Unreported / Non-Citable
Background
Petitioners Nexy Tabora-Orellana and her daughter Astrid Jackelin Fuentes-Tabora, natives and citizens of Honduras, petitioned for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) denial of their applications for asylum and withholding of removal. The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252. The panel, consisting of Circuit Judges Bumatay, VanDyke, and Mendoza, Jr., determined the case was suitable for decision without oral argument. Petitioners also sought relief under the Convention Against Torture (CAT) but did not challenge the denial of CAT relief before the BIA or the court.
Lead Petitioner based her claims on membership in a proposed particular social group defined as 'young single mothers who oppose gangs.' To qualify for asylum or withholding of removal, an applicant must demonstrate the existence of a cognizable particular social group that is socially distinct within the society in question. The BIA conducted its own review of the evidence and law rather than adopting the IJ's decision, limiting the court's review to the BIA's decision. The court reviews the BIA's determination on social distinction for substantial evidence, upholding it unless the evidence compels a contrary conclusion.
The Court’s Holding
The Ninth Circuit denied the petition for review, holding that substantial evidence supported the BIA's determination that the proposed social group of 'young single mothers who oppose gangs' lacked the requisite social distinction in Honduran society. The court emphasized that Petitioners bore the burden of demonstrating the existence of a cognizable particular social group and failed to point to any evidence establishing that Honduran society recognizes this group as distinct. The court's own review of the record did not compel a contrary result, as nothing in the record indicated that Honduran society views young single mothers who oppose gangs as a discrete or distinct group.
The court cited precedent including Conde Quevedo v. Barr, 947 F.3d 1238 (9th Cir. 2020), and Diaz-Torres v. Barr, 963 F.3d 976 (9th Cir. 2020), where petitions were denied due to the absence of society-specific evidence of social distinction. The court contrasted this case with Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), where legislation protecting individuals testifying against gang members constituted evidence of societal recognition. Because the failure to establish the cognizability of the proposed particular social group was dispositive of both asylum and withholding of removal claims, the petition was denied. The motion to stay removal was also denied.
Key Takeaways
- The Ninth Circuit reviews the BIA's social distinction determination for substantial evidence and will uphold it unless the evidence compels a contrary conclusion.
- An applicant bears the burden of demonstrating that a proposed particular social group is socially distinct by providing society-specific evidence that the group is recognized or perceived as discrete by society in the relevant country.
- The absence of country condition reports, expert testimony, or other society-specific evidence establishing social distinction is fatal to asylum and withholding of removal claims based on particular social group membership.
- Failure to establish the cognizability of a proposed particular social group is dispositive of both asylum and withholding of removal claims.
- The court may only affirm the BIA on the grounds upon which it relied and limits its review to the BIA's decision when the BIA conducts its own review.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's stringent requirement for society-specific evidence to establish social distinction for particular social groups in asylum cases. The decision clarifies that generalized evidence of gang violence or the vulnerability of single mothers is insufficient without proof that the specific intersectional group—here, 'young single mothers who oppose gangs'—is perceived as a distinct group by Honduran society. The ruling aligns with a line of precedent denying claims where the record lacks concrete evidence of societal recognition, contrasting with cases where legislative action or other formal recognition provides such evidence.
The decision underscores the importance of developing a robust evidentiary record before the agency, including country condition reports and expert testimony tailored to the specific proposed social group. It also highlights the court's deference to the BIA's independent review and the narrow scope of judicial review when the BIA does not adopt the IJ's reasoning. Practitioners must ensure that proposed social groups are defined with sufficient particularity and supported by evidence demonstrating societal perception in the country of origin.