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Asylum Appeals Aren't Easy to Win in Fourth Circuit

By Robyn Hagan Cain on September 20, 2012 | Last updated on March 21, 2019

The Fourth Circuit Court of Appeals hasn't issued a published opinion in weeks. As constant followers of the 4th, we're a little bitter about this.

We could obsess about the circuit calendar and oral arguments that might produce published opinions, but that's what we did yesterday. Today, we're turning to one of the circuit's recent, unpublished opinions to catch a glimpse of the kinds of issues that are capturing the court's attention.

Geimy Lorene Hilario-Molina, a native and citizen of El Salvador, petitioned the Fourth Circuit Court of Appeals for review of a Board of Immigration Appeals (BIA) order sustaining the Attorney General's appeal, vacating the immigration judge's order, denying her motions to dismiss, and finding that she did not establish she was eligible for asylum or withholding of removal based on her membership in a particular social group.

No, that's not complicated at all.

It sounds like Hilario-Molina had a tumultuous ride through the immigration appeals process. Unfortunately, she didn't fare in better in the Fourth Circuit, which denied her asylum appeal Wednesday.

The Immigration and Nationality Act (INA) permits the Attorney General to grant asylum to any refugee who applies. The refugee must show that she is unwilling or unable to return to her country because she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Neither the INA nor the associated regulations define "particular social group," but a particular social group must meet three criteria:

  1. Its members share common, immutable characteristics,
  2. The common characteristics give its members social visibility, and
  3. The group is defined with sufficient particularity to delimit its membership.

An immigration judge will make an initial asylum determination, which the BIA can review. In many cases, like this one, the Board denies asylum. That's when petitioners turn to the federal appellate courts.

The Fourth Circuit will vacate a BIA order if it is "manifestly contrary to law." Factual findings are accepted unless any reasonable adjudicator would be compelled to conclude to the contrary, and legal conclusions are reviewed de novo. The Board's order is given substantial deference.

Here, after reviewing the record and the BIA opinion, the Fourth Circuit agreed that Hilario-Molina did not establish that she was a member of a particular social group with common, immutable characteristics, and that her group was not sufficiently particular.

Hilario-Molina's case is just another reminder that it's hard to prove the grounds for asylum.

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