finding harmless error in accommodating Plaintiff’s CPP limitations where claimant hypothesized no restrictions that might address his claimed limitations and cited no evidence he could not perform simple, routine, and repetitive tasks
How later courts described this case
- finding harmless error in accommodating Plaintiff’s CPP limitations where claimant hypothesized no restrictions that might address his claimed limitations and cited no evidence he could not perform simple, routine, and repetitive tasks
- rejecting proposed particular social groups based on prior employment as a taxi driver in Guatemala
- declining to recognize “Guatemala taxi drivers who have refused gang recruitment and extortion” as a cognizable social group
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0183p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RENE ANTONIO GONZALEZ-DE LEON, ┐
Petitioner, │
│
> No. 18-3583
v. │
│
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 208 203 847.
Decided and Filed: August 5, 2019
Before: GILMAN, SUTTON, and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Sarah C. Larcade, MCKINNEY & NAMEI CO., L.P.A., Cincinnati, Ohio, for
Petitioner. Tracy N. McDonald, UNITED STATE DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Petitioner Rene Gonzalez-De Leon
(Gonzalez), a native and citizen of Guatemala, surrendered himself at the United States border
and requested asylum. Gonzalez alleges that he would be persecuted and tortured because of his
status as a former taxi driver if he is removed to Guatemala. An immigration judge (IJ) denied
Gonzalez’s application for asylum, withholding of removal, and protection under the United
No. 18-3583 Gonzalez-De Leon v. Barr Page 2
Nations Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed.
Gonzalez then filed this timely appeal.
On appeal, Gonzalez argues that the BIA erred in (1) affirming the IJ’s adverse
credibility finding, and (2) concluding that “taxi drivers in Guatemala,” “taxi drivers living in the
poppy producing region of Guatemala,” and “Guatemala taxi drivers who have refused gang
recruitment and extortion” are not cognizable as “particular social groups” under asylum law.
Gonzalez also contends that (3) the IJ and the BIA did not have the authority to hear Gonzalez’s
case because the Notice to Appear issued to him did not specify the date and time of the hearing.
For the reasons set forth below, we DENY the petition for review.
I. BACKGROUND
Gonzalez was a taxi driver in an area of Guatemala with significant drug trafficking,
poppy cultivation, and opium production. As a taxi driver, he became very knowledgeable about
the geography of the surrounding communities. Eventually, Gonzalez learned that he had been
unknowingly transporting drugs for local gang members.
Members of the gang first threatened Gonzalez around January 2015. Gonzalez
responded by telling them that he was not going to participate in drug trafficking or gang
activities. After he refused to help them, Gonzalez began receiving more threats. In June 2015,
gang members threatened to kill Gonzalez, his wife, and his son. This caused Gonzalez to stop
working as a taxi driver, and he began working as a mechanic in order to save the money needed
to flee the country. He ultimately fled Guatemala around October 2015.
Gonzalez arrived at a port of entry in Arizona on October 26, 2015. The next month, an
asylum officer found that Gonzalez had demonstrated a credible fear of persecution or torture.
On November 30, 2015, Gonzalez was given a Notice to Appear, which did not notify him of the
date or time that he was to appear before an IJ. But Gonzalez was given a Notice of Hearing the
following day, stating that his case was scheduled for a master-calendar hearing on December 7,
2015, at 8:30 a.m. He appeared at the master-calendar hearing and ultimately applied for
asylum, withholding of removal, and CAT protection.
No. 18-3583 Gonzalez-De Leon v. Barr Page 3
In May 2017, the IJ denied Gonzalez’s application. The IJ concluded that Gonzalez was
not credible, stating that Gonzalez’s testimony conflicted with his answers given during the
“credible-fear” interview with the asylum officer in November 2015. In addition, the IJ
determined that Gonzalez was not eligible for asylum, withholding of removal, or CAT
protection. Specifically, the IJ found that Gonzalez had not shown that he was a member of
a particular social group that is subject to protection under asylum law. Gonzalez then filed a
timely appeal to the BIA. The BIA affirmed the IJ’s decision, concluding that Gonzalez’s “three
proposed particular social groups . . . do not pass legal muster” because “taxi driving is not an
immutable characteristic on which a particular social group may be based.”
II. ANALYSIS
A. Standard of review
“Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion, rather
than summarily affirming the IJ’s decision, we review the BIA’s decision as the final agency
determination.” Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009). “To the extent that
the BIA has adopted the IJ’s reasoning, however, we also review the IJ’s decision.” Id.
“Questions of law are reviewed de novo, but substantial deference is given to the BIA’s
interpretation of the [Immigration and Nationality Act] and accompanying regulations. The
BIA’s interpretation of the statute and regulations will be upheld unless the interpretation is
arbitrary, capricious, or manifestly contrary to the statute.” Khalili v. Holder, 557 F.3d 429, 435
(6th Cir. 2009) (citations and internal quotation marks omitted).
B. Gonzalez’s asylum application
We first address whether the BIA erred in affirming the IJ’s denial of Gonzalez’s
application for asylum. Gonzalez argues that the BIA erred in affirming the IJ’s adverse
credibility determination and in concluding that Gonzalez did not articulate a particular social
group that is cognizable under asylum law. We have no need to address the credibility
determination because the BIA “set[] aside the adverse credibility finding and presum[ed]
[Gonzalez’s] credibility on appeal.”
No. 18-3583 Gonzalez-De Leon v. Barr Page 4
To qualify for asylum, an applicant must be unable or unwilling to return home “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). If an
applicant requests asylum based on being part of a particular social group, he must establish that
the group is “composed of individuals who share a ‘common, immutable characteristic.’”
Urbina-Mejia v. Holder, 597 F.3d 360, 365 (6th Cir. 2010) (quoting Castellano-Chacon v. INS,
341 F.3d 533, 546 (6th Cir. 2003), abrogated on other grounds by Almuhtaseb v. Gonzales, 453
F.3d 743, 748 (6th Cir. 2006)). The group’s shared characteristic “must be one that the members
of the group either cannot change, or should not be required to change because it is fundamental
to their individual identities or consciences.” Castellano-Chacon, 341 F.3d at 547 (quoting
Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)).
In addition, this court has held that “[a]n alleged social group must be both particular and
socially visible.” Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010). Particularity
refers to “whether the proposed group can accurately be described in a manner sufficiently
distinct that the group would be recognized, in the society in question, as a discrete class of
persons.” Al-Ghorbani, 585 F.3d at 994 (quoting Matter of S–E–G–, 24 I. & N. Dec. 579, 584
(BIA 2008)). Social visibility “requires ‘that the shared characteristic of the group should
generally be recognizable by others in the community.’” Id. (quoting Matter of S–E–G–, 24
I. & N. Dec. at 586). In other words, social visibility requires that the set of individuals with the
shared characteristic be “perceived as a group by society.” Matter of S–E–G–, 24 I. & N. Dec. at
586 (internal quotation marks omitted).
Gonzalez posited three proposed particular social groups: “taxi drivers in Guatemala,”
“taxi drivers living in the poppy producing region of Guatemala,” and “Guatemala taxi drivers
who have refused gang recruitment and extortion.” This court has previously rejected proposed
groups based on employment status. For instance, in Khozhaynova v. Holder, 641 F.3d 187 (6th
Cir. 2011), this court held that “business owners who refuse[] to pay for protection from the
mafia” are not a part of a particular social group. Id. at 195. This court has also rejected the
claim that individuals targeted to join gangs qualify as a particular social group for asylum
purposes. Umana-Ramos v. Holder, 724 F.3d 667, 673–74 (6th Cir. 2013). Taxi drivers as a
No. 18-3583 Gonzalez-De Leon v. Barr Page 5
social group are not legally distinguishable from the proposed social groups previously rejected.
See also Miranda v. Sessions, 892 F.3d 940, 943 (8th Cir. 2018) (concluding that former taxi
drivers from El Salvador are not a particular social group).
We agree with the Eighth Circuit’s conclusion in Miranda despite Gonzalez’s contention
that his status as a former taxi driver is an immutable characteristic that can form the basis of a
particular social group. Gonzalez premises his argument on the point that he will always have
the “knowledge and familiarity with the area [that] he obtained by being a taxi driver.”
According to the record, however, the gangs did not contact Gonzalez once his work as a taxi
driver ceased. And there is no evidence that Gonzalez would be targeted as a former taxi driver,
nor any evidence that former taxi drivers are perceived as a distinct group by Guatemalan society
or by the gangs. We therefore conclude that the BIA did not err in finding that Gonzalez failed
to articulate a particular social group protectable under asylum law.
C. The authority of the IJ and the BIA to hear Gonzalez’s case
This brings us to Gonzalez’s argument that a Notice to Appear does not vest
subject-matter jurisdiction in the immigration court unless the Notice to Appear specifies the
date and time of the proceedings. For this position, he relies on Pereira v. Sessions, 138 S. Ct.
2105 (2018), which held that a Notice to Appear that fails to designate the specific time or place
of proceedings does not trigger the stop-time rule that ends the noncitizen’s period of continuous
presence in the United States. Id. at 2112–20.
We have already rejected Gonzalez’s argument both in Hernandez-Perez v. Whitaker,
911 F.3d 305 (6th Cir. 2018), and in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019).
Specifically, we have held that “jurisdiction vests with the immigration court where . . . the
mandatory information about the time of the hearing . . . is provided in a Notice of Hearing
issued after the [Notice to Appear].” Hernandez-Perez, 911 F.3d at 314–15. The stop-time issue
is a separate matter that involves different regulations. Santos-Santos, 917 F.3d at 489–90.
Gonzalez’s Notice to Appear, which omitted the date and time of the hearing, was promptly
followed by a Notice of Hearing that provided this information. As a result, both the IJ and the
BIA had jurisdiction over Gonzalez’s case.
No. 18-3583 Gonzalez-De Leon v. Barr Page 6
III. CONCLUSION
For all of the reasons set forth above, we DENY Gonzalez’s petition for review.