Maria Pineda-Perez v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 7, 2023
• Docket: 22-1212
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1212

MARIA SANTOS PINEDA-PEREZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: April 18, 2023 Decided: September 7, 2023

Before QUATTLEBAUM and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Petition dismissed in part and denied in part by unpublished per curiam opinion.

ON BRIEF: W. Steven Smitson, Esq., SMITSON LAW LLC, Columbia, Maryland, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Brianne Whelan Cohen, Senior Litigation Counsel, Christina R. Zeidan, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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PER CURIAM:

Maria Santos Pineda-Perez, a native and citizen of El Salvador, petitions for review

of an order of the Board of Immigration Appeals (Board) dismissing her appeal from the

Immigration Judge’s (IJ) decision denying her applications for asylum and withholding of

removal. 1 The Board affirmed the IJ’s denial of Pineda-Perez’s asylum and withholding

of removal applications on two independent grounds: (1) Pineda-Perez had not proven a

nexus between any past persecution or feared future persecution and a protected ground,

and (2) Pineda-Perez had not established that the Salvadoran government would be

unwilling or unable to protect her from harm.

Before us, Pineda-Perez argues for the first time that the immigration court lacked

jurisdiction because the notice to appear served on her did not state the date and time of

her removal hearing. Pineda-Perez also contends that the Board’s nexus ruling was wrong

and that she was not required to establish that the Salvadoran government would be

unwilling or unable to protect her from harm. Finally, Pineda-Perez asks us to remand with

instructions for the Department of Homeland Security (DHS) to reconsider its prior denial

of her request for prosecutorial discretion. For the reasons explained below, we dismiss in

part and deny in part the petition for review.

1 The Board also affirmed the IJ’s denial of Pineda-Perez’s application for protection under the Convention Against Torture and denied her motion for administrative closure. Pineda-Perez’s opening brief does not challenge those aspects of the Board’s decision, and she has thus forfeited appellate review thereof. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).

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Pineda-Perez first argues that the immigration court lacked jurisdiction because her

notice to appear did not specify the date and time of her removal hearing. As we have

explained, however, a “Notice to Appear’s failure to include the date or time of the hearing

does not implicate the immigration court’s jurisdiction or adjudicative authority.” Perez

Vasquez v. Garland, 4 F.4th 213, 220 (4th Cir. 2021)

Pineda-Perez next contends that the Board erred in affirming the IJ’s denial of her

applications for asylum and withholding of removal. She maintains that she suffered past

persecution on account of a protected ground. And she insists that she could be granted

asylum and withholding of removal without establishing that the Salvadoran government

would be unwilling or unable to protect her from harm.

Our discussion on this topic begins and ends with Pineda-Perez’s latter argument,

which is simply wrong on the law. Because Pineda-Perez’s applications for asylum and

withholding of removal were based on claims of persecution by private actors, she was

obligated to show that the Salvadoran government would be unable or unwilling to control

those private actors. See Sorto-Guzman v. Garland, 42 F.4th 443, 448 (4th Cir. 2022);

Portillo Flores, 3 F.4th at 626. The Board determined that Pineda-Perez had not made the

requisite showing because the police in El Salvador had adequately responded to a prior

complaint that Pineda-Perez filed. Because Pineda-Perez fails to challenge that

determination in her opening brief, we conclude that she has forfeited appellate review

thereof. See Grayson O Co., 856 F.3d at 316. And because the Board’s determination in

that respect is dispositive of Pineda-Perez’s asylum and withholding of removal

applications, we deny the petition for review as to those applications.

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Finally, Pineda-Perez asks us to remand for DHS to reconsider its denial of her

request for prosecutorial discretion. But we lack jurisdiction to review DHS’s exercise of

prosecutorial discretion. See 8 U.S.C. § 1252(g); Veloz–Luvevano v. Lynch, 799 F.3d 1308,

1315 (10th Cir. 2015); Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012). And

granting Pineda-Perez’s request for remand—particularly when DHS has not expressed

that it is willing to reconsider its position on prosecutorial discretion—would contravene

§ 1252(g)’s jurisdictional bar. We therefore dismiss the petition for review as to

Pineda-Perez’s request for a remand related to prosecutorial discretion. 2

Accordingly, we dismiss in part and deny in part the petition for review. We also

deny Pineda-Perez’s motion to remand based on evidence that she did not present during

the proceedings before the IJ and the Board. See 8 U.S.C. § 1252(b)(4)(A); Lendo v.

Gonzales, 493 F.3d 439, 443 n.3 (4th Cir. 2007). We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

PETITION DISMISSED IN PART AND DENIED IN PART

2 We also observe that, because DHS may reconsider its exercise of prosecutorial discretion at any time, we need not remand to allow DHS to do so. See Morales de Soto v. Lynch, 824 F.3d 822, 826 (9th Cir. 2016).