v.
Attorney General United States
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 20-1796
__________
TERESA DEL ROSARIO PEREZ-FRANCO; X. P. F.,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
__________
On Petition for Review of a Decision
of the Board of Immigration Appeals
(Agency No. A206-633-288)
Immigration Judge: Dinesh C. Verma
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 30, 2021
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Filed: October 1, 2021)
__________
OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
KRAUSE, Circuit Judge.
Petitioner Teresa Perez-Franco and her minor daughter X.P.F., non-citizens from
Guatemala, petition for review of a decision by the Board of Immigration Appeals
(“BIA”) affirming the denial of their application for asylum and for withholding of removal.[1] For the reasons set forth below, we will deny the petition.
I. DISCUSSION2
As relevant to our decision today, Petitioner raises two arguments: that the BIA
erred in dismissing her asylum claim as untimely and that it erroneously affirmed the Immigration Judge’s (“IJ”) determination that her proposed particular social group
(“PSG”) of “single mothers from Guatemala without male protection” was not cognizable.[3] Pet’r’s Br. 10. Neither is persuasive.
[*2]First, Perez-Franco contends that the BIA erred in determining that her asylum application was untimely because, although it was not filed within one year of her arrival in the United States, 8 U.S.C. § 1158(a)(2)(B), “extraordinary circumstances” excuse her delay, id. § 1158(a)(2)(D). Specifically, she argues that she could not file her asylum
application until the Government issued her a NTA on May 19, 2015, so by filing within six months of that notice, she submitted her application within a “reasonable time,” making it timely under 8 C.F.R. § 1208.4(a)(5). Pet’r’s Br. 7–8.
Whatever the merits of this argument, we lack jurisdiction to review the Attorney
General’s factual determinations regarding the timeliness of an asylum application or the applicability of particular exceptions. See Jarbough v. Att’y Gen., 483 F.3d 184, 188–89
(3d Cir. 2007). Recognizing, however, that we may still consider constitutional claims or questions of law, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D), Petitioner seeks to characterize her challenge as a legal question. She argues that the BIA was bound to find a delay of less than six months to be reasonable under its precedent in Matter of T-M-H-
& S-W-C-, 25 I & N Dec. 193, 195 (BIA 2010), and that it improperly treated her delay in filing for asylum after an extraordinary circumstance as per se unreasonable. But, as the BIA recognized, its precedent only requires an IJ to evaluate the particular circumstances of the delay on a case-by-case basis, and here the IJ and BIA did just that. See, e.g., A.R.
[*3]6 (observing that Perez-Franco did not adequately explain her delay given that “she had a representative with her at her credible fear interview”); A.R. 127 (noting that petitioner
was “represented by counsel during her credible fear proceedings” and that therefore, “[c]onsidering the totality of [the] circumstances,” Petitioner failed to provide a
“satisfactory explanation” for her delay). Thus, the BIA did not espouse a bright-line rule, and what Petitioner challenges is a “factual or discretionary determination[],”
Jarbough, 483 F.3d at 190, that we are “divest[ed] . . . of jurisdiction to review,”
Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).
Second, as for Perez-Franco’s withholding-of-removal claim, we will affirm the BIA on the merits.[4] Perez-Franco argues that the IJ and BIA erred in concluding that her proposed PSG of single mothers without male protection could not be “defined with particularity,” Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019) (citation omitted), because they failed to consider her expert testimony regarding violence against single mothers in Guatemala. But this evidence, while indeed disturbing, cannot establish particularity because, as we have repeatedly explained and as the IJ expressly noted, “[i]ndividuals in a group must share a narrowing characteristic other than their risk of being persecuted.” A.R. 131 (citing In re S-E-G, 24 I & N Dec. 579, 584 (2008)); see also Radiowala, 930 F.3d at 585; S.E.R.L., 894 F.3d at 549; Escobar v. Gonzales, 417
[*4]F.3d 363, 367 (3d Cir. 2005). Perez-Franco provides no potential “discrete and definable boundaries” that could possibly “provide a clear standard for determining who is a member.” S.E.R.L., 894 F.3d at 552 (internal citation omitted). We therefore cannot conclude that “the evidence compels a different result” than that reached by the BIA.
Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir. 2010) (quotation omitted).5
On a final note, we observe that Perez-Franco’s counsel appears to have waived
(i) her claim under Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018), and Guadalupe v. Attorney General, 951 F.3d 161, 164 (3d Cir. 2020), (ii) her claim for withholding of removal on the basis of her alternative proposed PSG,6 and (iii) her CAT claim. The interests at stake for those with well-founded claims of asylum and withholding of removal are great. See, e.g., McLeod v. Peterson, 283 F.2d 180, 183 (1960). Failure to provide zealous advocacy not only disserves those petitioners, but also may expose
[*5]counsel to claims of ineffective assistance.[7] See Fadiga v. Att’y Gen., 488 F.3d 142, 155–59 (3d Cir. 2007). We therefore emphasize the solemn obligation of counsel in such cases—representing clients like Petitioner who “often do not speak English and are
usually unfamiliar with our laws and procedures,” Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001)—to stay current in evolving caselaw and to provide effective assistance of counsel.
II. CONCLUSION
For the foregoing reasons, we will deny Petitioner’s petition for asylum and withholding of removal.
[*6]