Judith Lemus-Coronado v. Merrick Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1015
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Judith Mariela Lemus-Coronado; D.A.M.I.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 17, 2022
Filed: January 23, 2023
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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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SHEPHERD, Circuit Judge.
Judith Mariela Lemus-Coronado (Petitioner) and her daughter, D.A.M.I.,
natives and citizens of Guatemala, petition for review of an order of the Board of
Immigration Appeals (BIA) affirming the immigration judge’s (IJ) decision finding
Petitioner removable and denying her application for asylum and withholding of
removal. Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.
I.
Prior to arriving in the United States, Petitioner lived in Guatemala. She was
very close to her partner’s brother, Wilvy Interiano-Erazo, who helped the couple
after the birth of their daughter. Interiano-Erazo was the private driver for the then-
mayor of their town, who was known to be an “anti-crime/anti-corruption politician”
and disfavored among drug traffickers and criminal organizations. Interiano-Erazo
likewise had political aspirations, hoping to become the next mayor on a similar
“anti-narco” platform. On November 21, 2013, Interiano-Erazo invited Petitioner to
his house; he had things he wished to give to his niece. While the two were outside
of Interiano-Erazo’s home, three men—whom Petitioner believed to be drug
traffickers—arrived on the scene armed with high-caliber weapons. After one man
shot Interiano-Erazo, another stated that because Interiano-Erazo “did not support
them[,] they were going to kill him.” Then, the men shot Interiano-Erazo several
more times. Petitioner was next to Interiano-Erazo throughout the altercation. The
men told Petitioner that “she did not have to tell anyone what she had seen and [that]
it was best if she stayed quiet.” Interiano-Erazo died from his injuries before he
arrived at the hospital.
Two weeks after the incident, Petitioner received text messages that she
should not tell anyone about Interiano-Erazo’s murder or there would be
consequences. The text messages also threatened harm to her daughter. Petitioner
then filed a police report recounting the murder and the text messages. Law
enforcement accepted the police report, but the record does not indicate whether any
further investigation occurred. Petitioner subsequently received more threats; she
believed that law enforcement told the drug traffickers about the report. Though she
was never physically harmed, Petitioner claimed that she suffered psychological
harm as a result of the murder and threats.
Petitioner departed Guatemala on June 6, 2014, and entered the United States
on July 6, 2014. She allegedly requested asylum upon her arrival but was never
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instructed to file an application within the one-year deadline. As a result, she filed
her application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT) four years later, listing her daughter as a
derivative applicant. Petitioner alleged persecution on account of her membership
in two particular social groups (PSG)—witnesses who cooperate with law
enforcement and nuclear family members of Interiano-Erazo—and on account of an
imputed political opinion.
The IJ held a hearing—wherein Petitioner submitted documentary evidence
and gave her testimony regarding her experience in Guatemala—and subsequently
entered an order. First, the IJ noted that Petitioner had conceded proper service of
her Notice to Appear and admitted to the charges therein. The IJ found Petitioner
credible and statutorily eligible to request asylum despite the one-year deadline.
Moving to the validity of Petitioner’s proposed PSGs, the IJ rejected her proposed
“witnesses who cooperate with law enforcement” PSG, finding that it lacked the
requisite particularity and social distinction. The IJ accepted Petitioner’s proposed
“nuclear family members of Wilvy Interiano-Erazo” PSG but found that Petitioner’s
alleged harm did not occur on account of her membership in the group. Instead, the
IJ found that the drug traffickers targeted her in an effort to prevent Petitioner from
telling others about Interiano-Erazo’s murder. The IJ then denied Petitioner’s claim
based on imputed political opinion, finding that the record did not demonstrate that
the drug traffickers threatened Petitioner on the basis of a political opinion but rather
to silence her as a witness to criminal activity. Because Petitioner failed to establish
a viable claim for asylum, the IJ found that she necessarily had failed to meet the
more stringent withholding-of-removal burden. Next, the IJ denied her claim for
CAT protection, finding that Petitioner had failed to establish that she would suffer
persecution at the hands of, or acquiescence of, the Guatemalan government.
Finally, the IJ denied her claims for humanitarian asylum and voluntary departure.
Accordingly, the IJ ordered Petitioner and her daughter be removed to Guatemala.
Petitioner appealed the IJ’s decision to the BIA. The BIA first noted that
Petitioner had not challenged on appeal the IJ’s denial of Petitioner’s request for
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CAT protection or her request for voluntary departure. The BIA further found that
Petitioner had not challenged the IJ’s determination regarding her “nuclear family
members of Wilvy Interiano-Erazo” PSG. With regard to the other claims, the BIA
adopted and affirmed the IJ’s decision. The BIA went further to address Petitioner’s
reliance on Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013), which held
that those who testified in court could be recognized as a PSG, especially because
the at-issue country had passed legislation to protect the same. The BIA first noted
that this was out-of-circuit precedent and, in any event, that Petitioner “[ha]d not
testif[ied] as a witness in any criminal proceedings and ha[d] not presented evidence
that her proposed social group comprising of ‘witnesses to a crime who reported the
crime to the police’ ha[d] been offered witness protection, or [wa]s otherwise
socially distinct.” Accordingly, the BIA dismissed Petitioner’s appeal.
Petitioner now petitions this Court for review of the BIA’s decision. We agree
with the BIA that Petitioner has failed to demonstrate that “witnesses who cooperate
with law enforcement” is recognized as a socially distinct group within Guatemalan
society and thus deny the petition.
II.
Petitioner challenges only the BIA’s determination that she failed to
demonstrate that her proposed group of “witnesses who cooperate with law
enforcement” is particular and socially distinct within Guatemalan society. “We
review the BIA’s decision, as it is the final agency decision; however, to the extent
that the BIA adopted the findings or the reasoning of the IJ, we also review the IJ’s
decision as part of the final agency action.” Cano v. Barr, 956 F.3d 1034, 1038 (8th
Cir. 2020) (citation omitted). “Whether Petitioner’s proposed group constitutes a
[PSG] is a legal question which we review de novo, but we review the BIA’s
underlying factual findings for substantial evidence.” Rosales-Reyes v. Garland, 7
F.4th 755, 759 (8th Cir. 2021) (citations omitted). “Under this ‘extremely deferential
standard of review[,] . . . this [C]ourt will not reverse the agency’s decision unless
the petitioner demonstrates that the evidence was so compelling that no reasonable
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fact finder could fail to find in favor of the petitioner.’” Cano, 956 F.3d at 1038
(first and second alterations in original) (citation omitted).
A noncitizen may seek asylum if she faced or may face persecution on account
of, inter alia, membership in a PSG. 8 U.S.C. § 1101(a)(42)(A). “[W]hether an
asserted group qualifies as a [PSG] turns on whether the group is ‘(1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question.’” Rosales-
Reyes, 7 F.4th at 759 (citation omitted). In adopting the IJ’s decision, the BIA found
that Petitioner’s proposed group was neither particular nor socially distinct. Given
that the BIA supplemented the IJ’s decision with its own reasoning on the lack-of-
social-distinction prong, we begin our analysis with that prong.
Petitioner argues that the BIA applied the wrong legal standard for social
distinctness by requiring Petitioner’s proposed PSG to include an element of public
testimony. “Whether a given [PSG] is perceived as distinct by the society of which
it is part depends on evidence that the society makes meaningful distinctions based
on the common immutable characteristics defining the group.” Fuentes v. Barr, 969
F.3d 865, 871 (8th Cir. 2020) (per curiam) (citation omitted). However,
“persecutory conduct alone cannot define the group.” Id. (citation omitted). Instead,
“there must be evidence showing that society in general perceives, considers, or
recognizes persons sharing the particular characteristics to be a group. . . . [I]t must
be commonly recognized that the shared characteristic is one that defines the group.”
Miranda v. Sessions, 892 F.3d 940, 943 (8th Cir. 2018) (alterations in original)
(citation omitted).
In arguing that her proposed group is socially distinct, Petitioner relies heavily
on Matter of H-L-S-A-, 28 I. & N. Dec. 228 (BIA 2021), an intervening decision
wherein the BIA held that:
cooperation with law enforcement may satisfy the requirements of
immutability, particularity, and social distinction and establish a valid
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[PSG] . . . if the cooperation is public in nature, particularly where
testimony was given in public court proceedings, and the evidence in
the record reflects that the society in question recognizes and provides
protection for such cooperation.
Id. at 237. In reaching this conclusion, the BIA relied in part on this Court’s
precedent rejecting a proposed PSG because it failed to include an element of public
cooperation. See id. at 235 (citing Miranda, 892 F.3d at 943 (“Moreover, the record
does not support the conclusion that witnessing a gang murder places Miranda in a
socially distinct group, particularly since he did not testify against any gang
members.”)); see also Ngugi v. Lynch, 826 F.3d 1132, 1138 (8th Cir. 2016)
(“Furthermore, Ngugi presented no evidence that he ever served as a witness against
the Mungiki in any public proceedings or, even if he had, that Kenyan society
‘recognizes the unique vulnerability of people who testify against gang members in
criminal proceedings.’” (citation omitted)). 1 Thus, Petitioner argues that, in her
case, the BIA incorrectly required an element of public testimony when Matter of
H-L-S-A- requires only an element of public cooperation.
Even assuming that our jurisprudence does not require as a matter of law that
witness-based PSGs include an element of public testimony, the BIA and the IJ
committed no error because each found that the record contains insufficient evidence
to demonstrate that Guatemalan society views “witnesses who cooperate with law
enforcement” as a socially distinct group. See Administrative R. 86 (IJ’s Decision)
(“Here, the respondent’s proposed group fails to limit membership to persons who
testified against gang members. Further, the record contains insufficient evidence
1
Petitioner further argues that this Court should remand the case to the BIA to
apply Matter of H-L-S-A- in the first instance. However, Matter of H-L-S-A- did
not substantively modify the PSG analysis. See Ngugi, 826 F.3d at 1139 (finding
that remand was unnecessary, in part, when intervening case law merely clarified
prior authority). Moreover, remand is unnecessary because, as discussed below, the
BIA did not solely rely on Matter of H-L-S-A-, and there is no record evidence to
support the conclusion that Petitioner’s proposed PSG is socially distinct. See
Miranda, 892 F.3d at 944.
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to prove that ‘witnesses who cooperate with law enforcement’ are considered
socially distinct within Guatemalan society.”); Administrative R. 4 (BIA’s Decision)
(“Further, the respondent did not testify as a witness in any criminal proceedings and
has not presented evidence that her proposed social group comprising of ‘witnesses
to a crime who reported the crime to police’ has been offered witness protection, or
is otherwise socially distinct.” (emphasis added) (citation omitted)). Because the IJ
and the BIA did not solely rely on the absence of an element of public testimony,
the BIA did not err in conducting its legal analysis regardless of whether our
precedent requires public testimony or not.
Petitioner nevertheless argues that the record evidence demonstrates that
Guatemalan society views the proposed PSG as a socially distinct group. To grant
the petition for review, we must find that any “reasonable adjudicator would be
compelled to conclude” that the record establishes that Guatemalan society views
Petitioner’s proposed PSG as socially distinct. 8 U.S.C. § 1252(b)(4)(B). In support
of her view, Petitioner points to the United Nations High Commissioner for
Refugees January 2018 report, which notes that “[i]n 1996, Guatemala adopted a
law that created an office for the provision of protection and support to witnesses in
criminal processes.” Administrative R. 267. Formal legislation can indicate that the
society in question recognizes the group as socially distinct. Matter of H-L-S-A-,
28 I. & N. Dec. at 237; see also Miranda, 892 F.3d at 943-44 (recognizing Ninth
Circuit precedent that considered witness-protection legislation as evidence that
Salvadoran society recognized witnesses who testified in court as a socially distinct
group). However, Petitioner provides no evidence that the law would apply to
someone like Petitioner, who merely filed a police report. Cf. Matter of H-L-S-A-,
28 I. & N. Dec. at 239 (finding that El Salvador’s witness-protection law did not
demonstrate that petitioner’s proposed “prosecutorial witnesses” PSG was socially
distinct when it was uncertain whether the law applied to petitioner “who only
participated in a photo line-up in the United States and did not testify or offer
evidence publicly”).
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Though the above-mentioned report does note that “the identity of protected
witnesses is reportedly sometimes released by the authorities,” Administrative R.
267, and Petitioner believes that law enforcement disclosed her identity to the drug
traffickers, this evidence alone is insufficient to compel a conclusion this group is
socially distinct. Finally, despite the fact that the report states that informants and
witnesses of crimes committed by gangs “may be in need of international refugee
protection . . . on the basis of their membership of a [PSG],” Administrative R. 269,
this evidence does not speak to how Guatemalan society perceives Petitioner’s
proposed PSG of “witnesses who cooperate with law enforcement.” See Matter of
H-L-S-A-, 28 I. & N. Dec. at 239. Accordingly, we find that Petitioner has failed to
show that the record in this case compels a conclusion contrary to the BIA’s
determination that Guatemalan society does not view “witnesses who cooperate with
law enforcement” as a socially distinct group.
Having determined that the BIA did not err in finding that Petitioner failed to
establish that her proposed PSG was socially distinct—a prerequisite to establishing
a viable PSG for asylum purposes—we need not address whether the BIA erred in
finding that Petitioner likewise failed to demonstrate that her proposed PSG was
particular. Rosales-Reyes, 7 F.4th at 759 (noting that a group must include both
particularity and social distinction to qualify as a PSG).
III.
For the foregoing reasons, we deny the petition for review.
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