Ferreira v. Garland

97 F.4th 36

Pamlar FERREIRA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1543

United States Court of Appeals, First Circuit

March 21, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

SangYeob Kim, with whom Gilles Bissonnette and American Civil Liberties Union of New Hampshire were on brief, for petitioner.

Joseph A. O'Connell, Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, were on brief, for respondent.

Daniel V. Ward, Marianne Staniunas, Abigail Alfaro, Michelle Marie Mlacker, Colleen S. Roberts, and Ropes & Gray LLP on brief for Immigration Law Professors et al., amici curiae.

Deborah Anker, Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, and Harvard Immigration & Refugee Clinical Program on brief for Harvard Immigration and Refugee Clinical Program et al., amici curiae.

Before Barron, Chief Judge, Gelpí and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

Pamlar Ferreira petitions for review of a decision by the Board of Immigration Appeals ("BIA") upholding the denial of her application for withholding of removal. Ferreira requests that we remand the case so that the BIA may consider anew whether withholding is appropriate on the basis of her two asserted particular social groups: "family" and "Trinidadian women who oppose Trinidad's social norms in that they do not want to be subjected to abuse or violent sexual abuse by family members or significant others based on their gender." We grant the petition in part, vacate the BIA's decision as to Ferreira's gender-based claim, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Relevant Facts¹

Ferreira is a sixty-one-year-old citizen of Trinidad and Tobago. As a young child, Ferreira lived with her parents and siblings. When Ferreira was nine, however, her parents divorced, and she went to live with her aunt. Two other family members resided in her aunt's household: Jason Mujica, the aunt's twenty-three-year-old husband and Ferreira's uncle, and Ferreira's cousin.

The uncle began sexually abusing Ferreira shortly after she joined the household. Although Ferreira resisted, the uncle threatened to kill her mother if she did not comply. The abuse occurred "almost every night" for six years, from the time Ferreira was nine until she was fifteen. Despite threats from her uncle that he would kill her if she left, Ferreira ran away from her aunt's home at the age of fifteen and began living at her grandmother's store. Ferreira testified that she was both afraid of her uncle and ashamed of having been abused by a family member; as a result, she did not go to the police or tell anyone else about the abuse. Instead, she stayed in her grandmother's store, leaving only to attend school.

After leaving her aunt's house, Ferreira never saw or spoke to the uncle again. However, the uncle asked other family members about Ferreira on two separate occasions. First, approximately one month after Ferreira ran away, her older brother informed her that the uncle had asked about her. Second, many decades later, Ferreira's mother, then residing in the United States, encountered the uncle when she returned to Trinidad to sell a property in 2018. During the encounter, which we describe in detail below, the uncle asked about Ferreira and whether she was ever returning to Trinidad. Ferreira's mother lied and told the uncle that she had lost touch with Ferreira.

When Ferreira came to the United States in the mid-1980s, at the age of twenty-three, she told her sister about the uncle's abuse, but her sister did not believe her. In 2010, Ferreira was diagnosed with post-traumatic stress disorder, a condition she attributes to the years of sexual abuse she endured.

The last interaction between the uncle and Ferreira's nuclear family was in 2018, when Ferreira's mother briefly returned to Trinidad to sell her house. The uncle, accompanied by three or four other men, accosted the mother at her property and attempted to rob her. The men tied the mother to a chair for several hours before releasing her. Ferreira's mother never reported the incident to police.

B. Legal Proceedings

On December 21, 1985, Ferreira entered the United States on a B-2 nonimmigrant visa with authorization to remain for up to six months. Ferreira has resided in the United States without authorization since her visa expired.

In March 2019, Ferreira was convicted in the United States District Court for the District of New Hampshire of three criminal charges related to her fraudulent application for a United States passport.² The district court sentenced her to twelve months and one day of incarceration.

The Department of Homeland Security then commenced removal proceedings against Ferreira on October 4, 2019. In the Boston Immigration Court, Ferreira initially applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), but she later clarified that she would seek only withholding of removal and protection under the CAT.³ Ferreira's statutory withholding claim was based on her membership in two particular social groups ("PSGs"): (1) "Trinidadian women who oppose Trinidad's social norms in that they do not want to be subjected to abuse or violent sexual abuse by family members or significant others based on their gender"; and (2) "family." By "family," Ferreira explained that her persecutor's "relationship as her uncle forms a social group because the fact that they are related is a definitive characteristic that cannot be changed; their kinship is fundamental to their identities."

In her pre-hearing briefing and testimony before the immigration judge ("IJ"), Ferreira recounted the abuse she experienced as a child and her ongoing fear of her uncle. Ferreira also testified that the uncle was now at least seventy years old and she could not confirm that he was still alive or that he would have any interest in harming her if she returned to Trinidad. Ferreira stated that, if she did return to Trinidad and her uncle were still alive, she would try to report him to the police.

The IJ issued his opinion on February 12, 2020. He concluded both that Ferreira was credible and that the abuse Ferreira experienced was severe enough to rise to the level of persecution. Nonetheless, the IJ denied Ferreira's statutory withholding claim.

First, the IJ held that neither of Ferreira's proffered PSGs were legally cognizable. Assessing Ferreira's family-based PSG, the IJ concluded that Ferreira failed to demonstrate that her family was socially distinct within Trinidad, citing Matter of L-E-A-, 27 I.& N. Dec. 581 (A.G. 2019), later vacated by Matter of L-E-A-, 28 I. & N. Dec. 304 (A.G. 2021). Addressing Ferreira's gender-based PSG, the IJ found that the PSG was not particular because "it is not clear what someone would have to do to oppose a social norm in Trinidad, nor is it clear . . . what the Trinidad social norms are." Further, the IJ concluded that the gender-based PSG was too amorphous and lacked social distinction because of "insufficient evidence that [those] opposing Trinidad social norms are recognized as discrete elements of society."

Second, the IJ determined that, even if Ferreira's asserted PSGs were cognizable, Ferreira's abuse was not "on account of" a statutorily protected ground. The IJ found that "there [was] insufficient evidence the uncle was motivated [to harm] or targeted" Ferreira because of her membership in either PSG. Instead, the uncle was a "predator" who committed "a criminal act of child abuse," and he focused on Ferreira because she "was younger than him" and because of her "proximity" to him "under his own roof."

Ferreira appealed the IJ's decision to the BIA. However, the BIA received her initial brief a day late, and Ferreira later resubmitted it with a motion to accept the late-filed brief. The BIA did not rule on Ferreira's motion but affirmed the IJ's decision without issuing an opinion. Ferreira then sought review from this court. See Ferreira v. Garland, No. 20-1865 (1st Cir. 2020). After Ferreira submitted her opening brief, the government filed an unopposed motion to remand the case back to the BIA; we granted that motion.

On remand, the BIA once again affirmed the IJ's denial of Ferreira's statutory withholding claim. As to the family-based claim, the BIA did not adopt the IJ's cognizability analysis and instead acknowledged that "family" can constitute a valid PSG. Nevertheless, the BIA upheld the IJ's rejection of Ferreira's family-based claim on nexus grounds, finding "no clear error" in the IJ's determination that there was insufficient evidence that the uncle was motivated to harm Ferreira or targeted her based on her membership in their family. The BIA also expressly agreed with the IJ's finding that "the uncle's criminal intent fueled [his] abuse of [Ferreira]."

The BIA then turned to the gender-based PSG and agreed with the IJ that it was not legally cognizable. Framing Ferreira's PSG as "women who are subjected to and oppose" gender-based violence, the BIA adopted the IJ's legal determination that this PSG was amorphous and not defined with particularity. It also concluded that the PSG was circular because it was "impermissibly defined in large part by the harm inflicted on its members." Finally, although Ferreira had argued to the BIA that "a true articulation" of her gender-based PSG may have been "Trinidadian women" or "female Trinidadian survivors of domestic violence," the BIA declined to address any "other particular social groups [offered] for the first time on appeal," citing Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 190-91 (BIA 2018). Ferreira timely sought review from our court.

II. DISCUSSION

A. Legal Framework

We begin by discussing the legal framework governing Ferreira's claims. As factfinder, the IJ "conduct[s] proceedings for deciding...