593 F. App'x 65
2d Cir.2014Background
- Ordonez Azmen, a Guatemalan national, sought asylum and withholding of removal; IJ denied on Dec. 9, 2010; BIA affirmed on Jun. 27, 2013.
- Petition framed around changed circumstances to excuse asylum untimeliness under 8 U.S.C. § 1158(a)(2)(D).
- Applicant testified to a 2010 murder of a Mara 18 member, argued evidence showed changed circumstances supporting asylum claim.
- Court applies standard review under 8 U.S.C. § 1252(b)(4)(B) and considers both IJ and BIA decisions for completeness.
- BIA erred in stating Ordonez Azmen did not raise changed circumstances and mischaracterized testimony; however the error was found harmless.
- Court remands for BIA to address statutory vs. CAT withholding termination and to assess the particular social group under current agency decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Changed circumstances and asylum timeliness | Ordonez Azmen argued the 2010 murder constitutes changed circumstances that affect eligibility. | BIA held the 2010 event could not trigger an asylum claim filed in 2008; changed circumstances must affect eligibility. | Remand unnecessary for asylum; BIA error harmless; asylum untimely affirmed. |
| Difference between statutory and CAT withholding, and termination standards | BIA must address whether statutory withholding and CAT withholding share termination standards. | Agency has same benefits/restrictions but may differ on termination. | Remand to address threshold termination issue for both forms of relief. |
| Cognizability of the particular social group | Proposed group (former Mara 18 members in Guatemala City) is cognizable with sufficient particularity and distinctness. | Group lacks sufficient particularity and societal distinctiveness under W-G-R- and M-E-V-G-. | Remand to evaluate group under current BIA standards. |
| Appropriate procedural posture on remand | Remand could depart from existing precedent or lead to foregone conclusions. | Remand allows BIA to apply updated case law before ruling. | Remand granted; case remanded to BIA for further proceedings consistent with this decision. |
| Overall relief | Petition should result in asylum or withholding relief if eligible. | Agency determinations should stand unless substantial errors exist. | Petition granted in part, remanded in part; overall relief conditioned on remand findings. |
Key Cases Cited
- Zaman v. Mukasey, 514 F.3d 233 (2d Cir. 2008) (review standards for completeness)
- Gui Yin Liu v. INS, 508 F.3d 716 (2d Cir. 2007) (changed circumstances and timeliness analysis)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (timeliness and changed circumstances framework)
- Matter of W-G-R-, 26 I&N Dec. 208 (BIA) (social group definition and particularity framework)
- Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA) (expands guidance on particular social groups)
- Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (remand strategy and agency deference in social group determinations)
- Gashi v. Holder, 702 F.3d 130 (2d Cir. 2012) (particular social group sufficiency and social perception)
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (social group social perception requirement)
- Koudriachova v. Gonzales, 490 F.3d 255 (2d Cir. 2007) (group defined by immutable characteristics must be particular and distinct)