Giraldo-Pabon v. Lynch
2016 U.S. App. LEXIS 19034
| 1st Cir. | 2016Background
- Giraldo, a Colombian national, entered the U.S. unlawfully in 2004, was placed in removal proceedings, unsuccessfully sought asylum/withholding/CAT, did not appeal the IJ decision, and returned voluntarily to Colombia.
- She reentered the U.S. in 2013 and filed a motion to reopen in 2014, citing changed country conditions tied to violence against family members connected to a drug gang.
- The IJ denied the motion in part because it was untimely; the BIA affirmed, finding Giraldo failed to meet the exception for changed country conditions and failed to make a prima facie case for relief.
- Giraldo argued she faced persecution based on kinship (family as a particular social group) and imputed political opinion due to family members’ narco-trafficking affiliations and her opposition to crime.
- The BIA concluded Giraldo showed membership but not the required nexus between harm and a protected ground, and that her political-opinion evidence was insufficient; withholding and CAT claims were likewise denied or abandoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / motion to reopen exception | Giraldo: changed country conditions (gang violence against family) excuse untimeliness | Government: motion untimely; exception not satisfied | BIA affirmed: exception inapplicable; denial not an abuse of discretion |
| Nexus to particular social group (family) | Giraldo: family ties to cartel victims put her at risk | Government: evidence does not link harm to protected ground | Court: membership plausible but nexus insufficient; denial upheld |
| Political opinion | Giraldo: started prayer group, helped social projects, vocally opposed criminal enterprises | Government: opposition to crime alone is not political opinion | Court: opposition to crime without more fails to establish political opinion; claim denied |
| Withholding/CAT | Giraldo: withholding and CAT parallel asylum claims | Government: no prima facie asylum showing; CAT not adequately argued | Court: withholding fails with asylum; CAT abandoned on appeal |
Key Cases Cited
- Wan v. Holder, 776 F.3d 52 (1st Cir.) (treats BIA and IJ decisions as one for review)
- Mejia-Ramaja v. Lynch, 806 F.3d 19 (1st Cir.) (standard for reviewing denial of motion to reopen)
- Smith v. Holder, 627 F.3d 427 (1st Cir.) (two-step inquiry for untimely motion to reopen: changed conditions and prima facie relief)
- Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir.) (nexus requirement between harm and protected ground)
- Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir.) (family can be a particular social group)
- Guerra-Marchorro v. Holder, 760 F.3d 126 (1st Cir.) (speculation insufficient to establish nexus)
- Lopez-Castro v. Holder, 577 F.3d 49 (1st Cir.) (lack of information on perpetrators undermines nexus)
- Mayorga-Vidal v. Holder, 675 F.3d 9 (1st Cir.) (opposition to gangs alone is not a political opinion)
- Villa-Londono v. Holder, 600 F.3d 21 (1st Cir.) (withholding claim depends on asylum showing)
- Segran v. Mukasey, 511 F.3d 1 (1st Cir.) (perfunctory briefing can constitute abandonment of claim)
- Tandayu v. Mukasey, 521 F.3d 97 (1st Cir.) (abuse-of-discretion review standard for BIA decisions)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir.) (standards on agency error and discretion)