Maria Gonzales-Veliz v. William Barr, U. S. Atty G
938 F.3d 219
5th Cir.2019Background
- Maria Suyapa Gonzales-Veliz, a Honduran national, was removed after an unlawful 2014 entry, reentered in 2015, and had the 2014 removal order reinstated.
- She applied for asylum, withholding of removal, and CAT protection, claiming fear from gang/domestic violence and harm by an ex-boyfriend.
- The IJ denied relief (citing reinstated-removal bar to asylum, lack of nexus to a protected ground, government protection, and credibility issues); the BIA affirmed, finding her proposed group (Honduran women unable to leave their relationship) not a cognizable particular social group and upholding the CAT denial.
- While her BIA reconsideration motion was pending, the Attorney General issued Matter of A-B-, overruling Matter of A-R-C-G-; the BIA denied reconsideration invoking A-B-; Gonzales-Veliz petitioned the Fifth Circuit both for review of the merits and of the denial of reconsideration.
- The Fifth Circuit held that substantial evidence supported the BIA’s denials, that it had jurisdiction to review A-B- arguments, that the BIA correctly applied A-B- and that A-B- was not arbitrary and capricious, and denied remand as futile.
Issues
| Issue | Gonzales-Veliz’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether reinstated removal bars asylum eligibility | Argued merits of asylum/withholding despite reinstatement and challenged BIA reliance on reinstatement | Reinstated removal renders alien ineligible for asylum | Court alternatively affirmed asylum denial on reinstatement ground (Ramirez-Mejia applies) |
| Whether "Honduran women unable to leave their relationship" is a cognizable particular social group | Group is analogous to prior BIA recognitions of abused women and grounded in Honduran machismo context | Group is impermissibly circular, overbroad, lacks particularity and social distinction per A-B- | Group not cognizable under A-B-; BIA properly applied A-B- |
| Nexus and government protection (CAT and withholding) — whether harm was on account of protected ground and whether government would acquiesce | Argued persecutor motivated by machismo/sexual dominance and police were ineffective/complicit | Persecutor motivated by personal retribution (child-support suit); police intervened and lack of resources ≠ acquiescence | Substantial evidence supports finding that harm was personal/retributive and Honduran police would not acquiesce; CAT and withholding denied |
| Whether BIA abused discretion in denying reconsideration after AG’s A-B- and whether courts may review A-B- | A-B- misread; alternatively A-B- arbitrary & capricious; requested remand for reconsideration under A-B- | BIA properly applied A-B-; petitioner failed to show error or changed law requiring reconsideration; argued exhaustion barred review of A-B- claims | Fifth Circuit has jurisdiction; BIA did not misinterpret A-B-; A-B- not arbitrary or capricious; remand denied as futile |
Key Cases Cited
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (aliens with reinstated removal orders may not apply for asylum)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (substantial-evidence standard for reviewing BIA factual findings)
- Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019) (elements and standards for asylum and withholding claims)
- Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) (withholding requires showing persecution is more likely than not)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency must articulate the grounds of its decision sufficiently for judicial review)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agencies may change policy but must provide reasoned explanation)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (2009) (requirements for reasoned agency change and review of unexplained inconsistency)
- Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017) (criticizing overly broad readings of "particular social group" and referenced by AG in A-B-)
- Menjivar v. Gonzales, 416 F.3d 918 (8th Cir. 2005) (applicant must show more than government difficulty in controlling private actors to establish unwillingness/inability to protect)
- Thuri v. Ashcroft, 380 F.3d 788 (5th Cir. 2004) (rejecting asylum when persecutor’s motive is purely personal)