No. 18-1915
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: October 30, 2020
PUBLISHED. Submitted: September 11, 2020. On Petition for Review of an Order of the Board of Immigration Appeals.
Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
Petition dismissed in part and denied in part by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Diaz joined.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Carl H. McIntyre, Assistant Director, Benjamin J. Zeitlin, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WILKINSON, Circuit Judge:
Maria Del Carmen Amaya-De Sicaran (Sicaran), a native and citizen of El Salvador, applied for asylum, statutory withholding of removal, and protection under the Convention Against Torture (CAT). An immigration judge (IJ) and the Board of Immigration Appeals (BIA or Board) denied her application, and she now petitions for review. For the reasons that follow, we dismiss the petition in part for want of jurisdiction and we deny the petition on the remaining grounds.
I.
Sicaran entered the United States unlawfully in August 2013. The Department of Homeland Security subsequently charged her as removable under
Sicaran claimed asylum and withholding of removal on the grounds that she suffered persecution as a member of a “particular social group.”
Yet again, in 2012, Sicaran claimed that her cousins fended off Luna when he attempted to attack Sicaran at a party. One cousin was injured, and Luna fled after the police arrived at the scene. Both the cousins and Luna filed a complaint with the police, each blaming the other for the incident. Sicaran testified that she later heard that soldiers beat her cousins due to their involvement, but the testimony of another witness noted that soldiers questioned the cousin about the altercation while he was in the hospital. Ultimately, no legal action was taken against Luna in connection with the incident. Sicaran moved elsewhere in El Salvador in late 2012, and while her husband continued to follow her, she reported no physical altercations. She then travelled to the United States in 2013.
After Sicaran‘s removal proceedings commenced, she filed her applications for relief from removal. The IJ denied Sicaran‘s applications for asylum, statutory withholding of removal, and CAT protection in July 2017. The IJ found that Sicaran filed her applications properly, testified credibly, and adequately corroborated her claims. Nevertheless, the IJ denied her claims on the merits. First, the IJ held that while the group claimed by Sicaran—“married El Salvadoran women in a controlling and abusive domestic relationship“—did qualify as a particular social group under the INA, she had since left that group in 2009 when she entered into a custody agreement with her husband. A.R. 58–59. Thus, she did not qualify for asylum or statutory withholding of removal. Second, as to her CAT claim, the IJ found that Sicaran failed to show a clear probability of being tortured by the El Salvadoran government or that the government would acquiesce in her torture, as is required under the governing regulations.
Sicaran filed a timely appeal to the Board of Immigration Appeals in August 2017, which dismissed her appeal in a single-member decision in July 2018. Reviewing her claim de novo, the Board found that Sicaran‘s claimed social group was not cognizable under the INA in light of the Attorney General‘s decision in Matter of A-B-. A.R. 4 (citing 27 I. & N. Dec. 316 (A.G. 2018)). Namely, “married El Salvadoran women in a controlling and abusive domestic relationship” did not “exist independently of the harm asserted“; rather, the group was defined in terms of the very persecution alleged. Id. Second, as a further ground, the Board held that the putative group was not cognizable because being in a domestic relationship was not immutable, as demonstrated by Sicaran‘s ability to separate from her husband in 2009. Id. Third, the Board affirmed the IJ‘s CAT decision that Sicaran failed to shoulder her evidentiary burden, in particular because she failed to establish governmental acquiescence in her alleged torture. Id. This appeal timely followed.
II.
Sicaran argues that the BIA erred in its application of Matter of A-B-, erred in
We uphold the BIA‘s denial of asylum unless it is “manifestly contrary to the law and an abuse of discretion.”
The INA permits the Attorney General to grant asylum to an applicant who establishes that she “is a refugee within the meaning of section 1101(a)(42)(A)” of the INA.
It is settled that an applicant claiming membership in a “particular social group” must establish that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Alvarez Lagos v. Barr, 927 F.3d 236, 252 (4th Cir. 2019) (internal quotation marks and citation omitted). Further, the applicant‘s proffered particular social group “must ‘exist independently’ of the harm asserted in an application for asylum or statutory withholding of removal.” Matter of A-B-, 27 I. & N. Dec. 316, 334 (A.G. 2018) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014)). This requirement—commonly known as the anti-circularity requirement—ensures that the applicant separately establishes that she suffered—or has a credible fear of suffering in the future—persecution “on account of” her membership in the particular social group. See id. at 338 (labeling the statute‘s requirement that the persecution be “on account of” membership in a group the “nexus requirement“).
A.
We first address the numerous particular social groups that Sicaran raises for the first time on appeal. Her doing so creates a problem of jurisdiction.
In order for a court to review a final order of removal, the INA requires an applicant to exhaust “all administrative remedies available to the alien as of right.”
The exhaustion requirement is an important “jurisdictional bar” that both promotes judicial efficiency and protects the integrity of the administrative process by ensuring that the courts of appeal do not usurp the administrative function and render a decision on a ground that the agency never considered. Massis v. Mukasey, 549 F.3d 631, 638–39 (4th Cir. 2008); see also Lizama v. Holder, 629 F.3d 440, 448 (4th Cir. 2011). A particular social group raised for the first time on appeal presents a moving target for appellate courts that then cannot rely on the expertise of the immigration judge in its fact-finding capacity. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1102 (9th Cir. 2020) (Bress, J., concurring in the judgment in part and dissenting in part) (“Requiring the petitioner to delineate her proposed social groups has important practical benefits . . . . It ensures that appropriate fact-finding is conducted at the IJ level.“); see also Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 191–92.
This is hardly a new requirement. By only considering the group Sicaran raised before the IJ, we mirror our prior practice, Aguilar-Avila v. Barr, 782 F. App‘x. 256, 261 (4th Cir. 2019), and align ourselves with a broad array of our sister circuits that similarly acknowledge the jurisdictional bar erected by newly raised groups. See, e.g., Perez-Rabanales v. Sessions, 881 F.3d 61, 67 n.1 (1st Cir. 2018); Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014); Baltti v. Sessions, 878 F.3d 240, 244–45 (8th Cir. 2017); Diaz-Reynoso, 968 F.3d at 1102 (Bress, J., concurring in the judgment in part and dissenting in part) (collecting cases of the Ninth Circuit “repeatedly determin[ing] that [it] lack[s] jurisdiction to consider a new or different proposed social group that the petitioner did not present to the agency“); Rivera-Barrientos v. Holder, 666 F.3d 641, 647 n.2 (10th Cir. 2012); Jeune v. U.S. Att‘y Gen., 810 F.3d 792, 796, 802–03 (11th Cir. 2016). Thus, petitioner‘s faulting the Board for “limiting” her to a single social group, Petitioner Br. at 16—when she bore the burden of explicitly delineating all groups to the IJ, Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 191—is misplaced and we lack jurisdiction to consider the numerous new groups not presented to the agency.
B.
We therefore consider only the particular social group that Sicaran raised before the IJ and BIA—“married El Salvadoran women in a controlling and abusive domestic relationship.” See
In arriving at this conclusion, the BIA relied in large part on the Attorney General‘s decision Matter of A-B-. The BIA in A-B- had reversed the IJ‘s denial of the applicant‘s claims, finding that A-B-‘s proffered particular social group—“El Salvadoran women who are unable to leave their domestic relationship where they have children in common“—was cognizable as it was “substantially similar” to the group previously recognized by the BIA in Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014)—“married women in Guatemala who are unable to leave their relationship.” Matter of A-B-, 27 I. & N. Dec. at 319–21. After the IJ considered the issue again and returned the matter to the Board, the Attorney General certified the case to himself for review. Id. at 323.2
As is pertinent to the instant case, the Attorney General in Matter of A-B- reaffirmed the importance of the anti-circularity requirement in assessing whether a particular social group is cognizable. Id. at 319. In critiquing A-R-C-G-, the Attorney General faulted the BIA for, inter alia, its reliance on the Department of Homeland Security‘s “multiple concessions” and its “cursory analysis of the three factors required to establish a particular social group,” which “lacked rigor and broke with the Board‘s own precedents.” Id. at 331–33. Namely, by relying on DHS‘s concession that the particular social group was “both particular and socially distinct,” the Board “avoided considering whether A-R-C-G- could establish the existence of a cognizable particular social group without defining the group by the fact of persecution.” Id. at 334. The Attorney General explained that “a particular social group must ‘exist independently’ of the harm asserted in an application for asylum or statutory withholding of removal.” Id. Otherwise, “the definition of the group moots the need to establish actual persecution.” Id. at 335 (citing Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005) (“The individuals in the group must share a narrowing characteristic other than their risk of being persecuted.“)).
The Attorney General, and his delegate, the BIA, are entitled to deference in reasonably interpreting ambiguous provisions of the INA. Negusie v. Holder, 555 U.S. 511, 516–17 (2009); Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). Neither the INA nor its implementing regulations define “particular social group,” and it is well-established that the phrase is ambiguous. See, e.g., Canales-Rivera v. Barr, 948 F.3d 649, 657 & n.4 (4th Cir. 2020) (citing Lizama v. Holder, 629 F.3d 440, 446–47 (4th Cir. 2011) (“[W]e have acknowledged that we must defer to the BIA‘s reasonable interpretation of ‘particular social group.‘“); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013); Amezcua-Preciado v. U.S. Att‘y Gen., 943 F.3d 1337, 1341 (11th Cir. 2019); see also Matter of A-B-, 27 I. & N. Dec. at 327 n.6 (collecting cases). Moreover, Congress has explicitly charged the
The proposition that a cognizable particular social group cannot be defined by the underlying persecution is hardly controversial. The anti-circularity principle—and the Chevron deference to which it is entitled—has won wide acceptance among the circuit courts. See, e.g., Gonzales-Veliz v. Barr, 968 F.3d 219, 227–29 (5th Cir. 2019) (holding that ”A-B- was not arbitrary and capricious“); Diaz-Reynoso, 968 F.3d at 1079 (upholding Matter of A-B- under Chevron); Amezcua-Preciado, 943 F.3d at 1343–44.
Even prior to the Attorney General‘s decision, we have applied the anti-circularity principle. Moreno v. Lynch, 628 F. App‘x 862, 865 (4th Cir. 2015). And a broader examination of caselaw pre-Matter of A-B- confirms that this is no new proposition. See, e.g., Perez-Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently distinct social group must exist independent of the persecution claimed to have been suffered by the alien and must have existed before the alleged persecution began.“); Gonzalez-Posadas v. Att‘y Gen. U.S., 781 F.3d 677, 683–84 (3d Cir. 2015); Paloka, 762 F.3d at 196; Rodriguez v. U.S. Att‘y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013); Rreshpja, 420 F.3d at 556; Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003).
The Attorney General‘s ruling in Matter of A-B- is not arbitrary and capricious. The anti-circularity requirement is necessary to make real the statute‘s separate nexus requirement—an asylum applicant must demonstrate that she has suffered persecution, or fears future persecution, “on account of” her membership in the proposed particular social group.
Our reading of A-B- is in good company. Other circuits have similarly applied A-B- and found that a group defined by the claimed persecution is impermissibly circular. See, e.g., Gonzales-Veliz, 928 F.3d at 232 (“‘Honduran women unable to leave their relationship’ is impermissibly defined in a circular manner.“); Amezcua-Preciado, 943 F.3d at 1345 (“Mexican women who are unable to leave their domestic relationships . . . is the kind of circular definition of a social group, created by reference to the alleged persecution, that cannot create a cognizable particular social group.“); Perez-Zeneto v. U.S. Att‘y Gen., 913 F.3d 1301, 1309–10 (11th Cir. 2019) (“Mexican citizens targeted by criminal groups because they have been in the United States and have families in the United States . . . is defined in large measure by the risk of persecution.“); see also Matter of C-A-, 23 I. & N. Dec. 951, 960 (BIA 2006) (“[T]he social group category was not meant to be a ‘catch-all’ applicable to all persons fearing persecution.” (quoting UNHCR, Guidelines on International Protection: “Membership
With the scope of A-B- clearly defined, it is apparent that Sicaran‘s proposed social group runs afoul of the anti-circularity requirement. Indeed, Sicaran‘s proffered group—“married El Salvadoran women in a controlling and abusive domestic relationship“—is a clear example of impermissibly defining the group by the underlying persecution. We do not for a moment make light of any asylum applicant‘s circumstances. And if Congress wishes to broaden the bases for asylum, it is always free to do so. But the issue is not the gravity of petitioner‘s circumstances, but rather that the abuse Sicaran seeks to escape via asylum protection defines her claimed group. The words “controlling” and “abusive” cannot be understood in any way other than harm. And Sicaran‘s testimony made clear that she sought to flee no other persecutorial acts than those of her husband. As we note above, if her group is defined by the abuse she suffered in her relationship, the nexus requirement is unacceptably reduced to a mere tautology. See
III.
Sicaran‘s claims for statutory withholding of removal,
An applicant for withholding of removal must show that, if she were removed, it is more likely than not that her “life or freedom would be threatened . . . because of [her] race, religion, nationality, membership in a particular social group, or political opinion.”
CAT, under its implementing regulations, similarly “prohibits the United States from returning any person to a country where the person has demonstrated that it is more likely than not that he will be tortured if returned to such country.” Id. at 161. In reviewing the BIA‘s decision, we find that Sicaran does not meet her burden in establishing it is “more likely than not that [she] would be tortured” upon return to El Salvador.
First, “torture” has a well-defined meaning and not every instance of violence will qualify. See
IV.
Domestic abuse is deeply troubling. But Congress and the Attorney General have set parameters that we must follow. Our rulings follow a well-plowed path and align us with our sister circuits. For the foregoing reasons, we dismiss the petition in part and deny the petition in part.
PETITION DISMISSED IN PART AND DENIED IN PART