MARIO ORDONEZ AZMEN, AKA DAVID PEREZ, AKA MARIO ENRIQUE ORDONEZ AZMEN, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
Docket No. 17-982-ag
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2019 (Argued: November 26, 2019 Decided: July 13, 2020)
Before: KATZMANN, Chief Judge, CALABRESI, and LOHIER, Circuit Judges.
Mario Ordonez Azmen petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to remand and dismissing his appeal of the denial of his asylum and statutory withholding claims under the Immigration and Nationality Act. The BIA did not adequately explain its conclusion that Ordonez Azmen‘s proposed social group of former gang members in Guatemala was not particular. Nor did the BIA adequately explain its reasons for denying Ordonez Azmen‘s motion to remand based on evidence of new country conditions. Finally, we hold that under
MARGARET J. PERRY (Andrew C. MacLachlan, Kevin J. Conway, on the brief), Office of Immigration Litigation, for Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent William P. Barr, United States Attorney General.
LOHIER, Circuit Judge:
Mario Ordonez Azmen petitions for review of a decision by the Board of Immigration Appeals (BIA) denying his application for asylum and statutory withholding of removal and denying his motion to remand to the Immigration Judge (IJ) for consideration of new country conditions evidence. For the reasons that follow, we grant the petition, vacate the BIA‘s decision, and remand to the BIA for reconsideration of Ordonez Azmen‘s application for asylum and statutory withholding of removal and his motion to remand consistent with this opinion.
BACKGROUND
Ordonez Azmen is a native and citizen of Guatemala and a former member of the Mara 18 gang there. After defecting from the gang, he left Guatemala and entered the United States. In May 2008 the Department of Homeland Security (DHS) started removal proceedings against Ordonez Azmen, who conceded removability. In October 2008 Ordonez Azmen filed an application for asylum, statutory withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he feared he would be killed by associates of Mara 18 if he returned to Guatemala.
Ordonez Azmen testified at a merits hearing before the IJ in May 2010. According to his testimony, which the IJ credited, Ordonez Azmen joined a local branch of the Mara 18 gang in or around 1998 in his hometown in Guatemala. As far as Ordonez Azmen knew, members of the branch were “just a group of youth spending time
Ordonez Azmen‘s experience in Guatemala with Mara 18 after he tried to leave was not unique. Other Mara 18 members who tried to get out were also threatened. Some were beaten or even killed by the gang. In November 2002, for example, David “El Baqui” Perez, Ordonez Azmen‘s friend and the former leader of Ordonez Azmen‘s local Mara 18 gang, was murdered after he disagreed with the gang‘s violent activities.
In the summer of 2003 Ordonez Azmen fled Guatemala for the United States. In Guatemala, meanwhile, violence against former Mara 18 members continued unabated. After Ordonez Azmen arrived in the United States, he heard from friends in Guatemala that in May 2004 Mara 18 members had murdered Aroldo Cardona, another former member who was threatened for trying to leave the gang. A third former gang associate, Piter Giovanni, was murdered in April 2010, just two weeks before Ordonez Azmen‘s merits hearing. Ordonez Azmen also testified about four more Mara 18 members who were killed, although the timing and circumstances of their deaths were unclear.
After the merits hearing, the IJ granted CAT relief, finding that it was more likely than not that Ordonez Azmen would be targeted by his former gang associates if he returned to Guatemala, and that the Guatemalan government was aware of the threat but unwilling or unable to protect him. The IJ rejected Ordonez Azmen‘s other claims for relief. The IJ first concluded that the asylum claim was untimely. See
In a June 27, 2013 decision, the BIA affirmed the IJ‘s decision as to both Ordonez Azmen‘s asylum claim (as untimely) and his statutory withholding claim.2
Ordonez Azmen petitioned to have us rehear the denial of his asylum claim. We granted the petition on the ground that the BIA had “mischaracterized and ignored” evidence of Piter Giovanni‘s murder in April 2010. Azmen v. Lynch (Azmen II), 625 F. App‘x 561, 562 (2d Cir. 2015). We intimated that evidence of the murder might constitute changed circumstances that excused the “tardiness” of Ordonez Azmen‘s application given the one-year deadline for asylum applications. Id. at 563. We also emphasized that “[w]hile both this Court and the BIA have assumed that the changed circumstances” under
Back in front of the BIA, Ordonez Azmen moved to remand to the IJ for further fact-finding. To that end, he submitted about two hundred pages of new country conditions evidence, including media accounts, country conditions reports, and an expert affidavit, which he argued “show[ed] [that] former gang members are perceived as a discrete, distinct group by the Guatemalan government, by the gangs themselves, and by Guatemalan society in general.” C.A.R. 23.
The BIA eventually denied Ordonez Azmen‘s motion to remand to the IJ and, despite our earlier suggestion that it issue a published decision, dismissed his appeal by unpublished decision. It held that the alleged change in circumstance—the 2010 murder of Giovanni—must have occurred before, not after, Ordonez Azmen‘s otherwise untimely asylum application was filed in order to excuse the untimeliness. “[I]f the alleged changed circumstances are substantially related or cumulative to the original untimely filed application,” the agency explained, “then the application is a continuance of the original claim and should continue to be deemed untimely ... regardless of whether a second application is submitted or not.” C.A.R. 4. And even if “the 2010 murder of a gang member might be evidence that conditions in Guatemala have possibly worsened for [Ordonez Azmen]
The BIA concluded that Ordonez Azmen‘s claims for asylum and statutory withholding and his motion to remand failed for the separate reason that his proposed social group did not meet the particularity requirement for a “cognizable particular social group” under the INA. Id. at 7. Although Ordonez Azmen‘s proposed group comprised former Mara 18 gang members who lived in Guatemala, the BIA relied on a decision in which it had rejected as insufficiently particular a proposed group of “former gang members in El Salvador who have renounced their gang membership.” Id. (citing W-G-R-, 26 I. & N. Dec. at 221-23); id. at 8.3
This petition for review followed.
DISCUSSION
I
We review de novo the BIA‘s decision to deny the application, which presents the purely legal question whether Ordonez Azmen‘s proposed group constitutes a “particular social group.” See Yan Yang v. Barr, 939 F.3d 57, 61 (2d Cir. 2019); Paloka, 762 F.3d at 195; see also Wangchuck v. Dep‘t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Unlike precedential opinions, “[n]on-precedential opinions, such as the BIA opinion here, cannot claim Chevron deference.” Huo Qiang Chen v. Holder, 773 F.3d 396, 403 (2d Cir. 2014).
We first consider Ordonez Azmen‘s challenge to the BIA‘s finding that his proposed social group (former members of the Mara 18 gang in Guatemala who defected) was insufficiently particular to support his asylum and statutory withholding claims.
The INA provides that individuals with a “well-founded fear of persecution on account of ... membership in a particular social group” may be eligible for asylum.
M-E-V-G- and W-G-R-, the two main BIA precedential decisions that describe the particularity requirement, explain that “[t]he particular social group analysis does not occur in isolation, but rather in the context of the society out of which the claim for asylum arises.” M-E-V-G-, 26 I. & N. Dec. at 238; see W-G-R-, 26 I. & N. Dec. at 214. The BIA‘s analysis thus consists of a “fact-specific inquiry,” W-G-R-, 26 I. & N. Dec. at 209, which “focuses primarily on how the society in which the group exists views the group,” Paloka, 762 F.3d at 198.
“[T]here is considerable
Two aspects of the BIA‘s analysis of the particularity requirement in Ordonez Azmen‘s case cast serious doubt on whether it comports with M-E-V-G- and W-G-R-. First, the BIA observed that Ordonez Azmen‘s proposed social group was “too loosely defined” because “Guatemalans may not agree on how long one will be considered a former gang member or even who is considered to be a former gang member.” C.A.R. 7 (emphasis added). But the particularity inquiry focuses on whether there is evidence that members of the relevant society actually “generally agree on who is included in the group,” not whether they “may” (or may not) agree. W-G-R-, 26 I. & N. Dec. at 221. Under its own precedents, therefore, the BIA had to consider whether the record evidence demonstrated that Guatemalans actually share a common definition of who counts as a former gang member who defected. It is not clear from its decision that the BIA did so in this case. Second, the BIA concluded that it saw no “meaningful distinction between [Ordonez Azmen‘s] situation and that of the applicant” in W-G-R-, who was from El Salvador, “regarding whether their proposed particular social groups are sufficiently particular and distinct.” C.A.R. 7. But the BIA‘s own precedential decisions require the agency to determine on a case-by-case basis whether a group is a particular social group for the purposes of an asylum claim. This involves a fact-intensive inquiry as to whether the group is recognized by the particular society in question. “To be consistent with its own precedent,” then, “the BIA may not reject a group solely because it had previously found a similar group in a different society to lack ... particularity.” Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014).
It is not clear to us whether the BIA rejected Ordonez Azmen‘s proposed group in Guatemala based solely on the superficial fact that the rejected proposed group in W-G-R- also involved “former gang members.” We have some doubt that the BIA specifically considered Guatemalan society‘s perception of that group as it exists in Guatemala. The BIA rather appears to have imposed a general rule, untied to any specific country or society, that groups consisting of “former gang members” are insufficiently particularized. If so, the agency failed to adhere to its own precedents disclaiming per se rules and requiring a fact-based inquiry into the views of the relevant society (here, Guatemala, according to Ordonez Azmen).
II
We turn next to the BIA‘s denial of Ordonez Azmen‘s motion to remand for consideration of new evidence, which we review for abuse of discretion. See Li Yong Cao v. U.S. Dep‘t of Justice, 421 F.3d 149, 157 (2d Cir. 2005). We “will find such abuse if the Board‘s decision provides
The BIA denied the motion to remand only because the new country condition evidence “does not address or affect” particularity. C.A.R. 8. But Ordonez Azmen‘s new evidence, including expert testimony, reflected widespread violence against former gang members in Guatemala, their social marginalization and stigmatization, and media coverage of them as a group. The BIA failed to explain why the evidence he presented would not help its inquiry. The BIA also failed to justify its conclusory refusal to consider this evidence, a refusal that appears to contradict its decision in M-E-V-G-. In that case, the BIA recognized that the type of evidence Ordonez Azmen marshalled here would be relevant to the “perception of the society in question.” M-E-V-G-, 26 I. & N. Dec. at 242; see also id. at 244. Evidence of “shared past experience[s]” of persecution or “maltreatment,” the BIA explained, can function as a “catalyst” that spurs “a sense of group” among members and causes “society [to] discern that this group of individuals ... is distinct in some significant way.” Id. at 242-43 (quotation marks omitted); see also Paloka, 762 F.3d at 196.
We conclude that the BIA abused its discretion when it denied Ordonez Azmen‘s motion to remand in this way. Its decision is “devoid of any reasoning” and “contains only summary or conclusory statements.” Li Yong Cao, 421 F.3d at 157. So we cannot confidently determine whether the agency applied the correct particularity standard. The summary nature of the agency‘s denial also prevents us from assessing if the decision “inexplicably departs” from the agency‘s own precedent in M-E-V-G- regarding particularity. Id.
III
The asylum statute,
The BIA misinterpreted the asylum statute. As the BIA should have done, we begin “with the text [of the statute], and we look to both the language itself and the specific context in which that language is used.” Yan Yang, 939 F.3d at 61 (quotation marks omitted). An exception to
Thus, an adequate showing of changed circumstances materially affecting eligibility is all that the words of the statute require to excuse untimeliness and to permit the agency to consider the application. At the point that such a showing is made, the “normal bars to applications do not apply.” Yan Yang, 939 F.3d at 63 (emphasis added).
Beyond the text, our reading of
Our reading of
The BIA‘s own regulations and decisions confirm our view that changed circumstances do not need to relate to the delay in filing and instead need only “materially affect” eligibility for asylum. Compare
Finally, the legislative history relating to
In summary, we agree with Ordonez Azmen that
IV
We have already noted that the BIA‘s decision relied on
When an agency‘s reading of its own regulation fails in this way, we are not required to save it by supplying an alternative reading that is consistent with the statute. But in this case there happens to be a more coherent reading of
We would withhold deference for the separate reason that the BIA lacks a settled position on the question. See Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019). Within only a few years of its decision in this case, the BIA issued an unpublished decision that reached the opposite conclusion, agreeing with us that “neither the statute nor the regulation mandates that the changed circumstances must occur before the application is filed.” In re J-R-F-F-, No. AXXX XXX 634, at 2 (B.I.A. July 9, 2019) (unpublished). A contrary ruling, the BIA explained, “would be arbitrary and random, as well as difficult to reconcile with the congressional intent” to “ensur[e] that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies.” Id. (quoting 142 Cong. Rec. S11,840 (statement of Sen. Hatch)). And the BIA recently issued yet another unpublished opinion in which it reaffirmed that an applicant for asylum “may rely on changed circumstances that [materially] strengthen a claim” in a pending application without requiring the applicant to file a new application. In re A-R-A-, No. AXXX XXX 199, at 2 (B.I.A. Mar. 13, 2020) (unpublished). The BIA‘s conflicting interpretations of both
The Government argues that we should nonetheless be swayed by In re T-M-H- & S-W-C-, 25 I. & N. Dec. 193 (B.I.A. 2010), a published decision on which the BIA also relied to deny Ordonez Azmen‘s petition.4 But in Azmen II we described the relevant language in T-M-H- as dicta. Azmen II, 625 F. App‘x at 563. And more importantly, T-M-H- addressed an entirely different question. There the BIA held that the regulation‘s reference to “a reasonable period” did not entitle asylum-seekers to an automatic extension of one year following a changed circumstance. Id. at 193. It said that “a reasonable period” should instead be determined “on a case-by-case basis ... taking into account the totality of the circumstances.” Id. But the asylum applications
A central question before the BIA was whether Ordonez Azmen filed his application for asylum within a “reasonable period,” considering the 2010 murder to which he pointed soon after it occurred. See id.;
CONCLUSION
We have considered the Government‘s remaining arguments and conclude that they are without merit. Because the BIA rejected Ordonez Azmen‘s claims for asylum and statutory withholding of removal and his motion to remand based on an erroneous interpretation of