Immigration – Removal Ordered Despite Murderous Custody Dispute

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Velasquez v. Sessions (Lawyers Weekly No. 001-163-17, 18 pp.) (Agee, J.) No. 16-1669, July 31, 2017; On Petition for Review; 4th Cir.

Holding: A Honduran mother who illegally entered the U.S. with her son after his paternal grandmother had the mother’s sister killed and threatened to kill the mother if she did not turn over custody of her son to his deceased father’s family, loses her challenge to an order for their removal; the record supports the finding that the threat arose from an intra-family custody dispute, and the 4th Circuit denies the petition for asylum and withholding of removal.

Refugee Status

In her petition for review, the mother argues that the Board of Immigration Appeals erred as a matter of law in concluding that she was not a “refugee” entitled to asylum in light of the grandmother’s action.

To qualify as a “refugee,” the mother must demonstrate that she has a well-founded fear of persecution; her fear arises on account of membership in a protected social group; and the threat is made by an organization that the Honduran government is unable or unwilling to control. The parties here address only the second prong: whether the grandmother’s persecution of the mother arose on account of her membership in a particular social group, her nuclear family. We have recognized that an individual’s membership in her nuclear family is a particular social group.

Petitioner contends that both the immigration judge and the BIA erred in characterizing her dispute as a personal one that is not protected rather than one “on account of” her membership in her nuclear family, which would be protected. Substantial record evidence supports the IJ’s factual conclusion that this case is solely one of personal conflict among family members: petitioner and her mother-in-law. Most pointedly, petitioner’s trial testimony proves this point: no one besides petitioner, her mother-in-law and her brother-in-law were involved.

Persecution Was Personal

Evidence consistent with acts of private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground. The mother-in-law’s threats were motivated not by petitioner’s family status but by a personal desire to obtain custody over the son. The IJ and BIA appropriately concluded that the mother-in-law’s motive was not petitioner’s familial status, but simply a personal conflict between two family members seeking custody of the same family member. Petitioner did not meet her burden of showing persecution “on account of” a protected ground.

There is no evidence in the record that the mother-in-law’s interest in her grandson had any connection of any kind to gang recruitment or gang involvement. That is a late-conjured theory devoid of record evidence of any connection to a particular social group. And it is not clear that we have jurisdiction over petitioner’s claim insofar as she asserts that MS-13, not the mother-in-law, was the source of her persecution. Even if we do have jurisdiction, substantial evidence supports the IJ’s conclusion, affirmed by the BIA, that petitioner was persecuted by her mother-in-law, not by MS-13, and that this persecution was solely personal.

Concurrence

Wilkinson, J.: I am happy to concur in Judge Agee’s fine opinion for the court. I write briefly to emphasize the need for some outer boundary in the interpretation of the “particular social group” prong of the asylum statute, 8 U.S.C. § 1101(a)(42)(A).

Victims of general extortion and domestic violence that is not unique to any family but rather that affects all segments of the population are nonetheless seizing upon the “particular social group” criterion in asylum applications. The asylum statute is not a general hardship statute. I do not attempt to minimize the magnitude of human suffering that these conditions cause. But to broaden the statutory grounds for relief from those conditions must by definition be a congressional rather than a judicial enterprise.