Dulce Montes-De Oca Perez v. Merrick Garland
20-70107
| 9th Cir. | Jul 13, 2021Background
- Dulce Montes-De Oca Perez and her two children appealed the BIA’s dismissal of an IJ’s denial of her asylum application; children are derivative beneficiaries.
- Petitioner’s proposed social groups were all defined by a Mexican woman’s alleged inability to leave a domestic relationship (grounded in claimed financial dependence/economic abuse).
- Petitioner testified she left her abuser about a dozen times but returned out of pity and affection; she relied on the Mexico 2016 Human Rights Report and an expert declaration to show economic dependence and police futility.
- Petitioner generally did not report the abuse because she believed police would do nothing; in at least two incidents others called the police but Petitioner still did not seek protection.
- The IJ and BIA found Petitioner failed to prove membership in the proposed social groups and failed to show the Mexican government was unable or unwilling to protect her; Ninth Circuit denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed social groups are circular | Groups (women unable to leave domestic relationship) are valid and not circular because economic dependence makes them distinct | Groups are circular or otherwise improperly defined | Court did not decide circularity; BIA’s adverse finding on membership was dispositive |
| Whether Petitioner is a member of the proposed social groups | Repeated leaving/returning shows inability to leave due to financial dependence/economic abuse | Petitioner’s testimony attributed returns to pity/affection; general reports cannot substitute for individualized proof | Substantial evidence supports BIA/IJ that Petitioner failed to prove membership in the claimed groups |
| Whether Mexican government was unable or unwilling to protect (police futility) | Police would do nothing; human-rights reports and expert support futility | Failure to report is insufficient; belief police would do nothing does not prove lack of meaningful state protection | Petitioner’s failure to seek protection because she believed police would do nothing was insufficient to show government unable/unwilling to protect; reports did not compel a contrary finding |
| Whether Niz-Chavez invalidates the removal proceedings or notice | Niz-Chavez and Pereira undermine the notice/stop-time formalities and thus invalidate proceedings | Niz-Chavez interprets the stop-time rule and does not affect immigration-court jurisdiction; jurisdiction governed by regulation | Niz-Chavez does not invalidate these proceedings; immigration-court notice regulation does not require date/time in initial notice (Karingithi controlling) |
Key Cases Cited
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (standard of review: de novo for legal questions, substantial evidence for factual findings)
- Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) (explains when failure to report may or may not show governmental protection is unavailable)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (interprets §1229(a)(1) stop-time rule; does not govern immigration-court jurisdiction)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (interprets notice requirements for the stop-time rule)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (immigration-court jurisdiction under regulation does not require initial notice to include time and date)