report) (stating that “human rights problems” include violence and
harassment against Hondurans who are lesbian, gay, bisexual, transgender,
and intersex); id. at 708 (2015 State Dep’t Report) (same); id. at 354
(Expert Declaration of Dr. Ubaldo Herrera Coello) (“[Lesbian, gay,
bisexual, transgender, and intersex] individuals in Honduras are murdered,
attacked, threatened, and intimidated at alarming rates, and often in brutal
and/or public ways.”); id. (Expert Declaration of Dr. Ubaldo Herrera
Coello) (stating that “gangs frequently target [lesbian, gay, bisexual,
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transgender, and intersex] people . . . and subject them to physical and
sexual violence, extortion, and forced labor, among other harms”); id. at
543 (Inter-American Commission on Human Rights Report) (stating “that
killings of [lesbian, gay, bisexual, and transgender] people . . . tend to go
unpunished, and that such cases are tainted from the start by
discriminatory stereotypes based on victims’ sexual orientation or gender
identity or expression”); id. at 510 (Astraea Lesbian Foundation for Justice
Report) (“[Lesbian, gay, bisexual, transgender, and intersex] individuals
are particularly vulnerable to violence and death . . . .”); id. at 510–11
(Astraea Lesbian Foundation for Justice Report) (stating that between 2009
and 2013, the organization Cattraches recorded 120 violent deaths based
on gender identity or sexual orientation); id. at 423 (translation of El
Espectador article) (stating that Honduras had the highest rate of crimes
against transgender individuals in the Northern Triangle region); id. at 467
(Washington Blade article) (describing the murder of a Honduran
transgender activist and reporting that that “more than 240 people from
[Honduras’s lesbian, gay, bisexual, transgender, and intersex] community
[were] murdered [from] 2008” to 2017).
4. Excerpts from the 2016 Country Report do not form a
reasonable basis to question the pervasiveness of the
persecution.
The dissent draws on three statements found in the State
Department’s 2016 Country Report:
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1. Lesbian, gay, bisexual, transgender, and intersex groups have
continued working with the government to address concerns
about intimidation, fear of reprisal, and police corruption.
2. Honduras has added 30 new agents to investigate violence.
3. Law-enforcement officials are educating personnel to improve
the effectiveness of responses to gender-based violence and
violence against transgender persons.
Dissent at 6–7; see R. at 297–98. These efforts do not provide a reasonable
basis to doubt widespread persecution of transgender women in Honduras.
The dissent cites the 2016 Country Report’s discussion of meetings
between the government and lesbian, gay, bisexual, transgender, and
intersex groups, stating that this discussion suggests “alleviation of the
plight of transgender women in Honduras.” Dissent at 7. But these
meetings confirmed the rampant violence. The cited excerpt states in its
entirety:
The law states that sexual orientation and gender identity
characteristics merit special protection from discrimination and
includes these characteristics in a hate crimes amendment to the
penal code. Nevertheless, social discrimination against [lesbian,
gay, bisexual, transgender, and intersex] persons was
widespread. As of October the special prosecutor for human
rights was investigating nine formal complaints of
discrimination by members of the [lesbian, gay, bisexual,
transgender, and intersex] community in previous years.
Representatives of [nongovernmental organizations] that
focused on the right to sexual diversity alleged that the [Military
Police for Public Order] and other elements of the security forces
harassed and abused members of the community. As of August
the [nongovernmental organization] Colectivo Color Rosa
reported 11 violent deaths of [lesbian, gay, bisexual,
transgender, and intersex] persons, similar to levels in previous
years. In October the Public Ministry reported records of 218
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cases of violent deaths of [lesbian, gay, bisexual, transgender,
and intersex] individuals since 2009, of which 14 cases had
resulted in convictions and 171 were still under investigation.
[Nongovernmental organizations] also documented multiple
instances of assaults and discrimination against members of the
[lesbian, gay, bisexual, transgender, and intersex] community.
On June 2, [lesbian, gay, bisexual, transgender, and
intersex] activist and community leader Rene Martinez was
killed. Martinez was an activist in the ruling National Party, the
president of [a lesbian, gay, bisexual, transgender, and intersex]
association in San Pedro Sula, the leader of a local community
council, and a volunteer with a community-based violence
prevention program. As of early August, the [Honduran National
Police’s Violent Crimes Task Force] continued to investigate the
case. It was uncertain whether his death was related to his
[lesbian, gay, bisexual, transgender, or intersex] status or
political activities.
[Lesbian, gay, bisexual, transgender, and intersex] rights
groups asserted that government agencies and private employers
engaged in discriminatory hiring practices. [Lesbian, gay,
bisexual, transgender, and intersex] groups continued working
with the [Honduran National Police’s Violent Crimes Task
Force], the Ministry of Security, and the Office of the Special
Prosecutor for Human Rights to address concerns about
intimidation, fear of reprisals, and police corruption.
R. at 297. We do not see how this excerpt regarding meetings could lead an
adjudicator to question the widespread nature of persecution against
transgender individuals.
The dissent also points to an observation in the 2016 Country Report
that the Honduran government enlisted 30 more agents and undertook new
educational programs. But the 2016 Country Report acknowledged that
• “[p]ervasive societal violence persisted” despite the
governmental efforts and
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• “[o]ther serious human rights problems were widespread
impunity due to corruption in the investigative, prosecutorial,
and judicial systems, and excessive use of force and criminal
actions by members of the security forces.”
R. at 264. Given the Country Report’s assessment of the ongoing and
pervasive societal violence—taking place with widespread impunity
because of corruption in the Honduran government’s investigative,
prosecutorial, and judicial systems—we do not see how a factfinder could
reasonably question a pattern or practice of persecution based on the
assignment of 30 more agents or new educational efforts.
5. Anti-discrimination laws in Honduras are ineffective in
curbing the pervasive persecution of transgender women.
“The record contains significant evidence that (1) contrary to the
Board’s finding, de jure persecution does exist and (2) even if it did not,
de facto persecution does.” Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1335
(11th Cir. 2019) (emphasis in original). Consideration of de facto
persecution bears heavily on the existence of a pattern or practice. In
considering de facto persecution, the immigration judge pointed to
Honduras’s passage of laws designed to prevent discrimination against
transgender individuals. R. at 114. But when determining whether the
persecution is systemic or pervasive, we must consider the effectiveness of
these measures. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1072
(9th Cir. 2017) (en banc) (noting that adjudicators should “consider the
difference between a country’s enactment of remedial laws and the
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eradication of persecutory practices, often long ingrained in a country’s
culture”); Bromfield v. Mukasey, 543 F.3d 1071, 1077–78 (9th Cir. 2008)
(focusing consideration of a well-founded fear on how the government
implements a statute rather than the existence of the statute). In our view,
any reasonable adjudicator would have been compelled to regard the anti-
discrimination laws inadequate to stem the widespread persecution against
transgender women in Honduras.
Despite the continued onslaught against transgender women in
Honduras, the dissent points to the country’s laws as a basis to deny a
pattern or practice of persecution. But the State Department concluded that
the Honduran government had been ineffective in enforcing the statutory
protections for individuals who are lesbian, gay, bisexual, or transgender.
See R. at 303 (2016 State Dep’t Report) (“The government did not
effectively enforce these laws and regulations.”); id. at 745 (2015 State
Dep’t Report) (same); id. at 739 (2015 State Dep’t Report) (stating that
there was “an apparent rollback of these protections in the new draft penal
code”).
The rest of the record echoes this conclusion, confirming the failure
of the Honduran government to effectively enforce laws protecting
individuals who are lesbian, gay, bisexual, or transgender. See id. at 526
(Inter-American Commission on Human Rights Report) (stating that there
is “an inadequate judicial response that fuels impunity, corruption, and
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high levels of poverty and inequality”); id. at 514 (Astraea Lesbian
Foundation for Justice Report) (“Holding the judicial system accountable
for enforcing and applying the reformed law remains a major hurdle.”).
6. The Honduran government does not effectively prosecute
crimes committed against transgender women.
The immigration judge pointed not only to the anti-discrimination
laws but also to the Honduran government’s prosecution of “individuals
who commit crimes against the [lesbian, gay, bisexual, and transgender]
community.” Id. at 114. In addressing these prosecutions, the immigration
judge relied on a Country Report from the State Department, which had
reflected “218 cases of violent deaths of [lesbian, gay, bisexual,
transgender, and intersex] individuals since 2009, of which 14 cases had
resulted in convictions and 171 [had remained] under investigation.” Id. at
297 (2016 State Dep’t Report).
But the 2015 Country Report concluded that the infrequent criminal
prosecutions hadn’t diminished the abuses of human rights, adding that
these abuses had continued with “widespread impunity”:
The government took some steps to prosecute and punish
officials who committed abuses, including arresting and
charging members of Congress, judges, prosecutors, mayors and
other local authorities, and police officers, but corruption,
intimidation, and the poor functioning of the justice system
contributed to widespread impunity. Civilian authorities arrested
and investigated members of security forces alleged to have
committed human rights abuses. Impunity, however, remained a
serious problem, with prosecution in some cases of military and
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police officials charged with human rights violations moving too
slowly or remaining inconclusive.
Id. at 708–09 (emphasis added); 3 see also id. at 739 (2015 State Dep’t
Report) (stating “that 92 percent of crimes committed against [lesbian,
gay, bisexual, transgender, and intersex] persons were not investigated”);
accord id. at 544 (Inter-American Commission on Human Rights Report)
(“[T]here are few prosecutions or convictions because the national
investigation system lacks the necessary tools to recover evidence, and the
judicial system does not provide effective protection for witnesses in cases
involving violence against [lesbian, gay, bisexual, and transgender]
people.”).
Indeed, the record overwhelmingly shows that law-enforcement
officers are frequently the perpetrators of violence against transgender
women. See id. at 355 (Expert Declaration of Dr. Ubaldo Herrera Coello)
3
The dissent quotes the sentence stating that “authorities arrested and
investigated members of the security forces alleged to have committed
human rights abuses.” Dissent at 5. The surrounding sentences provided
context. For example, right before this statement, the Country Report said:
“The government took some steps to prosecute and punish officials who
committed abuses, including arresting and charging members of Congress,
judges, prosecutors, mayors and other local authorities, and police officers,
but corruption, intimidation, and the poor functioning of the justice system
contributed to widespread impunity.” R. at 708–09 (emphasis added). And
right after the statement quoted by the dissent, the Country Report
concluded: “Impunity, however, remained a serious problem, with
prosecution in some cases of military and police officials charged with
human rights violations moving too slowly or remaining inconclusive. Id.
(emphasis added).
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(“[T]he authorities themselves have directly abused and discriminated
against [lesbian, gay, bisexual, transgender, and intersex] communities . . .
creat[ing] a widespread perception that the police constitute some of the
greatest perpetrators of human rights abuses against [lesbian, gay,
bisexual, transgender, and intersex] individuals in Honduras.”); id. at 535
(Inter-American Commission on Human Rights Report) (“Trans women
human rights defenders are also subjected to arbitrary arrest, extortion and
threats from police officers.”). For example, an international commission
observed that Honduran police were using a 2001 statute to arrest
transgender women for immodesty, immorality, and disturbance of public
tranquility:
[L]egislation still exists in Honduras, which, in practice, creates
situations that violate human rights, in particular to the
detriment of transgender people. For example, the 2001 Police
and Social Coexistence Act . . . facilitates police abuse and
arbitrary detention of transgender people . . . . This law . . .
gives police the authority to arrest anyone who “violates
modesty, decency and public morals” or who “by their immoral
behavior disturbs the tranquility of the neighbors.” Thus, it is
indicated that transgender people, particularly transgender
women, are at risk of being subjected to abuse and arbitrary
arrest by the police . . . .
Id. at 542–43 (Inter-American Commission on Human Rights Report)
(footnotes omitted).
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7. The out-of-circuit opinions cited by the dissent do not
address the effectiveness of Honduras’s protective measures.
The dissent points not only to Honduras’s fruitless efforts but also to
• two unpublished opinions by the Eleventh and Third Circuits
(Cazares-Zandre v. United States Attorney General, 791 F.
App’x 96 (11th Cir. 2019) (per curiam) (unpublished) and
Martinez-Almendares v. Attorney General, 724 F. App’x 168
(3d Cir. 2018) (unpublished)) and
• a published Third Circuit opinion (Gonzalez-Posadas v.
Attorney General United States, 781 F.3d 677 (3d Cir. 2015)).
These opinions provide little guidance.
The dissent relies largely on Cazares-Zandre v. United States
Attorney General, 791 F. App’x 96 (11th Cir. 2019) (per curiam)
(unpublished). But Cazares-Zandre didn’t address the merits of an asylum
claim, which is all we are addressing here. There the Eleventh Circuit
addressed an asylum claim, but only as to the applicant’s eligibility after a
conviction. Id. at 101–03; see 8 U.S.C. § 1231(b)(3)(B)(ii). The court
didn’t discuss the merits of the asylum claim, and the word “persecution”
never appears in the opinion. See Cazares-Zandre, 791 F. App’x at 96–106.
The discussion cited by the dissent instead addressed relief under the
Convention Against Torture. Id. at 103–04. This distinction matters
because the Convention Against Torture heightens the petitioner’s
evidentiary burden. See Fuentes-Erazo v. Sessions, 848 F.3d 847, 852 (8th
Cir. 2017) (noting that the Convention Against Torture involves a
“generally more onerous standard than that for asylum or withholding of
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removal”) (internal quotations & citation omitted). Because Cazares-
Zandre involved the Convention Against Torture rather than asylum, the
noncitizen had to prove that she would “‘more likely than not’ be tortured”
in Honduras. 791 F. App’x at 103 (quoting 8 C.F.R. § 208.16(c)(2)). But
Kelly was seeking asylum, so she needed only to show a reasonable
possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987); see Part III(B)(1), above.
The dissent points out that the Cazares-Zandre court relied on
evidence of measures designed to protect Hondurans who are lesbian, gay,
bisexual, and transgender. Despite the existence of those measures, our
issue involves their effectiveness rather than the Honduran government’s
good intentions. See, e.g., Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1072 (9th Cir. 2017) (en banc) (explaining that a disconnect often exists
between a country’s commitment to protect lesbian, gay, bisexual,
transgender, or intersex individuals and the reality of persecution against
those individuals). And as the dissent points out, the Eleventh Circuit’s
unpublished opinion in Cazares-Zandre “acknowledged that civilians and
government officials in Honduras have subjected [lesbian, gay, bisexual,
and transgender] community members to horrible violence.” Dissent at 2
n.1 (citing Cazares-Zandre, 791 F. App’x at 103–04).
Though the Eleventh Circuit acknowledged horrible violence against
individuals who were lesbian, gay, bisexual, or transgender, the narrow
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issue in Cazares-Zandre was whether the petitioner could show a
likelihood that she would personally experience torture upon her return to
Honduras. Cazares-Zandre, 791 F. App’x at 104. Respectfully, we don’t
think that this opinion bears in a meaningful way on the existence of a
pattern or practice of persecution against transgender women in Honduras.
The dissent also relies on the Third Circuit’s opinion in Martinez-
Almendares v. Attorney General, 724 F. App’x 168 (3d Cir. 2018)
(unpublished). As the dissent points out, the Third Circuit discussed the
“troubling statistic that 92% of crimes against [lesbian, gay, bisexual, and
transgender] individuals went unsolved due to inadequate investigation.”
Id. at 172. The court discounted this statistic, reasoning that the petitioner
had failed to “compare that statistic to the rate at which crimes against the
general population were solved or investigated.” Id.This reasoning doesn’t relate to the systemic or pervasive nature of
the persecution. Unlike the petitioner in Martinez-Almendares, Kelly
presented evidence that Honduran law-enforcement officers had frequently
engaged in the persecution of transgender individuals in Honduras. See
Part III(B)(6), above. In the face of this frequent persecution, the Third
Circuit’s reasoning suggests a general impotency of the Honduran
government to combat crime.
Finally, the dissent relies on Gonzalez-Posadas v. Attorney General
United States, 781 F.3d 677 (3d Cir. 2015). There the Third Circuit
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considered a claim of statutory withholding of removal, not asylum. Id. at
680. So the petitioner had to prove that persecution was “more likely than
not.” Id. at 684–88; see 8 C.F.R. § 1208.16(b)(2). Here, though, Kelly had
to show only that her fear of persecution had been “well-founded.”
Cardoza-Fonseca, 480 U.S. at 431; see Part III(B)(1), above.
On top of the difference in issues, the Gonzalez-Posadas court
pointed only to the existence of measures to investigate crimes, not the
effectiveness of those measures. For example, the court relied on the
Honduran government’s establishment of a special unit to investigate
crimes against vulnerable groups as evidence that persecution was not
“more likely than not.” Gonzalez-Posadas, 781 F.3d at 688. We too
recognize that Honduras has enacted measures to combat crimes against
vulnerable groups, including the transgender community. But the court
didn’t suggest meaningful help from those measures.
Neither Gonzalez-Posadas nor any of the other cited authorities point
to any evidence suggesting that Honduras’s measures have slowed the
widespread persecution of transgender women.
** *
The record as a whole would have compelled any reasonable
adjudicator to find a pattern or practice of persecution against transgender
women in Honduras.
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IV. We remand for the Board to reconsider the applications for
asylum, withholding of removal, and deferral of removal.
Kelly applied not only for asylum but also for withholding of
removal and deferral of removal. The Board rejected these applications
based solely on Kelly’s ineligibility for asylum. But we conclude that
Kelly is eligible for asylum. So we remand for the Board to reconsider not
only the availability of asylum, but also the potential availability of
withholding of removal and deferral of removal.
Petition granted.
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18-9570, Gonzalez Aguilar v. Garland
CARSON, J. concurring in part and dissenting in part
No one can question the suffering Petitioner Kelly Gonzalez Aguilar has
experienced over the course of her life. Her tragic story evokes sympathy for her
plight and, while I might decide this case differently than the immigration judge or
the BIA, my de novo review of this petition matters not. Congress mandates that we
reverse factual findings only when evidence is so compelling that no reasonable
factfinder could find as the BIA did—a high bar indeed. In my opinion, the evidence
is not so compelling. The perhaps unintended result of the majority opinion is a
policy victory for certain asylum seekers. But in my opinion, one we should not
award. That responsibility lies with the other branches of government.
Let me start with where I and the majority agree—that no reversible error
exists in the BIA’s finding that Petitioner failed to establish past persecution by her
uncle based on her transgender identity and that we lack jurisdiction to consider
Petitioner’s argument that school authorities persecuted her. I respectfully part ways
with the majority when it comes to the question of future persecution.
Having reviewed the entire record, substantial evidence supports the BIA’s
determination that Petitioner failed to establish a well-founded fear of future
persecution. I cannot agree with the majority that the documentary evidence of
conditions in Honduras compels the conclusion that Petitioner has a well-founded
fear of persecution because of her transgender identity. Record evidence shows that
Honduras has responded to protect LGBT individuals, including enacting a law that
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made it a hate crime to discriminate against LGBT individuals, prosecuting those
accused of killing LGBT individuals, training its national police force to protect
LGBT individuals, and increasing the number of officers on its task force devoted to
investigating these crimes. I would posit that’s something a reasonable jurist could
hang her hat on to find that Petitioner does not have a well-founded fear of
persecution.
Indeed, the Third Circuit recently affirmed a BIA determination denying
asylum to an LGBT individual from Honduras on a similar record. Martinez-
Almendares v. Att’y Gen. U.S., 724 F. App’x 168, 172 (3d Cir. 2018) (unpublished).
The court noted the points raised by the majority today—that the petitioner submitted
evidence showing that Honduras struggles with violence and corruption and has a
history of discrimination against LGBT individuals including that ninety-two percent
of crimes against LGBT individuals went unsolved. Yet the Third Circuit
acknowledged and accepted that the record also contained evidence that Honduras
had recently added sexual identity as a protected class under anti-discrimination laws
and that the Honduran courts have convicted individuals for crimes targeting LGBT
individuals. 1 Id.
1
The Eleventh Circuit recently acknowledged that civilians and government
officials in Honduras have subjected LGBT community members to horrible
violence. See Cazares-Zandre v. U.S. Att’y Gen., 791 F. App’x 96, 103–04 (11th
Cir. 2019) (unpublished) (examining a record for an LGBT individual seeking
Convention Against Torture (“CAT”) relief from Honduras and noting that the record
with similar information did not compel reversal). But just as here, the record
showed the government has acted to protect LGBT individuals. Id. In another case,
the Third Circuit held that documentary evidence—again mirroring the evidence
2
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Given that other reasonable jurists throughout the country have affirmed
similar BIA decisions with similar evidence in the record, how does the majority
reach a different result? First, the majority reweighs the evidence, and second, it
disregards portions of the State Department’s Country Report to suggest the
Honduran government is unwilling or unable to protect its citizens.
here—did not compel the conclusion that a systematic, pervasive, or organized
pattern or practice of persecution of LGBT persons existed in Honduras—
undermining the majority’s assertion that any reasonable adjudicator would have
determined that Petitioner had a well-founded fear of future persecution that the
Honduran government cannot control. See Gonzalez-Posadas v. Att’y Gen. U.S., 781
F.3d 677, 687–88 (3d. Cir. 2015) (internal quotation marks omitted) (noting record
evidence in a withholding of removal case about the Honduran government
establishing a special unit to investigate crimes against LGBT persons and other
vulnerable groups did not compel the conclusion that a systematic, pervasive, or
organized pattern of persecution existed).
The majority believes these citations to Cazares-Zandre and Gonzalez-Posadas
are inapplicable because those cases involved a different burden on the petitioner
from this case. True enough. But the courts in those cases viewed a record the
majority today says a reasonable adjudicator could not view as showing Honduras
willing and able to protect LGBT individuals. Specifically, the records indicated
Honduras took recent action to protect LGBT individuals by enacting hate crime
laws, prosecuting perpetrators accused of killing LGBT individuals, training national
police force members to protect the LGBT community and increasing the number of
officers to investigate LGBT crimes. And those courts concluded this evidence did
not compel a conclusion that a pattern or practice of persecution or a likelihood of
torture of LGBT persons occurs in Honduras. See Gonzalez-Posadas, 781 F.3d at
688 (concluding that the evidence did not compel the conclusion that petitioner was
more likely than not to suffer persecution on account of his sexual orientation in light
of the Honduran government establishing a special unit in the attorney general’s
office to investigate crimes against LGBT persons and other vulnerable groups and
that the record did not “compel the conclusion that there is a ‘systematic, pervasive,
or organized’ pattern or practice of persecution of LGBT persons in Honduras”);
Cazares-Zandre, 791 F. App’x at 103–04 (stating that the record did not compel a
finding that the petitioner was more likely than not to be tortured by or with the
acquiescence of a government official if deported to Honduras despite record
evidence that both civilians and government officials had subjected members of the
LGBT community in Honduras to horrible violence).
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When the majority claims that the BIA disregarded uncontradicted evidence
that transgender women in Honduras continue to face persecution despite government
protections, it misreads the record and, as a result, reweighs the evidence.
Undisputedly the record contains evidence showing violence against transgender
women in Honduras. But the immigration judge acknowledged the evidence that
transgender women face “widespread social discrimination” and are “among the most
vulnerable to violence in Honduras.” At the same time, the immigration judge
considered the number of investigations into crimes against LGBT individuals and
the resulting number of prosecutions. Although the immigration judge noted that the
Honduran government was not able to successfully prosecute all perpetrators of
crimes against the LGBT community, the immigration judge nevertheless found that
“the legislative efforts to ensure LGBT rights—including protections for transgender
women—reveal that there is ‘not systemic or pervasive persecution’ of transgender
individuals in Honduras.” And that finding does not contradict other decisions.
The majority also contends that the documentary evidence—including the
Country Report—“overwhelmingly” points to the Honduran government’s inability
to prevent widespread discrimination against transgender women—a novel
conclusion, but one it must make to overturn the BIA. See Martinez-Almendares,
724 F. App’x at 172. The Eleventh Circuit has said that the Honduras “Country
Report taken as a whole provides substantial evidence to support the BIA and IJ’s
finding that there is no pattern or practice of persecution of LGBT persons in
4
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Honduras.” 2 Euceda v. U.S. Att’y Gen., 491 F. App’x 163, 166 (11th Cir. 2012)
(unpublished). The majority quotes snippets of both the 2015 and 2016 Honduras
Country Reports but disregards the reports as a whole. Undisputedly, the Country
Reports mention that transgendered individuals face violence and harassment. But
the Country Reports also explain that the Honduran government “took steps to
prosecute and punish officials who committed abuses, including arresting and
prosecuting members of congress, judges, prosecutors, police officers, mayors, and
other local authorities.” The Reports also mention that “authorities arrested and
investigated members of the security forces alleged to have committed human rights
abuses.” True, some prosecutions moved slowly or failed to lead to a conviction.
But the majority disregards evidence of the Honduran government’s willingness and
ability to protect its citizens.
In addressing the dissent, the majority appears to acknowledge the evidence
that the Honduran National Police has assigned 30 new agents to the violent crime
2
Again, the majority takes issue with the fact that Euceda required the
petitioner bear a different burden than the burden here. Regardless of that fact, the
Eleventh Circuit concluded that the Honduras Country Report provided substantial
evidence of no pattern or practice of persecution of LGBT persons in Honduras. The
majority also contends that the 2010 report relied on in Euceda may or may not
resemble the 2015 and 2016 Country Reports in evidence in this case. True, we do
not have the 2010 Country Report before us. But the Eleventh Circuit stated that the
2010 report provided specific examples showing that the government has prosecuted
both police officers and private persons who committed acts of violence against the
LGBT community. Euceda, 491 F. App’x at 166. The 2015 and 2016 reports go
even further in stating that Honduras prosecuted and punished members of congress,
judges, prosecutors, police officers, mayors, and other local authorities. Prosecution
and punishment suggest both a willingness and an ability to control persecution.
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task force, which is investigating homicides of members of the LGBTI community;
and taken steps to educate personnel to respond more effectively to cases of gender-
based violence and violence against LGBTI persons. But rather than view the record
with an eye towards examining whether reasonable, substantial, and probative
evidence supports the factual determinations, the majority dismisses the evidence
only to state that the record suggests that the Honduran government’s efforts have not
made a difference. In its opinion, these efforts just aren’t weighty enough and that no
reasonable adjudicator could view the evidence in the record as the immigration
judge, BIA, Third Circuit, or I have. 3 I would suggest the majority look to the
evidence in the Country Report that Honduras is prosecuting its judges, politicians,
and security forces that engage in human rights violations. See Rojas v. I.N.S., 937
F.2d 186, 190 n.1 (5th Cir. 1991) (noting that the United States Department of State
is “the most appropriate and perhaps the best resource the [BIA] could look to in
order to obtain information on political situations in foreign nations”); see also
Reyes-Sanchez, 369 F.3d 1239, 1243 (11th Cir. 2004) (concluding the immigration
judge and the BIA could “rely heavily on” the State Department’s country report). In
3
The Third Circuit’s opinion demonstrates that reasonable jurists could debate
whether the evidence in the record supports the factual determinations. See Wilson
v. Sec’y Pa. Dep’t of Corr., 782 F.3d 110, 115 (3d Cir. 2015) (holding that a
conflicting decision from another circuit “demonstrates that the issue [the petitioner]
presents is debatable among jurists of reason” (internal quotation marks omitted));
see also United States v. Crooks, 769 F. App’x 569, 572 (10th Cir. 2019)
(unpublished) (citing cases for the proposition that where another circuit opposes our
view, the issue is debatable).
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response, the majority cites to pages 303 and 745 of the record to argue that the State
Department has described prosecutions as few and ineffective. Those sections of the
2015 and 2016 Country Report discuss “Worker Rights,” and in particular,
discrimination with respect to employment and occupation. More relevant to the case
before us are pages 297 and 298 of the 2016 Country Report, which discuss “Acts of
Violence, Discrimination, and Other Abuses Based on Sexual Orientation.” That
section of the report acknowledges that LGBTI groups assert that government
agencies and private employers engage in discriminatory hiring practices, but that
LGBTI groups “continued working with the VCTF, the Ministry of Security, and the
Office of the Special Prosecutor for Human Rights to address concerns about
intimidation, fear of reprisals, and police corruption.” That section also mentions
thirty new agents to investigate such violence. Additionally, the section mentions the
work law enforcement took to educate personnel to respond more effectively to cases
of gender-based violence and violence against LGBTI persons. Again, this evidence
suggests alleviation of the plight of transgender women in Honduras.
I agree with the BIA that the record does not compel the conclusion that a
systematic, pervasive, or organized pattern or practice of persecution of LGBT
persons exists in Honduras. No doubt a person could view the record before us
differently—the majority does so today—and I might on de novo review. To be sure,
the record contains evidence showing that Honduras could do better in its
enforcement of its laws, but that does not mean we may disregard the evidence the
immigration judge considered in reaching its conclusion. Indeed, we must uphold the
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BIA’s decision when substantial evidence supports it. Escobar-Hernandez, 940 F.3d
at 1361. And “reasonable, substantial and probative evidence” supports the BIA’s
conclusion that the Honduran government protects transgender women and that those
women do not face a pattern or practice of persecution by the government or others
the government is unwilling or unable to control. “It is not our prerogative to
reweigh the evidence, but only to decide if substantial evidence supports the
[immigration judge’s] decision.” Yuk v. Ashcroft, 355 F.3d 1222, 1236 (10th Cir.
2004). Because I cannot say that any reasonable adjudicator would be compelled to
reject the immigration judge’s findings, I respectfully dissent and would deny
Petitioner’s petition for review and dissolve the stay on removal entered by this Court
on December 17, 2018.
8