Orellana-Jarrin v. Garland

Opinion

21-6558 Orellana-Jarrin v. Garland BIA

Verrillo, IJ

A208 893 381

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 1st day of December, two thousand 4 twenty-three. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DENNY CHIN, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 JOSE LUIS ORELLANA-JARRIN, 14 Petitioner, 15 16 v. 21-6558 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Ramiro Alcazar, Meriden, CT.

1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Keith I. McManus, 3 Assistant Director; Spencer Shucard, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of 8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 9 DECREED that the petition for review is DENIED. 10 Petitioner Jose Luis Orellana-Jarrin, a native and citizen of Ecuador, seeks 11 review of a September 21, 2021, decision of the BIA affirming a December 20, 2018, 12 decision of an Immigration Judge (“IJ”) denying his application for asylum, 13 withholding of removal, and relief under the Convention Against Torture 14 (“CAT”). In re Orellana-Jarrin, No. A208 893 381 (B.I.A. Sept. 21, 2021), aff’g No. 15 A208 893 381 (Immig. Ct. Hartford Dec. 20, 2018). We assume the parties’ 16 familiarity with the underlying facts and procedural history. 17 We have reviewed the IJ’s decision as modified and supplemented by the 18 BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan 19 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual 20 findings for substantial evidence, and we review questions of law and the 21 application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

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1 Cir. 2018); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are 2 conclusive unless any reasonable adjudicator would be compelled to conclude to 3 the contrary.”). 4 I. Agency Jurisdiction 5 Orellana-Jarrin first argues that the agency lacked jurisdiction over his 6 removal proceedings because his notice to appear (“NTA”) did not include a 7 hearing date and time. That argument is without merit. In Pereira v. Sessions, the 8 Supreme Court held that an NTA that fails to specify a time or place of hearing as 9 required in 8 U.S.C. § 1229(a)(1) does not stop the accrual of continuous presence 10 required for cancellation of removal (a form of relief that Orellana-Jarrin has not 11 sought). 138 S. Ct. 2105, 2113–16 (2018). The Supreme Court clarified in Niz- 12 Chavez v. Garland, that a subsequent hearing notice does not cure the defective 13 NTA in that context. 141 S. Ct. 1474, 1480–86 (2021). But Niz-Chavez and Pereira 14 are limited to the stop-time rule for cancellation of removal and are “not properly 15 read to void jurisdiction in cases in which an NTA omits a hearing time or place.” 16 Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d Cir. 2019); see also Chery v. Garland, 16 17 F.4th 980, 987 (2d Cir. 2021) (“Banegas Gomez remains good law even after the 18 Supreme Court’s opinion in Niz-Chavez” because, “[a]s with Pereira, Niz-Chavez

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1 focused only on the stop-time rule . . . and did not address the effect of a defective 2 NTA on an IJ’s jurisdiction.”). “[A]n NTA that omits information regarding the 3 time and date of the initial hearing is nevertheless adequate to vest jurisdiction . . . 4 so long as a notice of hearing specifying this information is later sent to the alien.” 5 Banegas Gomez, 922 F. 3d at 112. Here, although Orellana-Jarrin’s NTA omitted 6 the date and time of his hearing, he does not dispute that he received a hearing 7 notice containing this information, and he appeared at his hearings. The agency 8 therefore had jurisdiction. See Chery, 16 F.4th at 986–87; Banegas Gomez, 922 F.3d 9 at 112. 10 II. Abandonment of Claims 11 Orellana-Jarrin has abandoned dispositive issues related to the denial of 12 asylum, withholding of removal, and CAT relief, and we deny his petition for that 13 reason. To establish eligibility for asylum and withholding of removal, Orellana- 14 Jarrin had to show that he suffered past persecution or feared future persecution 15 “on account of race, religion, nationality, membership in a particular social group, 16 or political opinion.” 8 U.S.C. § 1101(a)(42); see id. §§ 1158(b)(1)(A), (B)(i), 17 1231(b)(3). A “particular social group” must be “cognizable,” meaning that its 18 members share a “common immutable characteristic,” the group is “defined with

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1 particularity,” and it is “socially distinct within the society in question.” Paloka v. 2 Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of M–E–V–G–, 26 I. & N. 3 Dec. 227, 237 (B.I.A. 2014)). 4 The IJ found that Orellana-Jarrin failed to satisfy his burden for asylum and 5 withholding of removal because, among other reasons, he did not demonstrate 6 that his past or feared harm was on account of his membership in a cognizable 7 particular social group or another protected ground, concluding that his proffered 8 particular social group of “honest truck driver[s] working with corrupt truck 9 drivers [and] not protected by corrupt police officers” was not particular or 10 socially distinct. 1 Certified Administrative Record at 43. The BIA found that 11 Orellana-Jarrin waived any challenge to that conclusion, and it declined to address 12 proposed social groups that he articulated for the first time on appeal. Orellana- 13 Jarrin does not challenge those dispositive rulings here. See Yueqing Zhang v. 14 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (finding claim abandoned when it was 15 not raised in petitioner’s brief).

1We do not consider political opinion as a basis for relief because Orellana-Jarrin did not mention that claim on appeal to the BIA and does not raise it here. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007) (declining to consider claim not raised in briefs to this Court or the BIA).

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1 Instead, Orellana-Jarrin repeats the argument he raised before the BIA that 2 a particular social group consisting of members of his immediate family is 3 cognizable. Even if that argument could be construed as challenging the BIA’s 4 decision not to reach this issue, such an argument would be without merit. See 5 Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191–92 (B.I.A. 2018) (requiring 6 asylum applicants to articulate each proposed social group to the IJ in the first 7 instance); see also Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015) (holding that 8 BIA may decline to consider issue not raised before IJ). 9 Finally, Orellana-Jarrin’s brief does not articulate a challenge to the agency’s 10 denial of CAT relief, either to the BIA’s finding that he waived this claim, or to the 11 IJ’s finding that he failed to demonstrate that he was more likely than not to be 12 tortured. Thus, he has also abandoned his CAT claim. See Yueqing Zhang, 426 13 F.3d at 541 n.1. Moreover, the BIA’s waiver finding was correct because Orellana- 14 Jarrin’s brief to the BIA only challenged the IJ's jurisdiction and argued for relief 15 based on a particular social group (which has no bearing on eligibility for CAT 16 protection). 2

2 For the same reason, the Government is correct that Orellana-Jarrin’s CAT claim is unexhausted, which is yet another reason that we do not reach it. While the Supreme Court recently held that the administrative exhaustion requirement in

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1 For the foregoing reasons, the petition for review is DENIED. All pending 2 motions and applications are DENIED and stays VACATED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court 6

8 U.S.C. § 1252(d)(1) is not jurisdictional, we cannot excuse this mandatory requirement where, as here, the Government has raised the failure to exhaust. See Santos-Zacaria v. Garland, 598 U.S. 411, 419, 423 (2023) (holding that 8 U.S.C.

§ 1252(d)(1)’s administrative exhaustion requirement is a non-jurisdictional claimprocessing rule “subject to waiver and forfeiture”); Donnelly v. CARRP, 37 F.4th 44, 56 (2d Cir. 2022) (explaining that “statutory exhaustion requirements are mandatory, and courts are not free to dispense with them.” (alteration and quotation marks omitted)).