Paula Vasquez-Galdamez v. William Barr

                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 19-1585


PAULA VASQUEZ-GALDAMEZ; J.L.P.V.; J.A.P.V.; G.O.P.V.,

                    Petitioners,

             v.


WILLIAM P. BARR, Attorney General,

                    Respondent.



On Petition for Review of an Order of the Board of Immigration Appeals.


Argued: September 8, 2020                                       Decided: October 14, 2020


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Minh Nguyen-Dang, MAYER BROWN, LLP, Washington, D.C., for
Petitioners. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C, for Respondent. ON BRIEF: Claudia R. Cubas, CAPITAL AREA
IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C.; Evan M. Tager,
MAYER BROWN LLP, Washington, D.C., for Petitioners. Joseph H. Hunt, Assistant
Attorney General, Carl McIntyre, Assistant Director, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Paula Vasquez-Galdamez (“Petitioner”) petitions this court for review of the denial

of her petition for asylum. Petitioner argues that she was denied her due process and

statutory rights to a fair hearing when the Board of Immigration Appeals (“BIA”) denied

her motion to reconsider in light of a fundamental change in law.

       As explained below, we decline to reach the question of whether there was a

fundamental change in law such that Petitioner was deprived of a fair hearing because

Petitioner failed to demonstrate that the outcome of her case would be different on remand

in any event. Therefore, the petition for review is denied.

                                             I.

       Petitioner came to the United States from Honduras with three of her children in

July 2015 after leaving a relationship with her abusive partner, José Adrian Amaya-Alvarez

(“Amaya-Alvarez”).

       Petitioner’s relationship with Amaya-Alvarez began in 2006. Within six months,

he became verbally abusive toward Petitioner and her children from a prior relationship.

Amaya-Alvarez treated his own children preferentially and was physically and verbally

abusive to Petitioner on several occasions. After one abusive incident, Petitioner filed a

police report against Amaya-Alvarez. As a result, Amaya-Alvarez was arrested and

detained for one day before being released. Petitioner and Amaya-Alvarez ultimately

married in 2013. Amaya-Alvarez stated that he only married Petitioner so he would be

entitled to half the value of the house they lived in, which Petitioner owned. But because




                                             3
of the escalating physical abuse, Petitioner left Amaya-Alvarez and filed for asylum in the

United States in July 2015.

       Petitioner relied on Matter of A-R-C-G-, 26 I&N Dec. 388, 392 (BIA 2014) to argue

that she was eligible for asylum based on the particular social group of “Honduran women

who are unable to leave their domestic relationship.” A.R. 254. 1 The immigration judge

(“IJ”) denied Petitioner’s application for asylum. The IJ based his denial of Petitioner’s

asylum claim on a finding that she did not provide evidence to corroborate her claim about

the domestic violence she suffered or her attempts to leave Amaya-Alvarez.

       The IJ evaluated the rest of Petitioner’s claim in the alternative. First, the IJ held

that Petitioner’s proposed particular social group of “Honduran women who cannot leave

their domestic relationship” was not immutable, particular, or socially distinct to establish

persecution on a protected ground.

Id. at 121.

The IJ also found that the Honduran police

were willing and able to assist Petitioner when she reported the abuse, and that Petitioner

did not demonstrate that she was unable to relocate within Honduras.

       Petitioner timely filed an appeal to the BIA on July 12, 2017, and the BIA dismissed

the appeal on July 25, 2018. The BIA relied on Matter of A-B-, 27 I&N Dec. 316 (A.G.

2018), which was decided on June 11, 2018, in holding, “domestic-violence related claims

based on conduct by non-governmental actors will not establish a basis for asylum . . . .

[Petitioner] has not shown that Honduran society in general perceives, considers, or



       1
         Citations to the “A.R.” refer to the Administrative Record filed by the parties in
this appeal.


                                             4
recognizes Honduran women who are unable to leave their relationships.” A.R. 39. Thus,

the BIA upheld the IJ’s finding that Petitioner did not demonstrate that she was persecuted

on account of the particular social group “married Honduran women who are unable to

leave their domestic relationships.” A.R. 39.

       On August 24, 2018, Petitioner filed a timely motion for reconsideration and asked

the BIA to remand her case to the IJ so that she could present new evidence in light of

Matter of A-B-. The BIA denied Petitioner’s motion to reconsider based on Matter of A-

B-, stating:

               To the extent that the respondents seek remand in light of
               Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), we conclude
               that remand is not warranted. See Matter of G-D-, 22 I&N Dec.
               1132 (BIA 1999) (emphasizing the importance of
               administrative finality and finding that the Board will exercise
               sua sponte authority to reopen a case under new law only when
               the change in law is fundamental in nature). Moreover, the
               respondents have not established what additional arguments
               they would raise in light of Matter of A-B- that would impact
               the outcome of their case.

A.R. 4 (citation omitted).

       Petitioner timely appealed to this court for review of the BIA’s denial of her motion

for reconsideration, claiming that she was denied a fair hearing because she was unable to

present new evidence in light of a fundamental change in law.

                                             II.

       We review de novo a claim that the BIA denied an alien due process or their

statutory rights under the Immigration and Nationality Act, and our review of an agency’s




                                              5
factual findings is narrow and deferential. See Canales-Rivera v. Barr, 

948 F.3d 649

, 656

(4th Cir. 2020); Rusu v. INS, 

296 F.3d 316

, 320 (4th Cir. 2002).

                                           III.

         Asylum and removal proceedings are subject to both the Fifth Amendment’s

guarantee of due process and statutory guarantee of a fair hearing.         See 8 U.S.C.

§ 1229a(b)(4)(B) (“[T]he alien shall have a reasonable opportunity to examine the evidence

against the alien, to present evidence on the alien’s own behalf, and to cross-examine

witnesses presented by the Government”); Rusu v. INS, 

296 F.3d 316

, 320 (4th Cir. 2002).

Petitioner contends that the BIA’s application of Matter of A-B- to her case and subsequent

denial of her motion to reconsider deprived her of her right to a fair hearing. To succeed

on a due process claim in an asylum proceeding, Petitioner must establish two elements:

(1) a defect in the proceeding rendered it fundamentally unfair; and (2) the defect

prejudiced the outcome of the case. Canales-Rivera v. Barr, 

948 F.3d 649

, 656 (4th Cir.

2020).

                                            A.

         Petitioner argues that her asylum proceedings were fundamentally unfair because

the BIA failed to remand her case to allow her to respond to and develop an argument

pursuant to the decision in Matter of A-B-. As Petitioner points out, this court has not

conclusively ruled on the fundamental unfairness of the BIA relying on a precedential

decision without giving the applicant an opportunity to respond. But, three of our sister

circuits have considered this issue.




                                            6
       In Theagene v. Gonzales, the Ninth Circuit held that the application of a pure change

in law to the facts of a case does not offend due process. See 

411 F.3d 1107

, 1113 (9th Cir.

2005) (“Though a tribunal often requests supplemental briefs in such cases, applying new

law to a pending case without notice does not, under any authority cited to us, offend due

process.”). In Valdiviezo-Galdamez v. Attorney General, the Third Circuit held that the

petitioner was not deprived of due process where the BIA did not notify him of their

intention to apply a changed law to his case. See 

663 F.3d 582

, 602 (3d Cir. 2011) (“[W]e

know of no authority that would require the BIA to have notified Valdiviezo–Galdamez of

the law it intended to apply to his case, and he offers none that would support his claim.”).

       However, Petitioner seeks to distinguish these cases from Chen v. Holder, where

the Seventh Circuit held that the petitioner’s due process rights had been violated when the

BIA issued a decision relying on a change in law by the Attorney General that precluded

the petitioner’s claim for asylum. See 

578 F.3d 515

, 517–18 (7th Cir. 2009). The Seventh

Circuit stated that the Government had a “critical shift in position” because the Attorney

General’s new decision changed the evidence that was required to prove an asylum claim

based on the forced abortion of a person’s spouse.

Id. at 517.

Consequently, the court held

that the petitioner was deprived of his statutory right to respond to the Government’s shift

in position because he was not able to put on new evidence in response to the change in

law. See

id. Petitioner argues that

her case is analogous to Chen and asks this court to

conclude that Matter of A-B- was a fundamental change in law such that its application

without an opportunity to respond denied her a fair hearing.




                                             7
       The Government argues that Petitioner’s right to a fair hearing was not denied by

her inability to respond to Matter of A-B- because Matter of A-B- did not eliminate asylum

for victims of domestic abuse but instead simply forced applicants to “tether [their asylum]

claims to the standard, pre-existing analytical framework of M-E-V-G-.” Gov’t’s Br. 64;

see also Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). The Government argues that

because the framework of Matter of M-E-V-G- existed all along, Matter of A-B-’s new

interpretation of Matter of A-R-C-G- was not a fundamental change in law. Indeed, several

circuit courts who have considered the effect of Matter of A-B- agree with the

Government’s position. See Diaz-Reynoso v. Barr, 

968 F.3d 1070

, 1080 (9th Cir. 2020)

(holding that Matter of A-B- did not create a categorical exception for victims of domestic

violence or private criminal activity); Scarlett v. Barr, 

957 F.3d 316

, 333 (2d Cir. 2020)

(holding that Matter of A-B- did not heighten an applicant’s burden to demonstrate that the

government was “unable or unwilling” to control a persecutor but merely clarified it);

Gonzales-Veliz v. Barr, 

938 F.3d 219

, 232 (5th Cir. 2019) (holding that Matter of A-B- did

not create a categorical ban on domestic violence claims). But see Grace v. Barr, 

965 F.3d 883

, 900 (D.C. Cir. 2020) (finding that Matter of A-B- was arbitrary and capricious because

it changed the law without reasoned explanation).

                                            B.

       However, we decline to reach the question of whether Matter of A-B- was a

fundamental change in law so as to render the proceedings fundamentally unfair because

Petitioner cannot meet the second element of her due process claim. Even assuming there

was a defect in the proceeding that rendered her hearing fundamentally unfair, Petitioner


                                             8
cannot demonstrate that the outcome of her case was prejudiced by the BIA’s failure to

remand to the IJ. Prejudice requires that the petitioner’s rights “have been transgressed in

such a way as is likely to impact the results of the proceedings.” 

Rusu, 296 F.3d at 320

.

That is, Petitioner must prove “but for the errors complained of, there was a reasonable

probability that [s]he would not have been deported. This is not a generalized showing of

prejudice; rather, the defendant must link the actual prejudice [s]he claims to have suffered

to the specific due process violation at issue.” United States v. Lopez-Collazo, 

824 F.3d 453

, 462 (4th Cir. 2016) (internal quotation marks and citations omitted).

       Petitioner first contends that this court should presume prejudice, and in the

alternative, that she can demonstrate prejudice. Petitioner argues that this court should

presume prejudice when the BIA fails to provide an applicant with the opportunity to

introduce evidence in light of an intervening change in law on remand because any attempt

on her behalf to demonstrate prejudice would be speculative in light of the fact that she has

not had the opportunity to correct and develop the proper factual record based on a new

particular social group. Of note, Petitioner does not cite to any Fourth Circuit precedent

where prejudice is presumed. Instead, she cites only to Chen to support the proposition

that this court should presume prejudice where an applicant is denied a fair hearing.

Petitioner’s argument is unavailing here because the IJ made several independent findings

that would not be disrupted by a remand to correct an issue of a change in law. Thus, a

presumption of prejudice would merely be an end run around these dispositive findings.

       As an alternative to a presumption of prejudice, Petitioner suggests that on remand

she would rely on a new particular social group -- “unmarried mothers who own property


                                             9
in Honduras.” Pet’r’s Br. 34. Petitioner claims that with a new social group, she could

demonstrate that the Honduran government was unable or unwilling to control Amaya-

Alvarez. But the problem with this argument is that the IJ already found that the Honduran

government was able to control Amaya-Alvarez. It does not follow, then, that the IJ could

make a new factual finding that the government and police response to Petitioner’s abuse

was inadequate if Petitioner alleges that her abuse was on account of her property

ownership rather than her marital status, as Petitioner contends. Moreover, this finding is

a finding of fact that Petitioner did not challenge in this petition for review. Additionally,

the IJ found that Petitioner was able to relocate within Honduras. This is another fact that

would not change with a reformulated social group and that was also not challenged in this

petition for review.

       Consequently, the result of Petitioner’s case was not prejudiced by her inability to

reconfigure her particular social group based on Matter of A-B- because the IJ’s alternate

findings would still preclude her claim for relief. 2 Therefore, the BIA did not deprive

Petitioner of her due process and statutory right to a fair hearing.

                                             IV.

       For the foregoing reasons, the petition for review is

                                                                                   DENIED.


       2
         Petitioner also argues that the BIA improperly reconfigured her motion to
reconsider as a motion to reopen and thus, abused its discretion in denying it. However,
because Petitioner failed to challenge the IJ’s alternative, dispositive factual findings and
could not demonstrate that the outcome of her case was prejudiced, we do not need to
decide this issue.


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