Johan Flores-Flores v. Merrick Garland
19-73091
| 9th Cir. | Jul 2, 2021Background
- Petitioner Johan Flores, a Honduran national, sought asylum, withholding of removal, and CAT relief more than one year after entry into the U.S. and thus outside the statutory asylum filing period.
- Flores alleged gang-related threats and violence (a cousin threatened with a machete in 2004; another cousin shot in 2006) and extortion of his mother’s bus business; he claimed risk if returned to Honduras.
- He argued changed circumstances excused his late filing, that he and/or small business owners constitute a particular social group, and that he feared persecution for political opinion; he also claimed CAT protection based on alleged government acquiescence to gang violence.
- The IJ denied relief; the BIA affirmed, concluding Flores failed to show changed circumstances or qualifying nexus to a protected ground, that his proposed social group was too broad, and that the Honduran government did not acquiesce to torture.
- Flores also moved to terminate proceedings, arguing the original NTA (lacking time/date) was defective post-Pereira and Niz-Chavez; the Agency did not address the motion but the Ninth Circuit held any error was harmless because a subsequent Notice of Hearing cured notice and Flores suffered no prejudice.
Issues
| Issue | Flores' Argument | Agency's Argument | Held |
|---|---|---|---|
| Timeliness / Changed circumstances for late asylum filing | Flores relied on gang violence incidents to show changed circumstances excusing >1 year delay | Agency: incidents did not show changed circumstances or reasonable filing period after change | Denied — substantial evidence supports Agency that Flores did not show changed circumstances or timely filing |
| Nexus to a protected ground for withholding/asylum | Flores: threats tied to him and his family, and his status as a small business owner | Agency: threats motivated by refusal to pay quotas/monetary extortion, not membership in protected group | Denied — harm was motivated by extortion/monetary reasons, not a protected ground |
| Particular social group definition | Flores: proposed group of small business owners (or family/business owners) | Agency: proposed group too broad/amorphous to be a particular social group | Denied — group is overly broad and not a cognizable PSG under law |
| Political opinion claim | Flores: argued fear of persecution (no specific political-opinion evidence) | Agency: no evidence he held or was targeted for political opinions | Denied — no evidence political opinion motivated persecution |
| CAT / government acquiescence | Flores: gangs’ violence and impunity show likely torture with government acquiescence | Agency: country reports show government efforts to combat abuse; not willfully blind or acquiescent | Denied — substantial evidence that government does not acquiesce to torture; CAT claim fails |
| NTA defect / Motion to Terminate (jurisdiction) | Flores: initial NTA lacked time/date; under Pereira/Niz-Chavez this defect invalidates notice and jurisdiction | Agency/Govt: subsequent NOH provided time/date; Pereira/Niz-Chavez do not strip jurisdiction; any defect cured and Flores had counsel and no prejudice | Motion to remand denied — error harmless; NOH cured deficiency and Flores suffered no prejudice |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (a notice lacking time/place does not qualify as a §1229(a) NTA for stop-time purposes)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (notice must contain statutorily required information in a single document to trigger stop-time)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (persecution motivated by monetary gain lacks nexus to a protected ground)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (applicant must show membership in a group was a reason for persecution)
- Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005) (broad classes like all business owners are too amorphous to be a particular social group)
- Del Cid Marroquin v. Lynch, 823 F.3d 933 (9th Cir. 2016) (government not deemed to acquiesce where it actively, though imperfectly, combats illegal activity)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (Pereira does not make defective NTA jurisdictional; subsequent NOH can cure notice and prevent prejudice)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (BIA must provide specific and cogent reasons addressing the record)
- Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) (definition of a particular social group is a question of law reviewed de novo)