Lesbia Nunez-Baquedano v. Attorney General United States
701 F. App'x 184
| 3rd Cir. | 2017Background
- Lesbia Nuñez-Baquedano, a Honduran national, entered the U.S. in 2013, conceded removability, and sought asylum, withholding of removal, and CAT protection.
- She and her husband worked for a trucking association in Honduras; after an internal audit they accused three members of theft and resigned to run their own business.
- From 2011–2013 her family suffered three incidents: (1) her son was hit by a car in an allegedly intentional incident; (2) her husband was shot by narcotraffickers after witnessing a murder; and (3) Nuñez-Baquedano received a direct threat while shopping.
- The IJ found her credible and corroborated portions of her testimony but concluded she failed to prove a nexus between any harm and membership in a particular social group (PSG); denied asylum and withholding; denied CAT on the merits.
- The BIA adopted the IJ’s denial of asylum and withholding for lack of nexus, and deemed the CAT claim waived because counsel filed only a bare notice of appeal and no brief.
- The Third Circuit denied review of asylum and withholding (substantial-evidence standard upheld nexus finding) but remanded the CAT claim to the BIA, finding the notice of appeal constituted at least some effort to exhaust administrative remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner established nexus between persecution and membership in proposed PSGs (business owners; family members; potential cooperating witnesses) | Nuñez-Baquedano argued the attacks/threats were linked to her and her family’s status as business owners/targets and as potential cooperating witnesses | IJ/BIA argued record shows no linkage among incidents or to a PSG; incidents consistent with general crime, not targeted persecution | Denied asylum and withholding: substantial evidence supports lack of nexus |
| Whether proposed PSGs are cognizable (business owners; family member; cooperating witnesses) | Argued family membership and business ownership qualify as PSGs; also proposed hybrid family/prosecution-witness group on appeal | Government/agency disputed business ownership as immutable and noted cooperating-witness group is not socially visible | Court did not decide cognizability because nexus failure was dispositive; IJ/BIA questioned immutability for business ownership and social visibility for cooperating witnesses |
| Whether CAT claim was administratively exhausted before the BIA | Petitioner contended merits review warranted because she raised CAT before IJ and referenced acquiescence on appeal | Government argued failure to brief before BIA waived the CAT claim and deprived court of jurisdiction | Remanded CAT claim to BIA: notice of appeal constituted "some effort to exhaust," so federal court remanded for BIA to decide CAT merits |
| Whether factual findings (credibility/corroboration) were supported by substantial evidence | Petitioner relied on corroborating documents and affidavits and argued IJ credited her testimony | Government/agency emphasized evidentiary gaps and inconsistent links among incidents | Court upheld IJ/BIA credibility and corroboration findings under substantial-evidence review; no compelling contrary evidence |
Key Cases Cited
- Voci v. Gonzales, 409 F.3d 607 (3d Cir.) (review of BIA adoption/deference to IJ rulings)
- Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.) (reviewing BIA adoption of IJ rulings)
- Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir.) (de novo review of legal determinations with Chevron principles)
- Sheriff v. Att’y Gen., 587 F.3d 584 (3d Cir.) (substantial-evidence standard for factual findings)
- Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir.) (asylum burden and refugee definition)
- Chavarria v. Gonzales, 446 F.3d 508 (3d Cir.) (well-founded fear and PSG analysis)
- Gonzales-Posadas v. Att’y Gen., 781 F.3d 677 (3d Cir.) (withholding standard requiring nexus to PSG)
- Fatin v. I.N.S., 12 F.3d 1233 (3d Cir.) (elements to establish PSG-based protection)
- Lin v. Att’y Gen., 543 F.3d 114 (3d Cir.) (administrative exhaustion; "some effort to exhaust" doctrine)
- Castro v. Att’y Gen., 671 F.3d 356 (3d Cir.) (jurisdictional bar for failure to present issues to BIA)
- I.N.S. v. Ventura, 537 U.S. 12 (U.S. Supreme Court) (remand to agency where agency review required)
- Li v. Att’y Gen., 400 F.3d 157 (3d Cir.) (threats alone qualify as persecution only in narrow circumstances)
- Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582 (3d Cir.) (social visibility and PSG prerequisites)
- Serrano-Alberto v. Att’y Gen., 859 F.3d 208 (3d Cir.) (criticizing BIA practice of disposing appeals on nexus without addressing PSG cognizability)