Mirna De Leon-Garcia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2023
• Docket: 21-70836
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIRNA ELIZABETH DE LEON-GARCIA; No. 21-70836 et al., 22-448

Petitioners, Agency Nos. A208-759-013 A208-759-011 v. A208-759-012

MERRICK B. GARLAND, Attorney General, MEMORANDUM *

Respondent.

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

Submitted June 6, 2023** Pasadena, California

Before: WALLACE and OWENS, Circuit Judges, and FITZWATER,*** District Judge.

Mirna Elizabeth De Leon-Garcia (De Leon), a native and citizen of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Guatemala, and her minor children (collectively, Petitioners) petition for review of

the Board of Immigration Appeals’ (BIA) dismissal of their appeals from the

immigration judge’s (IJ’s) denial of their applications for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). Petitioners

also petition for review of the BIA’s denial of their motion to reopen. We have

jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA’s legal conclusions

de novo and the BIA’s factual findings for substantial evidence, and review the

BIA’s denial of a motion to reopen for abuse of discretion. Plancarte Sauceda v.

Garland, 23 F.4th 824, 831 (9th Cir. 2022); Ahwazi v. INS, 751 F.2d 1120, 1122

(9th Cir. 1985). We deny the petitions.

Petitioners argue that the BIA erred because it should have conducted a

meaningful analysis of the cognizability of their proposed social group—spouses

and children of individuals living in the United States who send money back to

Guatemala to support their family and are targeted by gang members for extortion

in exchange for safety—before it could make a determination on whether

Petitioners demonstrated a nexus between membership in that group and future or

past persecution, and thereby deny their applications. Petitioners argue that,

because they planned to challenge the IJ’s determination on the cognizability of the

proposed social group before challenging any nexus determination, they did not

waive any arguments challenging the nexus finding.

2 The IJ did not err in denying Petitioners’ applications on the basis of a lack

of a demonstrated nexus. The lack of a nexus between the harm that an applicant

suffered and a protected ground is dispositive of asylum and withholding of

removal applications. Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016).

Here, the IJ considered Petitioners’ proposed social group, and determined that,

even if it is cognizable, Petitioners had still not demonstrated a nexus between that

group and the harm they claim. The IJ was not required to make a definitive

decision about the social group prior to arriving at this conclusion.

Petitioners did not sufficiently raise the nexus argument before the BIA,

which upheld the IJ’s nexus determination and denied their applications.

Petitioners posit that they “clearly argued” their nexus issue before the BIA, but

concede that they failed to make explicit arguments on this issue in their briefing.

Broad arguments do not provide the BIA with notice of what specific conclusions

petitioners appeal. 8 C.F.R. § 1003.3(b); Zara v. Ashcroft, 383 F.3d 927, 930 (9th

Cir. 2004) (“A petitioner cannot satisfy the exhaustion requirement by making a

general challenge to the IJ’s decision, but, rather, must specify which issues form

the basis of the appeal.”). Petitioners had not properly “put the issue . . . before the

BIA such that it had the opportunity to correct its error,” and the BIA did not err in

concluding that they had waived objections to the nexus issue on appeal. Arsdi v.

Holder, 659 F.3d 925, 929 (9th Cir. 2011) (internal quotations omitted).

3 Petitioners also contend that, because they were served with invalid Notices

to Appear (NTAs) for their removal proceedings, the immigration court’s

jurisdiction never actually vested in their cases in the first instance, and thus their

removal proceedings should be terminated. The original NTAs served on

Petitioners failed to specify a time and date of their removal hearings as required

by 8 U.S.C. § 1229(a)(1)(G)(i), though Petitioners later received notices of hearing

with such information and attended their proceedings. An NTA that does not

specify the time and place of removal proceedings is insufficient to trigger the

stop-time rule and in absentia removal proceedings. See Pereira v. Sessions, 138

S. Ct. 2105, 2110 (2018); Singh v. Garland, 24 F.4th 1315, 1318 (9th Cir. 2022).

However, we have never held that a defective NTA divests the immigration court

of jurisdiction, and Petitioners point to no authority that contradicts this

conclusion. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1188, 1193

(9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023) (“[T]he failure of an

NTA to include time and date information does not deprive the immigration court

of subject matter jurisdiction.”). Therefore, though Petitioners may have been

served insufficient NTAs, the immigration court still had jurisdiction to conduct

their removal proceedings.

Finally, Petitioners argue that, if their challenge to their insufficient NTAs is

more appropriately treated as a claim-processing issue rather than a jurisdictional

4 issue, we should remand to the agency so that it may consider whether their claim

was timely raised. Bastide-Hernandez held that the filing of an NTA or other

charging document with the immigration court is a non-jurisdictional, claim-

processing issue. Id. at 1191. Though this court has not yet explicitly held when a

claim-processing issue is timely raised, we have held that a petitioner must allege a

claim-processing violation related to defects in an NTA in the proceedings before

the agency in order to properly exhaust her claim. Umana-Escobar v. Garland,

No. 19-70964, -- F.4th --, 2023 WL 3606117, at *5 (9th Cir. May 23, 2023).

Because Petitioners never alleged before the BIA that their defective NTAs were

claim-processing violations, they did not exhaust this claim, and therefore we deny

this portion of the petition. See id.

The stay of removal remains in place until the mandate issues.

PETITIONS DENIED.