NOEL ARISTIDES CANALES-RIVERA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 18-1610
United States Court of Appeals, Fourth Circuit
Argued: October 30, 2019; Decided: January 27, 2020
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1610
NOEL ARISTIDES CANALES-RIVERA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: October 30, 2019 Decided: January 27, 2020
Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.
Petition denied by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker joined. Judge Agee wrote a concurring opinion.
ARGUED: Richard J. Douglas, RICHARD J. DOUGLAS LLC, College Park, Maryland, for Petitioner. Andrew B. Insenga, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Acting Assistant Attorney General, Briena L. Strippoli, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Noel Aristides Canales-Rivera, a native Honduran, claims he was persecuted by gang members because he was a merchant in the formal Honduran economy. He petitions this Court for review of the Order of the Board of Immigration Appeals (“BIA“) dismissing his appeal of an Immigration Judge‘s (“IJ“) denial of his application for asylum, and, alternatively, for withholding of removal and protection under the Convention Against Torture (“CAT“). Canales claims the BIA has improperly adopted a sweeping bar to asylum claims brought by merchants and violated his due process rights by declining to hear his argument for asylum eligibility and by failing to address the particular social group he proposed. For the reasons below, we deny the petition for review and affirm the BIA.
I.
By way of background, the
The alleged reason for persecution here is membership in a particular social group. Neither the
II.
Turning now to the factual and procedural background of this appeal, while living in Honduras, Canales operated a roasted chicken business. He claims that Mara 18 gang
The IJ denied the asylum request after a merits hearing and concluded that Canales did not meet the standard for withholding of removal nor was he entitled to relief under the CAT. The IJ acknowledged that Canales claimed persecution based on membership in a particular social group, but described the social group as “one who defied demands of gangs in Honduras.” (J.A. 485.) Despite finding that Canales testified credibly, the IJ determined that Canales failed “to establish that he has been persecuted in the past in Honduras because of either his race, religion, nationality, membership in a particular social group, or political opinion.” (J.A. 485.) He further concluded that Canales did not meet his burden of proving that, if returned to Honduras, he would be tortured by or with the acquiescence of public officials to establish entitlement for relief under CAT.
Canales filed a timely petition to this Court. We have jurisdiction to review final orders of the BIA pursuant to
On appeal, Canales makes two primary arguments. First, he argues that the Executive Office for Immigration Review of the Department of Justice, acting through the Attorney General (the “Agency“), improperly applied a bar to asylum for merchant persecution victims like Canales by relying on the seminal BIA case Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), to conclude that a petitioner‘s identity as a merchant is not an immutable characteristic. Canales maintains that the Agency adopted a non-neutral policy on merchant persecution victims inconsistent with the Supreme Court mandates in Braunfeld v. Brown, 366 U.S. 599 (1961), Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). He contends that these decisions demonstrate the Supreme Court‘s recognition of merchant claims in matters of conscience. Second, Canales argues that the Agency violated Canales‘s due process rights by substituting its own particular social group formation for the group he alleged and declining to hear his argument for asylum eligibility.3
In response, the Agency argues that the Court lacks jurisdiction to review Canales‘s argument that the BIA‘s interpretation of “particular social group” is contrary to Supreme Court precedent concerning merchants because it was not raised below. And as to the IJ‘s purported failure to consider the social group Canales proposed, the Agency contends any error did not impact the outcome of the proceedings because the BIA considered his proposed particular social group and properly concluded that the group was not legally cognizable.
IV.
Before we address the merits of the parties’ arguments on appeal, we set forth our standard of review. “[A]ny judicial inquiry into the handling of immigration matters is substantially circumscribed” because matters of immigration are primarily within the control of the executive and the legislature. Rusu, 296 F.3d at 320. We review the BIA‘s legal conclusions de novo and our review of the agency‘s factual findings is narrow and deferential. Mulyani v. Holder, 771 F.3d 190, 197 (4th Cir. 2014).
Consistent with that standard, a BIA decision granting or denying asylum under
V.
Although not the primary focus of his appellate arguments, we start by addressing Canales‘s substantive claim that the Agency violated his due process rights by declining to hear his argument for asylum eligibility and by failing to address the particular social group he proposed. To be sure, deportation and asylum hearings are subject to the requirements of procedural due process. Rusu, 296 F.3d at 320. To succeed on a due process claim in an asylum proceeding, Canales must establish two closely linked elements: “(1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case.” Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008). Prejudice requires that the “rights of [an] alien have been transgressed in such a way as is likely to impact the results of the proceedings.” Rusu, 296 F.3d at 320-321 (internal citations and quotation marks omitted). We conclude that Canales is unable to meet this standard.
First, we, like the BIA, acknowledge the IJ did not address “merchants in the formal Honduran economy” as Canales‘s proposed particular social group. But the BIA did so upon review, specifically considering the exact social group proposed by Canales, applying the criteria set forth in Acosta and concluding that being a merchant in the formal Honduran economy is not an immutable characteristic. Importantly, the BIA was administratively authorized to address the IJ‘s decision on appeal and the “scope of this review [is not
Further, the BIA was substantively correct in its analysis. The BIA‘s long-standing interpretation of “particular social group” as a group of persons sharing a common, immutable characteristic dates to Acosta. There, the BIA concluded that being a member of an organization of taxi drivers as part of the transportation industry of El Salvador and refusing to participate in guerrilla-sponsored work stoppages were not immutable characteristics that constituted membership in a particular social group because members could avoid any threats from guerrilla members by either changing jobs or by cooperating with the stoppage. The BIA concluded that “[p]ersecution on account of membership in a particular social group’ refers to persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. . . .” Matter of Acosta, 19 I. & N. Dec. at 212.
Since then, this Court and other circuit courts have rejected similar arguments related to merchants and other entrepreneurial groups. In an unpublished decision, this Court affirmed a BIA order denying an application for asylum and withholding of deportation where the petitioner had asserted persecution on the basis of membership in an “entrepreneurial social group.” Arevalo v. I.N.S., 176 F.3d 475, 1999 WL 181587, at *2 n.2 (4th Cir. 1999) (unpublished table decision). There, we concluded that “Arevalo‘s allegation that her family members were targeted as the proprietors of a restaurant does not
Other circuits have followed suit. In Mwembie v. Gonzales, 443 F.3d 405 (5th Cir. 2006), the Fifth Circuit rejected a petitioner‘s claim that she was persecuted on account of membership in a particular social group of government employees. There, the Fifth Circuit concluded that the petitioner could change her employment, meaning that she was not a member of a group of persons who share a common immutable characteristic. Id. at 414-15. Similarly, in Nadmid v. Holder, 784 F.3d 357 (7th Cir. 2015), the Seventh Circuit held that the proposed social group of “Mongolian business owners who seek to expose and end political corruption of private businesses,” was premised on a profession as opposed to an “immutable and fundamental characteristic.” Id. at 359-60.
Although the BIA‘s order dismissing Canales‘s appeal is consistent with this precedent, Canales urges us to reject these decisions arguing they are based on Acosta‘s flawed foundation of a blanket prohibition against merchants. We disagree. Instead, we
Canales alternatively argues that “merchants in the formal Honduran economy” meet the Acosta criteria for a social group because they have the immutable characteristics of self-determination and self-sufficiency. But these characteristics are not limited to the members of the group Canales proposes. Indeed, these characteristics apply to many in Honduras and elsewhere whether or not they are merchants. An application for asylum requires more than designating an otherwise undefined group and identifying characteristics that apply to members of society in general.5 If we were to accept the characteristics offered by Canales as sufficiently immutable, we would effectively eliminate the boundaries for social groups our precedent requires.
Finally, we address Canales‘s argument that the Agency‘s non-neutral stance on merchant individual identity and conscience is prohibited by the Supreme Court decisions in Braunfeld, Hobby Lobby and Masterpiece Cakeshop. This issue is the primary focus of Canales‘s briefing. Despite that, the Agency maintains it is unexhausted as it was never
Although this is a close issue, we find we have jurisdiction. Even still, the Supreme Court decisions cited above are far too distant from Canales‘s claim that merchants in the formal Honduran economy are a protected class under federal immigration laws to support his petition. As the Agency correctly points out, these cases involve the
In conclusion, we must uphold the denial of Canales‘s asylum claim unless that denial is “manifestly contrary to the law and an abuse of discretion.”
PETITION DENIED
I concur in the majority‘s conclusion that Noel Aristides Canales-Rivera cannot demonstrate any prejudice with respect to his due process claim because the Board of Immigration Appeals (the “BIA“) independently rejected his proposed social group. Further, I agree that the BIA was substantively correct in its analysis, applying the criteria set forth in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987), to conclude that a petitioner‘s identity as a merchant in the formal Honduran economy is not an immutable characteristic for purposes of establishing eligibility for asylum.
I write separately, however, because I respectfully disagree with the majority‘s conclusion that we have jurisdiction to consider Canales’ argument that the Executive Office for Immigration Review (the “Agency“) utilizes a non-neutral stance on merchant identity and conscience that is prohibited by the Supreme Court‘s decisions in Braunfeld v. Brown, 366 U.S. 599 (1961); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). While I agree with the majority‘s substantive conclusion that these cases “in no way identify merchants as a particular or specific class of individuals entitled to certain absolute protections” or “relate in any way to Canales‘s claims for asylum,” Maj. Op. at 12, I would hold that the Court lacks jurisdiction to consider this claim because Canales has failed to exhaust this particular contention before the Agency. See
“A court may review a final order of removal against an alien only if ‘the alien has exhausted all administrative remedies available to the alien as of right.‘” Etienne v. Lynch, 813 F.3d 135, 138 (4th Cir. 2015) (quoting
II.
To satisfy this exhaustion requirement, Canales must have raised each issue before the Agency.
In his briefs before the IJ and the BIA, Canales contended that his proposed social group of “merchants in the formal Honduran economy” qualified as a “particular social group” eligible for asylum under Acosta.1 In his Pre-Hearing Brief to the IJ, Canales argued
that “[c]onsistent with the BIA‘s Acosta decision, merchants in the formal Honduran economy are a cognizable [particular social group]” because they “are a discrete group with a shared characteristic: firm devotion to economic autonomy and freedom“—a characteristic that, according to Canales, is “immutable.” A.R. 641. And in his Notice of Appeal to the BIA, Canales similarly contended that he had demonstrated before the IJ “by a preponderance of the evidence that he is eligible for asylum” because he “experienced persecution . . . because of his membership in a particular social group[.]” A.R. 59; see also A.R. 15 (contending in additional briefing to the BIA that he had “provided convincing substantial evidence that . . . economic activity is firmly within the universe of U.S. refugee protections and emphatically not excluded from Acosta‘s flexible case-by-case approach“). Canales’ central contention before the Agency can be summarized as follows: merchants in the formal Honduran economy fulfill Acosta‘s “particular social group” requirements.
Yet in his Opening Brief before this Court, Canales changed his approach, arguing instead that Acosta was incorrect because it ran counter to Supreme Court precedent—in particular, Hobby Lobby and Masterpiece Cakeshop—requiring a government agency to
In placing Canales’ arguments before the Agency and this Court side-by-side, it is evident that he has fundamentally changed the legal basis for his challenge in this Court from what he argued in the Agency. Before the Agency, Canales argued that his proposed social group fit within the requirements set forth by Acosta. But before this Court, he has argued that Acosta is invalid. In my view, he has failed to exhaust this latter argument as it was never presented until briefing in this Court and it is not connected to the argument made below. Canales has not simply expanded the arguments he is making for why his identified social group satisfies Acosta, he has directed his challenge at an entirely different
This Court‘s precedent supports this view. For example, in Shaw, the petitioner—who had been ordered removed because of his conviction for a controlled substance offense—argued before the BIA that the IJ improperly considered his indictment in contravention of an
As in the foregoing examples, Canales asserts an entirely new legal theory on appeal, contending before the Agency that Acosta governed his asylum claim and that he met its requirements. But upon rejection of his Acosta-based claim, he now argues in this Court that Acosta is invalid. Canales never presented such a theory to the Agency. Thus, the reasoning of Shaw and Velasquez should apply with equal force here to conclude Canales failed to exhaust his claim.4
Exercising jurisdiction under these circumstances undermines the “twin purposes” of the exhaustion requirement: “protecting administrative agency authority and promoting judicial efficiency.” Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001). “Both objectives are served when . . . the BIA has exercised its authority by issuing a conclusive ruling on a particular issue in the petitioner‘s agency proceedings and the Court knows the agency‘s final adjudication of the issue in the petitioner‘s case.” Cabrera v. Barr, 930 F.3d 627, 633 (4th Cir. 2019). Here, because the BIA did not address this particular argument, it has not had the opportunity to exercise its authority or expertise on this matter, which would have been especially welcome given the importance of Acosta in determining asylum eligibility. As Canales observed in his Appeal Brief to the BIA, Acosta is a “keystone of modern asylum law.” A.R. 37. Thus, passing on the viability of Acosta without the BIA‘s input has both deprived this Court of the BIA‘s expertise in this area and, by requiring this Court to review this argument from scratch, undermined judicial efficiency. Thus, I would find that
III.
For the reasons set forth above, I would dismiss Canales’ argument concerning the Agency‘s purportedly non-neutral stance towards merchant identity and conscience for failure to exhaust. I concur in the majority‘s opinion in all other respects.
Notes
Ramirez does not apply to this case, in which Canales has set forth an entirely new legal theory, rather than expanding on or refining an existing one. Thus, his argument concerning Acosta‘s conflict with Supreme Court precedent cannot be viewed as an “argument[] by extension” or a “subsidiary legal argument[],” which Ramirez would permit us to review. Similarly, his first-time citation to Supreme Court precedent cannot be viewed as “bolster[ing] existing arguments.” Id.