Gonzalez-Medina v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PORFIRIA GONZALEZ-MEDINA, 

Petitioner, No. 10-70913

v.

 Agency No.

A098-177-787

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 9, 2011*

Seattle, Washington

Filed April 7, 2011

Before: M. Margaret McKeown, Raymond C. Fisher, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge McKeown

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

4761

4764 GONZALEZ-MEDINA v. HOLDER

COUNSEL

Russell W. Pritchett, Pritchett & Jacobson, P.S., Bellingham,

Washington, for the petitioner.

Tony West, Thomas B. Fatouros and Anh-Thu P. Mai-

Windle, United States Department of Justice, Washington

D.C., for the respondent.

OPINION

McKEOWN, Circuit Judge:

Porfiria Gonzalez-Medina, a native and citizen of Mexico,

petitions for review of the decision by the Board of Immigra-

tion Appeals (“BIA”) affirming an immigration judge’s (“IJ”)

final order of removal, denying her claims for asylum and

withholding of removal. In her petition, Gonzalez-Medina

raises two issues of first impression: whether applying the

one-year filing deadline to her asylum application violates the

Equal Protection Clause, and whether domestic abuse that

occurs in the United States can constitute past persecution.

Although we are very sympathetic to her plight, we are unper-

suaded by Gonzalez-Medina’s legal arguments and we deny

the petition.

I. BACKGROUND

Gonzalez-Medina entered the United States from Mexico in

January 2001, to join her husband, also a Mexican citizen who

was living illegally in the United States. About a year after

Gonzalez-Medina arrived, her husband began abusing her. On

several occasions he punched and kicked her, leaving bruises

that took weeks to heal. He once whipped her with a televi-

sion cable until her body was covered with lacerations. At one

point, Gonzalez-Medina told her husband that she wanted a

GONZALEZ-MEDINA v. HOLDER 4765

divorce. He threatened to kill her, their son and himself if she

tried to divorce him. Gonzalez-Medina tried to run away, but

her husband locked her in their trailer for over a week. After

that, Gonzalez-Medina never mentioned divorce again; she

never sought a divorce.

In 2006, Gonzalez-Medina’s husband was arrested for sell-

ing drugs and deported to Mexico. He called Gonzalez-

Medina from Mexico on one or two occasions in 2006. She

has not spoken to him since these calls.

The government commenced removal proceedings against

Gonzalez-Medina in September 2006. On November 15,

2007, Gonzalez-Medina filed a Form I-589 Application for

Asylum and Withholding of Removal. Gonzalez-Medina

asserts that she is eligible for asylum and withholding of

removal because her husband will continue abusing her if she

returns to Mexico.

The IJ denied Gonzalez-Medina’s application. The IJ found

that Gonzalez-Medina was credible. Her asylum application

was time-barred, however, because it was filed more than six

years after she entered the United States.1 With respect to

withholding of removal, Gonzalez-Medina conceded in her

testimony that there was no past persecution. The IJ found

that Gonzalez-Medina had not demonstrated that it was more

likely than not that she would be subject to future persecution

if she returned to Mexico.

The BIA upheld the IJ’s decision. The BIA agreed that the

asylum application was untimely. Before the BIA, Gonzalez-

Medina argued that her husband’s abuse of her in the United

States constituted past persecution for purposes of withhold-

1

The IJ noted that even if her husband’s return to Mexico was a changed

circumstance, Gonzalez-Medina did not file her application within a rea-

sonable period of time following the change—she filed it seventeen

months after his deportation.

4766 GONZALEZ-MEDINA v. HOLDER

ing of removal. The BIA held that Gonzalez-Medina had

failed to establish past persecution because such persecution

must have occurred in the proposed country of removal.

Accordingly, the abuse Gonzalez-Medina suffered in the

United States could not constitute past persecution. The BIA

concluded that Gonzalez-Medina had failed to establish that

it was more likely than not that she would be subject to future

persecution in Mexico because she had not met her burden of

showing that it would be unreasonable for her to relocate

within the country.

Gonzalez-Medina also argued before the BIA that applying

the one-year time bar to her asylum claim violated the Fifth

Amendment’s Equal Protection Clause. The BIA declined to

consider this argument because it does not have authority to

review the constitutionality of the immigration laws.

II. ANALYSIS

A. Equal Protection Claim

The Immigration and Naturalization Act (“INA”) requires

that an alien file an asylum application within one year of

arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).

Gonzalez-Medina concedes that she failed to meet this dead-

line, but urges that deeming her application untimely violates

the Equal Protection Clause. See U.S. CONST. amend. V.

[1] To establish an equal protection violation, Gonzalez-

Medina must show that she is being treated differently from

similarly situated individuals. See Abboud v. INS, 140 F.3d

843, 848 (9th Cir. 1998) (“[T]he Fifth Amendment only

requires the government to treat similarly situated individuals

similarly.”). Because Gonzalez-Medina does not allege dis-

crimination on the basis of a suspect class, any differential

treatment violates equal protection only if it lacks a “rational

basis.” See United States v. Calderon-Segura, 512 F.3d 1104,

1107 (9th Cir. 2008); Ram v. INS, 243 F.3d 510, 517 (9th Cir.

GONZALEZ-MEDINA v. HOLDER 4767

2001) (“’Line-drawing’ decisions made by Congress or the

President in the context of immigration and naturalization

must be upheld if they are rationally related to a legitimate

government purpose.”). The government “has no obligation to

produce evidence to sustain the rationality of a statutory clas-

sification.” Heller v. Doe, 509 U.S. 312, 320 (1993). Rather,

Gonzalez-Medina has “the burden to negate every conceiv-

able basis which might support a legislative classification . . .

whether or not the basis has a foundation in the record.”

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1164 (9th

Cir. 2002) (internal citation and quotation marks omitted).

[2] The BIA has held that the one-year deadline for filing

an asylum application restarts if an alien leaves the United

States and then reenters—an application may be filed within

one year of reentry, even if the applicant previously lived in

the United States for more than a year and was gone for only

a brief period. See Matter of F-P-R, 24 I&N Dec. 681, 683-85

(BIA 2008). Leaving the country resets the deadline only if

the applicant’s departure is for a “legitimate” reason and not

“solely or principally . . . to overcome the 1-year time bar.”2

Id. at 685. Accordingly, an asylum application from an alien

who has overstayed the one-year window is not time barred

if the alien leaves the country for a legitimate reason and

reenters prior to filing. At the same time, an application from

an alien who has been in the United States for more than a

year but has not left—like Gonzalez-Medina—will be subject

to the one-year bar.

2

In Matter of F-P-R, the petitioner, a Mexican who had lived in the

United States for almost 15 years without filing for asylum, went to Mex-

ico for three days to attend his stepfather’s funeral. 24 I&N Dec. at 681.

He filed an application for asylum within a year of returning from the

funeral. Id. The BIA held that the application was not time-barred because

the petitioner had left the United States for a “legitimate” reason—the

funeral—and had filed within one year of reentering the United States. Id.

at 683-85.

4768 GONZALEZ-MEDINA v. HOLDER

[3] Gonzalez-Medina asserts that such differential applica-

tion of the time bar violates Equal Protection because there is

no rational reason to apply the bar to her asylum application,

but not to the application of an alien who leaves and reenters

prior to filing. We disagree. Application of the time bar to

Gonzalez-Medina’s asylum claim withstands rational basis

review. As the government explains in its brief, there is a

legitimate government purpose for the one-year deadline

itself:

Congress could have rationally concluded that per-

sons with legitimate asylum claims would more

likely present their asylum claims within a short time

after entering the United States and set a cut-off date

for filing an asylum application to curb abuse of the

asylum process.

This purpose is not undermined by the narrow exception iden-

tified by Gonzalez-Medina. Of course not all individuals who

wish to apply for asylum will be able to leave the United

States for legitimate reasons and reenter prior to filing.

Rather, if the time bar is applied to late applications like

Gonzalez-Medina’s, most applicants will still need to file dur-

ing the first year, and the time bar will help identify legitimate

claims, provide a fixed cut-off date for filings, serve as a limi-

tation on the number of applicants and reduce abuse of the

system. Accordingly, the government’s treatment of

Gonzalez-Medina is “rationally related to a legitimate govern-

ment purpose,” and she has failed to establish an Equal Pro-

tection claim. Ram, 243 F.3d at 517.

B. Past Persecution

[4] The regulations implementing the INA provide that

past persecution must have occurred “in the proposed country

of removal.” 8 C.F.R. § 1208.16(b)(1)(i). Referencing this

regulation, the BIA held that the abuse Gonzalez-Medina suf-

fered in the United States could not constitute past persecu-

GONZALEZ-MEDINA v. HOLDER 4769

tion. To determine whether the regulation is valid, we apply

the familiar Chevron two-step analysis. See Morales-

Izquierdo v. Gonzales, 486 F.3d 484, 489 (9th Cir. 2007) (en

banc). We first ask whether “Congress has directly spoken to

the precise question at issue.” Id. (citing Chevron U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

If the statute is unclear, we ask “whether the agency’s answer

is based on a permissible construction of the statute.” Id. at

492 (citing Chevron, 467 U.S. at 843). Here, the ambiguity of

the statute requires us to consider whether the agency’s con-

struction is permissible.

To qualify for withholding of removal, an applicant must

establish that she is a refugee. 8 U.S.C. §§ 1158(b)(1)(B),

1231(b)(3)(C). The INA defines a refugee as someone who

“is unable or unwilling to return to [her country of nationality]

. . . because of persecution or a well-founded fear of persecu-

tion” on account of a protected ground. 8 U.S.C.

§ 1101(a)(42)(A). These provisions do not establish where

past persecution may occur. The statute does not say that per-

secution must occur in the proposed country of removal, but

it also does not say that persecution can occur elsewhere—it

simply does not speak to the issue. Therefore we must resolve

the question under Chevron step two, according the regula-

tions the requisite deference.

[5] The regulation mandating that past persecution occur in

the proposed country of removal is a permissible construction

of the statute. The INA’s withholding of removal provisions

are clearly intended to protect individuals from being returned

to countries where they are likely to be persecuted. See 8

U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not

remove an alien to a country if the Attorney General decides

that the alien’s life or freedom would be threatened in that

country . . . .”). It is reasonable to link the past persecution

provision to the proposed country of removal. In contrast,

there is no logical nexus between persecution in the United

States, for example, and risk of persecution in the country of

4770 GONZALEZ-MEDINA v. HOLDER

removal. Accordingly, the regulation is a valid construction of

the statute and past persecution must have occurred in the pro-

posed country of removal.

Although we do not discount the intolerable abuse that

Gonzalez-Medina suffered in the United States, she did not

present any evidence that she was abused in Mexico, the

country of removal. Accordingly, the BIA’s determination

that Gonzalez-Medina failed to establish past persecution is

supported by substantial evidence.

C. Relocation within Mexico

[6] An applicant for withholding of removal cannot estab-

lish that it was more likely than not that she would be subject

to future persecution “if the applicant could avoid persecution

by relocating to another part of the [proposed country of

removal].” 8 C.F.R. § 1208.13(b)(2)(ii). Where the applicant

has not established past persecution, “the applicant shall bear

the burden of establishing that it would not be reasonable for

him or her to relocate.” 8 C.F.R. § 1208.13(b)(3)(i).

[7] The BIA held that Gonzalez-Medina failed to establish

that it was not reasonable for her to relocate within Mexico.

Substantial evidence supports the BIA’s determination.

Gonzalez-Medina testified that she would “never be able to

escape from [her husband] in Mexico” and that he would

“force [her] to be with him again.” These statements, on their

own, are insufficient to meet Gonzalez-Medina’s burden of

proof. Gonzalez-Medina has not been in touch with her hus-

band except once via telephone since he was deported, and

she offers no evidence of substance on the relocation issue.

Gonzalez-Medina’s parents and nine siblings live in Mexico

and her parents have many years of experience helping

domestic violence victims, including finding shelter for vic-

tims who have left their abusers. Nothing in the record sup-

ports Gonzalez-Medina’s claim that she will be unable to

GONZALEZ-MEDINA v. HOLDER 4771

relocate.3 See Kaiser v. Ashcroft, 390 F.3d 653, 659-60 (9th

Cir. 2004).

PETITION DENIED.

3

Gonzalez-Medina argues that the BIA disregarded the Immigration and

Naturalization Service’s proposed rule on Asylum and Withholding Defi-

nitions, which states that, in contrast to other persecution cases, “[a

domestic abuse] victim’s attempt to leave typically increases the abuser’s

motivation to locate and harm her” and that an abuser is more likely to

know where a victim would go or who she would turn to for assistance.

65 Fed. Reg. 76,588 at 76,595. The proposed rule, while informative and

descriptive generally of abuse situations, does not provide the evidence

necessary to sustain a relocation claim.