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Fermin v. Barr

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 5, 2020
958 F.3d 887 (9th Cir. 2020)

Summary

holding that "the lack of time, date, and place" in a notice to appear "did not deprive the immigration court of jurisdiction" when that information was subsequently provided and permitted an appearance

Summary of this case from Addy v. Garland

Opinion

No. 18-70855 No. 18-73266

05-05-2020

Cecilia AGUILAR FERMIN; Enedino Mateo Diaz Aguilar, Petitioners, v. William P. BARR, Attorney General, Respondent. Cecilia Aguilar Fermin, Petitioner, v. William P. Barr, Attorney General, Respondent.

Christopher J. Stender, Federal Immigration Counselors APC, Phoenix, Arizona, for Petitioners. Enitan O. Otunla, Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.


Christopher J. Stender, Federal Immigration Counselors APC, Phoenix, Arizona, for Petitioners.

Enitan O. Otunla, Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. AXXX-XX4-206, AXXX-XX4-207

Before: Mary M. Schroeder, Jay S. Bybee, and Daniel P. Collins, Circuit Judges.

BYBEE, Circuit Judge:

Petitioner Cecilia Aguilar Fermin fled Mexico after being threatened by persons seeking to recruit her brother-in-law into a gang. She and her minor son arrived in the United States without documentation and were charged as inadmissible under 8 U.S.C. § 1182(a)(7). Aguilar conceded removability but applied for asylum, withholding of removal (withholding), and Convention Against Torture (CAT) relief. An immigration judge (IJ) denied Aguilar relief and ordered her and her son removed. The Board of Immigration Affairs (BIA) affirmed. In No. 18-70855, Aguilar now petitions for review of that decision.

As a derivative beneficiary of Aguilar’s application for relief before the IJ, Aguilar’s minor son is a co-petitioner in this petition for review.

To initiate removal proceedings, the Department of Homeland Security (DHS) sent Aguilar a notice to appear (NTA). The NTA did not provide Aguilar with the time, date, or location of her removal hearing, though that information was later provided to her and Aguilar appeared at her hearings. Aguilar alleges that this deficiency in the NTA rendered the immigration court without jurisdiction to order her removed. The BIA disagreed. In No. 18-73266, Aguilar now petitions for review of that decision as well.

Because we conclude that the decision to remove Aguilar is supported by substantial evidence, and because we agree with the BIA that an initial NTA need not contain time, date, and place information to vest an immigration court with jurisdiction if such information is provided before the hearing, we deny both petitions.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner Cecilia Aguilar Fermin is a native and citizen of Mexico who, until 2015, lived in El Naranjo, Guerrero, with her minor son, sister, and brother-in-law. Her brother-in-law previously served as a soldier in the Mexican armed forces. Because military experience is valuable to gangs, Aguilar’s brother-in-law began facing pressure from a gang to join their ranks. When he refused, the gang threatened to kill his family. In response to this threat, the family fled.

Aguilar and her son moved to the town of Palos Altos, Guerrero, where they lived for several months. While living in Palos Altos, Aguilar claims that she continued to receive threats relating to her brother-in-law. For example, on one occasion three men threatened to kill her and her son if her brother-in-law did not join their gang. These same men also demanded a one million peso ransom from Aguilar, though they allegedly did so through a ransom note that provided no instruction to Aguilar on whom to pay or how to pay it. Aguilar reported this incident to the local police, who conducted an investigation but ultimately made no arrests.

Aguilar then fled Palos Altos with her son and traveled to Mexico City, where she stayed with her sister-in-law for several weeks. She received no threats while in Mexico City. A few weeks later she returned briefly to Palos Altos, where she claims she was again threatened. At this point, she fled to the United States.

On December 8, 2015, Aguilar and her son arrived at the San Ysidro port of entry without valid entry documents. Two days later, they were served an NTA charging them as removable under § 212(a)(7) of the Immigration and Nationality Act (INA), which renders inadmissible all persons who enter without appropriate documentation. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). The NTA did not provide a date and time for Aguilar’s removal hearing, stating only that the hearing would occur "at a date to be set [and] at a time to be set." It also did not provide the address of the immigration court at which she was to appear, stating only that the hearing would be "[a]t a place and time to be determined." Three months later, on March 14, 2016, Aguilar received a supplemental notice providing the date, time, and location of her hearing.

After a full hearing—in which Aguilar was the only witness to testify—the IJ found Aguilar inadmissible as charged and denied her petition for asylum, withholding, and CAT relief. The IJ made an adverse credibility finding against Aguilar based on inconsistencies and implausibilities in her testimony. For example, the IJ noted that Aguilar averred in her asylum application that she had been personally threatened by the gang, even though when questioned at the port of entry, Aguilar stated that only her brother-in-law had received threats. Similarly, when asked on cross-examination whether "she ever received a piece of paper" from the gang, she replied that she had not, in spite of the assertion in her asylum application that the gang had given her a written ransom note for one million pesos. The IJ found Aguilar’s explanations for these inconsistencies—the former inconsistency was because "she was nervous" and the latter was because "she had forgotten"—unconvincing. The IJ also found aspects of Aguilar’s testimony implausible. For example, Aguilar claimed that the Mexican government would not protect her from future persecution because the local police were "in cahoots with" the gangs, yet she had chosen to report the threats she received in Mexico to the local police, who responded by promptly investigating her claim. The IJ also expressed doubts about Aguilar’s claim that she received a ransom note providing no instructions. Based on the adverse credibility finding, the IJ denied Aguilar’s asylum and withholding claims. The IJ denied Aguilar CAT relief because (1) Aguilar failed to show that it was more likely than not that she would be tortured upon return to Mexico and (2) she could successfully internally relocate. Aguilar appealed the IJ’s decision to the BIA.

In the alternative, the IJ also held that even if Aguilar were credible, she was ineligible for asylum and withholding because (1) she failed to establish a nexus between the threat of violence she suffered and her membership in a particularized social group (PSG), (2) she failed to show that the Mexican government was unwilling or unable to protect her, and (3) she could internally relocate within Mexico.

Citing Matter of Burbano , 20 I. & N. Dec. 872 (B.I.A. 1994), the BIA "adopt[ed] and affirm[ed] the decision of the Immigration Judge" in full. It concluded that "[t]he Immigration Judge provided sufficient bases to support an adverse credibility finding," highlighting Aguilar’s inconsistent testimony about receiving a ransom note. The BIA also agreed with the IJ’s alternative holding that Aguilar "did not establish that the threats, harassment, recruitment, and extortion that she and her family suffered and fear in Mexico was or will be on account of a ground protected by the" INA. The BIA affirmed the denial of CAT relief because Aguilar’s "fear of torture in Mexico is speculative and unsupported by adequate objective evidence."

On June 21, 2018, several months after the BIA’s decision, the Supreme Court decided Pereira v. Sessions , in which it held that "[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a notice to appear under section 1229(a)." ––– U.S. ––––, 138 S. Ct. 2105, 2113–14, 201 L.Ed.2d 433 (2018) (internal quotation marks omitted). Aguilar then filed with the BIA a motion to reopen the proceedings in her case, arguing that the NTA she had received was inadequate under Pereira . Although Pereira concerned the stop-time rule under 8 U.S.C. § 1229b —a provision of the INA irrelevant to Aguilar’s petition—Aguilar argued that Pereira ’s reasoning should be extended to other provisions of immigration law. Specifically, Aguilar argued that Pereira should be applied to 8 C.F.R. § 1003.14, which vests jurisdiction in an immigration court upon the filing of a "charging document," a term defined to include an NTA. See 8 C.F.R. § 1003.13. Thus, Aguilar claimed, because the NTA here was insufficient to satisfy Pereira , it was insufficient to vest jurisdiction in the immigration court, and so Aguilar’s ordered removal was in error.

The BIA disagreed. It held that Pereira ’s holding did not extend to matters of jurisdiction. Instead, the BIA cited its own 2018 decision in Matter of Bermudez-Cota , 27 I. & N. Dec. 441, 442–47 (B.I.A. 2018), to conclude that an NTA "that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceeding ... so long as a notice of hearing specifying this information is later sent." Because it was "undisputed that [Aguilar] received proper notices of her removal hearings, which provided the dates, times and locations of [her] scheduled hearings," the BIA concluded that the immigration court had jurisdiction, and thus the removal order was proper and no grounds existed to reopen the proceedings.

Aguilar timely petitioned for review of both decisions.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction over the appeal of the IJ’s removal order under 8 C.F.R. § 1003.1(b)(3). The BIA had jurisdiction over Aguilar’s motion to reopen proceedings under 8 C.F.R. § 1003.2(a). This Court has jurisdiction under 8 U.S.C. § 1252.

"Where, as here, the BIA cites Burbano and also provides its own review of the evidence and law, we review both the IJ’s and the BIA’s decisions." Ali v. Holder , 637 F.3d 1025, 1028 (9th Cir. 2011). "We review denials of asylum, withholding of removal, and CAT relief for substantial evidence and will uphold a denial supported by reasonable, substantial, and probative evidence on the record considered as a whole." Ling Huang v. Holder , 744 F.3d 1149, 1152 (9th Cir. 2014) (internal quotation marks omitted). "[A]n adverse credibility finding is conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Bassene v. Holder , 737 F.3d 530, 536 (9th Cir. 2013) (internal quotation marks omitted).

A denial of a motion to reopen is reviewed for abuse of discretion. Bonilla v. Lynch , 840 F.3d 575, 581 (9th Cir. 2016). A decision is an abuse of discretion if it is "arbitrary, irrational, or contrary to law." Id . ; see also Koon v. United States , 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("A[ ] court by definition abuses its discretion when it makes an error of law."). Purely legal questions are reviewed de novo. Alali-Amin v. Mukasey , 523 F.3d 1039, 1041 (9th Cir. 2008).

III. ANALYSIS

Aguilar appeals two decisions of the BIA: (1) the denial of asylum, withholding, and CAT relief, and (2) the denial of her motion to reopen proceedings. We will take each issue in turn.

A

To establish eligibility for asylum, Aguilar must show that she is unable or unwilling to return to Mexico "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). Aguilar bears the burden to establish eligibility for relief. 8 C.F.R. § 208.13(a). Aguilar may satisfy her burden with testimony alone only if her " ‘testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.’ " Ming Dai v. Sessions , 884 F.3d 858, 867 (9th Cir. 2018) (quoting 8 U.S.C. § 1158(b)(1)(B)(ii) ).

Here, the IJ found that Aguilar was not credible, and the BIA agreed. They each identified inconsistencies and implausibilities in Aguilar’s account, some of which reach the heart of her claim for relief. See Shrestha v. Holder , 590 F.3d 1034, 1047 (9th Cir. 2010) ("[W]hen an inconsistency is at the heart of the claim it doubtless is of great weight."). As is required, Aguilar was given an opportunity to explain the inconsistencies and implausibilities in her testimony, see Campos-Sanchez v. INS , 164 F.3d 448, 450 (9th Cir. 1999), superseded by statute on other grounds as stated in Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165 (2d Cir. 2008) (per curiam), but the IJ found her explanations, including that "she was nervous" and "she had forgotten" certain facts, were unconvincing.

We may only upset this adverse credibility finding if we conclude that "any reasonable adjudicator would be compelled" to do so. Bassene , 737 F.3d at 536 (internal quotation marks omitted). Nothing in the record compels that conclusion. The adverse credibility finding must stand. The BIA did not err in affirming the IJ’s denial of Aguilar’s claim for asylum.

Separately, to establish eligibility for withholding, Aguilar must "demonstrate[ ] a ‘clear probability’ that, if [she] returns to [her] home country, [her] ‘life or freedom would be threatened’ on account of race, religion, nationality, membership in a particular social group, or political opinion." Singh-Kaur v. INS , 183 F.3d 1147, 1149 (9th Cir. 1999) (citation omitted). As with asylum, an adverse credibility finding may be grounds to deny a petition for withholding of removal. See , e.g. , Husyev v. Mukasey , 528 F.3d 1172, 1183 (9th Cir. 2008). Thus, as with the asylum claim, the BIA did not err in affirming the IJ’s denial of Aguilar’s claim for withholding.

For CAT relief, Aguilar must demonstrate "that it is more likely than not that [s]he ... would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2). Relevant to this inquiry is whether "the applicant could relocate to a part of the country of removal where ... she is not likely to be tortured." Id . § 1208.16(c)(3)(ii). Though she claims she was threatened when living elsewhere in Mexico, Aguilar concedes that she was never threatened or harmed when living in Mexico City, and she acknowledges that she has family members who continue to live in Mexico City without issue. Thus, substantial evidence supports the conclusion that Aguilar could internally relocate within Mexico. The BIA did not err in affirming the IJ’s denial of Aguilar’s claim for CAT relief.

B

The BIA may grant a motion to reopen proceedings if the petitioner presents new evidence that "is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1). Here, Aguilar asserts that the Supreme Court’s decision in Pereira provides grounds to reopen her case. She argues that Pereira redefined the requirements for a valid NTA and rendered the one issued here insufficient to vest the immigration court with jurisdiction.

Aguilar misreads Pereira . The Court in Pereira articulated the requirements for an NTA in regards to the stop-time rule under 8 U.S.C. § 1229b(d)(1)(A). It did not address the requirements for an NTA to vest an immigration court with jurisdiction under 8 C.F.R. § 1003.14. See Pereira , 138 S. Ct. at 2109–10. In Karingithi v. Whitaker , we considered whether, in light of Pereira , a "notice to appear [that] does not specify the time and date of the proceedings" is sufficient to vest an immigration court with jurisdiction over removal proceedings. 913 F.3d 1158, 1158 (9th Cir. 2019). We noted that immigration court jurisdiction is defined by DOJ regulation, while Pereira interpreted a provision of the INA. Id . at 1160–61. Because the INA and the DOJ regulation define the term "notice to appear" slightly differently, we reasoned that case law interpreting the term in the former context does not control in the latter. Id . Accordingly, we held that " Pereira simply has no application" in challenges to immigration-court jurisdiction. Id. at 1161.

In Karingithi , we observed that "the regulation does not require that the time and date of proceedings appear in the initial notice." 913 F.3d at 1160 (citing 8 C.F.R. § 1003.15(b) ). "Rather, the regulation compels inclusion of such information ‘where practicable. ’ " Id. (quoting 8 C.F.R. § 1003.18(b) ). We concluded that "[a] notice to appear need not include time and date information to satisfy [the regulations]." Id. We also looked to the BIA’s published decision in Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (B.I.A. 2018), to which we owed deference unless its interpretation of its regulation was "plainly erroneous," "inconsistent with the regulation," or did "not reflect the agency’s fair and considered judgment." 913 F.3d at 1161 (quotation marks and citation omitted). We concluded that "Bermudez-Cota easily meets this standard and is consistent with our analysis." Id.

The only difference between this case and our decision in Karingithi is that Aguilar’s NTA was not only missing the time and the date, but also the location. Aguilar argues that this omission is different from omitting the time and place because 8 C.F.R. § 1003.15(b)(6) provides that "The ... Notice to Appear must also include ... [t]he address of the Immigration Court."

The BIA has recently addressed Aguilar’s argument in a published decision. In Matter of Rosales Vargas , 27 I. & N. Dec. 745 (B.I.A. 2020), the BIA acknowledged that our decision in Karingithi "[d]id not explicitly address the specific issue raised here—whether a notice to appear that does not include the address of the Immigration Court where the notice to appear will be filed is sufficient to vest jurisdiction in the court." Id. at 748 (footnote omitted). The BIA rejected the argument Aguilar makes here. It pointed out that § 1003.14(a) vests jurisdiction in an immigration judge "when a charging document is filed" and that sentence "provides no other specifications regarding the scope of the document." Id. The BIA further observed that "nothing in 8 C.F.R. § 1003.15(b)(6) mandates that the address of the Immigration Court is a jurisdictional requirement or that it cannot be provided subsequent to the service of the notice to appear." Id. at 749.

The BIA, on the other hand, had already addressed this issue in Matter of Bermudez-Cota , in which it concluded that an NTA lacking time and place information was not defective so long as that information was later provided. See 27 I. & N. Dec. at 447.

Having concluded that compliance with § 1003.15(b)(6) was not a condition for vesting jurisdiction in the immigration court, the BIA considered "the consequences of omitting the ‘place’ information from the notice to appear" and "whether termination would be the appropriate remedy." Id. at 751. The BIA found that its rules "including § 1003.15 were promulgated as procedural rules for the Immigration Courts.... to outline the steps needed to docket a case ... and to ensure the efficient administrative handling of cases." Id. at 752. Accordingly, § 1003.15(b) "[should not be read] in isolation, but in the context of the other internal docketing, procedural, and venue rules for the Immigration Courts." Id . at 750. The BIA quoted § 1003.12, which provides that the rules "are promulgated to assist in the expeditious, fair, and proper resolution of matters coming before Immigration Judges," id. (quoting 8 C.F.R. § 1003.12 ), and a summary of an earlier version of the rules, which stated that "[t]he rules of procedure are interrelated" and "intended to be construed harmoniously," id. (quoting 57 Fed. Reg. 11,568, 11,568 (Apr. 6, 1992) ). The BIA thought it appropriate to read § 1003.15(b)(6) "in conjunction with" § 1003.18(b). That latter section provides:

[DHS] shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing.

8 C.F.R. § 1003.18(b) (emphasis added). The BIA concluded that

the regulation anticipates that when the address of the Immigration Court is not included in the notice to appear, the court can provide notice of that information at a later time. Accordingly, we hold that a notice to appear that does not include the address of the Immigration Court can be remedied by a subsequent notice of hearing that includes that information.

Rosales Vargas , 27 I. & N. Dec. at 750.

In Karingithi we also read § 1003.15(b)(6) in conjunction with § 1003.18(b). 913 F.3d at 1160. Rosales Vargas and Karingithi are consistent. Under both decisions, an omission of some of the information required by § 1003.14(a) and § 1003.15(b)(6) can be cured and is not fatal. As in Karingithi , we can find nothing in Rosales Vargas that suggests that the BIA’s interpretation of its own regulation is "plainly erroneous," "inconsistent with the regulation," or does "not reflect the agency’s fair and considered judgment." Id. at 1161. We acknowledge that § 1003.15(b)(6) appears to be a clear statement that a notice to appear must include the address of the Immigration Court, but the BIA has carefully explained why that provision does not deprive an immigration court of jurisdiction. The question then, is what is the remedy when the address is omitted from the NTA?—and the BIA has fully explained that § 1003.18(b) supplies the appropriate remedy: providing the alien and the government with the complete notice at a later time. Aguilar was provided with that notice and appeared for her scheduled hearings. Given that the regulations expressly state that the omission of an address from an NTA may be fixed by a later hearing notice, it is reasonable to construe the regulatory provisions about when jurisdiction vests as allowing the IJ to assert jurisdiction in such circumstances.

As Aguilar notes, § 1003.14 separately requires a charging document to include "a certificate showing service on the opposing party ... which indicates the Immigration Court in which the charging document is filed." 8 C.F.R. § 1003.14(a). For the same reasons that it held that lack of time, date, and place information in violation of § 1003.15 did not strip an immigration court of jurisdiction, the BIA in Rosales Vargas also held that "lack of compliance with this portion of [§ 1003.14(a) ], standing alone or read with the other regulations, does not provide a reason for terminating proceedings." 27 I. & N. Dec. at 753 (footnote omitted). Because nothing in this interpretation of the regulation is "plainly erroneous," is "inconsistent with the regulation," or does "not reflect the agency’s fair and considered judgment," Karingithi , 913 F.3d at 1161, we give deference to this holding as well.
--------

We thus hold that there was no error in the BIA’s determination that the lack of time, date, and place in the NTA sent to Aguilar did not deprive the immigration court of jurisdiction over her case. Accordingly, we conclude that the BIA did not abuse its discretion in denying Aguilar’s motion to reopen proceedings, and the petition for review of that decision is denied.

IV. CONCLUSION

The petition for review of Aguilar’s asylum, withholding, and CAT claims is denied (No. 18-70855). The petition for review of the motion to reopen is denied as well (No. 18-73266).

PETITIONS DENIED.


Summaries of

Fermin v. Barr

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 5, 2020
958 F.3d 887 (9th Cir. 2020)

holding that "the lack of time, date, and place" in a notice to appear "did not deprive the immigration court of jurisdiction" when that information was subsequently provided and permitted an appearance

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holding that "the lack of time, date, and place" in a notice to appear "did not deprive the immigration court of jurisdiction" when that information was subsequently provided and permitted an appearance

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concluding Agular Fermin "received a supplemental notice providing the date, time, and location of her hearing," and it was "undisputed that [she] received proper notices of her removal hearings"

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applying an abuse of discretion standard of review

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stating substantial evidence standard

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Case details for

Fermin v. Barr

Case Details

Full title:CECILIA AGUILAR FERMIN; ENEDINO MATEO DIAZ AGUILAR, Petitioners, v…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: May 5, 2020

Citations

958 F.3d 887 (9th Cir. 2020)

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