Rhynara Duarte v. Jefferson Sessions, III
706 F. App'x 829
5th Cir.2017Background
- Petitioners Polyane Dos Santos and her daughter Rhynara Duarte, Brazilian citizens, challenged BIA orders dismissing appeals of IJ removal orders and denying asylum, withholding of removal, and CAT relief; BIA also denied their motion to reopen.
- Dos Santos previously was removed and then illegally reentered; her 2006 removal order was reinstated under 8 U.S.C. § 1231(a)(5), leading the BIA to deem her ineligible for asylum.
- Dos Santos alleged mistreatment and sexual abuse by her employer and claimed threats after she reported his criminal activity (illegal logging) to local police; she asserted claims based on a proposed social group (women treated as property), feminist and environmental political opinions, and anti-corruption opinion.
- The BIA conducted "withholding only" proceedings for Dos Santos; the record included two murders of relatives in Minas Gerais during the proceedings, which the petitioners argued warranted reopening.
- The BIA denied withholding and CAT relief for both petitioners, finding insufficient nexus to a protected ground, lack of public-official acquiescence for CAT, and that the motion to reopen failed to meet the heavy burden for reopening.
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether §1231(a)(5) bars Dos Santos from applying for asylum | Dos Santos argued Ramirez-Mejia was wrongly decided and she should be eligible | Government argued reinstated removal under §1231(a)(5) bars asylum | Held: §1231(a)(5) bars asylum; Ramirez-Mejia controls, so asylum barred |
| Whether Dos Santos qualifies for withholding of removal based on a particular social group | Argued group: “women treated by employers as property (including sexual abuse)” | Gov’t: proposed group not sufficiently distinct or recognized in Brazil; persecution was retaliatory, not on account of group | Held: Substantial evidence supports BIA that group not cognizable and persecution was retaliation for reporting crimes, not on account of group |
| Whether Dos Santos’s claims are political opinion–based (feminist/environmental/anti-corruption) | Dos Santos claimed persecution for feminist, environmental, and anti-corruption opinions | Gov’t: Many of these claims were not presented to the BIA (unexhausted) or lack nexus to political opinion | Held: Feminist and environmental claims unexhausted (jurisdiction lacking); anti-corruption/environmental claims not shown to be political nexus |
| Whether petitioners are entitled to CAT relief (acquiescence by officials) | Petitioners argued police refusal to investigate and local crimes show acquiescence/torture risk | Gov’t: No evidence public officials instigated, consented, or acquiesced to torture | Held: Record does not compel finding of official acquiescence; CAT relief denied |
| Whether Duarte qualifies for asylum/withholding as member of mother’s family | Duarte argued membership in mother’s family places her at risk | Gov’t: Insufficient nexus or distinct social-group evidence | Held: Record does not compel eligibility for asylum or withholding for Duarte |
| Whether BIA abused discretion in denying motion to reopen based on murders during pendency | Petitioners argued new country conditions and family murders justify reopening | Gov’t: Motion did not meet heavy reopening standard; evidence insufficient to overturn BIA | Held: Denial of motion to reopen was not arbitrary or capricious; petition to reopen denied |
Key Cases Cited
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (§1231(a)(5) reinstated orders bar asylum for illegal reentrants)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (withholding requires "clear probability" of persecution)
- Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) ("clear probability" means "more likely than not")
- Hernandez-De La Cruz v. Lynch, 819 F.3d 784 (5th Cir. 2016) (social group must be sufficiently distinct in society)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (nexus requirement for persecution on account of protected ground)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (evaluating particular social group and nexus)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (exhaustion required to preserve claims for judicial review)
- Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) (issues not raised before BIA are unexhausted)
- Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) (CAT requires infliction or acquiescence by public officials)
- Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (standard for reviewing BIA denial of motion to reopen)
- Mata v. Lynch, 135 S. Ct. 2150 (U.S. 2015) (jurisdiction to review denials of motions to reopen final removal orders)