Bermudez-Botero v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2171
DIANA MARIA BERMUDEZ-BOTERO, a/k/a Diana Bermudez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 31, 2010 Decided: April 22, 2010
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Petition dismissed in part; denied in part by unpublished per
curiam opinion.
Diana Maria Bermudez-Botero, Petitioner Pro Se. Daniel Eric
Goldman, Matthew Allan Spurlock, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Diana Maria Bermudez-Botero, a native and citizen of
Colombia, petitions for review of the Board of Immigration
Appeals’ (“Board”) order, which vacated the immigration judge’s
decision, denied Bermudez-Botero’s application for withholding
of removal, and ordered her removed to Colombia. 1
Bermudez-Botero was charged with removability pursuant
to Immigration and Nationality Act (“INA”) § 237(a)(1)(B),
codified at 8 U.S.C. § 1227(a)(1)(B) (2006), because she
overstayed her visa, and pursuant to INA § 237(a)(2)(B)(i),
codified at 8 U.S.C. § 1227(a)(2)(B)(i) (2006), because she had
two prior convictions for controlled substance offenses. In
response, Bermudez-Botero applied for withholding of removal,
claiming a fear of future harm due to her membership in the
particular social group of “displaced women without family
support.”
After her merits hearing, the immigration judge
granted Bermudez-Botero withholding of removal. The Department
of Homeland Security appealed, and the Board vacated the
1
Although Bermudez-Botero also initially requested
protection under the Convention Against Torture, because she
does not advance any argument relevant to that claim in her
informal brief, she has abandoned that issue on appeal. See 4th
Cir. R. 34(b); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999).
2
immigration judge’s order, finding “displaced women without
family support” was not a cognizable “social group” within the
meaning of the INA. Bermudez-Botero challenges this ruling in
her petition for review.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack
“jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a criminal
offense covered in . . . [§] 1227(a)(2)(B).” In turn,
§ 1227(a)(2)(B)(i) provides, among other things, that an alien
is removable if convicted of a violation of any federal or state
law or regulation relating to a controlled substance as defined
in 21 U.S.C. § 802 (2006). 8 U.S.C. § 1227(a)(2)(B)(i).
Bermudez-Botero’s two prior convictions for controlled substance
offenses, which are undisputed, fall squarely within these
parameters.
However, we retain jurisdiction to review
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D) (2006); Mbea v. Gonzales, 482 F.3d 276, 278 n.1
(4th Cir. 2007). Bermudez-Botero’s argument that the Board
committed legal error in finding “displaced women without family
support” did not qualify as a “social group” within the meaning
of the INA presents an issue of law, which we will review de
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novo. 2 See Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.),
cert. denied, 129 S. Ct. 595 (2008); accord Malonga v. Mukasey,
546 F.3d 546, 553 (8th Cir. 2008).
“Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that her life or freedom would be threatened in the country of
removal because of her race, religion, nationality, membership
in a particular social group, or political opinion.” 3 Gomis v.
Holder, 571 F.3d 353, 359 (4th Cir. 2009), cert. denied, 130 S.
Ct. 1048 (2010) (internal quotation marks omitted). “This is a
more stringent standard than that for asylum. . . . [W]hile
asylum is discretionary, if an alien establishes eligibility for
withholding of removal, the grant is mandatory.” Gandziami-
Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir. 2006).
2
Conversely, to the extent that Bermudez-Botero asks us to
review the Board’s alternative, factual holding that she failed
to establish inclusion in the advanced social group, we lack
jurisdiction to review that determination. See Kporlor v.
Holder, __ F.3d __, 2010 WL 746442, at *4 (4th Cir. Mar. 5,
2010) (“Section 1252(a)(2)(D) does not permit review of
discretionary judgments that rest on factual circumstances.”).
3
Amendments made by the REAL ID Act of 2005 apply in this
case, because Bermudez-Botero’s application was filed after the
May 11, 2005 effective date of that legislation. In relevant
part, the REAL ID Act amended the INA to provide that the
applicant must establish that the asserted protected ground “was
or will be at least one central reason for persecuting the
applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (2006).
4
Through a series of published, precedential decisions,
the Board has identified several factors that must be present in
order for a proposed social group to qualify under the INA. See
In re A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A. 2007); In re
C-A, 23 I. & N. Dec. 951 (B.I.A. 2006). As succinctly
summarized by the First Circuit, these cases reflect that, in
addition to the immutability component first identified in In re
Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled on
other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A.
1987), the proposed group (1) must “have social visibility,
meaning members possess characteristics . . . visible and
recognizable by others in the [native] country, (2) be defined
with sufficient particularity to avoid indeterminacy, and (3)
not be defined exclusively by the fact that its members have
been targeted for persecution.” Scatambuli v. Holder, 558 F.3d
53, 59 (1st Cir. 2009) (alterations in original) (internal
quotation marks & citations omitted).
Because neither the INA nor the relevant regulations
specifically define “particular social group,” this court will
defer to the Board’s “reasonable interpretation” of the term.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843-44 (1984); Li Fang Lin v. Mukasey, 517 F.3d 685,
691-92 (4th Cir. 2008) (noting that this court will “afford[]
appropriate deference to the [Board]’s interpretation of the INA
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and any attendant regulations”). The Board applied the
analytical framework set forth in its precedential decisions in
In re A-M-E & J-G-U- and In re C-A to determine that Bermudez-
Botero did not belong to a “particular social group” such that
she would be eligible for withholding of removal. We find this
analysis is reasonable, and thus deny the petition for review of
this issue.
Bermudez-Botero next argues the past persecution her
uncle and distant cousin sustained entitle her to a rebuttable
presumption of a well-founded fear of future persecution. We
lack jurisdiction to consider this claim, because it was not
raised on appeal to the Board and thus is not exhausted.
8 U.S.C. § 1252(d)(1) (2006); Massis v. Mukasey, 549 F.3d 631,
638, 640 (4th Cir. 2008), cert. denied, 130 S. Ct. 736 (2009).
Accordingly, we dismiss this claim for lack of jurisdiction.
For the foregoing reasons, we deny the petition for
review in part and dismiss it in part for lack of jurisdiction.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DISMISSED IN PART;
DENIED IN PART
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