BIA Decision on Asylum Time Bar and a Private Violence-Based PSG Claim (Matter of J-G-P-)

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Introduction: Matter of J-G-P-, 27 I&N Dec. 642 (BIA 2019)

On October 11, 2019, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of J-G-P-, 27 I&N Dec. 642 (BIA 2019) [PDF version]. The main issue in the case was whether an Oregon menacing statute constituted a crime involving moral turpitude. The Board held that it did, and its reasoning will have significant consequences in cases involving similar menacing statutes nationwide. After resolving the moral turpitude question, the Board addressed the respondent's separate applications for asylum and withholding of removal. There, the issues were whether the respondent's asylum application was time-barred and whether the Immigration Judge erred in rejecting the respondent's application for withholding of removal. The Board concluded that the asylum application was time barred and that there was no clear error in the Immigration Judge's finding that the respondent failed to sustain his burden for establishing that he merited withholding of removal.

In this article, we will analyze the Board's treatment of the respondent's applications for asylum and withholding of removal in the Matter of J-G-P-. Please see our separate article to learn about the Board's handling of the moral turpitude issue [see article].

Relevant Factual and Procedural History: 27 I&N Dec. at 642-43

Please note that we will only examine the factual and procedural history relevant to the respondent's applications for asylum and withholding of removal. For a complete discussion of the factual and procedural history of the case, please see the corresponding section in our article on the Board's consideration of whether the respondent was convicted of a crime involving moral turpitude [see section].

The respondent, a native and citizen of Mexico, entered the United States without inspection at an unknown time or place. The respondent was convicted on September 20, 2011, of menacing in violation of section 163.190 of the Oregon Revised Statutes.

Subsequent to the respondent's conviction, the Department of Homeland Security (DHS) initiated removal proceedings against him, charging him with inadmissibility under section 212(a)(6)(A)(i) for being present in the United States without having been admitted or paroled.

In removal proceedings, the respondent conceded that he was removable as charged and sought relief in the forms of cancellation of removal, asylum, and withholding of removal. The Immigration Judge concluded that the respondent was ineligible for cancellation because he had been convicted of a crime involving moral turpitude, that he was ineligible for asylum because his application was untimely, and that he had failed to sustain his burden of proof for eligibility for withholding of removal.

The respondent appealed from the Immigration Judge's decision to the Board of Immigration Appeals (BIA), challenging the denial of cancellation, asylum, and withholding of removal. Below, we will address the Board's consideration of the respondent's appeals of the denials of asylum and withholding of removal after the Board had dismiss the respondent's appeal of the denial of cancellation.

Board Concludes Asylum Application Was Untimely: 27 I&N Dec. at 650-51

Section 208(a)(2)(B) requires an alien to apply for asylum within one year of arriving in the United States. However, section 208(a)(2)(D) creates a limited exception from this one-year time bar “if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within [one year of arrival].”

The respondent in the instant case last entered the United States in 1992 at the age of 20. The respondent stated that he entered the United States because of the murder of his brother and father in Michoacán, Mexico, over a property dispute.

The Board noted that the respondent did not apply for asylum until he was placed in removal proceedings in 2012, two decades after he last arrived in the United States. The respondent stated that he suffered from post-traumatic stress disorder from having witnessed the murder of his brother and father, and that this constituted an “extraordinary circumstance” under section 208(a)(2)(D) mitigating his failure to apply for asylum within one year of arrival in the United States. The Board disagreed, agreeing with the Immigration Judge that the respondent failed to adequately explain that or how his post-traumatic stress disorder could have caused him to not apply for asylum for 20 years.

For this reason, the Board affirmed the Immigration Judge's denial of the asylum application.

Board Concludes that the Respondent Did Not Sustain His Burden of Proof for Withholding of Removal: 27 I&N Dec. at 651

The respondent sought withholding of removal under section 241(b)(3) of the INA on the basis that he faced a future threat to his life or freedom in Mexico on the basis of his membership in a particular social group.

The respondent claimed membership in the particular social group (PSG) of “displaced Mexican males with significant family relationships in the United States.” The Board held that this group was not defined with “particularity,” as required by the Board precedents in Matter of M-E-V-G-, 26 I&N Dec. 227, 237-43 (BIA 2014) [PDF version] and Matter of W-G-R-, 26 I&N Dec. 208, 212-218 (BIA 2014) [PDF version]. For this reason, the Board held that the respondent had not defined a cognizable particular social group (PSG).

The Immigration Judge had denied the withholding application on the basis that the respondent failed to establish a nexus between his proposed group and the harm he suffered in Mexico from witnessing the murder of his father and brother. The Board found no clear error in the Immigration Judge's conclusion that the factual finding that the harm suffered by the respondent was not related to his proposed group or any other protected ground for purpose of withholding, but rather to indiscriminate violence in Mexico.

For these reasons, the Board dismissed the respondent's appeal of the Immigration Judge's denial of withholding of removal.

Conclusion

The Board's discussion of the respondent's applications for asylum and withholding of removal in Matter of J-G-P- will be overshadowed by its longer analysis of the moral turpitude question in the case. Although the Board's conclusions on the asylum and withholding applications do not break new ground, the dismissal of the appeal of denial of withholding does contain a few noteworthy points. First, the Board held that the respondent's proposed particular social group (PSG) of “displaced Mexican males with significant family relationships in the United States” was not defined with sufficient particularity to constitute a particular social group (PSG). This decision is consistent with past Board precedents and precedents from nearly every Federal circuit court, but it is not often that the Board specifically addresses the cognizability of a particular social group (PSG) in a published decision. Second, the Board agreed that the harm suffered by the respondent was due to indiscriminate violence in Mexico rather than a protected ground, a conclusion which poses a continuing challenge to many individuals seeking asylum or withholding based on private violence.

To learn more about the issues discussed in this article generally, please see our website's growing sections on asylum [see category] and removal and deportation defense [see category]. You can read about the Board's treatment of the most contested issue in Matter of J-G-P- in our separate article [see article].