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Ninth Circuit:
Asylum May Be Granted Even if Alien Can Reside in Safety in Native Country
Majority Says Deportation Not Supportable Where Woman Would Be Persecuted in Mexico Based on Family Association
By a MetNews Staff Writer
An opinion of the Ninth U.S. Circuit Court of Appeals highlights that a noncitizen who is unlawfully present in the United States may be granted asylum notwithstanding a finding that the person, if returned home, could reside there in safety.
Review of a Board of Immigration Appeals decision was partially granted in the case of a Mexican national whose husband was slain by a Mafia boss and who has been threatened by him.
Applying varying standards under different statutes, two senior judges said in a memorandum opinion filed Friday that the board erred in dismissing the appeal of an immigration judge’s decision that a woman and her three children do not qualify for asylum and relief from deportation, but agreed with the board that the applicants are not subject to protection under the Convention Against Torture (“CAT”).
CAT relief is unavaialable because Sayry Lizeth Miranda Perez and her offspring, citizens of Mexico, could live safely with her brother in Sonora, Senior Circuit Judges Richard A. Paez and Sidney Thomas declared. Circuit Judge Eric D. Miller partially dissented, arguing that substantial evidence supports the decision to eject Miranda Perez and the children from the United States, but agreeing as to the inapplicability of CAT.
Paez and Thomas predicated their conclusion that asylum is warranted on 8 U.S.C. § 1158(b)(1)(B)(i) under which “the applicant must establish that…membership in a particular social group…was or will be at least one central reason for persecuting the applicant.” Miranda Perez and the children are in a “social group,” the judges said, by virtue of being family members of the slain man, Fernando Arizmendi Hernandez.
(In the majority opinion, he is denominated Miranda Perez’s “husband”; Miller termed him her “partner.” Reference was made at oral argument to his having been a “father figure” to the children.)
The gang chieftain, identified only as “Tusa,” was taken into custody by military authorities following the 2012 slaying of Hernandez. After his release, he encountered Miranda Perez in 2013, grabbed her by the neck, and asked if she had reported to the authorities that he was the killer, admitting that he was; she replied in the negative; he indicated his disbelief in her denial, and said was “going to pay for it.”
Tusa allegedly operated what was akin to a protection racket, exacting from families a quota—which Miranda Perez’s family was too poor to pay, resulting in shots being fired at their house. Hernandez was last seen in the custody of police; later that day, Miranda Perez received a telephone call demanding ransom; soon after that, Hernandez was found dead.
Central Reason
The majority declared:
“The Board’s conclusion that the petitioners’ membership in their asserted particular social group…was not ‘one central reason’ for their persecution, as is required for asylum, is not supported by substantial evidence.”
They explained:
“Although Sayry’s status as Fernando’s wife was likely not the only reason the Mafia leader, Tusa, targeted her in the wake of Fernando’s murder, the evidence compels the conclusion that Sayry’s relationship to Fernando was a ‘central reason’ for Tusa’s attacks following Fernando’s death.”
The judges reasoned that had it not been for the familiar relationship, “Tusa would not have targeted Sayry….”
Disagreeing with the grahting of review as to asylum and exclusion from deportation, Miller wrote:
“The Board found that the gang leader who threatened Sayry and her family ‘was only motivated by the prospect of pecuniary gain and his desire for retribution.’ The record does not compel the conclusion that he was motivated by anything else….A reasonable factfinder could have determined that the gang leader at first threatened Sayry and her family, and killed her partner, only to extort money, and that after he concluded that Sayry had reported him to the police, he gained a retributive motive, but not a family-based motive.”
Convention Against Torture
In discussing CAT, Paez and Thomas pointed to the Ninth Circuit’s 2022 decision in De Leon v. Garland which notes that, under 8 Code of Federal Regulations §1208.16(c)(3)(ii), among evidence relevant to the applicability of CAT is whether “the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured.”
The judges said that neither Miranda Perez’s “statement that Tusa’s gang ‘would be able to find’ her because of ‘the delinquency [of] the police,’ nor the country conditions evidence that described rising crime in Sonora and police corruption in Mexico, compels a conclusion that she and her children could not safely live with her brother.”
The case is Miranda Perez v. Bondi, 23-621.
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