U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church. V1rg1ma 2204/

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Linares Garcia, Tania OHS/ICE - Office of Chief Counsel
National Immigrant Justice Center 12445 East Caley Avenue
224 S. Michigan Ave., Ste. 600 Centennial, CO 80111-5663
Chicago, IL 60604

Name:C ,G L A -504

Date of this notice: 2/5/2020

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Wilson, Earle B.
Greer, Anne J.
Wendtland, Linda S.

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: G-L-C-, AXXX XXX 504 (BIA Feb. 5, 2020)

 U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church. Virginia 22041

File: A -504 - Denver, CO Date:

FEB - 5 2020
In re: G L C a.k.a.

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Tania Linares Garcia, Esquire

ON BEHALF OF OHS: Carmen F. Rickard

Assistant Chief Counsel

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Jamaica, has appealed from the Immigration Judge's
March 27, 2019, decision denying her application for asylum and withholding of removal under
sections 208(b)(l) and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ l158(bXl),
123 l (b)(3) (2012), as well as protection under the Convention Against Torture. The Department
of Homeland Security ("OHS") opposes the appeal. The appeal will be sustained in part and the
record will be remanded for further proceedings.2

We review for clear error the findings of fact, including the determination of credibility,made
by the Immigration Judge. 8 C.F.R. § 1003. l(d)(3)(i) (2019). We review de novo all other issues,
including issues of law,judgment, or discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

There is no present dispute that the respondent is removable as charged (IJ at 1-2; Exhs. l, 3,
4, 5). There is also no dispute that in June 201l, the respondent was convicted in the Court of
Common Pleas of Berks County, Criminal Division, Commonwealth of Pennsylvania, for the
offense of possession with intent to deliver a controlled substance in violation of 35 Pa. Cons. Stat.
§ 780-113(a)(30),for which she was sentenced to imprisonment for a period of not less than 3 years
but not more than 5 years (IJ at 1-2; Exh. 8). The Immigration Judge concluded that this conviction
was for a categorical aggravated felony under section 10l(a)(43)(B) of the Act, 8 U.S.C.
§ 1101(a)(43)(B),that barred the respondent from asylum (IJ at 8). The Immigration Judge further
concluded that the conviction was either per se or presumptively a particularly serious crime that
precluded eligibility for withholding of removal and extraordinary and compelling circumstances
to overcome this presumption were not established (IJ at 8-9).

1 We will use female pronouns as appropriate in accordance with the respondent's preference.
2
We acknowledge receipt of the respondent's October 2,2019,"Motion to Resolve Jurisdictions,
Statutorys and Regulations Violations et seq. Nunc Pro Tune"; the DHS's "Opposition to
Respondent's Motion to Resolve Jurisdictions" dated October 4, 2019; and the respondent's
response received on November 15, 2019. However, the motion does not alter the outcome of our
appellate review and we decline to address the matter further.

Cite as: G-L-C-, AXXX XXX 504 (BIA Feb. 5, 2020)

 -504

In the alternative, the Immigration Judge determined that the respondent had not established
past persecution or a well-founded fear or clear probability of future harm on account of a protected
ground under the Act to qualify for asylum or withholding of removal under section 241(b)(3) of
the Act, and that internal relocation is both practically and legally reasonable (IJ at 10-14). With

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respect to the respondent's Convention Against Torture claim, the Immigration Judge found that
the respondent had not demonstrated that she will more likely than not be tortured in Jamaica by,
at the instigation of, or with the consent or acquiescence of any public official (IJ at 14-16).

First,we agree with the respondent that under current precedent of the United States Court of
Appeal for the Third Circuit, the respondent's conviction for possession with intent to deliver a
controlled substance in violation of 35 Pa. Cons. Stat. § 780-113(a)(30),is not considered to be a
categorical aggravated felony (Respondent's Br. at 19-20).3 See Walker v. U.S. All'y Gen., 625
F. App'x 87 (3d Cir. 2015); Evanson v. Att'y Gen., 550 F.3d 284 (3d Cir. 2008); Jeune v. Att'y
Gen., 476 F.3d 199 (3d Cir. 2007). Hence, this portion of the respondent's appeal will be sustained.

As the respondent's statute of conviction is divisible, the modified categorical approach must
be applied to determine if it is a conviction for an aggravated felony that precludes eligibility for
asylum (see Respondent's Br. at 20). Consequently, the record will be remanded for the
Immigration Judge to make the appropriate findings of fact and conclusions of law on this question
in the first instance. See 8 C.F.R. § 1003.l (d)(3)(iv) (stating that, with a limited exception, "the
Board will not engage in factfinding in the course of deciding appeals"); Matter of Fedorenko,
19 l&N Dec. 57, 73-74 & n. l O (BIA 1984). Additionally, the Immigration Judge should also
address in the alternative whether the respondent's conviction is for a particularly serious crime
pursuant to Matter ofN-A-M-, 24 I&N Dec. 336, 342 (BIA 2007),and Matter ofFrentescu, 18 I&N
Dec. 244, 247 (BIA 1982), that precludes asylum and withholding of removal (Respondent's
Br. at 19-20).

We agree with the respondent that the harm she experienced rose to the level of persecution
(Respondent's Br. at 21-22). The respondent testified that she was attacked on six occasions; she
was beaten several times, stabbed with an icepick, shot in the leg and attacked with a machete
(IJ at 5-6, 10-11; Tr. at 297-318). She further testified that she required medical care after each
of these instances of hann (IJ at 5-6,10-11; Tr. at 297-318). When viewed as a whole, we conclude
that the cumulative physical and mental harm the respondent experienced in Jamaica rises to the
level of persecution and we reverse the Immigration Judge's conclusion to the contrary. See
Ritonga v. Holder, 633 F.3d 971,975 (10th Cir. 2011).

We further agree with the respondent that her proposed particular social group is cognizable
under the Act (Respondent's Br. at 22-23). Although the Immigration Judge determined that the
respondent's proposed social group, delineated as "LGBT, gay and transgender" had the requisite
immutability and social distinction, she also concluded that it was not defined with sufficient
particularity and was therefore not cognizable under the Act (IJ at 11-12; Tr. at 269). Specifically,

3
We are cognizant that this case arises in the United States Court of Appeals for the Tenth Circuit;
however, we find the Third Circuit's interpretations of its laws to be persuasive authority.

2
Cite as: G-L-C-, AXXX XXX 504 (BIA Feb. 5, 2020)
 -504

the Immigration Judge concluded that the respondent had not sufficiently limited her group to
LGBT persons in Jamaica (see IJ at 11-12; Tr. at 269). However, in testimony provided before
the Immigration Judge clarifying the group, it was clear that the group pertained to individuals in
Jamaica (see Tr. at 272-73). See Matter of W-G-R-, 26 l&N Dec. 208 (BIA 2014), ajf'd in
pertinent part and rev 'd in part sub nom. Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), cert.

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denied, 138 S. Ct. 736 (2018) (mem.); and Matter of M-E-V-G-, 26 l&N Dec. 227 (BIA 2014)
(clarifying what is required to establish a particular social group). Therefore, we reverse the
Immigration Judge's conclusion that the respondent has not established membership in a
cognizable social group.

Consequently, the case will be remanded for further proceedings. On remand, the parties
should have the opportunity to update the record, and to make any additional legal and factual
arguments as may apply to this case, including on the questions of whether the respondent's
conviction is for a particularly serious crime that precludes asylum and withholding of removal,
whether the government of Jamaica is unable or unwilling to protect the respondent, and whether
the respondent is able to reasonably relocate in Jamaica to avoid future harm. We note that the
question of whether the harm the respondent experienced constituted cognizable past persecution
(i.e., harm on account of a protected ground) must be fully addressed before internal relocation
since a demonstration of the former would shift the burden of proof on the latter to the OHS. See
8 C.F.R. §§ 1208.13(b)(I), (2), (3) (denoting the relevant factors to be considered in making a
determination on internal relocation, as well as the alternative burdens upon the parties). Further,
the Immigration Judge should consider the respondent's arguments that she was not required to
show that she reported the instances of harm she experienced to the police because she
demonstrated that reporting would have been futile and dangerous (see Respondent's Br. at 17-19).
We express no opinion regarding the ultimate outcome of these proceedings.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained in part and the Immigration Judge's decision is reversed in
part, as detailed above.

FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing decision and for the entry of a new decision by the Immigration Judge.

Cite as: G-L-C-, AXXX XXX 504 (BIA Feb. 5, 2020)