Wake Forest Law Review

statue-of-liberty-1205791

By Eric Benedict

On November 25, 2015, the Fourth Circuit issued its published opinion in the immigration case Oliva v. Lynch. The appeal was taken from the Board of Immigration Appeals (“BIA”) after a one-person panel affirmed the Immigration Judge’s (“IJ”) decision to deny Oliva’s application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”). On appeal, Oliva argued that the lower judicial bodies erred by (1) failing to recognize the nexus between his persecution and the proposed social group and (2) for failing to consider evidence that he was a member of a cognizable social group. A unanimous panel of the Fourth Circuit agreed and vacated in part and remanded in part.

Oliva Faces Years of Extortion and Threats for Leaving MS-13 Gang

When he was sixteen years old, Vladimir Oliva joined a gang called Mara Salvatrucha, otherwise known as MS-13 and was trained as a spy. A short time later, after witnessing the brutality of gang life, he decided to leave MS-13. However, MS-13 does not permit its members to leave the gang. A member is permitted to become “inactive” for religious or family reasons, but is required to pay “rent” to the gang. Members who attempt to leave are threatened with death. Oliva moved to a number of different cities in an attempt to evade the gang and the “rent” payments. Ultimately, Oliva spent almost a decade paying almost a third of his income to the gang. When Oliva failed to make payment in 2006, he was severely beaten and again threatened with death.

Oliva Seeks Protection on American Soil

To avoid continued persecution in his native El Salvador, Oliva entered the United States without authorization in 2007. Years later, Oliva continued to receive threatening calls from MS-13, notifying Oliva that he would be killed if he returned to his home country. In 2010, the department of Homeland Security (“DHS”) charged Oliva with removability under the INA.  The following year, Oliva filed an application for asylum and withholding of removal.

The Proceedings Below

After its initial hearing, the Immigration Court denied Oliva’s petition because it believed that MS-13 was not targeting Oliva because of his membership in the group, but rather, was targeting Oliva for money. Oliva appealed the decision and a one-member panel of the BIA dismissed the appeal. Notably, the Immigration Court also based its decision on Oliva’s failure to meet the filing deadline for asylum. However, the BIA did not address the issue, so the issue was not before the Fourth Circuit. Oliva appealed to the Fourth Circuit Court of Appeals.

The Fourth Circuit’s Deference to the BIA and the Fact Finding Standard of Review

Judge Wynn set forth a thorough discussion of the standard by which the Fourth Circuit reviews decisions of the BIA. Notably, the INA sets forth a fairly deferential standard, “[A] decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(c). In this case, the Court was careful to point out that, “[w]hile a three-member panel of the BIA is entitled to Chevron deference … a one-member panel of the BIA-like the one in this case is entitled to the lesser Skidmore deference.” Finally, the Court noted that while the BIA’s findings of law are reviewed de novo, the BIA’s findings of fact are “conclusive unless no rational factfinder could agree with the BIA’s position.”

Oliva sought asylum under section 241 (b)(3)(A) of the INA, which provides in part that the Attorney General may not remove an alien who is otherwise removable “if the Attorney General decides that the alien’s life or freedom would be threatened in [the country of removal] because of the alien’s … membership in a particular social group…” Under this provision, the BIA dismissed Oliva’s appeal from the IJ first because it found that the alleged groups were not cognizable under the INA and second because Oliva failed to show a nexus between his membership in the group and the persecution he feared. Oliva appealed both of these findings.

Oliva Meets the INA’s Nexus Requirement

Oliva claimed that his persecution was due to his membership in a group. To satisfy the INA’s nexus requirement, an applicant must show that, “his past or threatened persecution was ‘on account of’ his membership in that group.” Importantly, membership in a particular group only has to be a central reason for the persecution, not the only reason for the persecution. The Court qualified this test by noting that membership must not be “merely ‘incidental, tangential, superficial, or subordinate to another reason for harm.’” Explaining that extortion can constitute persecution, the court reversed the BIA’s holding. Judge Wynn noted that “[b]ecause it is undisputed that MS-13 extorted Oliva on account of his leaving the gang, the record compels the conclusion that his persecution was on account of his status as a former member of MS-13.” The Fourth Circuit rejected the BIA’s contention that the gang extorted Oliva due to greed, observing that Oliva’s decision to leave the gang for religious reasons was what placed him in the category of person from which MS-13 demands “rent” payments. Despite a relatively deferential standard of review, the Court reversed the BIA, finding that Oliva satisfied the nexus requirement.

The BIA Erred in Failing to Address Oliva’s Evidence on the “Cognizable Group” Element

Oliva claimed that he was threatened because of his membership in two different groups. First, “Salvadorians who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and second, “Salvadorians who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission for moral and religious reasons.” A group is cognizable under the relevant portion of the INA if the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The BIA ended its inquiry after finding that Oliva failed the “social distinction” requirement because the group is not “perceived as a group by society”. However, the parties agreed that the BIA erred by failing to address all of the evidence put forth by Oliva as to the groups social distinction. Therefore, the government agreed that the proper course of action was for the Fourth Circuit to remand the matter to the BIA for consideration of the evidence.

Conclusion

Despite an elevated standard of review, the Fourth Circuit found that the BIA defined the nexus requirement too narrowly. Instead, the Court set forth the proper inquiry and found that Oliva had demonstrated that his membership in the proposed group was a central reason for his persecution. Therefore the Fourth Circuit reversed the BIA on this issue. Second, the Court, on agreement of both parties remanded the matter for consideration of the evidence as to whether or not Oliva’s proposed groups are cognizable under the INA.

 

 

 

By Taylor Ey

Last Monday, January 12, the Fourth Circuit issued a published opinion in the civil case of Prasad v. Holder.  Appellant Prasad appealed the decision of the Board of Immigration Appeals, rejecting his claim that his status should be changed from one who is unlawfully present in the United States to that of lawful permanent resident.

Does the Deadline in the Immigration and Nationality Act Operate as a Statute of Repose or Is It Subject to Equitable Tolling?

The Immigration and Nationality Act, 8 U.S.C. § 1255(i), provides that if an unlawful citizen is the beneficiary of a labor-certification application filed on or before April 30, 2001, the unlawful citizen may be eligible for adjustment of status.  Appellant filed a labor-certification application; he conceded that his application was filed more than two months after April 30, 2001.  However, Appellant argued that the deadline should be equitably tolled because his attorney failed to file a timely application.  The Board of Immigration Appeals ruled against Appellant, and the Fourth Circuit denied petition for review in part, and dismissed in part.

Appellant’s History of Citizenship Status

Appellant gained entry to the United States on or about May 11, 2000.  At that time, he was unlawfully present.  He sought to change his citizenship status under 8 U.S.C. § 1255(i).  Appellant’s employer retained attorney Earl S. David to file a labor-certification application on Appellant’s behalf.  David filed Appellant’s application on July 13, 2001, even though the due date was clearly April 30, 2001.

Appellant filed for adjustment of status in 2007.  His status application was denied because the labor-certification application was filed after April 30, 2001.

The Board of Immigration Appeals affirmed the decision of the Immigration Judge, denying adjustment of status.

The Date in the Immigration and Nationality Act Operates as a Statute of Repose and Not a Statute of Limitations Subject to Equitable Tolling

The Fourth Circuit looked to the Ninth Circuit, the only other circuit to address the question in this case.  The Ninth Circuit decided that the deadline operates as a status of repose that cannot be equitably tolled.  Additionally, the Fourth Circuit explained that “a statute of repose operates as a substantive bar to liability, reflecting a legislative policy judgment that no legal right should be recognized after a statutorily determined end point.”

Statutes of Repose Have a Fixed End Point, Define Substantive Rights

Because the statute sets out a fixed end point by which the labor-certification applications must be filed, and the statute defines the substantive right, the Fourth Circuit determined that the deadline in the statute met the defining characteristics of a statute of repose.

Additionally, the Fourth Circuit cited the legislative history of the Immigration and Nationality Act, confirming that Congress intended the deadline to operate as a statute of repose.

The Deadline Acts as a Statute of Repose

Because Appellant did not file his labor-certification application before or on the deadline required by the Immigration and Nationality Act, Appellant was not eligible for adjustment of status.  The Fourth Circuit recognized the harshness of the black and white rule, and how in cases such as the instant case, the rule could result in hardship.  However, because the Immigration and Nationality Act only intended a limited exception, the Fourth Circuit was without authority to expand on the exception.