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Velasquez v. Sessions

United States Court of Appeals, Fourth Circuit

July 31, 2017

MARIA SUYAPA VELASQUEZ; D.A.E.V., minor child, Petitioners,
JEFFERSON B. SESSIONS III, Attorney General, Respondent.

          Argued: May 9, 2017

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


          David John Kline, Alexandria, Virginia, for Petitioners.

          Gregory Darrell Mack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Bridget Cambria, Jacquelyn Kline, CAMBRIA & KLINE, Reading, Pennsylvania, for Petitioners.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.

          AGEE, Circuit Judge.

         Maria Suyapa Velasquez, a citizen and native of Honduras, entered the United States unlawfully in 2014 with her minor son D.A.E.V.; they were detained by U.S. Customs and Border Patrol at the time of entry. The Government issued a Notice to Appear, charging Velasquez and D.A.E.V. with removability under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (the "INA"). See generally 8 U.S.C. § 1182(a)(7)(A)(i)(I). Velasquez conceded her removability, but applied for asylum and withholding of removal, and attached D.A.E.V. as a rider on her petition.[1]An Immigration Judge ("IJ") rejected her claims, and a single-member panel of the Board of Immigration Appeals (the "BIA" or "Board") dismissed her appeal. Velasquez now petitions this Court for review. For the reasons that follow, we deny the petition.



         We recount the facts set out in the record, which are not disputed.

         Velasquez and D.A.E.V. fled Honduras because the mother of D.A.E.V.'s late father, Maria Estrada, demanded custody of D.A.E.V. For nearly a decade, Estrada implored Velasquez to turn D.A.E.V. over to her, but each time Estrada made such a request Velasquez denied it. In 2013, Estrada's attempts to take custody of D.A.E.V. became more forceful. On more than one occasion, Estrada kidnapped D.A.E.V. from Velasquez' home while Velasquez was away. Each time, D.A.E.V. escaped and walked back home. Shortly before Velasquez fled Honduras, Estrada began threatening to kill Velasquez if she did not relinquish custody of D.A.E.V. to her.

         The escalating tension between Velasquez and Estrada prompted Velasquez to relocate to the United States. In April 2014, Velasquez and D.A.E.V. unlawfully crossed the United States' border with Mexico and were detained shortly after. While detained, Velasquez' mother communicated to her that Estrada's son Oscar (D.A.E.V.'s uncle) murdered Velasquez' sister. The murder, according to Velasquez' mother, was a case of mistaken identity: Oscar believed his victim was Velasquez.


         The Government issued Velasquez a Notice to Appear and charged her with being removable under section 212 of the INA. Velasquez conceded her removability, but argued she was a "refugee, " entitled to either asylum or withholding of removal under sections 208 and 241 of the INA. See generally 8 U.S.C. § 1158(b)(1)(A) (setting standard for asylum); id. § 1231(b)(3) (setting standard for withholding of removal); see also generally id. § 1101(a)(42)(A) (defining "refugee"). Velasquez based her petition for asylum and withholding of removal on alleged persecution "on account of" her membership in a "particular social group, " which she contended was her nuclear family. See 8 U.S.C. §§ 1101(a)(42). She claimed D.A.E.V. as a derivative beneficiary on her petition for asylum under INA section 208(b)(3)(A). See generally 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 208.21.[2]

         Velasquez' petition for asylum and withholding of removal was heard by an IJ, who denied the petition on both bases. First, the IJ found that Velasquez was not entitled to asylum because the dispute between Velasquez and Estrada was not "on account of" Velasquez' membership in her claimed particular social group, her nuclear family, but rather was "an intra-family custody dispute over" D.A.E.V. A.R. 93. In particular, the IJ held that Velasquez "failed to proffer evidence that the motivation for the conduct of the Estrada family was to persecute [her] on account of her family membership." A.R. 93. It observed, for example, that Oscar had killed Velasquez' sister "in the presence of [her] mother, who remained untargeted and intact" and that Velasquez' "four other children [by a different father] remain in Honduras and are unharmed." A.R. 93. Because the IJ denied Velasquez' application for asylum, it necessarily also denied D.A.E.V.'s derivative claim. In addition, because withholding of removal employs a more stringent standard than asylum, it held Velasquez could not meet her burden of proof as to withholding of removal. Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) ("[A]n applicant who is ineligible for asylum is necessarily ineligible for withholding of removal."). Compare 8 U.S.C. § 1231(b)(3)(A) (providing that an alien cannot be removed if she demonstrates that her "life or freedom would be threatened" because of her "membership in a particular social group"), with 8 U.S.C. § 1158(b)(1) (stating that an alien may be granted asylum if she can demonstrate that membership in a particular social group "was or will be at least one central reason" for persecution in her native country).

         Velasquez timely appealed the IJ's adverse decision to the Board, which dismissed her appeal in a single-member decision. The Board adopted and supplemented the IJ's reasoning, stating: "The [IJ's] finding that the criminal acts committed by [Velasquez'] deceased husband's family against [her] d[id] not constitute persecution on account of a statutorily protected ground is not clearly erroneous inasmuch as the record supports the finding that [Velasquez] was targeted due to a personal dispute over who should have custody of [D.A.E.V.]." A.R. 437. The ...

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