In Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019), Maria Suyapa Gonzales-Veliz, a Honduran citizen, petitioned for review of the BIA’s order denying asylum, withholding of removal, and protection under the Convention Against Torture. While her initial petition for review was pending before the Fifth Circuit, Gonzales-Veliz also filed a motion for reconsideration with the BIA based on a precedential BIA decision called Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), which had held that A-R-C-G-’s proposed group—married women in Guatemala who are unable to leave their relationship—was a cognizable social group. Underlying Gonzales-Veliz’s claims to asylum and withholding of removal was a similar argument: that Honduran women unable to leave their relationship qualified as a particular social group.

The BIA opposed reconsideration, invoking an intervening decision by then-Attorney General Sessions in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which had overruled A-R-C-G-. While Gonzales-Veliz’s second petition for review was pending before the Fifth Circuit, however, the U.S. District Court for the District of Columbia enjoined and vacated in part the A-B- decision. Grace v.Whitaker, 344 F. Supp. 3d 96, 146 (D.D.C. 2018), appeal filed sub. nom. Grace v. Barr, No. 19-5013 (D.C. Cir. Filed Jan. 30, 2019).

The Fifth Circuit held that it was not bound by the Grace injunction. Unlike the D.D.C., the Fifth Circuit held that the BIA correctly interpreted A-B-and that A-B- was not arbitrary and capricious. Finally, the Court held that remand was unnecessary. Accordingly, it denied Gonzales-Veliz’s petitions for review.

In Flores-Abarca v. Barr, 937 F.3d 473 (5th Cir. Aug. 28, 2019), Rogelio Flores Abarca sought review of a BIA decision holding that he was statutorily ineligible for cancellation of removal because of a 2004 firearm transportation conviction. The Fifth Circuit first concluded that Flores Abarca failed to exhaust his challenge to the immigration court’s jurisdiction based on alleged defects in his Notice to Appear.

On the merits, the Court held that the Oklahoma misdemeanor of transporting a loaded firearm in a motor vehicle is not one of the firearms offenses listed under 8 U.S.C. § 1227(a)(2)(C). Accordingly, this conviction did not disqualify Flores Abarca from seeking cancellation of removal. The Court therefore granted the petition for review, vacated the BIA’s order, and remanded for further proceedings.

In Padilla v. Barr, 938 F.3d 658 (5th Cir. Sept. 12, 2019), Ubaldo Olguin Padilla was found to be removable based his 2011 Texas conviction for possession of methamphetamine with intent to deliver, which the BIA concluded was a violation of a state law “relating to a controlled substance” as defined in the Controlled Substances Act. 8 U.S.C. § 1182(a)(2)(A)(i)(II); see Tex. Health & Safety Code § 481.112. In his petition for review, Padilla contended that § 481.112 does not “relate to” a federally controlled substance because delivery under § 481.112 includes an offer to sell fake or counterfeit drugs.

The Fifth Circuit agreed with the BIA. The Court reasoned that under § 481.112 the nature of the substance ultimately delivered is immaterial. What matters is whether the seller purports to be offering a real controlled substance. Because § 481.112 requires an offer to sell a controlled substance, a conviction under the statute relates to “a drug or other substance, or immediate precursor, included in [the CSA] schedule[s].” 21 U.S.C. § 802(6).

In Pena Oseguera v. Barr, 936 F.3d 249 (5th Cir. Aug. 23, 2019), Pena Oseguera, a native of Honduras, appealed the denial of his application for asylum and withholding of removal. When the Fifth Circuit heard oral argument in this case, Matter of L-E-A- was pending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019). That case involved the question of whether families qualified as “social groups” for the purposes of refugee status—the very issue presented by Pena Oseguera’s appeal—so the Fifth Circuit held this case in abeyance pending the Attorney General’s decision. The Attorney General eventually found that families may qualify as social groups, but the decision must be reached on a case-by-case basis. The Court noted that Matter of L-E-A- is at odds with the precedent of several circuits. Matter of L-E-A-, 27 I. & N. Dec. at 589-91 (analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits). But because it is not at odds with any precedent in the Fifth Circuit, the Court vacated and remanded for the IJ and BIA to consider Pena Oseguera’s claims in light of Matter of L-E-A.

Fifth Circuit Immigration Update
Share this