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Week 4 (2020)

Week of January 27, 2020 through January 31, 2020

U.S. v. Fowler (Wilkinson 1/27/2020): The Fourth Circuit affirmed the U.S. District Court for the District of Maryland, finding there was “nothing unreasonable” in the District Court imposing a 40-year sentence.  The Court noted that the circuit court had “r[u]n a model proceeding” by accurately calculating the sentencing guidelines recommendation, allowing parties to argue for whatever sentence they deemed appropriate, basing sentencing on facts and arguments as related to sentencing guidelines, and finally by providing a thorough explanation for the sentence imposed. Full Opinion

Highlight Case

Canales-Rivera v. Barr

Decided: January 27, 2020

The Fourth Circuit denied appellant’s petition for review and affirmed the Board of Immigration Appeals (BIA) order denying his application for asylum. 

Appellant Canales operated a legitimate roasted chicken business in his native Honduras.  Canales claimed that a gang persecuted him by demanding money and threatening him with violence and death when he refused to pay, leading him to close his business and flee to the United States.  After entering the United States, Canales was detained and placed in removal proceedings.  Upon receiving notice of the removal hearing Canales filed an asylum application, which was denied by the Immigration Judge after a merits hearing.  The Immigration Judge held that Canales failed to establish that he had been persecuted because of race, religion, nationality, membership in a particular social group, or political opinion as required to receive asylum.  The Immigration Judge further held that Canales failed to prove entitlement to relief under the Convention against Torture as he did not prove that he would be tortured by or with the acquiescence of public officials if he were returned to Honduras.

Canales appealed the Immigration Judge’s decision to the BIA.  Following a de novo review, the BIA denied Canales relief and dismissed the appeal.  Noting that the Immigration Judge had failed to analyze whether “merchants in the formal Honduran economy” constituted a “social group” for asylum purposes, the BIA conducted its own analysis and concluded that the group lacked the immutability required to be a legally cognizable group.  The BIA went on to note that extortion is “general criminal conduct” that does not constitute persecution on account of membership in a particular social group and as such is not a valid basis for asylum or related protection.  Lastly, the BIA agreed that Canales had failed to demonstrate he would be subject to torture conducted or supported by a public official if returned to Honduras and was therefore not eligible for relief under the Convention Against Torture.

Canales appealed the BIA’s decision to the Fourth Circuit, arguing first that the Executive Office for Immigration Review of the Department of Justice, through the Attorney General (the Agency), had improperly barred asylum for merchant persecution victims like Canales by improperly relying on precedent to conclude that an individual’s identity as a merchant is not an immutable characteristic.  Canales’s second argument was that the Agency, by substituting its own social group formation in place of the group Canales had alleged and therefore declining to hear his asylum arguments, had violated his due process rights.  

Analyzing Canales’s due process claim, the Fourth Circuit stated that to succeed on a due process claim in an asylum proceeding parties must establish that a defect in the proceeding rendered in fundamentally unfair and that the defect prejudiced the outcome of the case.  The Fourth Circuit stated that while the Immigration Judge failed to address “merchants in the formal Honduran economy” as a social group, the BIA had addressed this claim.  The Court went on to note that the BIA’s holding dismissing Canales’s appeal is substantively correct and consistent with precedent established in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985).  Because the BIA’s ruling that “merchants in the formal Honduran economy” is not a social group for purposes of granting asylum was not manifestly contrary to law or an abuse of discretion, the Fourth Circuit affirmed the BIA’s order and denied Canales’ petition for review.

AGEE writing separately, concurred with the majority that there was no due process violation present and that the BIA was substantively correct in finding Canales’s status as a “merchant in the formal Honduran economy” was not an immutable characteristic for purposes of establishing eligibility for asylum.  Judge Agee would hold, however, that the Fourth Circuit did not have jurisdiction to hear the claim because the petitioner had failed to exhaust his arguments before the Agency.

Full Opinion.

Michael Stover