Meraz-Saucedo v. Rosen

986 F.3d 676

Victor MERAZ-SAUCEDO, Petitioner,

v.Jeffrey A. ROSEN, Acting Attorney General of the United States, Respondent.

No. 20-1438

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2020

Decided January 15, 2021

Maria T. Baldini-Potermin, Attorney, Lisa Chun, Attorney, Maria Baldini-Potermin & Associates, Chicago, IL, for Petitioner.

Sarai Aldana, Oil OIL, Michele Yvette Frances Sarko, Attorneys, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Rovner, Brennan, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Victor Meraz-Saucedo seeks asylum, withholding of removal, and protection under the Immigration and Nationality Act and the Convention Against Torture ("CAT"). He petitions for review of the order of the Board of Immigration Appeals ("Board") and requests we remand his case for additional proceedings before the Immigration Court. We deny his petition. We find the Board did not abuse its discretion in denying Meraz-Saucedo's motion to remand to apply for cancellation of removal. We also find the Board's decision affirming the denial of Meraz-Saucedo's asylum, withholding of removal, and protection under the CAT claims was supported by substantial evidence.

I. Background

Meraz-Saucedo is a native and citizen of Mexico. He is married to a Mexican native and citizen with whom he has two young U.S.-citizen children. Meraz-Saucedo first attempted to enter the United States around October 2003. After encountering immigration officials at the border, he was returned to Mexico. He entered the United States without inspection in 2004 and has not departed.

On October 25, 2013, the Department of Homeland Security issued and served a Notice to Appear ("NTA") on Meraz-Saucedo for removal proceedings. See 8 U.S.C. § 1229(a). The NTA did not contain a specific date or time for the initial hearing. The NTA only instructed Meraz-Saucedo to appear before an Immigration Judge ("IJ") in Chicago at a date and time "to be set." On December 4, 2013, the Chicago Immigration Court served Meraz-Saucedo a Notice of Hearing ("NOH"), informing him that his hearing would take place on July 23, 2014 at 9:00 a.m. Meraz-Saucedo appeared before the IJ with counsel on July 23, 2014. He did not object to the lack of a specified time and date in his NTA.

During the proceedings before the IJ on July 23, 2014, Meraz-Saucedo admitted the factual allegations, conceded the charge of removability under 8 U.S.C. § 1182(a)(6)(A)(i), and declined to designate a country for removal. The IJ designated Mexico at the Department of Homeland Security's request. The IJ found Meraz-Saucedo to be removable as charged for being present in the United States without having been admitted or paroled. Meraz-Saucedo informed the IJ that he sought asylum, withholding of removal, and protection under the CAT, based on his purported fear of persecution and torture if removed to Mexico. See 8 U.S.C. §§ 1101(a), 1231(b)(3) ; 8 C.F.R. §§ 1208.16 – 18.

The IJ denied his request for asylum and withholding of removal. At his hearing, Meraz-Saucedo testified and based his asylum claim on the physical abuse and threats that his family had received from the Sinaloa Cartel in El Palmito, Durango, Mexico because of his father's refusal to grow marijuana for the cartel in 2003. Following this refusal, Meraz-Saucedo's father sent him to the United States for his safety. His father and siblings subsequently relocated to Durango City, approximately six hours from their farm and the cartel.

Meraz-Saucedo testified that in 2013, other cartel members beat his father badly and kidnapped Meraz-Saucedo's brother and niece. After Meraz-Saucedo's father paid for their release, the cartel members warned him that they would kill them all if they said anything about the incident. The cartel members also told his father that they were going to use the family's land and house, that they knew Meraz-Saucedo was in the United States, and that they would make them disappear as soon as Meraz-Saucedo returned to Mexico. Meraz-Saucedo's immediate family has not had any encounters with cartel members since this incident.

The IJ found Meraz-Saucedo credible, but concluded he had "not established a pattern or practice of persecution against his family members by the cartel." Moreover, even if such a pattern or practice existed, the IJ concluded Meraz-Saucedo could not establish a nexus between the persecution and the targeting of his family as a social group because the targeting was the result of financial and not familial reasons.

The IJ also found Meraz-Saucedo failed to show a substantial risk or likelihood that he would be singled out for torture in Mexico or that a government official would acquiesce to any harm inflicted upon him by the cartel. Although Meraz-Saucedo submitted general reports regarding country conditions in Mexico describing gang violence and other safety issues, the record did not show a particularized threat of torture. Meraz-Saucedo conceded that he had never been tortured in Mexico. Further, he admitted that nothing else had happened to his immediate family after the 2013 incident even though his parents live in the same house where they lived during that incident and his brother and niece who were kidnapped still live in Mexico. And although several of his cousins were killed in 2017, the IJ found no link between their deaths and the cartel attack and extortion of Meraz-Saucedo's family.

Meraz-Saucedo appealed to the Board. While his appeal was pending, he filed a motion to remand to apply for cancellation of removal under 8 U.S.C. § 1229b(b). Meraz-Saucedo claimed the Supreme Court's decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), made him newly eligible for cancellation of removal.

In February 2020, the Board adopted and affirmed the IJ's decision. The Board found no clear error in the IJ's findings of fact. It also denied Meraz-Saucedo's motion to remand, finding the argument "foreclosed" by Matter of Mendoza-Hernandez , 27 I. & N. Dec. 520 (BIA 2019), and distinguishable from Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019).

II. Discussion

In his petition, Meraz-Saucedo challenges the Board's denial of his motion to remand on several grounds. He again claims the Supreme Court's decision in Pereira makes him eligible for cancellation of removal because the NTA was defective for purposes of stopping time under § 1229b(d)(1). He further contends that the Board erred when it denied his motion to remand based on Matter of Mendoza-Hernandez and wrongly applied Ortiz-Santiago . Finally, Meraz-Saucedo argues the Board erred when it affirmed the IJ's denial of his asylum, withholding of removal, and protection under the CAT claims.

A. Motion to Remand

We first address whether the Board erred in denying Meraz-Saucedo's motion to remand to apply for cancellation of removal. We review the Board's decision for abuse of discretion and will reverse only if the Board's decision "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Alvarez-Espino v. Barr , 959 F.3d 813, 817 (7th Cir. 2020) (quoting Giri v. Lynch , 793 F.3d 797, 800–01 (7th Cir. 2015) ).

For Meraz-Saucedo to be eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1), he must have been "physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application[.]" 8 U.S.C. § 1229b(b)(1)(A). Any period of continuous presence, however, is deemed to end when the person is "served a notice to appear under section 1229(a)." Id. § 1229b(d)(1). This is called the "stop-time rule." See Pereira , 138 S. Ct. at 2109.

In Pereira , the Supreme Court held that when a NTA fails to designate the specific time or place of a noncitizen's removal proceedings, it is putative and not a "notice to appear under section 1229(a)" of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Id. at 2115–16. Therefore, a defective NTA does not trigger the stop-time rule ending the noncitizen's period of continuous physical presence for purposes of cancellation of removal. Id . Following Pereira , the Board reconsidered § 1229(a) ’s requirements in Matter of Mendoza-Hernandez , which addressed § 1229(a)’s requirements in the context of the stop-time rule. 27 I. & N. Dec. at 529. A slight majority of the Board interpreted § 1229(a) to allow the government to serve multiple notices that, pieced together, provide all of the information required by § 1229(a) ’s definition of "a ‘notice to appear.’ " Id . at 531. The Board concluded that although the statute's reference to "a" NTA "is in the singular," the statute nevertheless does not require that the notice come "in a single document." Id . Instead, "it may be provided in one or more documents—in a single or multiple mailings," id., such as through a "Notice to Appear" and a subsequent "Notice of Hearing." Id. at 529.

The Board denied Meraz-Saucedo's motion to remand based on Matter of Mendoza-Hernandez , holding Meraz-Saucedo's subsequent receipt of a NOH perfected the deficient NTA and triggered the stop-time rule. The Board also found our decision in Ortiz-Santiago to be consistent with its decision. In Ortiz-Santiago , we held that § 1229(a) ’s notice requirement was a claim-processing rule subject to waiver and forfeiture. 924 F.3d at 963. Relief based on a defective NTA is available only "for those who make timely objections, as well as those whose timing is excusable and who can show prejudice." Id. at 965. Because Meraz-Saucedo failed to raise the issue of his eligibility for cancellation of removal before the IJ, the Board concluded that he forfeited his remand claim.

Meraz-Saucedo contends the Board erred in denying his motion to remand for two reasons. He first argues that it wrongly decided Matter of Mendoza-Hernandez , so we...