August Litigation Updates

Read case summaries of select BIA and Fifth Circuit cases issued this last month.

Board of Immigration Appeals (BIA)

Matter of J-G-R-28 I&N Dec 733 (BIA 2023) 

  • "(1) Torturous conduct committed by a public official who is 'acting in an official capacity,' meaning acting under color of law, is covered by the regulations implementing the Convention Against Torture, but such conduct by an official who is not acting in an official capacity is not covered. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020), followed.  
  • (2) The key consideration in determining if an official’s torturous conduct was undertaken 'in an official capacity' for purposes of CAT eligibility is whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government."

Fifth Circuit Court of Appeals

Garcia-Gonzalez v. Garland, No. 22-60501, 2023 WL 5009266 (5th Cir. Aug. 7, 2023)

Facts & Background
  • Petitioner and her derivative son entered the United States in 2016 after fleeing gang violence in Honduras. Gangs in Honduras were trying to recruit Petitioner's son and nephew for gang membership, and gang members kidnapped Petitioner's nephew and threatened to kill both Petitioner and her son on multiple occasions.  
  • Petitioner appeared pro se at her first hearing before the immigration judge (IJ). At her second hearing before the IJ, Petitioner appeared represented by counsel and conceded to removability but did inform the IJ that she was seeking asylum, withholding of removal (WOR), and protection under the Convention Against Torture (CAT). At this second hearing before the IJ, Petitioner said that she was persecuted in Honduras on account of membership in a particular social group (PSG), which was defined as her son's nuclear family.  
  • At Petitioner's third hearing before the IJ, the IJ informed Petitioner and her counsel that Petitioner needed to submit biometrics within six months, as part of her asylum application. Despite affirming to the IJ that both Petitioner and her legal counsel understood biometrics and the six-month deadline, Petitioner missed the deadline. Petitioner's counsel admitted this to the IJ at the next hearing and claimed full responsibility, noting that Petitioner had asked about the deadline and biometrics. Nonetheless, the IJ determined that Petitioner abandoned her claims because of the lack of timely biometrics, and the IJ ordered that Petitioner be removed to Honduras. The IJ did suggest to Petitioner though that she perhaps had a claim for ineffective assistance of counsel.  
  • Petitioner then retained new legal counsel for her appeal, and the new counsel told Petitioner that she would file the appeal with the BIA but that Petitioner would need to retain different counsel to pursue a claim for ineffective assistance of counsel against the prior counsel. Petitioner chose to appeal to the BIA and stay with the new legal counsel.  
  • On appeal before the BIA, Petitioner's primary argument was that the IJ had not given her adequate notice of the actual consequences for failing to timely provide biometrics. The BIA affirmed the IJ's decision and found that the IJ did inform Petitioner of the requirement for biometrics. 
  • In its decision, the BIA also noted that Petitioner did not allege the ineffective assistance of counsel claim on appeal or comply with the evidence requirements in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988), where Lozada held that motions to reconsider or reopen based on a claim for ineffective assistance of counsel required specific supporting evidence--among other things, including a showing of substantial prejudice.  
  • After the BIA denied Petitioner's appeal, Petitioner retained a third counsel, who remained Petitioner's attorney. Petitioner moved the BIA to reopen her removal proceedings and claimed that both prior attorneys were ineffective. Petitioner argued that she met the Lozado requirements and that the BIA should reopen her case sua sponte. The BIA denied this motion, specifically noting that, per Lozado, a claim for ineffective assistance of counsel requires that Petitioner show she met the evidentiary requirements but also that she show substantial prejudice. The BIA found that Petitioner did not make a prima facie showing of substantial prejudice on any of her claims.  
  • The BIA found that Petitioner's asylum and WOR claims failed because Petitioner failed to produce evidence that her son's nuclear family was a cognizable PSG for asylum and WOR. The BIA particularly found that the son's nuclear family may be distinct within the family's community but that Petitioner had not presented enough evidence to show how this group would be perceived within Honduran society as a whole.  
  • Regarding Petitioner's CAT claim, the BIA found that Petitioner did not show she was entitled to relief under the CAT because she did not show that she would be tortured by or at the acquiescence of the Honduran government.  
  • The BIA declined to reopen the proceedings sua sponte because Petitioner's case was not considered to be an exceptional situation that would justify reopening.  
  • In the petition for review before the Fifth Circuit, Petitioner raised three issues:  
    • (1) whether the BIA erred in finding that Petitioner had not made a prima facie claim for asylum and WOR per the statutory authorities--particularly whether the BIA incorrectly found that Petitioner failed to give evidence that she belonged to a cognizable PSG;  
    • (2) whether the BIA erred in finding that Petitioner had not made a prima facie claim for relief under CAT; and  
    • (3) whether the BIA erred in not reopening Petitioner's proceedings sua sponte.
Notable Holdings & Rationale 
  • The Fifth Circuit dismissed Petitioner's petition for review in part for want of jurisdiction and otherwise denied it in part.  
  • The Fifth Circuit has yet to address when family-based PSGs are cognizable, nor has the BIA or the Department of Justice provided the Fifth Circuit with specific guidance on this issue. The Fifth Circuit further elaborated in the decision, first discussing that the BIA has recognized historically that family units can be PSGs in certain circumstances, but the BIA has not provided much guidance that remains operative. Additionally, the Department of Justice has not provided new guidance regarding the cognizability of family-based PSGs following the Attorney General vacating Matter of L-E-A-II, 28 I. & N. Dec. 304-304-205 (Att'y Gen. 2021). However, Fifth Circuit explained in this portion of the decision that the "United States urges" them to "rule narrowly and deny" Petitioner's petition for review on the ground that Petitioner did not present evidence of the social distinction of her PSG, and the Fifth Circuit continues that "the United States is correct that" the Fifth Circuit may "dispose of this case on narrow grounds"--which the Fifth Circuit did.  
  • A noncitizen seeking asylum or WOR bears the burden of demonstrating eligibility, per  8 U.S.C. §§ 1158(b)(1)(B)(i)–(ii), 1231(b)(3)(C); 8 C.F.R. §§ 208.13(a), 208.16(b). Petitioner did not satisfy this burden, as in her application for relief, Petitioner did not show any evidence of her family being socially distinct in Honduran society as a whole. Petitioner was required to put forth some evidence of social distinction of her son's nuclear family in Honduran society and did not and therefore failed to make a prima facie case for eligibility for asylum or WOR.  
  • The BIA did not err in its finding regarding CAT. Petitioner did not offer anything else aside from her own statements and suppositions in support of her claim. Petitioner stated that the Honduran police collaborated with the gangs, but she did not show any evidence that the local police would acquiesce to her torture.  
  • The BIA additionally did not err in not reopening Petitioner's proceedings sua sponte. While Petitioner conceded that the Fifth Circuit precedent has consistently showed that the Fifth Circuit lacks jurisdiction over denials of sua sponte reopening, Petitioner tried to distinguish her petition and argue that she was bringing a due process challenge due to her ineffective assistance of counsel claim (and the Fifth Circuit does have jurisdiction over these challenges). However, Petitioner's claim fails, as Petitioner's attempt to raise a due process claim through an argument about the BIA’s failure to reopen proceedings sua sponte does not ultimately bring the claim within jurisdiction of the Fifth Circuit.