Felix Moreno-Osorio v. Merrick Garland
2f4th245
| 4th Cir. | 2021Background
- Petitioner Felix Manuel Moreno-Osorio returned to Honduras on December 17, 2016 and was confronted by ~8–10 suspected Mara 18 gang members who demanded money or that he join them and threatened to kill him; he immediately returned to the U.S. without filing a police report.
- Petitioner offered anecdotal evidence of police corruption and country‑conditions reports showing high homicide rates and impunity in Honduras; government evidence showed police reforms and prosecutions (Police Purge Commission, declining homicide rate).
- After reentering the U.S. in January 2017, Petitioner was charged as inadmissible and later pled guilty in Virginia to unlawful wounding (Va. Code § 18.2‑51) and received a 12‑month sentence.
- Petitioner applied for asylum, withholding of removal, and CAT protection. The IJ denied relief (concluding the Virginia conviction was an aggravated felony, the proposed PSG lacked particularity, and CAT protections were not warranted); the BIA affirmed after remand on the CAT issue.
- The Fourth Circuit reviewed the BIA’s rulings (looking through to the IJ), and denied the petition for review, affirming that the conviction is an aggravated felony, the proposed PSG fails particularity, and substantial evidence supports denial of CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Va. unlawful wounding (Va. Code § 18.2‑51) is an "aggravated felony" (crime of violence) under the INA | Moreno‑Osorio: statute can be satisfied by indirect means (deception) and thus need not involve "physical force" | Government: Rumley and controlling precedent hold § 18.2‑51 requires intent to cause severe injury and therefore involves "physical (violent) force" | Court: § 18.2‑51 is a crime of violence; conviction is an aggravated felony; asylum ineligible |
| Whether the single death threat constituted past persecution | Moreno‑Osorio: the death threat amounted to past persecution | Government: a single threat without injury or follow‑up is insufficient | Court: IJ found the single threat did not rise to persecution; decision affirmed (also unnecessary to reach because of other grounds) |
| Whether the proposed PSG "returning migrants from the United States" meets particularity for withholding of removal | Moreno‑Osorio: group terms are clear and programmatic Honduran assistance demonstrates definable membership | Government: group is amorphous, overbroad and lacks discrete, ascertainable boundaries | Court: PSG lacks particularity as a matter of law; withholding denied |
| Whether petitioner is entitled to CAT protection because Honduran officials would acquiesce to his torture | Moreno‑Osorio: country‑conditions and anecdotes show police corruption and likely acquiescence | Government: record shows police reforms and prosecutions; evidence does not compel finding of government acquiescence | Court: substantial evidence supports IJ/BIA finding that government acquiescence is not more likely than not; CAT claim denied |
Key Cases Cited
- United States v. Rumley, 952 F.3d 538 (4th Cir. 2020) (held Virginia unlawful wounding requires use of physical force and is a violent felony)
- Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013) (interpreting "physical force" in § 16 consistent with Johnson)
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" as violent force capable of causing physical pain or injury)
- United States v. Castleman, 572 U.S. 157 (2014) (clarified elements‑based categorical approach to force and assault statutes)
- Amaya v. Rosen, 986 F.3d 424 (4th Cir. 2021) (explained PSG particularity and that groups must have discrete, definable boundaries)
- Mulyani v. Holder, 771 F.3d 190 (4th Cir. 2014) (standard of review for CAT claims: substantial evidence)
- Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007) (reversal only where record compels opposite conclusion)