Introduction: Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017)

On August 18, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) [PDF version]. The bulk of the decision dealt with determining whether an Oregon statute that criminalized burglary of a dwelling without requiring proof that a victim is actually present at the time of the burglary categorically defined a crime involving moral turpitude (CIMT). The Board ultimately determined that the statute did categorically define a CIMT because it required that to qualify as a dwelling the building must be at least intermittently occupied. We discussed this important new precedent in detail in our full decision dealing with the CIMT analysis [see article]. In this article, we will examine the Board’s analysis of the respondent’s applications for relief from removal after it determined that he had been convicted of a CIMT. Although the analysis does not break new ground, it is worth examining separate from the Board’s analysis of the statute of conviction.

Overview

We discussed the factual and procedural history of the case in our main article on Matter of J-G-D-F- [see section]. Please see the rest of the article to learn about the Board’s analysis of the statute of conviction. For purposes of the respondent’s applications for relief, it is important to note that he was determined to be removable under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA) as an alien convicted of a CIMT.

Applications for Relief and Protection from Removal: 27 I&N Dec. at 88-90

The respondent had filed for the following forms of relief and protection from removal:

Cancellation of removal for non-lawful permanent residents [see article];
Asylum [see category];
Withholding of Removal [see article]; and
Protection under the Convention Against Torture [see article].

First, the Board determined that the respondent was ineligible for cancellation of removal because he had been convicted of an offense under section 212(a)(2) of the INA — specifically a CIMT under section 212(a)(2)(A)(i)(I). Accordingly, the Board moved to examine whether he was eligible for one of the three alternative forms of relief that he sought.

In seeking asylum and withholding of removal, the respondent conceded that he did not face past persecution in his native Mexico. However, he testified that he nevertheless feared returning to Mexico. This fear was based on his concerns that he would be targeted for kidnapping and other harm on account of both general violence in Mexico and the fact that he would be singled out as an individual who had spent many years in the United States.

The Immigration Judge denied the respondent’s application for asylum upon determining that it was untimely filed under section 208(a)(2)(B), and that the late filing was not excused due to changed circumstances under section 208(a)(2)(D). It is important to note that applications for asylum must generally be filed within one year of an alien’s arrival in the United States, subject to limited exceptions. However, this was not the only ground on which the Immigration Judge denied the asylum application. The Immigration Judge also determined that, even absent the time bar, the respondent failed to demonstrate past persecution or shown his membership in a particular social group or any other protected status under section 101(a)(42) would constitute at least one central reason for the harm that he feared.

The Board saw it as unnecessary to address the timeliness of the asylum application because it agreed with the Immigration Judge’s alternative reasons for denying the application, meaning that the timeliness of the application was ultimately not decisive.

First, the Board noted that, because the respondent did not allege that he faced past persecution in Mexico, he was not entitled to a presumption that he had a well-founded fear of future persecution as specified in 8 C.F.R. 1208.13(b)(1) (2017).

Second, the Board agreed with the Immigration Judge that the respondent did not establish the requisite likelihood that he would face future persecution on account of his membership in a particular social group. The Board cited to its published decisions 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. 207, 212-218 (BIA 2014) [PDF version], vacated in part and remanded on other grounds, Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) [PDF version], in listing what must be established about a social group in order for the group to constitute a “particular social group” for purposes of an asylum or withholding of removal application:

1. The group is composed of members who share a common immutable characteristic;
2. The group is defined particularly; and
3. The group is socially distinct within the society in question.

The Board also cited to its recent published decision in Matter of L-E-A-, 27 I&N Dec. 40, 43-44 (BIA 2017) [see article] in explaining that an applicant for asylum or withholding of removal “must also demonstrate a nexus between the alleged persecution and membership in the specified social group” (quoting from Board’s decision in the instant case).

The respondent stated that he would be targeted by criminals in Mexico because, based on his clothing and accent, he would be recognized as having lived for a long period of time in the United States. The Board found that this would not constitute a particular social group for purposes of either asylum or withholding of removal because the proposed social group lacked particularity, noting that it was “amorphous and lacks definable boundaries.” To this effect, the Board cited to two Ninth Circuit decisions where similar claims were rejected. In Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228-29 (9th Cir. 2016) [PDF version], the Ninth Circuit found that Mexican nationals who claimed that they would be perceived as wealthy Americans in Mexico had not established a cognizable social group. In Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-42 (9th Cir. 2010) [PDF version], the Ninth Circuit held that the group “returning Mexicans from the United States” was too broad to constitute a particular social group. In rejecting the respondent’s claim, the Board cited to Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) [PDF version], wherein the Ninth Circuit stated, “An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”

Having rejected the respondent’s claims for asylum and withholding of removal, the Board looked last at his application for relief under the Convention Against Torture. The Board found no clear error in the Immigration Judge’s determination that the respondent failed to establish that it was more likely than not that he would be tortured by either a public official in Mexico or with the acquiescence of a public official or any other person acting in an official capacity. Accordingly, the Board determined that the respondent was not eligible for protection under the Convention Against Torture.

Board’s Conclusion: 27 I&N Dec. at 90

The Board determined that the respondent was removable under section 212(a)(2)(A)(i)(I) as an alien convicted of a CIMT, that he was ineligible for cancellation of removal, and that he had failed to establish eligibility for asylum, withholding of removal, and protection under the Convention Against Torture. The Board accordingly dismissed the respondent’s appeal from the Immigration Judge’s decision. However, the Board reinstated the respondent’s period of voluntary departure upon finding that the respondent had submitted timely proof that he had paid the voluntary departure bond.

Conclusion

The most significant aspect of Matter of J-G-D-F- going forward is its analysis of burglary in the CIMT context, which we addressed in our main article on the case. Regarding the respondent’s applications for asylum and withholding of removal, the Board applied its existing precedent and precedent from the Ninth Circuit regarding the requirements for establishing membership in a particular social group. In order to be cognizable, a particular social group must be comprised of members that share an immutable characteristic, must be defined particularly, and must be distinct within the society in question. Social groups that do not meet these three characteristics will not be cognizable for purposes of asylum, refugee protection, or withholding of removal. An individual who is considering an asylum application — whether affirmatively or as a defense in removal proceedings — should consult with an experienced immigration attorney for case-specific guidance.