B.L.L. v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2039
______________
B.L.L.,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-641-788)
Immigration Judge: Tamar H. Wilson
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 6, 2023
______________
Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.
(Filed: March 9, 2023)
______________
OPINION*
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
B.L.L. petitions for review of the Board of Immigration Appeals (“BIA”) decision
denying her claim for asylum. Because the BIA erred in concluding that B.L.L. waived
her claim for humanitarian asylum, and because the BIA misread one of B.L.L.’s
proposed particular social groups, we will grant the petition for review and remand to the
BIA.
I
B.L.L. grew up in Guatemala with five brothers and one sister. B.L.L.’s father
began sexually abusing her daily when she was about five years old and began raping her
when she was nine years old. He also beat B.L.L., her mother, and her siblings. Her four
older brothers fled their home due to the abuse. Neither B.L.L. nor her mother reported
the abuse to the police.
B.L.L.’s father kept her isolated from others, removing her from school when she
was nine years old to prevent her from playing with other children. He threatened to burn
her if she ever told her mother or anyone else about the abuse. When B.L.L. was eleven
or twelve years old, her father left for the United States. Thereafter, B.L.L. met her now-
husband and moved in with his family. When her father returned to Guatemala, he
threatened to kill B.L.L. and her husband and prevented B.L.L. from visiting her mother.
B.L.L.’s husband went to the police once regarding these threats, but later left the country.
2
B.L.L. remained and her father continued to threaten her.1 She fled to the United States in
2012.
B.L.L. was apprehended by the Department of Homeland Security and removal
proceedings were commenced before an Immigration Judge (“IJ”).2 In response, B.L.L.
filed, among other things, an application for asylum. 3 B.L.L. claimed that her father’s
abuse constituted persecution and she feared that her father would “rape, beat, or even
kill” her if she returned to Guatemala. She alleged that her persecution was based on her
membership in three particular social groups (“PSG”s): (1) “a child viewed as ‘property’
of her father”; (2) “a child without parental protection”; and (3) “a member of the [L* D*]
family.”4 AR 117-19.5
1
In her credible fear interview, B.L.L. also stated that when she was eighteen, after
her husband left for the United States, her father coerced her to move back in with him,
and he resumed raping her. However, this is not mentioned in her affidavit or testimony
before the IJ.
2
B.L.L. was initially charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I)
but the charge was amended to charge her under 8 U.S.C. § 1182(a)(6)(A)(i).
3
B.L.L. also applied for withholding of removal and relief under the Convention
Against Torture, which were denied, and she does not seek review of those rulings.
4
To ensure confidentiality, we refer to B.L.L.’s last name as L* D*.
5
In support of her application, B.L.L. also submitted a psychological evaluation,
which concluded that B.L.L. suffers from posttraumatic stress disorder (“PTSD”) and
depression due to the abuse she faced as a child, both of which are exacerbated when she
thinks or hears about Guatemala. B.L.L. also submitted an article on violence against
women in Guatemala, which stated that criminal penalties for domestic violence did not
exist in Guatemala until 2008 and that the rate of impunity for crimes against women
remains very high (approximately 98.1% in 2013). In addition, B.L.L. submitted a 2017
report by the United States Department of State, which stated that the Guatemalan police
“often failed to respond to requests for assistance related to domestic violence,” AR 185,
3
At the hearing before the IJ, B.L.L. recounted her father’s abuse and testified that
he had since died. When asked why she is afraid to return to Guatemala, B.L.L.
responded that she is afraid of the gangs and crime.
The IJ concluded that B.L.L.’s testimony was credible but denied her application.
Relevant here, the IJ held: (1) B.L.L. had failed to show a nexus between her membership
in any of the proposed PSGs and the abuse by her father, instead concluding he targeted
her simply because she was “available” to him, AR 53-55 (relying on Matter of A-B-, 27
I. & N. Dec. 316 (A.G. 2018)); (2) because B.L.L.’s father is dead, she could not
demonstrate a well-founded fear of future persecution by him, AR 54; and (3) her
proposed PSGs of “child viewed as property of father” and “child without parental
protection” are not cognizable because they are not socially distinct, AR 54.
B.L.L. appealed, challenging the IJ’s findings as to past persecution and asserting
that the BIA should remand to the IJ to consider her eligibility for humanitarian asylum
under 8 C.F.R. § 1208.13(b)(1)(iii).6 The BIA dismissed the appeal, concluding: (1)
and that the Public Ministry reported only sixteen convictions out of 2,571 reports of child
abuse from January to August 2017.
6
Humanitarian asylum allows an applicant who has experienced past persecution to
obtain asylum “in the absence of a well-founded fear of persecution” if:
(A) The applicant has demonstrated compelling reasons for being unwilling or
unable to return to the country arising out of the severity of the past persecution; or
(B) The applicant has established that there is a reasonable possibility that he or she
may suffer other serious harm upon removal to that country.
8 C.F.R. § 1208.13(b)(1)(iii)(A)-(B).
4
B.L.L. failed to “meaningfully raise” a humanitarian asylum claim before the IJ and,
regardless, she could not establish humanitarian asylum because she had not demonstrated
past persecution on account of a protected ground, AR 6, (2) none of B.L.L.’s proposed
PSGs were cognizable because (a) the group “[L*D*] family”, which the BIA construed
to include extended family or in-laws, lacked particularity and social distinction, AR 4,
and (b) the proposed groups defined as “child viewed as property of father” and “child
without parental protection” failed the particularity and social distinction requirements
because “groups[] which are defined by youth are too broad and amorphous,” AR 5,7 and
(3) due to her father’s death, B.L.L. could not establish a well-founded fear of future
persecution.
B.L.L. petitions for review.
II8
B.L.L. seeks humanitarian asylum. Humanitarian asylum is available to a
noncitizen who has suffered past persecution 9 and can demonstrate (A) “compelling
7
The BIA noted that the Attorney General had since vacated Matter of A-B- and
explained that it was not relying on that case in reaching its decision.
8
The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a). “We review the BIA’s legal determinations
de novo,” Zhi Fei Liao v. Att’y Gen., 910 F.3d 714, 718 (3d Cir. 2018) (quoting Sesay v.
Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015)), and its “factual findings under the
substantial evidence standard, which means that they are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary,” Fei Yan Zhu v. Att’y Gen.,
744 F.3d 268, 272 n.3 (3d Cir. 2014).
9
Past persecution requires that an applicant “suffered persecution in the past in the
applicant’s country of nationality or . . . country of last habitual residence, on account of
5
reasons for being unwilling or unable to return to that country arising out of the severity of
the past persecution,” 8 C.F.R. § 208.13(b)(1)(iii)(A), or (B) “a reasonable possibility that
he or she may suffer other serious harm upon removal to that country,” 8 C.F.R.
§208.13(b)(1)(iii)(B). B.L.L. asserts that she is eligible for humanitarian asylum under
subsection (A) of the regulation, which is “based on the severity of past persecution
alone” and requires that such persecution be “extreme” or “atrocious.” Sheriff v. Att’y
Gen., 587 F.3d 584, 593-94 (3d Cir. 2009). The BIA declined to consider B.L.L.’s
humanitarian asylum claim because she did not raise it before the IJ, and in any event,
concluded that she had not demonstrated persecution on account of a protected ground.
1
We first consider whether a noncitizen waives a claim for humanitarian asylum by
failing to specifically request it before the IJ. We have not addressed this question, but
two of our sister circuits have held that where a noncitizen seeks asylum based on past
persecution, she need not separately request humanitarian asylum to preserve her claim for
such relief. Antonio v. Barr, 959 F.3d 778, 798 (6th Cir. 2020); Ordonez-Quino v.
Holder, 760 F.3d 80, 95 (1st Cir. 2014). As those courts explained,
because humanitarian asylum is ‘not a separate form of relief created by the
Immigration and Nationality Act,’ but rather ‘is a discretionary form of
relief that may be granted to certain asylum seekers,’ an applicant’s
eligibility for humanitarian asylum is not waived when she fails to
independently request it on the basis of a past persecution claim.
race, religion, nationality, membership in a particular social group, or political opinion.”
8 C.F.R. § 208.13(b)(1).
6
Antonio, 959 F.3d at 798 (quoting Ordonez-Quino, 760 F.3d at 95). As further support for
this conclusion, the Court of Appeals for the First Circuit noted that “there is no separate
space in the asylum application, Form I-589, for an applicant to make a claim for
‘humanitarian asylum,’ as opposed to ‘regular’ asylum.” Ordonez-Quino, 760 F.3d at 95
n.13.10
We adopt the reasoning of our sister circuits and conclude that a noncitizen does
not waive a request for humanitarian asylum where her asylum application asserts past
persecution and provides facts showing compelling reasons for her being unable or
unwilling to return to that country or that she would face other serious harm if removed.
B.L.L. has met these requirements. Her asylum application alleged past persecution, see
Zubeda v. Ashcroft, 333 F.3d 463, 472-73 (3d Cir. 2003) (explaining that rape “can
constitute sufficient persecution to support a claim for asylum” and can even amount to
torture) on account of her membership in a proposed PSG, and she submitted evidence
that she suffers from PTSD and would be psychologically harmed if forced to return to
the place where she was abused, thus plausibly providing a compelling reason for being
unwilling to return. The BIA thus erred in refusing to consider B.L.L.’s humanitarian
asylum claim.
10
Ordonez-Quino explained that an applicant is required to request humanitarian
asylum “at the agency level—i.e., [either] before the BIA or IJ—prior to asking this court
to review the agency’s denial of such relief.” 760 F.3d at 95 n.14 (emphasis in original).
7
2
We next consider whether the BIA erred in concluding that B.L.L. cannot establish
humanitarian asylum because she failed to show she is a member of a PSG. A protected
PSG is “(1) composed of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the society in question.”
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir. 2018) (quoting In re M-E-V-G-, 26 I.
& N. Dec. 227, 237 (B.I.A. 2014)). 11
The BIA rejected B.L.L.’s proposed PSG as a “member of the [L* D*] family”
because it determined (1) the group lacks particularity, since it is “not limited to
immediate family members[,] as it could include all family related by blood, in-laws, or
other extended family members,” AR 4; and (2) B.L.L. “provided insufficient evidence”
to demonstrate that the group is socially distinct, AR 4-5.
The BIA erred in construing B.L.L.’s proposed group to include extended family.
By defining the group as those who share B.L.L.’s surname (L* D*)—which is comprised
of her father’s paternal surname (L*) and her mother’s paternal surname (D*)—B.L.L.
limited the group to her immediate family, as her more distant relatives or in-laws would
have a different set of surnames. Additionally, the relationship between B.L.L. and her
persecutor is a parent-child relationship, which further supports interpreting the proposed
11
We review “de novo the ultimate legal conclusion as to the existence of a
particular social group, while we review the underlying factual findings for ‘substantial
evidence . . . .’” S.E.R.L., 894 F.3d at 543 (citation omitted).
8
PSG to cover only B.L.L.’s immediate family. 12 The BIA’s misunderstanding infected its
particularity and social-distinction findings, so we cannot defer to them. Accordingly, we
remand to the BIA to determine whether B.L.L. has demonstrated that a group comprised
of her immediate family satisfies the particularity and social distinction requirements. 13 If
those requirements are met, then the BIA should consider whether B.L.L. suffered
persecution on account of her membership in that PSG. Though the IJ found no nexus
linking her alleged persecution to her membership in that PSG, the BIA did not reach that
issue, so we cannot uphold its decision on that ground. SEC v. Chenery Corp., 318 U.S.
80, 87–88 (1943).
12
Moreover, B.L.L.’s memorandum of law to the IJ explained that “the cause of
[B.L.L.’s] abuse is the fact that she was the child of her father and he had complete control
over her.” AR 119. B.L.L.’s memoranda before the IJ and the BIA also stated that
“[B.L.L.], her siblings, and her mother were victims of severe physical domestic violence
by her father[.]” AR 14, 113.
13
The BIA correctly rejected B.L.L.’s other two proposed PSGs—“child viewed as
property of father” and “child without parental protection”—as too broad and amorphous.
While youth can sometimes be an element of a cognizable PSG, see Lukwago v. Ashcroft,
329 F.3d 157, 178-79 (3d Cir. 2003) (upholding PSG defined as former child soldiers who
escaped the Lord’s Resistance Army), it becomes too vague when combined with
additional amorphous elements, see Escobar v. Gonzales, 417 F.3d 363, 367-68 (3d Cir.
2005) (rejecting PSG defined as “Honduran street children” because “[p]overty,
homelessness and youth are far too vague and all encompassing to be characteristics that
set the perimeters for a protected group”); see also S.E.R.L., 894 F.3d at 556 (explaining
that adding together characteristics “may well broaden, rather than narrow, a group”).
Here, B.L.L. has failed to demonstrate that children who are “viewed as property of
father” or “lack parental protection” are groups with discrete and definable boundaries or
that they are socially distinct.
9
Our holding is narrow. We do not hold that families are always or ordinarily PSGs,
only that they can be. Nor do we hold that domestic violence automatically amounts to
persecution. Rather, we confine ourselves to passing on the agency’s misunderstanding of
B.L.L.’s PSG.
3
B.L.L.’s remaining arguments have no merit. First, contrary to B.L.L.’s
contention, the BIA did not conflate its PSG and nexus analysis. Instead, the BIA did not
reach the issue of nexus, as it concluded that B.L.L. had not articulated a cognizable
PSG.14 Second, B.L.L. asserts that the BIA failed to cite evidence in the record, but the
BIA cited to several excerpts of the hearing before the IJ and responded to B.L.L.’s
arguments. Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (explaining that the
BIA “is not required to write an exegesis on every contention . . . but only to show that it
has reviewed the record and grasped the movant’s claims” (internal quotation marks
omitted)). Finally, B.L.L.’s argument that the BIA improperly applied “a more stringent
standard to the concept of [PSG] than it does to other protected grounds,” Pet. Br. at 38,
14
In its past persecution analysis, the BIA determined that none of B.L.L.’s PSGs
were cognizable and therefore did not discuss nexus. Later in the opinion, in rejecting
B.L.L.’s claim for humanitarian asylum, the BIA explained that “as discussed [], the
respondent has not demonstrated past persecution on account of a protected ground.” AR
6. B.L.L. appears to construe this latter statement as a determination as to nexus.
However, by referencing its earlier discussion, we read the BIA’s statement as reiterating
its finding that B.L.L. could not establish past persecution because none of her proposed
PSGs were cognizable.
10
fails because S.E.R.L. requires use of the three-part framework that the BIA applied for
determining the cognizability of a PSG. See 894 F.3d at 549-55 (concluding the BIA’s
three-part test is reasonable and entitled to Chevron deference).
III
For the foregoing reasons, we will grant B.L.L.’s petition for review and remand to
the BIA.
11