Lesly Odelia Cabrera v. Jefferson Sessions, III
890 F.3d 153
| 5th Cir. | 2018Background
- Lesly Odelia Cabrera, a Honduran national, entered the U.S. in 2014 with her teenage son and applied for asylum, withholding of removal, and CAT relief based on political opinion and membership in a particular social group (female human rights defenders/activists opposing gangs).
- In Honduras Cabrera and her son faced gang harassment; she organized a parents’ group guarding a school, protested police inaction, and campaigned for the LIBRE party; gang violence in Choloma included murders and threats, with limited police protection.
- Cabrera presented expert testimony (Dr. Boerman) and country reports describing pervasive gang violence, state corruption, and heightened risks to women activists; IJ made no adverse credibility findings.
- The IJ denied all relief, treating attacks as general criminality rather than persecution on a protected ground, and characterized Cabrera’s claimed group as “those who might defy gangs.” The BIA summarily affirmed.
- The Fifth Circuit reviewed for substantial evidence and legal error, affirming most of the agency’s factual conclusions but finding two legal errors requiring partial grant and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ erred by requiring past persecution to establish a well‑founded fear of future persecution | Cabrera: past persecution is not required; her credible fear and country conditions suffice for a well‑founded fear | Government: absence of past targeting supports denial of future‑fear claim | Court: IJ legally erred in requiring past persecution; remand required on that aspect |
| Whether Cabrera demonstrated a well‑founded fear based on political opinion (pattern/practice) | Cabrera: LIBRE membership, protests, and attacks on party members show pattern of politically motivated persecution | Government: harms reflect general criminality and extortion, not political targeting of someone like Cabrera | Court: Substantial evidence supports denial as to political‑opinion claim; affirmation of denial on this ground |
| Whether Cabrera’s claimed particular social group (female activists/human rights defenders who protest gangs) is cognizable | Cabrera: group defined by gender and activist status, with specific risks to women; expert and reports support particularity and visibility | Government: IJ reframed group as all who might defy gangs and concluded it is not a cognizable PSG | Held: IJ failed to analyze the PSG Cabrera proposed (particularity, social visibility, immutability); legal error — remand required for proper PSG analysis |
| Whether withholding of removal and CAT relief were established | Cabrera: evidence and country conditions satisfy higher standards for withholding and CAT | Government: record does not show "more likely than not" future persecution or torture by or with acquiescence of Honduran government | Court: Substantial evidence supports denial of withholding and CAT relief; these holdings are affirmed |
Key Cases Cited
- Sealed Petitioner v. Sealed Respondent, 829 F.3d 379 (5th Cir. 2016) (standard of review; asylum nexus requirement)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) (well‑founded fear test and pattern/practice route)
- Orellana‑Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (particular social group—social visibility and particularity test)
- Crespin‑Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (error when IJ/BIA rejects applicant’s proposed PSG and evaluates a different group)
- Valdiviezo‑Galdamez v. U.S. Att’y Gen., 502 F.3d 285 (3d Cir. 2007) (agency error where neither IJ nor BIA decides whether asserted group is a PSG)
- Mikhael v. INS, 115 F.3d 299 (5th Cir. 1997) (agency legal‑error reversal principle)