Cortez Cardona v. Yates
2017 U.S. App. LEXIS 2848
| 1st Cir. | 2017Background
- Cortez, a Guatemalan national, entered the U.S. without documents in April 2013 and was placed in removal proceedings.
- She applied for asylum, withholding of removal, and CAT protection, alleging severe domestic abuse and gang-related recruitment pressure by a boyfriend, Juan Carlos.
- Before the IJ Cortez proposed social groups tied to women in domestic relationships unable to leave; the IJ found credibility problems, held her proposed groups not sufficiently particular, and found internal relocation possible.
- The BIA affirmed on the ground that Cortez had not shown she was in a "domestic relationship" and therefore did not fit the claimed social group, but did not adopt the IJ's credibility or relocation findings; it cited Matter of A-R-C-G- as relevant precedent.
- Cortez moved to reopen/reconsider, arguing the BIA erred by relying on the post-brief A-R-C-G- decision, denying her opportunity for supplemental briefing, and mischaracterizing her relationship; the BIA denied reopening. Cortez petitioned for review of the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA could rely on Matter of A-R-C-G- that issued after Cortez filed her appeal brief | BIA should not cite new precedent issued after briefing without allowing supplemental briefing | BIA may consider intervening precedent; counsel must monitor changes in law | BIA acted within discretion to rely on intervening precedent; counsel expected to track law |
| Whether BIA abused discretion by refusing Cortez leave to file additional briefing | Denial prevented full response to new controlling authority and was unfair given time constraints | No obligation to allow further briefing; BIA stated it would consider the argument on the record | No abuse of discretion in denying additional briefing; BIA reconsidered argument sua sponte |
| Whether Cortez established a cognizable particular social group (women in domestic relationships unable to leave) | Cortez argued her relationship placed her in a group analogous to Matter of A-R-C-G- and thus cognizable | BIA found Cortez was not in a "domestic relationship" based on factual record and thus did not fit the claimed group | BIA did not abuse discretion; record supported finding she was not in a domestic relationship |
Key Cases Cited
- Martinez-Lopez v. Holder, 704 F.3d 169 (1st Cir. 2013) (standard of review for BIA denial of motion to reopen/reconsider)
- Zhang v. INS, 348 F.3d 289 (1st Cir. 2003) (limits on finding abuse of discretion for agency denials)
- United States v. Gonzalez Vargas, 585 F.2d 546 (1st Cir. 1978) (counsel’s duty to keep abreast of changes in law)
- Kadri v. Mukasey, 543 F.3d 16 (1st Cir. 2008) (remand appropriate where intervening precedent affects agency decision)
- Pheng v. Holder, 640 F.3d 43 (1st Cir. 2011) (exhaustion requirement prevents raising new claims on judicial review)