Author: Tiffany Hu
Law360, New York (December 8, 2017, 5:51 PM EST) — The Ninth Circuit affirmed on Thursday a Board of Immigration Appeals’ decision tossing a Mexican native’s pleading that he qualified for protection from removal proceedings because he is part of a social group of those perceived to have money, saying the group was “too amorphous to be particular.”
In an unpublished opinion, the three-judge panel found that Hugo Enrique Suarez Herrera did not have a right to withholding of removal under the Convention Against Torture, concluding that the group did not meet the “social visibility” standard granting protection. Further, the panel added, his admissions to being in the U.S. without permission was not subject to exclusion, as they were not made under force or duress.
“The Fourth Amendment exclusionary rule does not generally apply in removal proceedings unless the violations leading to the discovery of the challenged evidence ‘were sufficiently egregious,” the panel said. “The facts here do not meet this standard.”
Herrera had been drinking at a party, and police officers found him sleeping in his car later that night. Two months later, Herrera admitted in a signed declaration that he was born in Mexico and was illegally living in the U.S. He later admitted it again to a Department of Homeland Security officer.
The panel agreed on Thursday that the BIA had properly concluded that police officers arrested Herrera for driving under the influence, and not because they had “divined” his ethnicity or alienage. The panel further wrote that because Herrera was not placed in formal proceedings, Herrera was not entitled to be informed of his procedural rights before he answered the DHS’ questions.
The panel also rejected Herrera’s claim that he had a right to a withholding of removal because he belonged in a protected social group of people perceived to have money, saying that perceived wealth did not define a discrete class of people who met the “social visibility” standard.
When the BIA first considered particular social groups back in the 1985 case Matter of Acosta, it held that members of a particular social group share common, immutable characteristics that cannot or should not change. Since then though, the board has constricted that definition and required particular social groups to be well-defined and socially visible, and circuit courts have split on how reasonable that standard is, the family had argued.
The panel also concluded that Herrera had failed to established that he was more likely than not to face government persecution if he returned to Mexico, pointing to the number of years that had passed since the mistreatment of his family.
This isn’t the first time the Ninth Circuit has addressed the issue of wealth as a basis for withholding of removal under the Convention Against Torture. A Ninth Circuit panel in 2015 affirmed the BIA’s denial of an appeal by a “light-skinned, fit” family claiming that it would be a targeted class of victims in Mexico, finding that the family could not show how a social group of “imputed wealthy Americans” would be recognized as such in Mexican society.
Counsel for Herrera could not immediately be reached for comment Friday.
Herrera is represented by Katarina Rost of Law Office of Katarina Rost.
The government is represented by Daniel Shieh and Jason Wisecup of the Office of Immigration Litigation.
U.S. Circuit Judges Susan P. Graber, N. Randy Smith and Chief U.S. District Judge for the Southern District of Texas Lee H. Rosenthal sat on the panel for the Ninth Circuit.
The case is Hugo Enrique Suarez Herrera v. Jefferson B. Sessions III, case number 14-72366, in the U.S. Court of Appeals for the Ninth Circuit. The 2015 case is Juan Carlos Ramirez-Munoz and Maria Beatriz Adriana Francia Alvarez v. Loretta E. Lynch, case number 12-70870, in the U.S. Court of Appeals for the Ninth Circuit.