Cortez Cardona v. Yates , 848 F.3d 519 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2095
VERONICA CARMELA CORTEZ CARDONA,
a/k/a VERONICA DEL CARMEN CORTEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Lipez,
Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, U.S. Department of Justice, Civil Division; Anthony
Nicastro, Acting Assistant Director, Office of Immigration
Litigation; and Joanna L. Watson, Trial Attorney, Office of
Immigration Litigation, Civil Division, on brief for respondent.
February 17, 2017
* Pursuant to Fed. R. App. P. 43(c)(2), U.S. Attorney General
Jefferson B. Sessions, III, has been substituted for U.S. Attorney
General Loretta E. Lynch as respondent.
LIPEZ, Circuit Judge. The petitioner, Veronica Carmela
Cortez Cardona ("Cortez"), a native and citizen of Guatemala, seeks
review of a decision from the Board of Immigration Appeals ("BIA"
or "Board") denying her motion to reopen an appeal challenging an
immigration judge's ("IJ") decision to reject her request for
asylum and withholding of removal pursuant to the Immigration and
Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b)(3). Under the
deferential standard of review accorded to the BIA's decision to
reject a motion to reopen and reconsider its own proceedings, we
deny her petition.
I.
Cortez arrived in the United States without proper entry
documentation on April 17, 2013. During the following month, the
Department of Homeland Security served her with a Notice to Appear
("NTA") before an IJ, alleging that she failed to possess a valid
travel document at her time of entry into the United States in
violation of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).
In a July 2013 written pleading, Cortez admitted the
factual allegations and the removal charge alleged in her NTA and
filed an application for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). Cortez's
asylum application recounted an emotionally, physically, and
sexually abusive relationship with a man whom she had dated in
Guatemala named Juan Carlos. She testified before the IJ that her
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relationship with Juan Carlos went well for a few months after
they first began dating, but eventually Juan Carlos introduced
Cortez to his many friends who were gang members and attempted to
recruit her into his gang. After rebuffing these efforts, her
relationship with Juan Carlos quickly crumbled, and he became
abusive. In order to escape Juan Carlos's physical and sexual
violence, she made arrangements to travel to the United States.
Cortez asserted before the IJ -- and continues to maintain
here -- that she is eligible for asylum based upon a fear of
persecution due to her "membership in a particular social group."
8 U.S.C. § 1158(b)(1)(B)(i). She proposed two potential social
groups in her hearing before the IJ -- "Guatemalan women who have
been involved intimately with Guatemalan male companions who
believe that women are to live under male domination" and "women
in domestic relationships who are unable to leave."1
Providing three reasons for his decision rejecting her
application for relief, the IJ first cited inconsistencies between
Cortez's testimony and statements she had made to border agents,
and concluded that her testimony about her abusive relationship
with Juan Carlos was not credible. Second, the IJ stated that
even if Cortez's testimony was credible, her proposed social groups
1
On appeal to the BIA, Cortez refined these two potential
social groups to "women who are viewed as property by virtue of
their positions within a domestic relationship" and "Guatemalan
women in domestic relationships who are unable to leave."
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were not cognizable under the INA because the statute requires
such a group "be sufficiently particular to permit an accurate
separation of members from non-members" and an "objective observer
would not reliably [be able to] gauge who is or who is not a member
of the group[s]" proposed by Cortez. Finally, the IJ noted that
internal relocation in Guatemala remained a "significant
possibility" for Cortez.
Cortez appealed the IJ's denial to the BIA. In its June
2015 decision, the Board chose not to address the IJ's
determination as to Cortez's credibility or her ability to relocate
internally in Guatemala. Moreover, the BIA did not adopt the IJ's
determination that Cortez failed to define a cognizable social
group under the INA. Rather, the BIA acknowledged that in one of
its recent decisions, Matter of A-R-C-G-, the Board held that,
depending upon the circumstances of an individual case, "married
women in Guatemala who are unable to leave their relationship" can
constitute a cognizable social group under the act." 26 I. & N.
Dec. 388, 392 (BIA 2014). Ignoring the obvious fact that Cortez
was not married to Juan Carlos, the BIA stated that "the respondent
and her boyfriend had not established a domestic relationship, and
the respondent has limited knowledge about her former boyfriend's
life."2 [Id.] The BIA thus concluded that "the respondent has
2
The BIA noted that even though Cortez testified she dated
her boyfriend for six months, she did not know his last name, where
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not shown that she was in a domestic relationship and does not fit
within the particular social group that she claims." As a result,
the BIA upheld the IJ's denial and dismissed Cortez's appeal.
Cortez next filed a timely motion requesting that the
Board reopen and reconsider her appeal, insisting the BIA committed
three distinct legal errors.3 First, she argued that it was
improper for the BIA to cite Matter of A-R-C-G- in its decision
because that case was decided after she had submitted her appeal
brief. Second, even if the BIA appropriately cited Matter of A-
R-C-G-, she should have been allowed to submit a brief in response
to that decision in order to present a full argument to the Board.
Finally, she contended that the BIA erred when it decided she was
not in a "domestic relationship" with her boyfriend, Juan Carlos.
The BIA rejected Cortez's arguments and denied her motion to reopen
and reconsider. This timely petition for review of the Board's
decision against reopening and reconsideration followed.
he lived, or his birthday and that she did not know anything about
his immediate family.
3 Cortez's motion to reopen and reconsider only addressed the
BIA's decision on her application for asylum and withholding of
removal. She did not seek review of the BIA's denial of her
application for CAT protection. Hence, we do not consider that
issue here.
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II.
We review the denial of a motion to reopen and reconsider
for abuse of discretion.4 Martinez-Lopez v. Holder, 704 F.3d 169,
171 (1st Cir. 2013). "This is a deferential standard, and we will
find an abuse of discretion only when the 'denial was made without
a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Id. at 172(quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003)).
Cortez presses before us the three legal arguments she
advanced in her motion to reopen. We address each in turn.
A. The BIA's Reliance upon Matter of A-R-C-G-
Cortez urges that, "[i]n the interests of equity and
fairness," the BIA should not be permitted to cite a case in its
decision denying her appeal from the IJ that was decided after she
submitted her brief to the Board. In its denial of the motion to
reopen and reconsider, the BIA noted that its Practice Manual
provides an opportunity for parties to file a supplemental brief
if the party discovers new authority that creates a change in the
law. Cortez contends that her counsel did not discover Matter of
A-R-C-G- before her appeal was decided, and it cannot "be
reasonably expected that in the dynamic and ever changing area of
4
Cortez's petition asks us only to reexamine the Board's
decision denying her motion to reopen and reconsider her case.
She does not seek and we do not review the BIA's initial dismissal
of her appeal.
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immigration law, a party's counsel will always be immediately
apprised of every new authority that arises shortly after a brief
has been submitted with the Board."
We disagree. It is counsel's role to be alert to changes
in the law. See United States v. Gonzalez Vargas, 585 F.2d 546,
547 (1st Cir. 1978) (per curiam) ("It is the responsibility of
counsel to keep abreast of the law and to inform the court of the
correct state of the law."). Not only was the BIA acting well
within its broad discretion in citing Matter of A-R-C-G- when it
reviewed the IJ's decision, its failure to consider such an
important and relevant intervening decision could, itself, be
grounds for remand from this court. See Kadri v. Mukasey, 543
F.3d 16, 22 (1st Cir. 2008) (remanding case to the IJ to evaluate
petitioner's claim in light of intervening case law).
B. The BIA's Refusal to Allow Further Briefing
Even if the BIA could have properly cited Matter of
A-R-C-G- in its decision, Cortez argues that it improperly denied
her request to submit additional briefing in response to her motion
to reopen and reconsider. She further asserts that the "severe
time constraints" placed upon her for filing a timely motion to
reconsider prevented her from fully briefing the matter and
"[a]ffording more time would not have placed a burden on the BIA."
Perhaps not, but the Board had no obligation to permit
further briefing. Also, in rejecting Cortez's argument, the Board
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explained that Cortez had set forth her Matter of A-R-C-G-
contention in her motion to reopen and reconsider, and it was
willing to reconsider that argument sua sponte, without the benefit
of further briefing. There was no abuse of discretion in the
Board's decision to consider Cortez's argument on the basis of the
papers before it.
C. The BIA's Cognizable Social Group Analysis
In challenging the BIA's reconsideration of her Matter
of A-R-C-G- argument, Cortez insists that the BIA erred by narrowly
focusing on the fact that she was not married to her abusive
boyfriend and thus did not fit within the particular social group
defined in Matter of A-R-C-G-. Cortez misconstrues the Board's
decision.
In its initial decision the Board acknowledged that
Matter of A-R-C-G- recognized "married women in Guatemala who are
unable to leave their relationship" as a particular social group
potentially eligible for asylum under the INA. 26 I. & N. Dec. at
392. However, the Board did not state that Cortez had to fit
within that same social group of married women. To the contrary,
it focused on the domestic relationship issue, and it concluded
that Cortez had not demonstrated factually that she fit within her
own proposed social groups -- "Guatemalan women in domestic
relationships who are unable to leave" or "women who are viewed as
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property by virtue of their positions within a domestic
relationship."5
In reconsidering that conclusion in response to Cortez's
motion to reopen, the Board elaborated on its position:
5 By choosing to focus on the domestic relationship issue
rather than the absence of Cortez's marital relationship, the BIA
adds to the ongoing debate about the scope of Matter of A-R-C-G-.
In at least two unpublished decisions from earlier in 2015, the
BIA categorically stated that marital status should not be the
determinative factor in deciding a domestic violence asylum claim.
See Matter of D-M-R-, 3 (BIA June 9, 2015),
https://www.scribd.com/document/271354416/D-M-R-BIA-June-9-2015
(last visited Feb. 16, 2017); Matter of E-M-, 1 (BIA Feb. 18,
2015), https://www.scribd.com/document/271353122/E-M-BIA-Feb-18-
2015 (last visited Feb. 16, 2017); see also Blaine Bookey, Gender-
Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair
Application of the Law, 22 Sw. J. Int'l L. 1, 14 & n.55 (2016).
In a third unpublished decision from 2015, the BIA noted that it
was proper for an IJ to attach "some significance" to the absence
of a marital relationship in denying an applicant's request for
asylum, though it also reiterated its previous position that
marital status is not necessarily determinative. Unpublished BIA
Decision, 3 (BIA July 28, 2015) (available as Case No. 11018 in
the Center for Gender and Refugee Studies database at the
University of California Hastings College of Law); see also Bookey
at 14 & n.56. However, the applicant in that case filed a motion
to reconsider, and upon further review the Board reversed its
initial decision, stated that it was not proper to consider marital
status in the analysis, and remanded the case to the IJ for further
proceedings. Unpublished BIA Decision, 1 (BIA Nov. 9, 2015)
(available as Case No. 11018 in the Center for Gender and Refugee
Studies database at the University of California Hastings College
of Law). Because unpublished BIA decisions carry no precedential
value, practitioners and scholars have urged the Board to publish
more decisions on the domestic relationship issue to provide
additional clarity for IJs. See, e.g., Sital Kalantry & Carolyn
Wald, Asylum for Domestic Violence Survivors: Immigration
Advocates Urge Board of Immigration Appeals to Publish More
Precedent Cases, Catholic Legal Immigration Network, Inc. (Mar. 1,
2016), https://cliniclegal.org/news/asylum-domestic-violence-
survivors-immigration-advocate-urges-board-immigration-appeals-
publish (last visited Feb. 16, 2017).
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The respondent was not in a "domestic
relationship." The word "domestic" is defined
at http://dictionary.reference.com as "of or
relating to the home, the household, household
affairs, or the family[,]" or as "devoted to
home life or household affairs." The
respondent testified that she dated Juan
Carlos happily for 3 months and did things
like going to the park and getting ice cream.
After dating for 3 months, he introduced her
to some of the members of the gang to which he
belonged, and asked her to be his woman and
belong to the gang. She refused his offer.
The respondent was never in a "domestic"
relationship with Juan Carlos.
The record amply supports this determination by the Board. Hence,
the BIA did not abuse its discretion when it denied Cortez's
motion.6
For the forgoing reasons, the petition is dismissed.
6 Before us, Cortez has argued that the proper cognizable
social group to consider should be "women, married or unmarried,
in Guatemala who are unable to leave their relationship." This
description, which avoids using the term "domestic relationship,"
is similar to a social group Cortez proposed to the IJ, but it
represents a different proposed social group from those she pressed
before the BIA. Hence, Cortez may not propose this social group
in a petition for review, since she "failed to exhaust this claim
before the agency." Pheng v. Holder, 640 F.3d 43, 47 n.4 (1st
Cir. 2011) (citing 8 U.S.C. § 1252(d)(1)).
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