Hueso-Choto v. Garland
21-9542
| 10th Cir. | Jan 14, 2022Background
- Petitioner Wendi Carolina Hueso-Choto applied for asylum, withholding of removal, and CAT deferral; an immigration judge denied relief and the BIA denied a motion to remand based on ineffective assistance of counsel.
- Hueso-Choto argued her attorney should have presented live testimony (not just a declaration), provided corroborating and additional country-condition evidence, and tied persecution to her familial relationships.
- The immigration judge credited Hueso-Choto’s declaration but denied relief for failure to show nexus between mistreatment and membership in a particular social group.
- After the BIA decision, the Attorney General issued Matter of L-E-A- and Matter of A-B-, recognizing certain family- and gender-based particular social groups; Hueso-Choto relied on these developments in her petition for review.
- The Tenth Circuit reviewed the BIA’s denial of the remand motion for abuse of discretion and denied the petition, concluding Hueso-Choto waived a prejudice argument and that new legal developments did not change the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying a remand for ineffective assistance | Counsel’s errors (declaration vs. live testimony, no corroboration, limited country evidence, failure to connect harm to family) prejudiced Hueso-Choto | IJ credited the declaration; petitioner failed to show a reasonable likelihood of a different outcome | No abuse of discretion; petition denied |
| Whether using a declaration instead of live testimony and lack of corroboration prejudiced the proceedings | Live testimony/corroboration would have produced a better outcome | Credited declaration made corroboration/testimony unnecessary to alter result | No prejudice shown; outcome would likely be unchanged |
| Whether new AG decisions (Matter of L-E-A- and A-B-) require remand or change relief analysis | New authority recognizes nuclear families and certain Salvadoran women groups, supporting reconsideration | BIA’s rationale did not depend on preexisting refusal to recognize families; petitioner failed to show nexus or that new law would alter result; some proposed claims were unexhausted | No remand required; new decisions do not undermine BIA’s factual/legal conclusions |
| Whether petitioner’s proposed particular social group (El Salvadoran women unable to leave abusive relationships with their mothers) is cognizable & exhausted | The AG precedent supports recognition of analogous gender/family-based groups | Petitioner did not raise this group administratively (unexhausted) and the proposed group differs materially from AG’s recognized group; no nexus shown | Issue unexhausted; even considered on merits, claim fails for lack of nexus and mismatch |
Key Cases Cited
- Witjaksono v. Holder, 573 F.3d 968 (10th Cir. 2009) (abuse-of-discretion standard for BIA denials of motions to remand)
- Akinwunmi v. INS, 194 F.3d 1340 (10th Cir. 1999) (Fifth Amendment right to effective assistance in removal proceedings; prejudice standard)
- United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004) (prejudice requires reasonable likelihood of better outcome)
- Herrera-Castillo v. Holder, 573 F.3d 1004 (10th Cir. 2009) (failure to adequately brief an argument waives review)