Hernandez-Chacon v. Barr
948 F.3d 94
2d Cir.2020Background
- Petitioner Rosario Del Carmen Hernandez-Chacon, a Salvadoran mother, was attacked twice by gang members in 2013 after resisting sexual advances; she suffered a broken clavicle and received threats (including threats to her daughter) and did not report to police.
- She fled to the United States in 2014 with one daughter and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
- The IJ found Hernandez-Chacon credible, granted CAT relief (finding the Salvadoran government unable or unwilling to protect her), but denied asylum—finding her proposed social groups not cognizable and rejecting her political-opinion claim as mere self-protection.
- The BIA affirmed the IJ on the social-group issue and disposed of the political-opinion claim in a footnote adopting the IJ’s reasoning.
- Hernandez-Chacon petitioned for review to the Second Circuit, which affirmed the agency’s social-group ruling but held the agency failed to adequately analyze her political-opinion claim (including the possibility of an imputed opinion and mixed motives), and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "Salvadoran women who rejected the sexual advances of a gang member" is a particular social group | Hernandez-Chacon: the group is defined by an immutable characteristic and faces distinct persecution | Government: group lacks particularity and social distinction; harm reflects criminal incentives, not persecution | Denied: group not cognizable for lack of particularity/social distinction |
| Whether resisting gang sexual advances constitutes a protected political opinion (actual or imputed) | Hernandez-Chacon: resistance expressed opposition to male-dominated norms and could be seen as an anti-patriarchy/anti-gang political stance; attackers may have imputed such an opinion | Government: agency concluded record did not compel a political-opinion motive; resistance was personal self-protection | Granted remand: agency failed to undertake the complex, contextual inquiry, including imputed-opinion and mixed-motive analysis |
| Whether agency analysis was adequate | Hernandez-Chacon: IJ/BIA analysis was cursory and ignored contextual evidence and imputed-opinion theory | Government: agency’s conclusions were permissible | Granted remand: court found IJ/BIA analysis inadequate and instructed further consideration consistent with precedent |
Key Cases Cited
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (particular social group must have well-defined boundaries and social distinction)
- Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (political-opinion inquiry requires showing persecutor's motive arises from applicant's political belief)
- Castro v. Holder, 597 F.3d 93 (2d Cir. 2010) (political-expression analysis is a complex, contextual factual inquiry)
- Delgado v. Mukasey, 508 F.3d 702 (2d Cir. 2007) (an imputed political opinion can constitute a protected ground)
- Vumi v. Gonzalez, 502 F.3d 150 (2d Cir. 2007) (imputed political-opinion claims and mixed-motive analysis required when relevant)
- Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) (opposition to practices can imply political opinion beyond mere self-protection)
- Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (private acts can be persecution if government unable or unwilling to control perpetrators)
- Alvarez Lagos v. Barr, 927 F.3d 236 (4th Cir. 2019) (parallel holding that refusal to acquiesce to gang violence can support an imputed anti-gang political-opinion claim)