Flores-Flores v. Garland ( 2022 )

Case: 20-60601 Document: 00516414882 Page: 1 Date Filed: 08/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 1, 2022
No. 20-60601 Lyle W. Cayce
Clerk
Delsy Dinora Flores-Flores, also known as Alexandra
Yoliveth Flores-Flores,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent,
consolidated with
No. 20-60603
Arleth Ivan Flores-Flores,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
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Petitions for Review of Orders
of the Board of Immigration Appeals
Agency No. A206 727 342
Agency No. A208 976 285
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Per Curiam:*
Petitioners Delsy Flores-Flores and her son, Arleth, are citizens of
Honduras. Delsy testified that, starting when she was fourteen years old, she
was harassed and threatened by another resident of her Honduran village
named Amilcar Gonzalez. In 2014, Amilcar killed Delsy’s uncle to make it
easier to abuse her. From that day onwards, Amilcar broke into her home
every night to sexually abuse her. Delsy fled Honduras in December 2015 to
get away from Amilcar. She crossed into the United States twice and was
deported both times. She tried a third time in April 2016, this time bringing
Arleth with her. She and Arleth have remained in the United States as their
asylum cases have worked their way through multiple rounds of hearings,
appeals, and changes of counsel.
The immigration judge (IJ) who conducted Petitioners’ “reasonable
fear” interviews consolidated their cases. Their counsel before the IJ
asserted that Petitioners were a part of a particular social group (PSG)
defined as “[w]omen and their children who are targeted by organized crime
through threats of violence and where neither the government nor the
authorities are willing to protect them.” The IJ found that Delsy’s testimony
was vague, contained embellishments and “at least one implausibility,” and
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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was generally “not credible.” The IJ also found that, even if Delsy’s
testimony had been credible, Petitioners failed to establish a cognizable PSG
and failed to establish a nexus from the harm she incurred to a protected
ground. Accordingly, the IJ denied the Petitioners’ applications for asylum,
withholding of removal, and protection under the CAT, and ordered that
they be removed from the United States.
Petitioners appealed the IJ’s decision to the BIA with the assistance
of new counsel. The BIA affirmed the IJ’s finding that the PSG proposed
in the former decision was not cognizable and declined to address other
portions of the IJ’s decision.
Petitioners acquired new counsel yet again and sought to reopen the
case under Matter of Lozada, claiming that both former attorneys “provided
[them] with ineffective assistance of counsel that ruined [their] case and
deprived [them] of [their] due process rights.” Specifically, Petitioners
alleged that their first attorney was ineffective because he asserted “an
invalid particular social group thus leading Respondent’s case to certain
failure.” They argued that effective counsel would have proposed one of four
alternative, cognizable PSGs. Similarly, Petitioners alleged that their second
attorney was ineffective because she failed to address the cognizability issues
of the PSG. Finally, Petitioners and their third attorney raised an ineffective
assistance of counsel (IAC) claim against the second attorney, arguing that
she was ineffective because she failed to file an IAC claim against the first
attorney. The BIA denied the Petitioners’ motions to reopen on all three
grounds, and it is this denial that Petitioners ask us to review.
I
When reviewing motions to reopen BIA decisions, we apply “a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
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request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009). We affirm the BIA’s decisions under this standard unless they are
“capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (quoting Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005)). On the
other hand, we review BIA’s legal conclusions de novo. See id. We must
resolve three issues in this appeal: (1) Do we have jurisdiction to hear
Petitioners’ claim that the BIA abused its discretion by not offering a
sufficient legal explanation for its ruling; (2) Should Petitioners’ IAC claims
be dismissed for failure to demonstrate substantial prejudice; and (3) Did the
BIA abuse its discretion by refusing to reopen Petitioners’ case sua sponte?
A
Petitioners first contend that the BIA abused its discretion and erred
as a matter of law by “offer[ing] no explanation or authority for its
conclusions” when ruling on whether they were prejudiced by their first
attorney. Before we can rule on an issue’s merits, however, we must consider
whether we have jurisdiction to consider it. See Howery v. Allstate Ins. Co.,
243 F.3d 912, 916 (5th Cir. 2001). We raise questions of jurisdiction even if
they are not addressed by the parties. Id. at 919.
“A court may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1). “Petitioners fail to exhaust their administrative
remedies as to an issue if they do not first raise the issue before the BIA,
either on direct appeal or in a motion to reopen.” Omari v. Holder, 562 F.3d
314, 318 (5th Cir. 2009). True, claims that “involve[] an issue stemming from
the BIA’s act of decisionmaking,” like this one, cannot “possibly [be] raised
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prior to the BIA’s decision.” Id. at 320–21. But such arguments can be
exhausted by moving the BIA to reconsider. See id. (“[W]here the BIA’s
decision itself results in a new issue and the BIA has an available and
adequate means for addressing that issue, a party must first bring it to the
BIA’s attention through a motion for reconsideration.”). Because
Petitioners failed to do so and raise that issue for the first time today, we lack
jurisdiction to consider this unexhausted claim. See id.B
Petitioners contend they received ineffective assistance of counsel
because (1) their first counsel failed to raise meritorious alternative PSGs to
which Petitioners belong, (2) their second counsel similarly overlooked
meritorious alternative PSGs, and (3) their second counsel erred by failing
to bring IAC claims against their first counsel. It is not enough for Petitioners
to simply show that prior counsel made a mistake. They must show that they
were “substantially prejudiced” by their counsel’s unprofessional actions—
that is, they must show that “there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018) (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)).
Petitioners must show that prior counsel overlooked a cognizable
PSG to succeed on any of their three IAC claims. To be cognizable, a PSG
must: “(1) consist of persons who share a common immutable characteristic;
(2) be defined with particularity; and (3) be socially visible or distinct within
the society in question.” Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir.
2019) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 234–49 (BIA 2014)).
Petitioners point to four proposed PSGs. But we agree with the BIA that
none of these four proposed alternatives were cognizable.
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The first two proposed alternatives, “Honduran women” and
“Honduran mothers,” fail the particularity requirement. Particularity is
lacking when the proposed PSG “encompasses a wide swath of society
crossing many political orientations, lifestyles, and identifying factors.”
Orellana-Monson v. Holder, 685 F.3d 511, 521–22 (5th Cir. 2012). “Honduran
women” and “Honduran mothers” include people from every political
orientation, religion, and income class in Honduras. We previously rejected
a nearly identical PSG because it lacked particularity, and we see no reason
to deviate from that course here. See Gomez-Lara v. Rosen, 833 F. App’x 582,
583 (5th Cir. 2021) (per curiam) (holding that petitioner failed to show error
when the IJ held that the PSG “women in Honduras” lacked particularity).
The third alternative, “young Honduran women living without a male
domestic partner,” is not cognizable because it fails the social visibility
requirement. Social visibility requires that the group be “readily identifiable
in society” and that society “perceive those with the characteristic in
question as members of a social group.” Orellana-Monson, 685 F.3d at 519.
Petitioners’ only evidence that this group is socially visible and distinct is the
fact that Honduras criminalizes rape and gender-based violence. Petitioners
argue that because these laws protect “women who live alone or refuse to
obey the dangerous criminal gangs,” Hondurans must recognize this group
as socially distinct. But this does not follow. Honduras’s laws forbidding rape
and gender-based violence protect everyone living within its borders—not
just “young Honduran women living without a male domestic partner.” We
recently dismissed a similar PSG for lacking social visibility and do the same
here. Morales-Duran v. Barr, 770 F. App’x 200, 200–01 (5th Cir. 2019) (per
curiam) (upholding the BIA’s ruling that “unprotected women who are
targeted by gangs” was insufficiently particular and lacked social visibility).
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Petitioners’ final proposed PSG, “Honduran women who refuse to
submit to the authority of criminal gang members,” similarly lacks social
visibility. Petitioners have offered no evidence beyond conclusory statements
that such a group is “readily identifiable in society.” Orellana-Monson, 685
F.3d at 519. We rejected a similar PSG defined as “Salvadoran males . . .
who . . . have refused to join [Mara 18] due to a principled opposition to
gangs” because “there is little evidence that people who were recruited to
join gangs but refused to do so would be ‘perceived as a group’ by society.”
Id. at 522. Petitioners’ fourth proposed PSG fails for the same reason.
Because none of Petitioners’ proposed alternate PSGs are cognizable,
they cannot show that their prior attorneys rendered ineffective assistance.
C
Finally, Petitioners contend that the BIA erred in finding that their
case did not merit reopening sua sponte. We agree with the BIA that
Petitioners did not receive ineffective assistance of counsel, much less
ineffective assistance amounting to a “gross miscarriage of justice.” But even
more importantly, we lack jurisdiction to review this claim at all.
Discretion whether to reopen a case sua sponte rests with the BIA. 8
C.F.R. § 1003.2. We held in Enriquez-Alvarado v. Ashcroft that we lack
jurisdiction to review such claims because “no meaningful standard exists
against which to judge an IJ’s decision to exercise sua sponte authority to
reopen deportation proceedings.” 371 F.3d 246, 249 (5th Cir. 2004),
overruled on other grounds by Mata v. Lynch, 576 U.S. 143, 149–51 (2015). And
we have subsequently rejected claims that there is a “gross miscarriage of
justice” or “exceptional circumstances” exception to that rule. See Mejia v.
Sessions, 723 F. App’x 266, 267 (5th Cir. 2018) (per curiam); Castillo v. Lynch,
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653 F. App’x 800, 800–01 (5th Cir. 2016) (per curiam); Tarango v. Holder,
592 F. App’x 293, 296 (5th Cir. 2014) (per curiam).
Petitioners argue that the Supreme Court’s recent opinion in
Guerrero-Lasprilla v. Barr provides a workaround. 140 S. Ct. 1062, 1068
(2020). Guerrero-Lasprilla recognized that courts have jurisdiction over
“questions of law” decided by immigration judges, including “the
application of a legal standard to undisputed or established facts.” Id. But
Guerrero-Lasprilla did not undermine our holding in Enriquez-Alvarado. An
agency’s refusal to exercise discretionary authority is not a “question of
law.” Indeed, exercise of discretion does not involve the “application of a
legal standard” because, as Enriquez-Alvarado recognized, that decision is
not judged against a “meaningful standard” at all—legal or otherwise. Sow
Bolo v. Barr, 828 F. App’x 295, 298 (6th Cir. 2020) (per curiam) (likewise
concluding that Guerrero-Lasprilla was inapplicable “because that case did
not involve a request for sua sponte reopening”).
II
The petitions for review are DISMISSED in part for lack of
jurisdiction and DENIED in part.
8