Brizuela v. Garland

71 F.4th 1087

Rosaura Flores BRIZUELA; A. A.L. F.; A. M.L. F.; E. A.C. F., Petitioners v. Merrick B. GARLAND, Attorney General of the United States, Respondent

No. 22-1738

United States Court of Appeals, Eighth Circuit

Submitted: March 15, 2023

Filed: June 27, 2023

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

Counsel who presented argument on behalf of the petitioner and also appeared on the brief was Matthew Lorn Hoppock, of Shawnee, KS.

Counsel who presented argument on behalf of the respondent and appeared on the brief was M. Jocelyn Lopez Wright, US DOJ, of Washington, DC.

Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.

SHEPHERD, Circuit Judge.

Rosaura Flores Brizuela and her children, natives and citizens of Honduras, petition this Court for review of a Board of Immigration Appeals (BIA) order affirming an immigration judge's (IJ) decision ordering them removed and denying their claims for relief. Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.

I.

Brizuela and her children entered the United States on November 8, 2017, and were subsequently issued Notices to Appear (NTAs) by the Department of Homeland Security (DHS), charging them with removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) ("[A]ny immigrant at the time of application for admission . . . who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document . . . is inadmissible."). However, they were extended humanitarian parole on November 11, 2017, to run until November 10, 2018.¹ Nonetheless, removal proceedings commenced; Brizuela applied for asylum with her children as derivative applicants.² Brizuela additionally applied for statutory withholding of removal and protection under the Convention Against Torture (CAT). An initial hearing was conducted on May 23, 2018, where Brizuela conceded to the charges in the NTAs.

The IJ held a merits hearing on September 11, 2018. There, Brizuela contended that she was not removable because her humanitarian parole would not expire for another two months and, thus, the proceedings should be terminated. The IJ ultimately decided to continue the proceedings so DHS could have "a chance to address th[e] issue," though it recognized the matter would become moot on November 10, 2018, when the parole status expired. The IJ reset the merits hearing for December 14, 2018. At that hearing, Brizuela conceded that her parole had expired and that she was removable. The IJ then took up the issue of Brizuela's claims for relief.

As relevant to this appeal, Brizuela testified that, in Honduras, her partner, Darwin Chavarria, was killed by MS-13 "gangsters" in 2013. Brizuela did not witness his death, nor did she know why the gangsters killed him. Darwin's mother reported the incident to law enforcement, and the police arrested one of the gangsters (but apparently not the shooter). The gangsters began to threaten her over the phone, stating that Brizuela "was gonna' pay for it because a report was made." Brizuela was never threatened in person, and though she occasionally saw MS-13 gangsters in public, they never approached her or attempted to carry out their threats. Darwin's mother fled to another part of the country, but she later returned. Brizuela testified that the threats eventually stopped but resumed in 2017. The gangsters called her place of employment pretending to be clients and threatened her, describing her clothing and warning her to be careful. According to Brizuela, the gangsters committed these acts because they believed Brizuela was "part of those who had filed th[e] report." Because Brizuela perceived the threats to be "more frequent, detailed, and serious," she fled with her children to the United States.

The IJ began with Brizuela's claim for asylum. While he acknowledged Brizuela's evidence of psychological harm, the IJ determined that the threats did not rise to the level of persecution needed to obtain asylum. The IJ held in the alternative that her purported particular social groups—"family of Darwin" and "witnesses in criminal proceedings who will be targeted in Honduras"—were not cognizable. The IJ also rejected Brizuela's argument that she was persecuted on account of her political opinion and found that Brizuela's objective fear of future persecution was undercut by the fact that Darwin's mother still lived in the area unharmed. Accordingly, the IJ denied her claims for asylum and the more stringent statutory withholding of removal. Finally, the IJ found that Brizuela had failed to carry her burden to obtain protection under CAT. Accordingly, he denied her claims for relief and ordered her and her children removed to Honduras.

Brizuela appealed the decision to the BIA. The BIA agreed with the IJ that the gangsters' threats did not rise to level of persecution and that Darwin's mother's presence in Honduras minimized any objective fear of future harm. Accordingly, it affirmed the denial of asylum and statutory withholding of removal. The BIA also agreed that Brizuela had failed to carry her burden to obtain protection under CAT. Additionally, Brizuela contended that the IJ violated her due process rights when he continued her case instead of terminating it upon the discovery of her active parole status. The BIA rejected her argument, finding that her removability at the time of the appeal was uncontested and that she had not established how the proceedings would have been different if her case had been terminated. Accordingly, the BIA dismissed Brizuela's appeal.

II.

In her petition for review, Brizuela claims that the BIA erred (1) by finding that her due process rights were not violated when the IJ continued her case instead of terminating it and (2) by denying her application for asylum and statutory withholding of removal. We address each argument in turn.

A.

Brizuela claims that the IJ violated her due process rights when he continued, rather than terminated, her proceedings upon discovery of her active parole status. "We review procedural due process challenges de novo, 'as the question of whether an immigration hearing violates due process is a purely legal issue.' " Ramirez v. Sessions, 902 F.3d 764, 770 (8th Cir. 2018) (citation omitted). "[I]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Id. at 771 (citation omitted). However, "it is axiomatic in this Circuit that an alien's due process claim must demonstrate both a fundamental procedural error and prejudice." Id. at 772 (citation omitted).

As an initial matter, Brizuela argues that Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015) obviated a petitioner's need to demonstrate prejudice to sustain a due process claim in the immigration context. In Matter of Y-S-L-C-, the BIA reviewed a matter that involved an IJ belittling a 15-year-old asylum applicant. See id. at 691. The BIA ultimately remanded the matter to a new IJ, finding that "[the] hearing was not conducted in a manner that me[t] the high standards expected of Immigration Judges." Id. Whatever the impact of Matter of Y-S-L-C-, we agree with our sister circuits that it did not abolish the requisite showing of prejudice in the context of due process claims. See Tinoco Acevedo v. Garland, 44 F.4th 241, 249-50 (4th Cir. 2022) (noting that while Matter of Y-S-L-C- relied on due process cases, the decision to remand appeared to be "independent of a due process violation" as the BIA did not apply the applicable framework); see also Serrano-Alberto v. Att'y Gen., 859 F.3d 208, 213, 226 (3d Cir. 2017) (requiring a showing of "substantial prejudice" to establish a due process violation despite citing Matter of Y-S-L-C-); Cruz v. Att'y Gen., 746 F. App'x 869, 871 (11th Cir. 2018) (per curiam) (same).

Here, Brizuela argues that she was prejudiced by the continuance because the IJ should have terminated the proceedings as soon as it determined that Brizuela and her children were admissible under the humanitarian parole. First, though not determinative of our decision, we note that Brizuela misstates the IJ's findings and reasons for continuing the proceedings. While Brizuela contends that by continuing the proceedings the IJ "was engineering a preferred outcome," the record demonstrates that the IJ "ha[d not] researched th[e] issue before" and simply wanted "to give [DHS] a chance to address th[e] issue." Second, we agree with the BIA that Brizuela has failed to demonstrate that she was prejudiced. By continuing the removal proceedings, the IJ provided Brizuela with exactly what she was promised: presence in the United States until November 10, 2018. Brizuela does not contest that she is now removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I), nor does she explain how she might have otherwise obtained relief had the proceedings been terminated and she had filed an affirmative asylum application.³ See United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005) ("Actual prejudice exists where defects in the deportation proceedings 'may well have resulted in a deportation that would not otherwise have occurred.' " (citation omitted)).

As a final matter, we note that Brizuela spends a substantial portion of her briefing contending that the BIA did not alternatively address whether the IJ abused its discretion by continuing her case without good cause. See 8 C.F.R. § 1003.29 ("The immigration judge may grant a motion for continuance for good cause shown . . . ."). However, Brizuela failed to raise this issue as an independent claim before the BIA. Despite her arguments to the contrary, Brizuela raised this argument before the BIA only as a means of establishing the "fundamental procedural error"—prong one—of her due process claim. Because she did not appropriately assert an alleged abuse of discretion by the IJ as an independent basis for remand, the BIA had no reason to evaluate it outside of the context of...