Porfiria Gonzalez-Medina v. Eric Holder, Jr.

Filing

FILED OPINION (M. MARGARET MCKEOWN, RAYMOND C. FISHER and RONALD M. GOULD) DENIED. Judge: MMM Authoring, Judge: RCF , Judge: RMG . FILED AND ENTERED JUDGMENT. [7708354]

Case: 10-70913 04/07/2011 Page: 1 of 9

ID: 7708354 DktEntry: 27-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PORFIRIA GONZALEZ-MEDINA,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.





No. 10-70913
Agency No.
A098-177-787
OPINION

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

Case: 10-70913 04/07/2011 Page: 2 of 9

4764

ID: 7708354 DktEntry: 27-1

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. MaiWindle, 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 Immigration 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 unpersuaded 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 television cable until her body was covered with lacerations. At one
point, Gonzalez-Medina told her husband that she wanted a

Case: 10-70913 04/07/2011 Page: 3 of 9

ID: 7708354 DktEntry: 27-1

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 selling drugs and deported to Mexico. He called GonzalezMedina 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, GonzalezMedina argued that her husband’s abuse of her in the United
States constituted past persecution for purposes of withhold1

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 reasonable period of time following the change—she filed it seventeen
months after his deportation.

Case: 10-70913 04/07/2011 Page: 4 of 9

4766

ID: 7708354 DktEntry: 27-1

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.
A.

ANALYSIS
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 deadline, 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, GonzalezMedina 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 discrimination 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.

Case: 10-70913 04/07/2011 Page: 5 of 9

ID: 7708354 DktEntry: 27-1

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 classification.” Heller v. Doe, 509 U.S. 312, 320 (1993). Rather,
Gonzalez-Medina has “the burden to negate every conceivable 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 Mexico 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.

Case: 10-70913 04/07/2011 Page: 6 of 9

4768

ID: 7708354 DktEntry: 27-1

GONZALEZ-MEDINA v. HOLDER

[3] Gonzalez-Medina asserts that such differential application 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 persons 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 identified 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 during the first year, and the time bar will help identify legitimate
claims, provide a fixed cut-off date for filings, serve as a limitation 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 government purpose,” and she has failed to establish an Equal Protection 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 suffered in the United States could not constitute past persecu-

Case: 10-70913 04/07/2011 Page: 7 of 9

ID: 7708354 DktEntry: 27-1

GONZALEZ-MEDINA v. HOLDER

4769

tion. To determine whether the regulation is valid, we apply
the familiar Chevron two-step analysis. See MoralesIzquierdo 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 construction 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 persecution” 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 persecution 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 regulations 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

Case: 10-70913 04/07/2011 Page: 8 of 9

4770

ID: 7708354 DktEntry: 27-1

GONZALEZ-MEDINA v. HOLDER

removal. Accordingly, the regulation is a valid construction of
the statute and past persecution must have occurred in the proposed 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 establish 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 husband 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 victims who have left their abusers. Nothing in the record supports Gonzalez-Medina’s claim that she will be unable to

Case: 10-70913 04/07/2011 Page: 9 of 9

ID: 7708354 DktEntry: 27-1

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 Definitions, 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.