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December 5, 2017
  Velasquez v. Sessions -- Fourth Circuit
Family Matters: Court Denies Petition for Asylum Because Petitioner Lacks Proper Social Group Membership

Areas of Law: Immigration: Asylum and Refugee Status

Issue Presented: Whether the Board of Immigration Appeals properly denied Velasquez' petition for asylum on the ground that she did not belong to a social group that made her likely to suffer persecution if deported to Honduras.

Brief Summary: The Petitioner, Maria Suyapa Velasquez, a native of Honduras, illegally entered the United States with her minor son in 2014. She sought to stay in the United States, claiming refugee status because her child's paternal grandmother had made multiple attempts to gain custody of him in Honduras. Velasquez argued she was persecuted because of her membership in her nuclear family. The Fourth Circuit denied the petition, affirming the decision of the Board of Immigration Appeals, because Velasquez had not adequately proven that the danger created by the boy's grandmother was more than an intra-family dispute.

Extended Summary: Velasquez and her son, D.A.E.V, entered the United States unlawfully in 2014 and were detained by U.S. Customs and Border Patrol. Velasquez applied for asylum and withholding of removal, attaching D.A.E.V. as a rider on her petition. Velasquez said she fled Honduras because D.A.E.V.'s paternal grandmother, Maria Estrada had been trying to get custody of him for over ten years, through various means. Estrada asked Velasquez for custody, but when Velasquez did not give in, Estrada kidnapped him from their home when Velasquez wasn't there. Each time she did this, D.A.E.V. would find a way free and walk home. Just before Velasquez left Honduras, Estrada threatened to kill her to get custody of the boy. While Velasquez was being detained in 2014, her mother told her Velasquez's sister had been murdered in front of her by Estrada's son Oscar, D.A.E.V.'s uncle. Velasquez's mother believed this to be a case of mistaken identity, i.e., Oscar thought the sister was Velasquez.

Velasquez posited she was a refugee entitled to asylum or withholding of removal under sections 208 and 241 of the INA. Under 8 U.S.C. § 1101(a)(42)(A) a refugee "is an alien outside the country of her nationality 'who is unable or unwilling to return to, and is unable or unwilling to avail...herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The asylum-seeker bears the burden of demonstrating refugee status. Velasquez alleged she was being persecuted for her membership in a particular social group, in this instance her nuclear family.

The Immigration Judge (IJ) who initially heard the petition denied it because the conflict between Velasquez and Estrada was deemed "an intra-family custody dispute over" D.A.E.V. In support of this conclusion, the judge pointed to two facts in Velasquez's account: Her sister had been killed in front of her mother, but her mother was unharmed; Velasquez has four other children from a different father in Honduras, and they also were not harmed by Estrada or her associates. Thus, Velasquez did not satisfy the conditions for asylum, and her derivative petition on behalf of D.A.E.V. was denied. Withholding for removal requires a higher threshold of proof than asylum, so Velasquez's request for that relief was also denied. The Board of Immigration Appeals adopted the reasoning of the IJ, which created the path for Velasquez's appeal to the Fourth Circuit.

To adequately demonstrate her refugee status, Velasquez had to demonstrate the following: (1) she "ha[d] a well-founded fear of persecution"; (2) her fear ar[ose] "on account of" membership in a protected social group; and (3) the threat [was] made by an organization that the Honduran government "[was] unable or unwilling to control." The instant appeal considered only the second prong - whether Estrada targeted Velasquez because of membership in a particular social group, her nuclear family.

The Fourth Circuit has recognized that membership in a nuclear family can be a particular social group for the purposes of seeking asylum. However, while Velasquez did not have to show her nuclear family relationship was the "central" or "dominant" reason for her persecution, she did have to prove that her membership "was or will be at least one central reason for" her persecution. Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). The court clarified that "every threat that references a family member is [not] made on account of family ties." Id. at 950 n.7.

In Hernandez-Avalos, a mother was being threatened by a gang to convince her son to join. The court there found the threats by the outside party were the result of the mother's relationship and potential influence over her son.
In contrast in Velasquez' case, she testified that no one besides herself, her mother-in-law, and her brother-in-law were involved in the dispute. No one outside the family was a participant. Velasquez claimed, without proof, that Estrada and Oscar were involved with Mara Salvatrucha, or MS-13. She also suggested Estrada wanted custody of D.A.E.V. to get him to join the gang. However, the court rejected this argument because there were no facts in the record to support it. In his concurring opinion, Judge Wilkinson reiterated that accepting Velasquez' petition would set the precedent of having to accept essentially any asylum claim that rests on an intra-family dispute.

To read the full opinion, click here.

Panel: Judges Wilkinson, Traxler, and Agee.

Argument Date: 05/09/2017

Date of Issued Opinion: 07/31/2017

Docket Number: 16-1669

Decided: Petition denied by published opinion.

Case Alert Author: Hannah Catt, Univ. of Maryland Carey School of Law

Counsel: David John Kline, Alexandria, Virginia, for Petitioners. Gregory Darrell Mack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Bridget Cambria, Jacquelyn Kline, CAMBRIA & KLINE, Reading, Pennsylvania, for Petitioners. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Agee, Judge Wilkinson filed a separate concurring opinion.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/05/2017 12:54 PM     4th Circuit  

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