Diaz-Reynoso v. Barr, No. 18-72833 (9th Cir. 2020)Annotate this Case
The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner seeks withholding of removal based on her fear that she would be persecuted in Guatemala on account of her membership in the particular social group of "indigenous women in Guatemala who are unable to leave their relationship."
The panel declined to hold that the Attorney General's decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), was arbitrary or capricious and held that the Attorney General did not announce a new categorical exception for victims of domestic violence or other private criminal activity. Rather, the BIA must conduct the proper particular social group analysis on a case-by-case basis. The panel explained that the BIA seems to have erroneously understood Matter of A-B- to forbid any mention of feared harm within a proposed social group. In this case, the BIA's determination was plainly contrary to the Attorney General's requirement that claims must be carefully analyzed under the framework established by the BIA's precedents. Therefore, because the BIA avoided the case-specific inquiry demanded by Matter of A-B- and the BIA's precedents, the panel granted the petition and remanded petitioner's withholding claim. The panel also remanded petitioner's CAT claim for further consideration.
Court Description: Immigration. Granting Sontos Diaz-Reynoso’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her application for withholding of removal and protection under the Convention Against Torture, and remanding, the panel held that the Board misapplied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board and circuit precedent, in concluding that Diaz-Reynoso’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable, and that she failed to establish that the government of Guatemala would acquiesce in any possible torture. The panel rejected Diaz-Reynoso’s contention that Matter of A-B- was arbitrary and capricious and therefore not entitled to Chevron deference. The panel concluded that, despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis. The panel observed that the Board rejected Diaz- Reynoso’s proposed social group, with almost no analysis, DIAZ-REYNOSO V. BARR 3 because it “suffered from the same circularity problem articulated by the Attorney General in Matter of A-B-.” The panel explained that in doing so, the Board appeared to misapprehend the scope of Matter of A-B- as forbidding any mention of feared harm within the delineation of a proposed social group. The panel concluded that this was error, explaining that Matter of A-B- did not announce a new rule concerning circularity, but instead merely reiterated the well- established principle that a particular social group must exist independently of the harm asserted. The panel recognized that a proposed social group may be deemed impermissibly circular if, after conducting the proper case-by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. The panel explained, however, that a proposed social group is not impermissibly circular merely because the proposed group mentions harm. The panel concluded that the Board also erred in assuming that domestic violence was the only reason Diaz- Reynoso was unable to leave her relationship, and in failing to conduct the rigorous case-by-case analysis required by Matter of A-B-. The panel therefore remanded Diaz- Reynoso’s withholding of removal claim for the Board to undertake the required analysis applying the correct framework. Because the Board failed to discuss evidence that Diaz- Reynoso reported her husband’s abuse to authority figures in her village community, and the government conceded remand was warranted, the panel also remanded Diaz-Reynoso’s CAT claim for further consideration. 4 DIAZ-REYNOSO V. BARR Concurring in the judgment in part and dissenting in part, Judge Bress agreed with remand of the CAT claim in light of the government’s concession, but disagreed with the majority’s conclusion that the Board misread Matter of A-B- in rejecting Diaz-Reynoso’s proposed social group. In Judge Bress’s view, Matter of A-B- held that a proposed group that incorporates harm within its definition is not a group that exists independently of the harm asserted in an application for asylum or statutory withholding of removal. Judge Bress wrote that substantial evidence supported the Board’s assessment that Diaz-Reynoso’s social group was defined exclusively by the harm suffered, and that the Board correctly applied Matter of A-B-, and the circularity rule, in rejecting Diaz-Reynoso’s proposed social group.