Case Information
*1 [17] [3903] ag v. Barr
BIA A Tsankov, U NITED S TATES C OURT OF A PPEALS FOR THE S ECOND C IRCUIT
August Term (Argued: September Decided: January 2020) Docket No. ag
R OSARIO D EL C ARMEN H ERNANDEZ C HACON , Petitioner , v.
W ILLIAM P. B ARR , U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
Before:
W ESLEY C HIN B IANCO , Circuit Judges.
Petition review decision Board Immigration Appeals dismissing petitioner appeal from immigration judge denial application asylum. Petitioner contends entitled asylum returned El Salvador, will persecuted on account membership particular social group ‐‐ resisted sexual member ‐‐ opinion ‐‐ resistance norm female subordination male dominance pervades Salvador. We agree petitioner failed establish asylum claim based on membership particular group, but we grant petition for review respect remand Board Immigration Appeals for further proceedings.
Petition GRANTED case REMANDED.
HEATHER YVONNE AXFORD, Central American Legal Assistance, Brooklyn, New York, Petitioner CARMEL A. MORGAN, Trial Attorney (Shelley R. Goad, Assistant Director, Office Immigration Litigation, brief ), Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S. Department Justice, Washington, D.C., Respondent
C HIN Circuit Judge :
Petitioner Rosario Del Carmen Hernandez Chacon ( ʺ Hernandez ‐ Chacon ʺ ), a citizen El Salvador, seeks review a decision Board of Immigration Appeals (the BIA ʺ ) dismissing her appeal from decision immigration judge (the ʺ ) granting her protection under Convention Against Torture ( CAT ʺ ) but denying her application asylum. Although she has been granted CAT relief, Chacon continues pursue her asylum because asylum would provide her with broader relief, including permanent residence path citizenship. U.S.C. §
While El Salvador, attacked twice gang. first attack involved man who attempted rape her home. second attack involved same man, along with two other men, who attempted rape while she walking daughters. contends entitled asylum is returned Salvador will persecuted based membership particular group ‐‐ resisted sexual member ‐‐ ‐‐ resistance norm *4 female subordination male dominance pervades El Salvador. The agency rejected both claims asylum.
While we agree Hernandez ‐ Chacon failed establish asylum claim based membership in particular group, we conclude agency did not adequately consider opinion claim. Accordingly, we grant petition review with respect and remand further proceedings.
STATEMENT OF THE CASE
A. Facts [1]
In 2013, Hernandez Chacon, who was then twenty ‐ nine years old, was living two daughters, were three twelve years old, in Chalatenango, Salvador. Her partner, Oscar Valdez, was present, he was living working in United States. [2] One night in late August early *5 September, while Chacon and her daughters were home alone, man whom she did not know entered an open hallway the house, where she was washing dishes. He was drunk said he wanted to have sex with her. When she told him no, he grabbed her tried to force himself on her. She managed escape ran to interior room, locking herself inside. He eventually left. As would later testify, she said ʺ no the man even though knew ʺ resisting his would put [her] danger. ʺ Cert. Adm. Rec. She resisted, explained, ʺ because I every right to. Id She report attack the police did believe police would do anything.
Three days later, was attacked man again. She walking with her two daughters when three men wearing masks suddenly came out nearby cemetery. One them said her since [she] didn t want do this him good way, it going happen bad way. She recognized his voice man had attacked few days earlier. Another men tattoo on his arm, symbol Mara Salvatrucha ( MS ʺ ) gang. They grabbed pulled into cemetery, leaving daughters street. As men started *6 take [her] by force, she began to scream. Id . at 187. She could hear her older daughter screaming well. As Hernandez ‐ Chacon continued to shout and resist, they spit on her and beat her piece metal. She lost consciousness. She eventually woke up clinic; three people had interceded response to her daughter cries help, and taken her the clinic. Hernandez Chacon was treated broken collarbone and received pain medication. She was eventually transferred by ambulance hospital. A medical certification shows Chacon treated at hospital September fracture right clavicle.
When returned home from hospital, she found note under her door, from her attackers, warning she went police, they were going kidnap her [daughter] and they were going rape and kill and pull out her tongue. Id Again, she did not go police she believed police would help her. After attack, leave house very often, and never alone, afraid would do something me my daughters.
After attacks, partner spoke telephone they agreed would leave Salvador join him *7 United States soon they were able to put together sufficient resources for her to join him. In May 2014, ‐ Chacon and her younger daughter Gladis, who then almost four years old, left El Salvador, traveling through Guatemala and Mexico, reaching United States in June She left her thirteen year old daughter, Maria, in El Salvador because she only had enough money to bring one girls, and her sister in law had agreed to take care Maria.
On June and Gladis entered United States without inspection and were apprehended border; they were served Notice Appear removal proceedings were released from custody. They applied asylum, withholding removal, CAT relief. As explained application, she attacked by three men who attempted rape broke collarbone process, retaliation resisting earlier attempt rape her. She explained she believed if returned home country would raped killed members MS gang twice resisted their attempts rape her. She later elaborated: ʺ I believe I go back Salvador, twice tried rape me broke my collar bone, will let me *8 live if they see me again. They punished me brutally after first time I resisted sexual advances one them this time will be even worse. ʺ Id at 254. B. The IJ Decision
Before IJ, Hernandez Chacon argued that she was eligible asylum based her membership particular social group her opinion. Regarding her group claim, Hernandez Chacon alleged that she was persecuted being member group either (1) Salvadoran women who rejected sexual gang member (2) Salvadoran are viewed property. Id. She argued that she persecuted feminist opinion, specifically her resistance male domination Salvadoran society.
On October IJ issued decision granting Hernandez ‐ Chacon relief under CAT but denying asylum claim. The IJ found Chacon be credible witness. IJ held met burden proving government would be able protect from if were return Salvador it more likely than would tortured returned home. found record supported *9 claim that there widespread corruption and number human rights problems El Salvador. Id . The IJ also found presented documentary evidence supporting her suffering major medical event, including the beating by the three men, the attempted rapes, and the broken collarbone, as well as the threats kill her daughter reported the incidents police. On basis, IJ granted request withholding removal under Article CAT. The IJ also granted daughter Gladis ʹ s application asylum.
Nonetheless, IJ rejected asylum claims. IJ found proposed social groups ‐‐ (1) Salvadoran women who rejected sexual member (2) women are viewed property ‐‐ not been recognized BIA being protected groups. IJ rejected claim, concluding: ʺ In this case [Hernandez Chacon] advance opinion. I find simply chose victim chose resist being victim criminal act.
In decision, reviewed relevant country conditions Salvador, including prevalence violence against dreadful *10 practice of El Salvador justice system favor aggressors and assassins and punish victims of gender violence. ʺ Id . at 147. IJ relied on declaration of Aracely Bautista Bayona, lawyer and human rights specialist, who described ʺ plight of women in El Salvador, id ., and recounted following:
One ʺ most entrenched characteristics of Salvadoran society machismo, system patriarchal gender biases which subject women will men. Salvadorans are taught from early childhood women are subordinate. ʺ Id . society ʺ accepts and tolerates men violently punish women for violating these gender rules disobeying male relatives. ʺ Id Indeed, in El Salvador, ʺ femicide remain[s] widespread. ʺ at 148; see U.S. Dep t State, Bureau Democracy, H. R. and Labor, Country Reports Human Rights Practices for El Salvador (2015) ( Country Report ʺ ). Gangs in El Salvador view women property men, gang violence against outside manifest[s] itself brutality reflects these extreme machismo attitudes. Cert. Adm. Rec.
El Salvador has the highest rate in the world [of femicide] with an average murders every 100,000 women. ʺ Id . at 49. As article on El Salvador gangs concluded, ʺ in country terrorized by gangsters, it is left dead break silence on sexual violence . . . bodies dead women and girls pulled from clandestine graves, raped, battered and sometimes cut pieces. They attest sadistic abuse committed street gangs. ʺ . at (quoting El Salvador Gangs Target Women and Girls Associated Press, Nov. 2014).
As State Department has found, rape, sexual crimes, and violence against are significantly underreported societal and cultural pressures victims fear reprisal, and laws against rape are effectively enforced. Country Report at 7. Police corruption in Salvador is well documented, including involvement extra judicial killings human rights abuses. id. judicial system corrupt. While law provides criminal penalties official corruption, government d[oes] implement law effectively, . officials, particularly judicial system, often engage[] corrupt practices impunity. Id. ʺ Like society whole, law enforcement officials, prosecutors, judges *12 discriminate against women, reduce the priority women ʹ s claims, otherwise prevent women from accessing legal protections justice. This results impunity aggressors, which reinforces aggressors ʹ perception they can inflict violence without interference reprisal. Cert. Adm. Rec. 300 ‐
The IJ observed Hernandez ‐ Chacon ʹ s experiences were generally consistent with the background materials has submitted regards to pervasive brutal attacks Salvadoran gangs. 149 ‐ C. The BIA ʹ s Decision
Hernandez Chacon appealed the IJ ʹ s decision to the BIA. [4] As to the group claim, relied only first proposed social group ‐‐ rejected the sexual member. She continued to press claim. On November 2017, BIA affirmed IJ ʹ s decision. In re Rosario Del Carmen Hernandez Chacon, No. A 206 (B.I.A. Nov. 2017), aff’g, No. A (Immig. Ct. N.Y. City Oct. 2016). The BIA held that proposed social group of Salvadoran women who rejected sexual advances of a gang member lacked particularity social distinction, concluding demonstrated who reject sexual member are perceived society discrete group. BIA disposed ‐ ʹ opinion footnote, rejecting claim reasons stated [IJ] decision. n.3.
This petition review followed.
DISCUSSION
A. Applicable Legal Standards
Asylum discretionary form relief granted refugees, is, individuals are unwilling or unable return their native country persecution or well founded fear persecution. U.S.C. §§ 1101(a)(42), 1158(b); see Guan Shan Liao v. U.S. Dep t Justice (2d Cir. 2002). applicant has burden proving eligibility asylum. U.S.C. § 1158(b)(1)(B).
To demonstrate eligibility, applicant must establish race, religion, nationality, membership particular group, or will be least one central reason for persecuting applicant. ʺ 8 U.S.C. § 1158(b)(1)(B)(i). If an applicant demonstrates past persecution on account protected ground, rebuttable presumption arises applicant has well ‐ founded fear future persecution. 8 C.F.R. § 1208.13(b)(1). Absent evidence past persecution, applicant must show subjectively fears persecution fear is objectively reasonable. Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004). A fear is objectively reasonable even if there is only slight, though discernible, chance persecution. Diallo v. INS , 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza Fonseca , 480 U.S. 421, 431 (1987)). [A]sylum may granted where there is more than one motive
mistreatment, long least one central reason mistreatment is account protected ground. Acharya v. Holder , F.3d 289, (2d Cir. 2014) (internal quotation marks omitted). Moreover, [d]irect governmental action is required persecution. Private acts can constitute persecution government ʹ unable unwilling control it. ʹʺ Paloka v. Holder F.3d (2d Cir. 2014) (quoting Rizal v. Gonzales (2d Cir. 2006)).
In circumstances this case, Court reviews decision as supplemented BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). applicable standards review are well established. See U.S.C. § 1252(b)(4)(B). ʺ Questions law, well as application legal principles undisputed facts, are reviewed de novo . Paloka , F.3d Specifically, legal determinations, such whether group constitutes particular social group, are reviewed de novo agency findings fact are reviewed under substantial evidence standard. Xiu Xia Lin v. Mukasey (2d Cir. 2008) (per curiam). B. Application
We conclude agency err finding ‐ failed establish social group claim, but we grant petition with respect remand further proceedings. Social Group
To constitute particular group, group must be: (1) composed share common immutable characteristic, (2) defined particularity, (3) socially distinct within society question. Matter M E V G I. & N. Dec. (B.I.A. 2014); see Ucelo ‐ *16 Gomez v. Mukasey , 509 F.3d 72 ‐ 74 (2d Cir. 2007) (per curiam). ʺ A particular social group is comprised of individuals who possess some fundamental characteristic in common which serves distinguish them in the eyes a persecutor ‐‐ or in eyes outside world in general. Gomez v. INS , 947 F.2d (2d Cir. 1991); see Paloka F.3d at 196 (finding group must ʺʹ recognizable ʹ discrete group others in society ʺ ); Ucelo Gomez, F.3d at (noting definition social group must have particular well defined boundaries ʺ ). Here, agency not err in concluding asserted group ‐‐ El Salvadoran women who rejected sexual advances gang member ‐‐ cognizable. failed provide sufficient evidence
proposed subset Salvadoran women socially distinct group society. country conditions evidence addresses widespread violence against Salvador, but it does discuss whether women who reject sexual gang members are perceived distinct group society are greater risk than anyone else refuses comply member demands. Ucelo Gomez ( When harm visited upon group attributable incentives presented ordinary criminals rather than persecution, scales are tipped away from considering those people ʹ particular social group . . ʹʺ ). Accordingly, we hold that did err in finding that failed demonstrate that faces persecution on account of membership in particular social group. [5] Political Opinion
To demonstrate persecution, or well founded fear persecution, on account applicant ʹ s political opinion, applicant must show persecution ʺ arises from his or own opinion. Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 (2d Cir. 2005). Thus, applicant must ʺ show, through direct circumstantial evidence, persecutor motive persecute arises from applicant’s belief. Id. (emphasis added). *18 persecution may also be on account of an opinion imputed applicant by persecutor, regardless whether or this imputation is accurate. Delgado v. Mukasey , 508 F.3d 702, 706 (2d Cir. 2007) ( [A]n imputed political opinion, whether correctly or incorrectly attributed, can constitute ground political persecution. (internal quotation mark omitted) (quoting Chun Gao v. Gonzales , F.3d 122, (2d Cir. 2005)). BIA has explained that persecution based political opinion is established when there is direct circumstantial evidence from which it is reasonable believe that those harmed applicant were part motivated by assumption [her] political views were antithetical those government. Matter S P I. & N. Dec. (B.I.A. 1996); see Vumi v. Gonzalez (2d Cir. 2007).
Here, contends she returned El Salvador will persecuted gang ‐‐ opposition male dominated norms Salvador taking stance against culture perpetuates female subordination brutal treatment women. She argues when refused submit violent members, taking stance against culture male domination resistance therefore act.
There ample evidence the record support her claim. Gangs control much El Salvador, including the neighborhood which Hernandez ‐ Chacon lived. law enforcement systems that would normally protect ‐‐ police, prosecutors, judges, officials ‐‐ do the resources desire address brutal treatment women, and justice system ʺ favors aggressors and assassins ʺ and ʺ punish[es] victims gender violence Cert. Adm. Rec. Yet, Chacon testified that when first gang member tried rape her, she resisted because [she had] every right to. Three days later, when same man two other gang attacked her, she again resisted, point where they beat her until she lost consciousness. She argues that men targeted her second attack ‐‐ beat so brutally ‐‐ because she resisted MS member they believed needed be punished act defiance. Her now husband likewise stated his affidavit that ‐ will attacked if returns Salvador [s]he has managed fight them off twice, but that just makes them angrier shows At argument, oral government forthrightly conceded it permissible inference persecuted feminist ideology, though it argued record compel result. *20 face again, I think they could kill her. Id . at
While the IJ ʹ s decision was thorough and thoughtful overall, analysis ʹ political opinion claim was cursory, consisting the following:
[Hernandez Chacon] has claimed that she a political opinion. I cannot conclude decision to resist the individual sufficient to establish she has articulated a political opinion. In trying analyze a political opinion claim, Court has consider the circumstances under which respondent not only possessed a political opinion, but way in which circumstances under which articulated political opinion. In this case advance political opinion. I find simply chose victim chose resist being victim criminal act.
Id at BIA dismissed argument single sentence, footnote, rejecting reasons stated
[IJ s] decision. n.3. analysis both IJ BIA inadequate. Yueqing Zhang (granting petition review remanding case agency where failed undertake complex contextual factual inquiry necessary determine persecution account opinion). We three areas concern.
First, agency concluded that ʺ advance political opinion. Cert. Adm. Record at But this Circuit has held that analysis of what constitutes political expression for these purposes ʺ involves ʹ complex contextual factual inquiry ʹ into nature asylum applicant activities relation political context which dispute took place. Castro v. Holder , 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang , 426 F.3d at 548). We held, example, that resisting corruption abuse power ‐‐ including non governmental abuse power ‐‐ can be expression political opinion Castro , 597 F.3d at 100 (noting that opposition government corruption may constitute political opinion, retaliation against someone expressing that may amount political persecution ); Delgado , 508 F.3d 706 (holding refusing give technical assistance FARC Columbia can expression political opinion); Yueqing Zhang F.3d (holding retaliation opposing corruption local officials can constitute persecution account opinion); Osorio v. INS (2d Cir. 1994) (holding union activities [can] imply opinion, merely economic position). Fourth Circuit has recently recognized refusal acquiesce violence can constitute *22 an expression political opinion. See Alvarez Lagos , F.3d at 254 55 (where record contained evidence gang in question would view refusal to comply demand sex as political opposition, ʺ refusal acquiesce gang violence flight United States could demonstrate imputed anti gang political opinion constitutes protected ground asylum). Here, agency not adequately consider whether Chacon ʹ s refusal acquiesce was ‐‐ or could be seen ‐‐ expression political opinion, given political context violence treatment Salvador.
Second, concluded simply chose not be victim. Cert. Adm. Rec. at But even motivated part desire not be crime victim, claims do not necessarily fail, political opinion need be only motivation. U.S.C. § 1158(b)(1)(B)(i) ( ʺ applicant must establish race, religion, nationality, membership particular group, political or will at least one central reason persecuting applicant. (emphasis added)); Osorio F.3d ( ʺ plain meaning phrase ʹ persecution on account victim opinion, ʹ does mean persecution solely account victim opinion. ); see Vumi (remanding *23 agency where BIA failed to engage mixed ‐ motive analysis). While Hernandez ‐ surely did want a crime victim, also taking a stand; as testified, ʺ every right resist. As we have held a different context, opposition endemic corruption or extortion . may have a political dimension when it transcends mere self protection represents challenge legitimacy or authority of ruling regime. Yueqing Zhang , F.3d at Here, resistance arguably took political dimension by transcending mere self protection constitute challenge authority MS gang.
Third, agency consider whether imputed political opinion Chacon. This Circuit has held imputed political opinion, whether correctly or incorrectly attributed, can constitute ground political persecution within meaning Immigration Nationality Act. Vumi F.3d (citations omitted); see Chun Gao (in case imputed opinion, question ʺ whether authorities would perceived [petitioner] [a practitioner Falun Gong] supporter movement his activities ). Here, erred analysis only considering whether ‐ ʺ advance[d] ʺ a political opinion. Cert. Adm. Rec. at The IJ failed to consider whether the attackers imputed an anti patriarchy political opinion her when she resisted their sexual advances, whether that imputed opinion was a central reason their decision target her. See Castro F.3d at (holding that properly evaluate a political opinion, IJ must give careful consideration broader political context ʺ ). In fact, gang members attacked second time, one them told that because would do this him in a good way, it was going happen in a bad way, Cert. Adm. Rec. which suggests that gang wanted punish they believed taking stand against pervasive norm sexual subordination.
We note that Fourth Circuit recently granted petition review case involving woman Honduras threatened by gang similar circumstances. Fourth Circuit concluded if, petitioner alleged, imputed anti gang opinion, then imputed opinion would central reason likely persecution were returned Honduras. Alvarez Lagos court held erred considering i mputed claim, is, *25 whether believed petitioner held anti gang political opinion. Likewise, here, agency adequately consider ‐ Chacon ʹ s imputed political opinion claim.
Accordingly, we hold agency erred failing adequately consider claim persecution or fear persecution based actual imputed opinion.
CONCLUSION
For reasons set forth above, petition is GRANTED with respect case REMANDED BIA proceedings consistent this opinion.
[1] As BIA disturb finding Hernandez Chacon credible, we treat events [s]he experienced past undisputed facts. Castro v. Holder (2d Cir. 2010) (quoting Delgado v. Mukasey F.3d (2d Cir. 2007)).
[2] partner,Valdez, father younger daughter. He relocated United States approximately work better support ʺ Chacon, their daughter, his stepdaughter. He were married Cert. Adm. Rec.
[3] noted Bayona more than two half decades worked advocated rights women, children, adolescents youth migrant population Salvador. Cert. Adm. Rec.
[4] government appealed IJ ʹ s decision extent it granted CAT relief Chacon asylum Gladis. BIA affirmed ʹ s grant CAT relief but sustained government ʹ s appeal respect grant asylum Gladis, remanding matter IJ. Gladis proceedings since been severed, only asylum before this Court.
[5] Vega Ayala v. Lynch F.3d (1st Cir. 2016) ( ʺ Vega Ayala general reference prevalence domestic violence in Salvador does little explain how ʹ Salvadoran in intimate relationships partners view them property ʹ are meaningfully distinguished from others within society. ʺ ). But see Alvarez Lagos v. Barr (4th Cir. 2019) (remanding agency consider whether group unmarried mothers living under control gangs Honduras qualifies ʹ particular group, ʹʺ where record contained evidence question indeed target victims basis their membership socially distinct group unmarried mothers ).