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Lopez-Perez v. Garland

Facts

Yolanda Lopez-Perez, a native and citizen of El Salvador, entered the United States illegally in July 2016. After being served a Notice to Appear by the Department of Homeland Security, she conceded removability and applied for asylum based on her membership in a particular social group, claiming abuse from her ex-partner. Despite her credible testimony regarding the abuse, the Immigration Judge denied her application, concluding that she failed to establish a nexus between her harm and her proposed social group.

Lopez-Perez entered the United States illegally on July 28, 2016, at or near Rio Grande City. On September 11, 2016, the Department of Homeland Security ('DHS') issued a Notice to Appear ('NTA') charging that Lopez-Perez was removable as an alien present in the United States without a valid entry document. Lopez-Perez appeared before the Immigration Judge ('IJ') on May 18, 2017, admitted the factual allegations of the NTA, and conceded removability.

Issue

Whether the Immigration Judge erred in denying Lopez-Perez's application for asylum and withholding of removal based on her claimed membership in a particular social group.

Rule

An applicant seeking asylum must demonstrate a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. To qualify for withholding of removal, the applicant must show that it is more likely than not that their life or freedom would be threatened by persecution.

An applicant seeking asylum must demonstrate that she 'is unable or unwilling to avail . . . herself of the protection of [her] 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.' 8 U.S.C. 1101(a)(42)(A). To qualify for a withholding of removal, on the other hand, the applicant 'must show that 'it is more likely than not' that [her] life or freedom would be threatened by persecution on account of one of the five categories mentioned under asylum: race, religion, nationality, membership in a particular social group, or political opinion.' Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (quoting 8 C.F.R. 208.16(b)(1)).

Analysis

The court analyzed whether Lopez-Perez's proposed social groups were cognizable under the law. It noted that the Immigration Judge had found her credible but distinguished her case from precedent due to her failure to report the abuse to authorities. The court concluded that remanding the case would be futile since the proposed social groups were circularly defined and thus not cognizable.

The IJ concluded that Lopez-Perez's proposed groups `'Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship' `were particularized social groups. However, he distinguished her circumstance from A-R-C-G – because she did not report the abuse to the police. He also noted that while domestic abuse was a problem in El Salvador, Salvadoran law prohibited such abuse and carried prison sentences of one to three years. Consequently, the IJ concluded that she failed to show that the government was unwilling or unable to help her.

Conclusion

The court denied the petition for review, affirming the Immigration Judge's decision as remand would have been futile.

We DENY the petition for review.

Who won?

The prevailing party is the government, as the court upheld the Immigration Judge's decision to deny Lopez-Perez's application for asylum and withholding of removal.

The BIA denied her motion to extend the briefing deadline. Ultimately, she did not file a brief.

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