Amaya-De Sicaran v. Barr

979 F.3d 210

Maria DEL CARMEN AMAYA-DE SICARAN, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-1915

United States Court of Appeals, Fourth Circuit.

Submitted: September 11, 2020

Decided: October 30, 2020

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.

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.

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 8 U.S.C. § 1182(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA) for not possessing valid entry documents at the time she sought admission to the United States. Sicaran conceded through counsel that she did not possess valid entry documents and was therefore eligible for removal. To avoid removal, Sicaran applied for asylum, 8 U.S.C. § 1158, statutory withholding of removal, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 C.F.R. §§ 1208.16, 1208.18.

Sicaran claimed asylum and withholding of removal on the grounds that she suffered persecution as a member of a "particular social group." 8 U.S.C. §§ 1231(b)(3)(A), 1158(b)(1)(A) (referencing § 1101(a)(42)(A)). Before the IJ and BIA, she defined her proposed group as "married El Salvadoran women in a controlling and abusive domestic relationship." A.R. 3, 154¹ ; see 8 U.S.C. § 1101(a)(42)(A). More specifically, Sicaran feared her husband, German Ernesto Sigaran Luna (Luna), would harm her if she were removed to El Salvador. Her application and testimony before the Immigration Judge detailed abuse she suffered at the hands of Luna, who is a soldier in the Salvadoran Army and with whom she has had four children. According to the record, Sicaran and Luna's relationship began in 1996, and the two married in 2000. Her husband began abusing her—including beating and raping her—around 1998. These attacks sometimes occurred in front of their children.

As the IJ noted, the record is unclear as to whether Sicaran and Luna ever divorced, but at a minimum, the two stopped living together in 2009 after entering into a custody agreement. Before they separated, Luna took one of their daughters from Sicaran. The police subsequently returned the girl to Sicaran and "warn[ed] [Luna] to leave [Sicaran] alone." A.R. 664 (Sicaran's affidavit). In 2012, however, Sicaran claimed that Luna again attempted to take their daughter from her mother's house while wielding a machete. Sicaran testified that she wanted to file a complaint with the police but feared doing so because she knew Luna was watching her. Luna attempted once more to take two of their children while they were at church a few weeks later. Before the police were called, other churchgoers interceded.

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 finding her proposed particular social group non-cognizable, and ultimately erred in denying her applications for asylum, statutory withholding of removal, and CAT protection. She also raises several new social groups for the first time on this appeal.

We uphold the BIA's denial of asylum unless it is "manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). Whether a proposed particular social group is cognizable is ultimately a legal determination that we review de novo . Temu v. Holder , 740 F.3d 887, 898 (4th Cir. 2014). As to the Board's factual findings, we uphold them "unless no rational factfinder could reach the same conclusion." Id. at 891 ; see 8 U.S.C. § 1252(b)(4)(B) ; INS v. Elias-Zacarias , 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (noting that the agency's determination must be upheld if it is "supported by reasonable, substantial, and probative evidence").

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. 8 U.S.C. §§ 1158(b)(1)(A), (B)(i). To qualify as a "refugee," an applicant must establish that she "is unable or unwilling to return to, and is unable or unwilling to avail ... herself of the protection of, [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).

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." 8 U.S.C. § 1252(d)(1). Moreover, the applicant bears the burden of raising all particular social groups and specifying "the exact delineation of any particular social group(s) to which she claims to belong" on the record before the immigration judge in the first instance. Matter of W-Y-C- & H-O-B- , 27 I. & N. Dec. 189, 191 (BIA 2018) (quoting Matter of A-T- , 25 I. & N. Dec. 4, 10 (BIA 2009) ). Applicants often raise multiple, alternative grounds before the IJ to guard against the...