A.P.A. v. U.S. Attorney Gen.

104 F.4th 230

A.P.A., Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 21-10496

United States Court of Appeals, Eleventh Circuit

Filed: June 6, 2024

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX0-017

Kathleen R. Hartnett, Cooley, LLP, San Francisco, CA, Robby Lee Ray Saldana, Cooley, LLP, Washington, DC, for Petitioner.

Rachel Berman-Vaporis, Appellate Section, Office of Immigration Litigation, Washington, DC, for Respondent.

Melissa Crow, Hastings College of the Law (U.C.), Center for Gender & Refugee Studies, San Francisco, CA, for Amici Curiae Center for Gender and Refugee Studies, Centro Legal De La Raza, Charles 'Shane' Ellison, Anju Gupta, Lindsay M. Harris, Harvard Immigration and Refugee Clinical Program, Open Immigration Legal Services, Refugee and Immigrant Center for Education and Legal Services, Southern Poverty Law Center, Tahirih Justice Center.

Ana Cecilia Reyes, Michael Mestitz, Williams & Connolly, LLP, Washington, DC, Nora Huppert, Jennifer C. Pizer, Lambda Legal Defense and Education Fund, Inc, Los Angeles, CA, for Amici Curiae Lambda Legal Defense and Education Fund, Inc., The Translatin@ Coalition.

Before Luck, Brasher, and Ed Carnes, Circuit Judges.

BRASHER, Circuit Judge:

A.P.A., a native and citizen of Mexico, is a transgender woman who unlawfully immigrated to the United States as a child. After A.P.A. was convicted of driving under the influence, the Department of Homeland Security began deportation proceedings. In response, A.P.A. petitioned for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An immigration judge denied this relief, the Board of Immigration Appeals ("BIA") affirmed, and A.P.A. has petitioned us for review.

This petition requires us to answer two questions.

First, because the BIA denied A.P.A.'s petition for asylum as untimely, we must decide whether we have jurisdiction to review that denial. We conclude that we do not. Upon determining that A.P.A.'s asylum petition failed to meet the one-year filing deadline, the BIA also concluded that it (1) did not meet the exception to the one-year deadline based on "changed" or "extraordinary circumstances," see 8 U.S.C. § 1158(a)(2)(D), and (2) even if A.P.A.'s transgender status was a valid changed circumstance, the petition was not filed within a "reasonable period" after that change in circumstances, see 8 C.F.R. § 1208.4(a)(4)(ii). The statute explicitly bars us from reviewing the BIA's decisions pertaining to an asylum application's timeliness. 8 U.S.C. § 1158(a)(3). And we held in Chacon-Botero v. U.S. Attorney General, 427 F.3d 954 (11th Cir. 2005), that we lack jurisdiction to review the BIA's determination that an asylum applicant failed to establish "changed circumstances." Despite A.P.A's arguments to the contrary, we hold that the Supreme Court's decisions in Guerrero-Lasprilla v. Barr, 589 U.S. 221, 140 S.Ct. 1062, 206 L.Ed.2d 271 (2020), and Wilkinson v. Garland, 601 U.S. 209, 144 S.Ct. 780, 218 L.Ed.2d 140 (2024), did not abrogate our decision in Chacon-Botero. Accordingly, we lack jurisdiction to consider the petition for asylum.

Second, because A.P.A. also seeks withholding of removal and CAT relief, we must decide whether A.P.A. established a likelihood of future persecution or torture in Mexico based on transgender status. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015) (holding that an alien was likely to face future torture as a transgender woman in Mexico). On this record, we conclude that substantial evidence supports the BIA's decision that A.P.A. is not likely to suffer future persecution or torture as a transgender woman in Mexico.

Accordingly, after careful review and with the benefit of oral argument, we deny the petition for review in part and dismiss in part.

I.

A.P.A. is a native and citizen of Mexico. As a child in Mexico, a custodial uncle physically and sexually abused A.P.A. In 2002, A.P.A. unlawfully entered the United States around the age of ten. A.P.A. qualified for relief under Deferred Action for Childhood Arrivals from 2015 to 2017 but lost that status after being convicted of driving under the influence in 2017. A.P.A. was later convicted of a second DUI and arrested and charged with possessing a controlled substance.

In February 2019, A.P.A. began to identify as a transgender woman. The government detained A.P.A. in May 2019 and began deportation proceedings. A.P.A. conceded the factual allegations for removability, and an immigration judge found A.P.A. removable under 8 U.S.C. § 1182(a)(6)(A)(i).

On September 30, 2019, seventeen years after entering the United States and nine years after reaching the age of majority, A.P.A. applied for asylum and withholding of removal under the Immigration and Nationality Act and relief under CAT. These applications were based on the physical and sexual abuse A.P.A. suffered as a child at the hands of an uncle, and A.P.A's claims of fear of future persecution and torture in Mexico as a transgender woman.

The immigration judge determined that A.P.A.'s asylum application was time barred and, alternatively, failed on the merits. A.P.A. was ineligible for asylum even if the application were timely, the immigration judge found, because A.P.A. failed to establish (1) that the childhood abuse A.P.A. experienced was based on a protected ground or (2) a well-founded fear of future persecution in Mexico as a transgender woman. The immigration judge denied A.P.A's petition for withholding of removal for failure to meet the lower threshold for asylum: establishing a well-founded fear of persecution. Finally, the immigration judge denied A.P.A.'s petition for CAT relief because A.P.A's likelihood of future torture in Mexico was "speculative and hypothetical."

The immigration judge relied on the 2018 Mexico State Department Human Rights Report for support that no pattern or practice of persecution against transgender individuals existed in Mexico. The report recognizes that there is discrimination against LGBTI individuals in Mexico. But it also notes that there has been a "gradual increase in public tolerance of LGBTI individuals." The report states that Mexican law prohibits discrimination against LGBTI individuals, and in Mexico City, hate crimes based on gender identity carry increased penalties.

A.P.A. appealed to the BIA, which affirmed. The BIA determined that A.P.A.'s asylum claim was untimely under 8 U.S.C. § 1158(a)(2)(B) and that A.P.A. did not qualify for an exception to the filing deadline based on "changed" or "extraordinary circumstances." Alternatively, the BIA concluded that, even if A.P.A.'s new identity as a transgender woman in February 2019 qualified as a change in circumstances, A.P.A.'s seven-month delay in filing for asylum following that change in status was not a "reasonable period" under 8 C.F.R. § 1208.4(a)(4)(ii).

The BIA noted that, even where an asylum applicant is statutorily eligible, granting asylum is a discretionary decision, citing Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), vacated, 28 I&N Dec. 307 (BIA 2021). As to A.P.A., the BIA determined that A.P.A.'s convictions for driving under the influence and arrests for marijuana possession did not merit a "favorable exercise of discretion for asylum."

The BIA also credited the immigration judge's determination that A.P.A. had not shown past persecution or a well-founded fear of future persecution. The BIA explained that there was no clear error in the immigration judge's finding that A.P.A. failed to present evidence of past persecution "on account of" A.P.A.'s identity as a transgender woman or the finding that A.P.A.'s childhood abuse "was a private criminal act, and [the uncle's] reason for committing such crimes is unknown." The BIA cited Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020), vacated, 28 I&N Dec. 351 (BIA 2021), for the proposition that past persecution must be based on membership in a protected group. The BIA further agreed with the immigration judge that A.P.A. did not "demonstrate that there is a pattern or practice in Mexico of persecution against transgender individuals" sufficient to show fear of future persecution. Instead, the BIA noted, "the Mexican government has taken positive measures to protect the LGBTI population." The BIA denied A.P.A.'s request for CAT relief for the same reasons.

A.P.A. timely petitioned for review.

II.

We review our subject matter jurisdiction de novo. Indrawati v. U.S. Att'y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015).

We review the BIA's decision and the decision of the immigration judge to the extent that the BIA expressly adopts or agrees with the immigration judge's opinion. Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We review the BIA's factual findings under the "highly deferential" substantial evidence test. See Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004). This standard of review applies to the BIA's determination that an applicant is statutorily ineligible for asylum or withholding of removal. Id. at 1028-31. Under this test, we "must affirm the BIA's decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. at 1027 (quotations omitted).

III.

A.P.A. petitions for review of three claims: asylum, withholding of removal, and CAT relief. We address each in turn.

A.

We turn first to whether we have jurisdiction to review the asylum claim. The answer is a relatively simple, "no." But getting there requires us to navigate a labyrinth of immigration law.

We start with the timeliness and jurisdiction-stripping provisions of the Immigration and Nationality Act. The INA permits aliens to petition for asylum "within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). The INA also allows (but does not require) the Attorney General to consider an untimely application "if the alien...