Ordonez Azmen v. Barr, 965 F.3d 128

Background

Mario Ordonez Azmen, a former Mara 18 gang member who defected in Guatemala, fled to the U.S. in 2003 and filed for asylum, withholding, and CAT relief in October 2008 (after the one-year statutory deadline).
At a merits hearing the IJ credited Ordonez Azmen’s testimony, granted CAT relief, but denied asylum and statutory withholding as untimely and concluded his proposed social group (former gang members who renounced membership) lacked particularity/social distinction.
The BIA affirmed the IJ on asylum and withholding, denied remand of newly proffered country-condition evidence, and held that a changed-circumstances exception to the one-year bar must predate the filing of an asylum application.
This Court previously remanded on withholding issues and reopened consideration of the asylum timeliness question; the Second Circuit asked the BIA to address whether changed circumstances must precede filing.
On this appeal the Second Circuit held the BIA inadequately explained its particularity analysis, abused its discretion by denying remand of new country-conditions evidence relevant to social perception, and misinterpreted 8 U.S.C. § 1158(a)(2)(D) by requiring changed circumstances to predate filing.
The court GRANTED the petition, VACATED the BIA’s decision, and REMANDED for reconsideration consistent with the opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proposed social group (former Mara 18 members who defected) is sufficiently particular/socially distinct	Ordonez: group is defined by immutable past gang membership and is perceived as a distinct, stigmatized group in Guatemala; record and new evidence show social recognition	Government/BIA: groups of "former gang members" are too amorphous (no clear boundaries or temporal limit) and prior BIA authority rejects similar groups	Court: BIA failed to apply the required fact-specific, society-focused inquiry and inadequately explained its particularity/social-distinction ruling; remand required
Whether the BIA abused its discretion by denying remand to consider new country-conditions evidence	Ordonez: new media, reports, and expert affidavit bear directly on Guatemalan social perception and particularity and should be considered	BIA: evidence does not affect particularity; change (Giovanni murder) insufficient to excuse untimeliness	Court: BIA’s denial was conclusory and without adequate reasoning; abused discretion; remand required for factfinding
Whether changed circumstances under 8 U.S.C. § 1158(a)(2)(D) must occur before an asylum application is filed	Ordonez: statute and regulatory framework permit considering changed circumstances that arise while an application is pending; timing relative to filing is not required	BIA/Government: changed circumstances must predate filing; otherwise the application is a mere continuation and remains untimely	Court: § 1158(a)(2)(D) does not require changed circumstances to predate filing; they may arise after filing and still excuse untimeliness; BIA erred
Whether the BIA’s regulatory interpretation (8 C.F.R. § 1208.4(a)(4)(ii)) merits deference	Ordonez: "given those changed circumstances" means in light of/considering the changed circumstances; BIA lacks settled position	Government: BIA interpretation should be deferred to under agency authority	Court: declined deference because the statute is plain and BIA’s position conflicts with the statute and its own inconsistent precedents; offered a coherent reading of the regulation ("in light of")

Key Cases Cited

Yan Yang v. Barr, 939 F.3d 57 (2d. Cir. 2019) (statutory interpretation of asylum filing rules and changed-circumstances exceptions)
Paloka v. Holder, 762 F.3d 191 (2d. Cir. 2014) (particularity and social-distinction requirements for particular social groups)
Huo Qiang Chen v. Holder, 773 F.3d 396 (2d. Cir. 2014) (limits on BIA deference for non-precedential opinions)
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d. Cir. 2006) (standard of review for legal questions in immigration cases)
Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149 (2d. Cir. 2005) (abuse-of-discretion review for BIA denials of remand)
Epskamp v. United States, 832 F.3d 154 (2d. Cir. 2016) (statutory interpretation using the statute as a whole)
Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (BIA may not apply per se rules across different societies for particularity)
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (principles governing deference to agency interpretations of their own rules)
Judulang v. Holder, 565 U.S. 42 (2011) (limits on arbitrary agency decisionmaking)