884 F.3d 74
1st Cir.2018Background
- Wendy Sosa-Perez, a Honduran national, applied for asylum and withholding of removal for herself and derivatively for her two minor sons after entering the U.S. without inspection in 2014.
- Sosa reported a 2013 violent robbery after receiving anonymous threatening calls from "local gangs" demanding money; she asserted the robbers sought to rape her but she escaped harm.
- She described multiple violent incidents affecting several family members over three decades (murders, beatings, robberies, a machete threat), and suggested the family may be targeted because of perceived wealth or jealousy.
- The Immigration Judge (IJ) found the 2013 incident was an isolated crime in a context of pervasive Honduran violence and that Sosa failed to show the harms were on account of family membership; the IJ denied asylum and withholding. The Board of Immigration Appeals (BIA) adopted the IJ’s decision.
- Sosa petitioned for review, challenging the BIA’s factual determinations (nexus and pattern-or-practice) and alleging a due process violation based on a BIA footnote about counsel statements not being evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sosa suffered past persecution in 2013 on account of family membership | Sosa: 2013 attack plus history of family-targeted violence shows family was targeted and thus the attack was persecutory | Government: Record shows isolated criminal violence in a country with pervasive crime; no evidence linking attack to family membership | Court: No; substantial evidence supports BIA/IJ that 2013 incident was not shown to be on account of family membership |
| Whether Sosa has a well-founded fear of future persecution based on family membership | Sosa: cumulative family incidents demonstrate objective basis to fear future persecution | Government: Incidents are not shown to be motivated by family membership; speculative link fails nexus requirement | Court: No; record doesn’t compel finding that attacks were because of family membership |
| Whether there is a pattern-or-practice of persecution against Sosa’s family | Sosa: repeated family-targeting over decades establishes a pattern or practice | Government: Evidence fails to show widespread, regular persecution of the claimed group on account of family membership | Court: No; IJ/BIA reasonably concluded record did not show regular and widespread persecution |
| Whether BIA violated due process by discounting counsel statements and allegedly excluding evidence | Sosa: BIA footnote treating counsel statements as not evidence was arbitrary and deprived her of fair hearing; also argues related family member later obtained asylum | Government: Footnote states a basic evidentiary principle; no evidence was excluded and no prejudice shown; aunt’s later grant was not timely raised | Court: No due process violation; no unfair exclusion or prejudice shown, and late argument about aunt’s grant waived |
Key Cases Cited
- Harutyunyan v. Gonzales, 421 F.3d 64 (1st Cir. 2005) (past persecution gives rebuttable presumption of future persecution)
- Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005) (persecution must exceed harassment or unpleasantness)
- Guerra-Marchorro v. Holder, 760 F.3d 126 (1st Cir. 2014) (kinship can form a protected social group; speculative links insufficient for nexus)
- Ruiz v. Mukasey, 526 F.3d 31 (1st Cir. 2008) (family membership may be a protected social group)
- Morales-Morales v. Sessions, 857 F.3d 130 (1st Cir. 2017) (government action or acquiescence required for asylum nexus)
- Lopez Perez v. Holder, 587 F.3d 456 (1st Cir. 2009) (standard for withholding of removal requires clear probability)
- Amilcar-Orellana v. Mukasey, 551 F.3d 86 (1st Cir. 2008) (failure to meet asylum standard defeats withholding claim)
- Decky v. Holder, 587 F.3d 104 (1st Cir. 2009) (alternative showing: individualized fear or pattern-or-practice)
- Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014) (BIA must engage with key evidence; failure to do so warrants remand)
- Sugiarto v. Holder, 586 F.3d 90 (1st Cir. 2009) (nexus requires membership to be a central reason for targeting)
- Perlera-Sola v. Holder, 699 F.3d 572 (1st Cir. 2012) (substantial-evidence review of BIA findings)
- Lobo v. Holder, 684 F.3d 11 (1st Cir. 2012) (standard for deferring to BIA factfinding)
- Palma-Mazariegos v. Gonzales, 428 F.3d 30 (1st Cir. 2005) (record must compel contrary finding to overturn BIA)
- Ye v. Lynch, 845 F.3d 38 (1st Cir. 2017) (pattern-or-practice requires regular and widespread persecution)
- Rasiah v. Holder, 589 F.3d 1 (1st Cir. 2009) (defining pattern-or-practice standard)
- Gilca v. Holder, 680 F.3d 109 (1st Cir. 2012) (applying pattern-or-practice requirements)