CASE NO UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Transcription

1 CASE NO UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [REDACTED] [REDACTED] [REDACTED][REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] Petitioners vs. JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent ON PETITION FOR REVIEW OF A DECISION FROM THE BOARD OF IMMIGRATION APPEALS OPENING BRIEF FOR PETITIONERS Fatma E. Marouf, Esq. Texas A&M Univ. School of Law Immigrant Rights Clinic Najmu Mohseen, Student Attorney 307 W. 7th St. Suite LL50 Fort Worth, TX Telephone: (817) Geoffrey A. Hoffman, Esq. University of Houston Law Center Immigration Clinic Megan Quinn, Student Attorney Carla Kelly-Calum, Student Attorney 4604 Calhoun Road, TU-II, Rm. 56 Houston, Texas (713) Deborah Anker, Esq. Andrea Meza, Esq. Harvard Immigration and Refugee Clinical Program Austin Davis, Student Attorney Rebecca Prager, Student Attorney 6 Everett Street Cambridge, MA (617) Attorneys for Petitioners

2 CERTIFICATE OF INTERESTED PERSONS CASE NO (1) No , [REDACTED] [REDACTED] [REDACTED][REDACTED] v. Jefferson B. Sessions, III, U.S. Attorney General. (2) The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualifications or recusal. Fatma E. Marouf, Esq. Director, Texas A&M University School of Law Immigrant Rights Clinic Najmu Mohseen, Student Attorney 307 W. 7 th St. Suite LL50 Fort Worth, TX (817) Deborah Anker, Esq. Director, Harvard Immigration and Refugee Clinical Program Andrea Meza, Esq. Albert M. Sacks Clinical Teaching and Advocacy Fellow Austin Davis, Student Attorney Rebecca Prager, Student Attorney 6 Everett Street Cambridge, MA (617) Geoffrey A. Hoffman, Esq. Director, University of Houston Law Center Immigration Clinic Megan Quinn, Student Attorney Carla Kelly-Calum, Student Attorney 4604 Calhoun Road, TU-II, Rm. 56 Houston, Texas i

3 (713) Kevin James Conway Trial Attorney U.S Department of Justice Civil Division Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, D.C Office phone: (202) Fax: (202) Tony Bryson, District Director U.S. Department of Homeland Security Immigration and Customs Enforcement 810 Gears Road, Suite 100 Houston, TX Respectfully submitted, /s/ Fatma E. Marouf FATMA E. MAROUF Director, Immigrant Rights Clinic Texas A&M University School of Law 307 W. 7 TH St. Suite LL50 Fort Worth, TX Telephone: (817) Attorney for Petitioners ii

4 STATEMENT REGARDING ORAL ARGUMENT Petitioners, [REDACTED] [REDACTED] [REDACTED][REDACTED] and [REDACTED] [REDACTED] [REDACTED] [REDACTED], respectfully request that this Court order oral argument. This case challenges the decision in Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018), where the Board of Immigration Appeals held that a particular social group cannot be reformulated in the administrative appeal and that applicants for asylum and withholding of removal must provide an exact delineation of their particular social group to the immigration judge. These rules represent a departure from practice, raise important and complex legal issues, and are relevant to countless other cases. There will be two amici briefs submitted in this case, including one by former Immigration Judges, underscoring its significance in the area of immigration law, generally, and asylum law, more specifically. iii

5 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i-ii STATEMENT REGARDING ORAL ARGUMENT... iii TABLE OF CONTENTS... iv TABLE OF AUTHORITIES... vi STATEMENT OF JURISDICTION... 1 STATEMENT OF VENUE... 1 ATTORNEY S FEES... 1 STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 STANDARD OF REVIEW... 7 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 I. THIS COURT HAS JURISDICTION TO REVIEW THE BIA S DECISION II. THE BIA ERRED IN FINDING THAT IT COULD NOT ANALYZE THE REFORMULATED SOCIAL GROUP A. Whether a PSG is Cognizable is a Question of Law That Does Not Require Factual Findings on Each of the Elements B. The Way the IJ Handled the Elements of a Particular Social Group and the Nexus Allowed Review of the Reformulated Group by the BIA iv

6 C. The BIA Erred in Finding That the Particular Social Group Presented to the IJ was Substantially Different From the One Presented to the BIA III. THE BIA ERRED IN REQUIRING APPLICANTS TO PRESENT AN EXACT DELINEATION OF THEIR PARTICULAR SOCIAL GROUP TO THE IMMIGRATION JUDGE A. Requiring Exact Delineation Is an Excessively Strict Legal Standard for Waiver of Claim B. The Exact Delineation Standard Gives Short Shrift to the IJ s Role in Helping Formulate the Social Group IV. THE BIA S DECISION IN MATTER OF W-Y-C- & H-O-B- SHOULD NOT BE RETROACTIVELY APPLIED v

7 TABLE OF AUTHORITIES Federal Cases Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002) Alonzo-Rivera v. U.S. Att y Gen., 649 Fed. Appx. 983 (11th Cir. 2016) (unpublished)...25 Aranda-Galvan v. Lynch, 623 Fed. Appx. 505 (5th Cir. 2013) (unpublished) 13 Arévalo-Girόn v. Holder, 667 F.3d 79 (1st Cir. 2012) 11 Ayala v. Holder, 640 F.3d 1095 (9th Cir. 2011)..14 Baltti v. Sessions, 878 F.3d 240 (8th Cir. 2017) Cabrera v. Sessions, -- F.3d (5th Cir. 2018), 2018 WL , 35 Calel-Chitic v. Holder, 333 Fed Appx. 845 (5th Cir. 2009) (unpublished)...12, 18, 26, 30 Calix v. Lynch, 784 F.3d 1000 (5th Cir. 2015) 28 Cardona v. Sessions, 848 F.3d 519 (1st Cir. 2017)... 17, 39 Castaneda-Castillo v. Holder, 638 F.3d 354 (1st Cir. 2011) Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)... 14, 25 Chen v. Holder, 448 Fed. Appx. 610 (7th Cir. 2011) (unpublished)... 17, 40 Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984)... 7, 8 Chew v. Colding, 344 U.S. 590 (1953) Claudio v. Holder, 601 F.3d 316 (5th Cir. 2010)... 10, 41 vi

8 Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) Cruz-Funes v. Gonzales, 406 F.3d 1187 (10th Cir. 2005) Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1995) de Abarca v. Holder, 757 F.3d 332 (1st Cir. 2014)... 16, 23, 39 Duarte-Salagosa v. Holder, 775 F.3d 841 (7th Cir. 2014) Dukta v. Holder, 550 Fed. Appx. 317 (7th Cir. 2014) (unpublished)... 24, 40 Eduard v. Ashcroft, 379 F.3d 172 (5th Cir. 2004) Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150 (5th Cir. 1965) Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. 2013) Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51 (1984) Hernandez-De La Cruz v. Lynch, 819 F.3d 784 (5th Cir. 2016)... 13, 15 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) Hongyok v. Gonzales, 492 F.3d 547 (5th Cir. 2007)...passim Iruegas-Valdez v. Yates, 846 F.3d 806, (5th Cir. 2017)... 7 J.L. Floti Construction Co. v. Occupational Safety and Health Review Com n, 687 F.3d 853 (6th Cir. 1982) Juarez v. Sessions, 693 Fed. Appx. 668 (9th Cir. 2017) (unpublished) Larios v. Holder, 608 F.3d 105 (1st Cir. 2010) Linkletter v. Walker, 381 U.S. 618 (1965) Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017) vii

9 Lwin v. INS, 144 F.3d 505 (7th Cir. 1998) McDonald v. Watt, 653 F.2d 1035 (5th Cir. 1981) , Mata v. Holder, 547 Fed. Appx. 505 (5th Cir. 2013) (unpublished) Mayorga-Rosa v. Sessions, 888 F.3d 379 (8th Cir. 2018) Montgomery Ward & Co., Inc. v. FTC., 691 F.2d 1322 (9th Cir. 1982) Ngugi v. Lynch, 826 F.3d 1132 (8th Cir. 2016) N.L.R.B. v. Niagara Mach. & Tool Works, 746 F.2d 143 (2d Cir. 1984) Omari v. Holder, 562 F.3d 314 (5th Cir. 2009)... 10, 28 Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012)... 7, 8 Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014)... 14, 24, 39 Pedromo v. Holder, 611 F.3d 662 (9th Cir. 2010)... 24, 39 Pinos-Gonzales v. Mukasey, 519 F.3d 436 (8th Cir. 2008) Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014)... 17, 39 Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015) Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015)... 31, 35 Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) Retail, Wholesale and Department Store Union, AFL-CIO v. NLRB, 466 F.2d 380 (D.C. Cir. 1972) Sanchez-Robles v. Lynch, 808 F.3d 688 (6th Cir. 2015) Sankoh v. Mukasey, 539 F.3d 456 (7th Cir. 2008) SEC v. Chenery Corp., 332 U.S. 194 (1947)... 36, 38 viii

10 Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) 7 Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007)..10 Singh v. Gonzales, 436 F.3d 484, (5th Cir. 2006) Thuri v. Ashcroft, 380 F.3d 788 (5th Cir. 2004) Torres de la Cruz v. Maurer, 483 F.3d 1013 (10th Cir. 2007) Toure v. Att y Gen. of U.S., 443 F.3d 325 (3d Cir. 2006) United States v. Garza, 70 Fed. Appx. 212 (5th Cir. 2003) (unpublished) United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) Valdiviezo-Galdamez v. Att y Gen. of U.S., 502 F.3d 285 (3d Cir. 2007) Velasquez-Garcia v. Holder, 760 F.3d 671 (7th Cir. 2014) Wang v. Ashcroft, 260 F.3d 488 (5th Cir. 2001) Administrative Decisions In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996)... 16, 39 In re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997) Matter of A-B-, 27 I. & N. Dec. 227 (A.G. 2018) Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985)... 19, 25, 30, 34 Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014)...passim Matter of A-T-, 24 I. & N. Dec. 617 (A.G. 2008) Matter of A-T-, 25 I. & N. Dec. 4 (BIA 2009) ix

11 Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008) Matter of Fedorenko, 19 I. & N. Dec. 57 (BIA 1984) Matter of Jasso Arangure, 27 I. & N. Dec. 178 (BIA 2017) Matter of Jimenez, 21 I. & N. Dec. 567 (BIA 1996) Matter of J-Y-C-, 24 I. & N. Dec. 260 (BIA 2007) Matter of L-E-A-, 27 I. & N. Dec. 40 (BIA 2017) Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014)... 20, 30 Matter of R-S-H-, 23 I. & N. Dec. 629 (BIA 2003) Matter of S-E-G-, 24 I. & N. Dec. 597 (BIA 1985) Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018)...passim Matter of Y-L-, 24 I. & N. Dec. 151 (BIA 2007) United States Code 8 U.S.C U.S.C. 1158(b)(1) U.S.C. 1158(b)(1)(B)(i) U.S.C. 1182(a)(6)(A)(i) U.S.C. 1229a(b)(4)(B) U.S.C U.S.C. 1241(b)(3)(A) U.S.C x

12 8 U.S.C. 1252(a) U.S.C. 1252(d)... 1, U.S.C. 2412(d)... 1 Federal Regulations 8 C.F.R (b)(3) C.F.R C.F.R C.F.R C.F.R (a)(2) C.F.R Other Authorities Deborah Anker, Law of Asylum 5:40-43 (Thompson Reuters, 2018 ed.) U.N. Office of the United Nations High Commissioner for Refugees, Note on Burden and Standard of Proof in Refugee Claims (Dec. 16, 1998)... 33, 35 xi

13 STATEMENT OF JURISDICTION This is a Petition for Review of the order of removal entered against [REDACTED] [REDACTED] [REDACTED][REDACTED] ( Ms. [REDACTED] ) and her minor son, [REDACTED] [REDACTED] [REDACTED] [REDACTED] ( [REDACTED] ), by the Board of Immigration Appeals ( BIA ) on January 19, The appeal is pursuant to Section 242(a) of the Immigration and Nationality Act ( INA ), 8 U.S.C. 1252(a), as amended by the REAL ID Act of 2005, H.R. 1268, 109th Congress (2005), Pub. L. No , Div. B, 119 Stat. 231, 302 (May 11, 2005). This case is a review of a final order of removal, so jurisdiction is proper pursuant to INA 242, 8 U.S.C STATEMENT OF VENUE This Circuit is the appropriate venue for Ms. [REDACTED] s petition because her order of removal was issued from the Immigration Judge located in Houston, Texas. INA 242(b)(2), 8 U.S.C. 1252(a). ATTORNEY S FEES In the event that Petitioners prevail, they will seek attorneys fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d). STATEMENT OF THE ISSUES (1) Whether the BIA erred in finding that it could not analyze the reformulated social group in this case; 1

14 (2) Whether the BIA erred in requiring applicants for asylum and withholding of removal to present an exact delineation of their particular social group ( PSG ) to the immigration judge; (3) Whether the new rules regarding reformulation and exact delineation of particular social groups established by Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018), were impermissibly applied retroactively. STATEMENT OF THE CASE Ms. [REDACTED], a 30-year-old citizen of Honduras, fled Honduras with her 10-year-old son, [REDACTED] [REDACTED] [REDACTED] [REDACTED], after being threatened by gang members and escaping an attempted rape by her father. ROA When Ms. [REDACTED] was one year old, her father abandoned her and her mother. ROA.186. Although he was no longer her mother s partner, Ms. [REDACTED] s father occasionally helped her mother. ROA.188. When Ms. [REDACTED] was fifteen, her father attempted to rape her. ROA On the day of the attempted rape, Ms. [REDACTED] and her father were staying at the same residence. ROA.188. Ms. [REDACTED] s father told her to take off her clothes. ROA.188. She refused and told him that as her father, he should respect her. ROA.188. Her father then became violent. ROA.188. Ms. [REDACTED] struggled with him and was able to defend herself. ROA.188. She did not tell anyone about the attempted rape by her father until recently, 2

15 because she was afraid and traumatized. ROA.189. She felt as though every man she saw was going to harm her. ROA.190. There were no support services available to Ms. [REDACTED] in Honduras. ROA.189, 198. From January 2008 to January 2014, Ms. [REDACTED] operated a food stand in Honduras. ROA Because she owned a business, gang members thought that she had money and repeatedly tried to extort her. ROA.183, 195, 201. The gangs threatened and harassed her for ten years prior to her leaving Honduras. ROA Two gang members threatened to kidnap and rob her. ROA.184, 200. The last threat occurred in 2012, about two years before she left Honduras. ROA Ms. [REDACTED] did not report the threats to the police because the authorities in Honduras are corrupt and accept bribes, so perpetrators are quickly released from custody within a week after a denouncement is filed. ROA.189, 191, 198. Ms. [REDACTED][REDACTED] fears being seriously harmed if she is forced to return to Honduras. ROA.191. She fled to the United States with her son on June 10, 2014, entering without inspection in Brownsville, Texas. ROA.291. On October 14, 2014, she appeared before Immigration Judge Clarence M. Wagner at the Houston Immigration Court pro se and was granted time to find an attorney. ROA.148. At the next master calendar hearing on November 5, 2014, Ms. 3

16 [REDACTED] appeared represented by attorney Patricia Ventura, who requested attorney preparation time. ROA.152. On September 3, 2015, Ms. [REDACTED], through her attorney, admitted the factual allegations, conceded the charge of removability under INA 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i), declined to designate a country for removal, and submitted an application for asylum and withholding of removal. ROA The Immigration Judge ( IJ ) set a merits hearing for December 23, ROA.162. On December 23, 2015, Ms. [REDACTED] appeared represented by attorney Omar Vargas, who requested a continuance of the merits hearing. ROA The IJ indicated that he had already granted a motion to withdraw filed by attorney Patricia Ventura who had decided to become counsel for DHS. ROA.166. He reset the merits hearing for May 11, ROA.169. On May 11, 2016, the merits hearing had to be continued again because the Department of Homeland Security ( DHS ) did not have the file. ROA.171. At the merits hearing that finally took place on December 28, 2016, Ms. [REDACTED] appeared represented by yet another attorney, Mai Lu. ROA.174. None of the three attorneys who had represented Ms. [REDACTED] submitted a single page of evidence in support of her asylum application by the filing deadline of December 1, On the day of the merits hearing, attorney Mai Lu attempted to submit a supplement to the exhibits, which the IJ rejected as untimely, noting 4

17 that [t]he supplementation deadline has long since passed. ROA.176. Ms. [REDACTED] was the only person who testified at the hearing. ROA During closing arguments, attorney Mai Lu defined the particular social group ( PSG ) as single Honduran women, aged 14 to 30, who are victims of sexual abuse within the family whom the government fails to protect. ROA.203. Although the IJ raised some concerns about this group, Ms. Lu did not attempt to redefine it. ROA. ROA In restating the PSG, the IJ slightly changed the wording, defining it as [s]ingle Honduran women, age 14 to 30, who are victims of sexual abuse within the family and who cannot turn to the government. ROA.205. The IJ s decision, issued the same day as the merits hearing, denied asylum and withholding of removal. ROA The IJ found Ms. [REDACTED] credible. ROA.124. However, he found no cognizable PSG. ROA.129. Specifically, he found that the proposed PSG lacked particularity and that there was no evidence showing social distinction. ROA.129. The IJ further found no nexus, reasoning that Ms. [REDACTED] s father acted out of a criminal desire to violate the trust between child and parent when he attempted to rape her. ROA.130. The IJ opined, I do not think he thought at all about her lack of ability to turn to the Honduran government for protection. ROA.130. Additionally, the IJ concluded that Ms. [REDACTED] had failed to show past persecution or a well- 5

18 founded fear of future persecution. ROA.131. For the same reasons, the IJ denied withholding of removal. ROA.132. Finally, the IJ found that Ms. [REDACTED] had not demonstrated a likelihood of future torture with government acquiescence and denied protection under the Convention Against Torture. ROA.132. Ms. [REDACTED], represented by attorney Omar Vargas, filed a timely Notice of Appeal with the BIA. ROA Attorney Vargas submitted a brief in support of her appeal on May 10, ROA In the brief, Mr. Vargas proposed a revised PSG, defined as Honduran women and girls who cannot sever family ties. ROA.77. The brief argued that this PSG arose naturally from the testimony and that there was no prohibition against rearticulating the PSG on appeal to the BIA. ROA The brief also pointed out that in proceedings below, the PSG was articulated for the first time during closing arguments, which meant that the definition of the PSG was not needed by the IJ or the parties to conduct the hearing. ROA.78. DHS did not file an opposition brief. Several months later, on September 1, 2017, the BIA issued a notice requesting supplemental briefing in the case. Specifically, the BIA asked both parties to address whether the Board should consider a particular social group in the first instance that was not articulated before the Immigration Judge. ROA.60. Both DHS and Mr. Vargas submitted supplemental briefs on this issue. ROA (DHS Supplemental Brief); ROA (Respondent s Supplemental Brief). 6

19 On January 19, 2018, the BIA issued a published decision in this case, Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018). ROA The BIA held that applicants seeking asylum or withholding of removal based on membership in a particular social group must indicate on the record before the IJ the exact delineation of any proposed particular social group. ROA.9. The BIA further held that because the group proposed to the BIA was not advanced below, the Immigration Judge did not have the opportunity to make the underlying findings of fact that are necessary to our analysis of the respondent s eligibility for asylum and withholding of removal, and we cannot make these findings for the first time on appeal. ROA.10. The BIA declined to consider the refined PSG or to remand for the IJ to consider it in the first instance. ROA STANDARD OF REVIEW This Court reviews the BIA s decision and will consider the IJ s decision only to the extent it influenced the BIA. Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). Questions of fact are reviewed for substantial evidence, which requires that the decision of the BIA be based on the evidence presented and that the decision be substantially reasonable. Orellana-Monson v. Holder, 685 F.3d 511, (5th Cir. 2012). Questions of law are subject to de novo review. Id. Whether the BIA applied the correct legal standard is a question of law. Iruegas- Valdez v. Yates, 846 F.3d 806, (5th Cir. 2017). The BIA s interpretation of 7

20 an ambiguous provision of the INA is reviewed under the test set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). The present case does not involve reviewing the BIA s interpretation of a particular social group or any other statutory provision that would be subject to Chevron deference. See Orellana- Monson, 685 F.3d at 521 (giving Chevron deference to the BIA s social visibility and particularity tests as an interpretation of particular social group ). SUMMARY OF THE ARGUMENT This case challenges the BIA s refusal to address the petitioner s particular social group that was revised on appeal to the BIA. The Court has jurisdiction to review this legal question, which was raised sua sponte by the BIA, because it was addressed by both parties in supplemental briefs and is therefore exhausted. The BIA erred in refusing to analyze the revised social group in this case for three reasons. First, the question of whether a particular social group is cognizable is a question of law, not a question of fact, and does not require the IJ to make specific factual findings. Second, insofar as the elements of a particular social group immutability, particularity, and social distinction involve factual determinations, the way the IJ addressed them in this case allows BIA review. Third, the social 8

21 group presented to the BIA was not substantially different from the one presented to the IJ, as the BIA claims, but merely semantically different. Additionally, the BIA improperly held that an applicant for asylum or withholding of removal must provide an exact delineation of her particular social group to the IJ. Exact delineation is an excessively strict standard for waiver of a claim that goes well beyond adequately raising an issue and short shrifts the role that IJs play in helping formulate social groups. Finally, this appeal challenges the impermissible retroactive application of the BIA s decision in Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018). ARGUMENT I. THIS COURT HAS JURISDICTION TO REVIEW THE BIA S DECISION. As a preliminary matter, this Court has jurisdiction to review the BIA s decision. Here, the BIA sua sponte raised the issue of whether an applicant for asylum and withholding of removal based on membership in a particular social group may revise the group formulation that was presented to the IJ in the appeal to the BIA. ROA.58. The BIA requested supplemental briefing on this issue, which both parties provided. ROA.14-25, 31-45, 58. Designating its decision as precedent, the BIA held that an applicant generally cannot revise a particular social group on appeal and refused to consider Ms. [REDACTED] s modified group. W- Y-C- & H-O-B-, 27 I. & N. Dec. 189; ROA

22 Even though the BIA raised the issue of whether a PSG can be restated on appeal sua sponte, that issue has been exhausted because it was fully briefed by the parties and addressed by the BIA. The purpose of the exhaustion requirement is to give the BIA the opportunity to apply its specialized knowledge and experience on the matter, and these purposes are fulfilled when the BIA chooses to address an issue on the merits. See Lopez-Dubon v. Holder 609 F.3d 642, 644 (5th Cir. 2010) (holding that an issue was sufficiently exhausted where it was addressed by the BIA, although the petitioner did not raise it); Sidabutar v. Gonzales 503 F.3d 1116, 1120 (10th Cir. 2007) (holding that the court had jurisdiction over an issue that the BIA addressed sua sponte). Furthermore, Ms. [REDACTED] exhausted her administrative remedies by raising her reformulated social group to the BIA, even though she did not provide the exact same articulation of the social group to the IJ. An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the BIA. Wang v. Ashcroft, 260 F.3d 448, (5th Cir. 2001) (emphasis added); see also Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009) (explaining that a noncitizen must fairly present an issue to the BIA to satisfy 1252(d)'s exhaustion requirement ) (emphasis added). Here, Ms. [REDACTED] raised her reformulated particular social group in her brief to the BIA, which is the operative document through which any issues that a petitioner 10

23 wishes to have considered must be raised. Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010). The circuit court cases cited in the BIA s decision are inapposite, because the petitioners in those cases all reformulated their social groups in their circuit court appeals, not in their appeals to the BIA. ROA Thus, in those cases, unlike the present case, the agency never had an opportunity to consider the revised social group and the courts therefore lacked jurisdiction over the issue. See Arévalo-Girón v. Holder, 667 F.3d 79, 82 n.2 (1st Cir. 2012) (explaining that the respondent changed her PSG from single women perceived to have substantial economic resources, which she used before the IJ and the BIA, to women before the First Circuit); Baltti v. Sessions, 878 F.3d 240, (8th Cir. 2017) ( In his petition for review, Baltti attempts to narrow his social group from all witnesses of the 2003 massacre to just former elected officials who both witnessed the massacre and spoke out against the government. We do not have jurisdiction to review this newly defined social group. ) (emphasis in original); Juarez v. Sessions, 693 Fed. Appx. 668, 669 (9th Cir. 2017) (unpublished) ( We lack jurisdiction to consider the contention Juarez raises for the first time in his opening brief that he was or would be persecuted as a member of a particular social group of children who refused conscription. ); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014) ( Duarte failed to exhaust his administrative 11

24 remedies by presenting this particular social group for the first time in his petition to this court. ); Larios v. Holder, 608 F.3d 105, 110 (1st Cir. 2010) (refusing to consider the new PSG street children, which the petitioner raised for the first time in his petition for review). The BIA also neglects to mention two cases where the Fifth Circuit exercised jurisdiction, finding that social group claims had been exhausted, even when they were articulated for the first time or revised in the circuit court appeal. See Hongyok v, Gonzales, 492 F.3d 547, 550 (5th Cir. 2007) (allowing semantic revisions to the social group in a circuit court appeal); Calel-Chitic, 333 Fed. Appx. 845, 847 (5th Cir. 2009) (unpublished) (allowing the petitioner to proceed with a particular social group claim in his Fifth Circuit appeal, even though he had never articulated it below, because it was obvious from the facts in the record). II. THE BIA ERRED IN FINDING THAT IT COULD NOT ANALYZE THE REFORMULATED SOCIAL GROUP. In refusing to consider the revised version of Ms. [REDACTED] s particular social group, the BIA reasoned that the respondent has articulated a new social group that is substantially different from the one delineated below. ROA.10 (emphasis added). The BIA further stated, Because this group was not advanced below, the Immigration Judge did not have the opportunity to make the underlying findings of fact that are necessary to our analysis of the respondent's eligibility for 12

25 asylum and withholding of removal, and we cannot make these findings for the first time on appeal. ROA.10. The BIA s reasoning was flawed for three reasons. First, the overall question of whether a particular social group is cognizable is a question of law, not a question of fact, and does not require the IJ to make factual findings on the elements of immutability, particularity, and social distinction. Second, the way the IJ handled each of the three elements in this case allowed review by the BIA. Third, the social group presented to the BIA was not substantially different from the one presented to the IJ. A. Whether a PSG is Cognizable is a Question of Law That Does Not Require Factual Findings on Each of the Elements. Whether a group constitutes a particular social group is a legal question subject to de novo review. See Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) ( Petitioner s challenge to the determination that former informants do not constitute a particular social group is a legal question that we have jurisdiction to review ); Hongyok, 492 F.3d at 550 ( We need not and do not address the BIA's legal conclusion that escaped sex slaves are not a protected social group... ); Matter of A-R-C-G-, 26 I. & N. Dec. 388, 390 (BIA 2014) ( The question whether a group is a particular social group within the meaning of the Act is a question of law that we review de novo. ); see also Aranda-Galvan v. Lynch, 623 Fed. Appx. 217, 218 (5th Cir. 2015) (unpublished) (stating that 13

26 whether an alien's proposed group is cognizable as a particular social group for purposes of withholding of removal is a legal determination by the BIA); Mata v. Holder, 547 Fed. Appx. 505, 506 (5th Cir. 2013) (unpublished) (finding no need to consider the legal question whether former members of the Tango Blast gang constitute a protected social group ). Other circuit courts have likewise treated the question of whether a PSG is cognizable as a legal question subject to de novo review. See Ngugi v. Lynch, 826 F.3d 1132, (8th Cir. 2016); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014); Cece v. Holder, 733 F.3d 662, 668 (7th Cir. 2013) (en banc); Ayala v. Holder, 640 F.3d 1095, 1096 (9th Cir. 2011); Castaneda-Castillo v. Holder, 638 F.3d 354, 363 (1st Cir. 2011); Cruz-Funes v. Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005). Here, the BIA erred in treating the question of whether a particular social group is cognizable as a factual question rather than a legal one. The BIA stated: The importance of articulating the contours of any proposed social group before the Immigration Judge is underscored by the inherently factual nature of the social group analysis. A determination whether a social group is cognizable is a factbased inquiry made on a case-by-case basis, depending on whether the group is immutable and is recognized as particular and socially distinct in the relevant society. ROA.9 (emphasis added) (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 14

27 42 (BIA 2017). While the question of whether an individual is a member of a particular social group and whether the requisite nexus was established are factual questions, Thuri v. Ashcroft, 380 F.3d 788, 791 (5th Cir. 2004) (per curiam), the BIA s decision, quoted above, specifically states that whether the group is cognizable is a factual question, which directly conflicts with this Court s precedents, as well as precedents of other circuits. See Hernandez-De La Cruz, 819 F.3d at 786; Hongyok, 492 F.3d at 550. This was legal error. At a minimum, the BIA s decision is woefully unclear regarding whether cognizability of a PSG is a legal or factual question. As quoted above, the BIA states that [a] determination whether a social group is cognizable is a fact-based inquiry, but in the very next paragraph, it states, we review the ultimate determination whether a proposed group is cognizable de novo. ROA.9. The BIA s decision erroneously suggests that the immutability, particularity, and social distinction requirements all require specific factual findings by the IJ, without which BIA review is not possible. The Eighth Circuit recently explained that while immutability, particularity, and social distinction are necessary elements to a particular social group, the analysis does not require the immigration judge to make findings on each element. Mayorga-Rosa v. Sessions, 888 F.3d 379, 383 (8th Cir. 2018). There, the IJ rejected the PSG without addressing any of the specific elements. Despite having no findings on these elements from the IJ, the 15

28 BIA ruled that the PSG lacked particularity. Id. at 384. Thus, the BIA was able to assess particularity on its own, and the Eighth Circuit affirmed the BIA s decision. If the BIA does not need to review factual findings made by the IJ on each of the elements, then there is no reason it cannot determine if a reformulated PSG is cognizable, which is a de novo determination based on the record. Indeed, in two of the most seminal asylum cases, the definition of the PSG that prevailed before the BIA was not formulated by the respondent. In In re Kasinga, the first precedent decision granting asylum based on female genital mutilation ( FGM ), the BIA itself refined the PSG based on the formulations suggested by both parties during the appeal, which therefore differed from the PSG presented to the IJ. 21 I. & N. Dec. 357, 365 (BIA 1996) ( [W]e find the particular social group to be the following: young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice ). Similarly, the PSG that ultimately prevailed in Matter of A-R-C-G-, the first precedent decision granting asylum based on domestic violence, was originally presented in briefing by DHS in a different case called Matter of R-A-, where the DHS reformulated the PSG presented by the applicant. 26 I. & N. Dec. at 390 (accepting married women in Guatemala who are unable to leave the relationship as the PSG). App

29 Numerous circuit court decisions also indicate that the BIA either allowed reformulation in the administrative appeal or reformulated the PSG itself. See de Abarca v. Holder, 757 F.3d 334, 336 (1st Cir. 2014) (indicating that the IJ considered the particular social group mothers of individuals who resisted gang activity, but the BIA redefined the social group as nuclear family and analyzed the redefined group); Cardona v. Sessions, 848 F.3d 519, (1st Cir. 2017) (recognizing that the petitioner may change the definitions of particular social groups between the immigration court and appeal to the BIA); Pirir-Boc v. Holder, 750 F.3d 1077, (9th Cir. 2014) (noting that the BIA changed the applicant s articulation of his particular social group); Chen v. Holder, 448 Fed. Appx. 610, 611 (7th Cir. 2011) (unpublished) (noting that the petitioner had never defined his particular social group before the IJ and then argued that he was being persecuted for being a government cooperator before the BIA). Recently, Attorney General Sessions reformulated the respondent s particular social group that had been accepted by the BIA. Matter of A-B-, 27 I. & N. Dec. 227 (A.G. 2018). 1 These cases all confirm that because the particular social group 1 After the BIA s decision in Matter of A-B-, on March 7, 2018, Attorney General Sessions called for briefs from the parties and amicus briefs from interested parties on the issue of whether being a victim of private criminal activity constitutes a cognizable particular social group. Matter of A-B-, 27 I. & N. Dec. 227 (A.G. 2018). Yet, the particular social group put forth by the respondent before both the IJ and the BIA, based on the accepted formulation in Matter of A-R-C-G-, was El Salvadoran women who are unable to leave their 17

30 determination is a legal question analyzed de novo, the BIA can assess a reformulated social group on appeal and has repeatedly done so. 2 B. The Way the IJ Handled the Elements of a Particular Social Group and the Nexus Allowed Review of the Reformulated Group by the BIA. In refusing to address the reformulated social group, the BIA reasoned that the Immigration Judge did not have the opportunity to make the underlying findings of fact that are necessary to our analysis of the respondent's eligibility for asylum and withholding of removal, and we cannot make these findings for the first time on appeal. ROA.10. Specifically, the BIA notes that the IJ made factual findings that the original group was not socially distinct and that Ms. domestic relationships where they have children in common. App. 48. The PSG that Sessions has articulated is significantly different from the one articulated by the respondent. 2 Although revision of the social group at the circuit court level is not an issue in this case, there are also cases where courts, including the Fifth Circuit, have allowed revision in a circuit court appeal or even reformulated the social group themselves. See Hongyok, 492 F.3d at 550 (allowing semantic revisions to the social group in a circuit court appeal); Calel-Chitic, 333 Fed. Appx. at 847 (allowing the petitioner to proceed with a particular social group claim in his Fifth Circuit appeal even though he had never articulated a social group in immigration court); see also Sanchez-Robles v. Lynch, 808 F.3d 688, 691 (6th Cir. 2015) (considering but ultimately rejecting a reformulated social group); Valdiviezo- Galdamez v. Att y Gen. of U.S., 502 F.3d 285, 290 & n.3 (3d Cir. 2007) (reformulating the social group by omitting part of the original definition); Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) (redefining the social group as gay men with female sexual identities ); Lwin v. I.N.S., 144 F.3d 505 (7th Cir. 1998) (refining the social group to be parents of Burmese student dissidents ). 18

31 [REDACTED] had failed to show that she would be persecuted on account of her membership in the original group. ROA.10. The BIA suggests that it cannot review the reformulated social group because the IJ never had the opportunity to address the elements of the reformulated group or the nexus between the persecution and Ms. [REDACTED] s membership in the reformulated group. ROA.10. However, the way the IJ handled the elements of the particular social group and the nexus in this case allowed BIA review. Insofar as the three elements of a particular social group involve factual findings, the IJ in this case either did not make a specific finding (immutability), applied an erroneous legal standard (particularity), or made a finding that applies equally to the reformulated social group (social distinction), all of which allow review by the BIA. To begin with, the IJ s decision never specifically addressed immutability. Cf. Cabrera, -- F.3d (5th Cir. 2018), 2018 WL , at *7 (noting that the IJ never evaluated the immutability or particularity requirements). Since the IJ skipped this criterion altogether in his decision, it makes no difference that the group was reformulated on appeal to the BIA. If we take into consideration comments made by the IJ during the hearing, it is clear that the IJ considered gender to be an immutable characteristic, consistent with BIA precedents. ROA ; see also See A-R-C-G-, 26 I. & N. Dec. at 392; Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). In fact, when the attorney for DHS stated in her 19

32 closing argument that there was no immutable characteristic, the IJ disagreed and the DHS attorney conceded that there was an immutable characteristic. ROA Since gender constitutes an immutable characteristic in both the original and reformulated social group, the BIA could have easily reviewed that element. Turning to particularity, the IJ found that the original PSG lacked particularity because it could include women of any education, region, religious background, employment history, women from any different family background who are between the ages of 14 and 30 and not married. ROA.129. This reasoning reflects a misunderstanding of particularity, which requires the group to have clear boundaries, making it possible to tell who is inside and outside of the group. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239 (BIA 2014) (explaining that particularity requires a clear benchmark for determining who falls within the group, so that the group has definable boundaries ). Words that are too vague may defeat particularity. But no vague words were used in the proposed PSG here. The diversity of people within a group does not defeat particularity. Indeed, many of the PSGs recognized by the BIA and circuit courts include people from diverse backgrounds. For example, the PSG recognized in Matter of A-R-C-G-, married women in Guatemala who are unable to leave the relationship, can include women of any education, region, religious background, etc. 26 I. & N. Dec. at 392. Because the IJ fundamentally misconstrued the nature of the particularity 20

33 requirement, it did not matter here that the IJ only addressed the original PSG and not the reformulated PSG. The IJ s failure to apply the correct legal standard for particularity was a legal error that the BIA could have and should have reviewed. With respect to social distinction, the IJ found that [t]here was zero evidence that the society of Honduras regards, perceives or considers this to be a group. ROA.129. In analyzing social distinction in Matter of A-R-C-G-, the BIA found that relevant evidence would include whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victims, whether those laws are effectively enforced, and other sociopolitical factors. 26 I. & N. Dec. at 394. Since no country conditions documents were submitted in this case, and DHS did not submit any evidence, the only relevant evidence for evaluating either the original or reformulated PSG is Ms. [REDACTED] s credible testimony. She testified that there s no support... no help for women in her situation in Honduras, there are no shelters for women, and perpetrators are quickly released from custody within a week after a denouncement is filed. ROA.189, 191, 198. She further testified that with money, sometimes you can fix it all, suggesting that perpetrators bribe the police in order to be released and avoid prosecution. ROA.191. This is similar to the evidence on which the BIA 21

34 relied in Matter of A-R-C-G- regarding lack of protection for victims of domestic violence. Based on this undisputed evidence in the record, the BIA could have reviewed the IJ s finding regarding social distinction. The same facts demonstrate social distinction for both the original and reformulated PSGs. Indeed, as explained further below, the PSGs were semantically different but substantively quite similar. Indeed, the purpose of providing the new PSG was for clarification of what was not a clear PSG below, and not for any other purpose such as to assert a new claim or for new relief. Finally, the BIA was not precluded from reviewing the reformulated PSG simply because the nexus requirement (i.e. the requirement that the persecution be on account of membership in the particular social group) involves a factual finding and the IJ only analyzed the nexus for the original group. ROA.10. As explained above, both social groups were defined by gender and family ties, and Ms. [REDACTED] s credible, undisputed testimony in this case provided evidence that her father used his position in the family in attempting to rape her. In fact, the IJ acknowledged, He felt that as her father, he could dominate her and that she would bend to his will. ROA.130. This factual finding supports the existence a nexus between Ms. [REDACTED] s gender and family ties and the abuse, which carries over to the reformulated social group. See ROA

35 In finding no nexus, the IJ ultimately attributed the attempted rape to the father s criminal desire and stated I do not think he thought at all about her lack of ability to turn to the Honduran government for protection. ROA.130. This is an erroneous legal analysis of nexus that the BIA should have rejected. In Matter of A-R-C-G-, the immigration judge had similarly found no nexus, reasoning that the abuse was the result of criminal acts... perpetuated arbitrarily and without reason. 26 I. & N. Dec. at 390. The BIA rejected that analysis, just as it should have done here. Moreover, Ms. [REDACTED] s father did not have to be thinking about the lack of government protection in order to establish a nexus. Ms. [REDACTED] s gender and her father s dominant position in the family, which were the defining characteristics of both the original and reformulated social groups, constituted at least one central reason for the attempted rape, establishing a nexus. 8 U.S.C. 1158(b)(1)(B)(i) (requiring the protected ground to be at least one central reason for the persecution). C. The BIA Erred in Finding That the Particular Social Group Presented to the IJ was Substantially Different From the One Presented to the BIA. In refusing to consider the revised version of the particular social group, the BIA reasoned that the respondent has articulated a new social group that is substantially different from the one delineated below. ROA.10 (emphasis added). As discussed below, the revised social group presented to the BIA in this case is 23

36 not substantially different from the group formulation presented to the IJ. In any event, in prior cases, the BIA has accepted reformulated social groups that were substantially different from the one presented to the IJ. See, e.g., de Abarca, 757 F.3d at 336 (explaining that the original PSG presented to the IJ was mothers of individuals who resisted gang activity, but the BIA redefined the PSG as nuclear family ); Paloka, 762 F.3d at (explaining that the petitioner presented three different PSGs to the IJ and merged them all into one PSG on appeal to the BIA); Dukta v. Holder, 550 Fed. Appx. 317, (7th Cir. 2014) (unpublished) (explaining that the PSG presented to the IJ was former members of special military units who have also lived abroad, but on appeal to the BIA, the PSG was reformulated as individuals who have lived outside of the Ukraine and support Ukrainian independence ); Pedromo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010) (explaining that the original PSG presented to the IJ was women between the ages of fourteen and forty who are Guatemalan and live in the United States, but the BIA considered a reformulated PSG defined as all women in Guatemala ). These cases raise serious questions about whether substantially different is the correct legal standard for determining whether the BIA should consider a reformulated group on appeal. Even if this Court were to accept the substantially different test, the BIA erred in finding that the two PSGs in this case were substantially different. The 24

37 PSG that Ms. [REDACTED] presented to the IJ was single Honduran women, aged 14 to 30, who are victims of sexual abuse within the family and whom the government fails to protect. ROA.203, 205. On appeal to the BIA, she refined her PSG as Honduran women and girls who cannot sever their family ties. ROA.77. While the words used to define the groups are different, they are substantively very similar. The immutable characteristics that define both groups are gender, family ties, childhood status, and nationality. See Acosta, 19 I. & N. Dec. at 233 (recognizing sex and kinship ties as immutable characteristics); A-R-C-G-, 26 I. & N. Dec. at (recognizing that sex is an immutable characteristic and that marital status can be an immutable characteristic where the individual is unable to leave the relationship ); Cece, 733 F.3d at 672 (holding that young, Albanian women who live alone constitute a PSG and explaining that members of this group are united by the common and immutable characteristic of being (1) young, (2) Albanian, (3) women, (4) living alone ). Furthermore, lack of government protection for women in Honduras is what makes it so difficult for women to sever family ties. ROA.189, 191, 198; see also Alonzo-Rivera v. U.S. Atty. Gen., 649 Fed. Appx. 983, 988 (11th Cir. 2016) (unpublished) (explaining that [Honduran] women are viewed as the property of their fathers or intimate partners and are considered second-class citizens, and that domestic violence is viewed as an issue best resolved in the home, which allows 25

38 the abuse to occur with impunity ). Without shelters for victims of domestic violence, laws that effectively protect women, prosecution of perpetrators, and a system free of corruption, it becomes impossible for women to escape violent family relationships. ROA.189, 191, 198. Thus, defining the group in terms of lack of government protection is substantively similar to defining the group in terms of a victim s inability to sever family ties where the lack of protection means they will never be allowed to be protected from a family member s persecution. The difference between the two groups is therefore merely semantic and in no way substantive. In Hongyok, this Court found that such insignificant and semantic changes in the asserted particular social group do not deprive the Court of Appeals of jurisdiction. 492 F.3d at 550. Just like in Hongyok, the social group in this case simply changed in the words used to describe it. The fundamental nature of the group, however, did not change. Given the similarity of the two groups, the BIA was not precluded from considering the refined version. As long as the facts presented to the IJ can support a reformulated group, the BIA should consider that reformulation. See Calel- Chitic, 333 Fed. Appx. 847 (unpublished) (concluding that although the petitioner had never articulated his particular social group as witnesses to crimes involving government officials, he had maintained since the initiation of this action that he is in danger because of the illegal acts that he witnessed being committed by 26