Kenia Galeano Reyes v. Jefferson Sessions
701 F. App'x 362
| 5th Cir. | 2017Background
- Kenia Yakelin Galeano Reyes and her two-year-old son arrived at Hidalgo, Texas and applied for admission; DHS placed them in removal proceedings. Galeano Reyes filed I-589 applications for asylum, withholding, and CAT relief; her son was a derivative applicant.
- Galeano Reyes reported her brother to police for sexually assaulting his daughter; shortly thereafter she began receiving threats from members of the brother’s 18th Street gang and fled to the U.S. with relatives.
- She testified to past physical abuse by her father as a child, but said she no longer feared him; she feared her father would reveal her whereabouts if returned.
- The IJ denied asylum and ordered removal; the BIA affirmed, finding (a) the proposed group "Honduran children lacking effective familial protection" was not a viable particular social group, and (b) Galeano Reyes was not persecuted on account of membership in that group because she was an adult when threats began.
- The BIA also found Honduran authorities’ response insufficiently shown to be unwilling or unable to protect her; Galeano Reyes appealed to the Fifth Circuit challenging viability, nexus, and government protection findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed group "Honduran children lacking effective familial protection" is a viable particular social group | Galeano Reyes: group is a cognizable PSG supporting asylum | BIA: group is not viable because youth and lack of protection are mutable or not defining | Court: Did not decide viability; declined to reach because other dispositive ground supported denial |
| Whether persecution was "on account of" membership in the proposed group (nexus) | Galeano Reyes: threats were because she belonged to that group | BIA: she was not a member when persecution began (she was 24), so no nexus | Held: Substantial evidence supports BIA that she was not persecuted because of membership; petition denied |
| Whether the past abuse by father supports asylum | Galeano Reyes: referenced past abuse as part of group-based claim | BIA/Respondent: issue not properly briefed before the court | Held: Waived on appeal for failure to brief; court declined to consider it |
| Whether persecution was due to kinship ties to her brother (alternative basis) | Galeano Reyes: persecuted because of kinship ties | BIA/Respondent: argument not raised before the BIA; unexhausted | Held: Court lacks jurisdiction to consider unexhausted kinship argument; denied |
Key Cases Cited
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir.) (standard for reviewing BIA factual findings under substantial evidence)
- Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir.) (BIA affirmance usually reviewed on stated rationale)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir.) (reversal under substantial-evidence requires compelled contrary conclusion)
- Arif v. Mukasey, 509 F.3d 677 (5th Cir.) (administrative findings may be supported despite multiple inferences)
- Thuri v. Ashcroft, 380 F.3d 788 (5th Cir.) (nexus is factual question reviewed for substantial evidence)
- Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir.) (alien bears burden to establish nexus between persecution and protected ground)
- Cece v. Holder, 733 F.3d 662 (7th Cir.) (discussion of "young woman" PSG and relevance of age to group definitions)
- Chambers v. Mukasey, 520 F.3d 445 (5th Cir.) (issues not briefed on appeal are waived)
- Rui Yang v. Holder, 664 F.3d 580 (5th Cir.) (failure to raise argument before BIA bars judicial review for lack of exhaustion)
- Consolo v. Federal Maritime Commission, 383 U.S. 607 (U.S.) (administrative findings may be upheld when evidence permits more than one inference)