Immigration – Honduran man’s bid for asylum fails

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Although a petitioner argued his status as a merchant in the formal Honduran economy was a “particular social group” that qualified for asylum, the Board of Immigration Appeals, or BIA, did not err in following its precedent, which holds the characteristics of this particular group are not sufficiently immutable.

Background

Noel Aristides Canales-Rivera, a native Honduran, claims he was persecuted by gang members because he was a merchant in the formal Honduran economy. He petitions this court for review of the order of the BIA dismissing his appeal of the denial by an Immigration Judge, or IJ, of his application for asylum, and, alternatively, for withholding of removal and protection under the Convention Against Torture.

Analysis

We start by addressing Canales’s substantive claim that the government violated his due process rights by declining to hear his argument for asylum eligibility and by failing to address the particular social group he proposed. To succeed on a due process claim in an asylum proceeding, Canales must establish two closely linked elements: “(1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case.” We conclude that Canales is unable to meet this standard.

First, we, like the BIA, acknowledge the IJ did not address “merchants in the formal Honduran economy” as Canales’s proposed particular social group. But the BIA did so upon review, specifically considering the exact social group proposed by Canales, concluding that being a merchant in the formal Honduran economy is not an immutable characteristic. Thus, Canales cannot demonstrate any prejudice from a due process perspective based on any failings in the IJ’s analysis.

Further, the BIA was substantively correct in its analysis. The BIA’s long-standing interpretation of “particular social group” as a group of persons sharing a common, immutable characteristic dates to Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985). Since then, this court and other circuit courts have rejected similar arguments related to merchants and other entrepreneurial groups.

Although the BIA’s order dismissing Canales’s appeal is consistent with this precedent, Canales urges us to reject these decisions arguing they are based on Acosta’s flawed foundation of a blanket prohibition against merchants. We disagree. Instead, we read Acosta as an individualized decision evaluating the social group identified by the petitioner there to the criteria the BIA set forth for a recognizable particular social group.

Canales alternatively argues that “merchants in the formal Honduran economy” meet the Acosta criteria for a social group because they have the immutable characteristics of self-determination and self-sufficiency. But these characteristics are not limited to the members of the group Canales proposes. Indeed, these characteristics apply to many in Honduras and elsewhere whether or not they are merchants. If we were to accept the characteristics offered by Canales as sufficiently immutable, we would effectively eliminate the boundaries for social groups our precedent requires.

Finally, we address Canales’s argument that the government’s nonneutral stance on merchant individual identity and conscience is prohibited by three recent Supreme Court decisions. This issue is the primary focus of Canales’s briefing. Despite that, the government maintains it is unexhausted as it was never raised before the agency.

Although this is a close issue, we find we have jurisdiction. Even still, the Supreme Court decisions cited above are far too distant from Canales’s claim that merchants in the formal Honduran economy are a protected class under federal immigration laws to support his petition.

Petition denied.

Concurrence

(Agee, J.): I write separately because I respectfully disagree with the majority’s conclusion that we have jurisdiction to consider Canales’ argument that the Executive Office for Immigration Review utilizes a non-neutral stance on merchant identity and conscience that is prohibited by recent Supreme Court’s decisions. I would hold that the court lacks jurisdiction to consider this claim.

Canales-Rivera v. Barr (Lawyers Weekly No. 001-017-20, 20 pp.) (A. Marvin Quattlebaum Jr., J.) (G. Steven Agee, J., concurring in the judgment) Case No. 18-1610. Jan. 27, 2020. From the Board of Immigration Appeals. Richard J. Douglas for Petitioner, Andrew B. Insenga for Respondent.