Miguel-Pena v. Garland

94 F.4th 1145

Wendy Carolina MIGUEL-PENA; Bnrm, Petitioners, v. Merrick B. GARLAND, United States Attorney General, Respondent.

No. 22-9580

United States Court of Appeals, Tenth Circuit

FILED March 4, 2024

Appeal from the Board of Immigration Appeals (Petition for Review)

Marti L. Jones, Of Counsel, Stowell, Crayk, Salt Lake City, Utah for the Petitioners.

Michael C. Heyse, Senior Litigation Counsel (Erik R. Quick, Trial Attorney, and Patrick J. Glen, Senior Litigation Counsel, with him on the briefs), United States Department of Justice, Washington, D.C. for Respondent.

Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges.

MATHESON, Circuit Judge.

Wendy Miguel-Peña and her minor daughter (collectively, "Petitioners"), natives and citizens of El Salvador, entered the United States without authorization in August 2016. The Department of Homeland Security ("DHS") initiated removal proceedings by serving Petitioners with notices to appear ("NTAs"). An immigration judge ("IJ") found Petitioners removable, denied their motion to terminate removal proceedings, and determined them ineligible for asylum or protection under the Convention Against Torture ("CAT"). Petitioners appealed, and the Board of Immigration Appeals ("BIA") dismissed their appeal in a single-member order.

Petitioners seek review of the BIA's order. They allege the IJ and BIA erred in (1) denying their motion to terminate and (2) denying Ms. Miguel-Peña's asylum claim based on (a) finding no nexus between alleged persecution and a protected ground and (b) holding that "women business owners in El Salvador" is not an immutable particular social group ("PSG").

Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition.

I. BACKGROUND

A. Notices To Appear

In August 2016, DHS detained Petitioners after they crossed the United States border. While they were detained, DHS served them with NTAs, charging documents that commence removal proceedings. The NTAs directed them to appear before an IJ in Miami, Florida, at a date and time "To Be Determined." A.R., Vol. III at 793, 795.

B. IJ Proceedings

1. Removal Order and Application for Relief

After DHS released Petitioners, they settled in Salt Lake City, Utah, where the removal proceedings were transferred. In March 2017, Petitioners appeared with counsel before an IJ, admitted the allegations in the NTAs, and conceded removability. See A.R., Vol. I at 179-81.

The IJ sustained the removability charge, and Petitioners sought relief from removal. Ms. Miguel-Peña applied for asylum, withholding of removal, and protection under the CAT.¹ She included her daughter as a derivative applicant.²

2. Motion to Terminate Removal Proceedings

In February 2019, Petitioners filed a motion to terminate removal proceedings. See A.R., Vol. III at 784-91. Relying on Pereira v. Sessions, 585 U.S. 198, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), they argued that because their NTAs lacked the removal hearing's date, time, or location, the IJ lacked jurisdiction over their proceedings. Id. at 785, 788-90. In March 2019, the IJ denied Petitioners' motion to terminate without explanation. Id. at 779.

3. Ms. Miguel-Peña's Declaration and Brief

Before her IJ hearing, Ms. Miguel-Peña submitted a written declaration and counseled brief. In her declaration, she said she had owned a small convenience store in El Salvador and reported the following:

In mid-June 2016, MS-13 gang members put a note under the front door [of my store] telling me I had to pay $50 US[D] every day to them. The note said I would suffer the consequences if I did not pay. I understood that meant they would use violence against me. The note said a person would come by to collect the money. The note had the initials MS-13 on it. I was afraid.

About five days later, a young man came to my store. He said that I knew why he was there. I told him I did not have the money to pay. I was afraid.

In mid-July 2016, I found another note in my store . . . on the balcony around 5:00 pm. Three people had been in my store. I do not know which one left the note. The second note said that because I had not paid the money, they were going to attack me and my daughter. Like the first note, the second note had the initials MS-13 on it.

I was terrified for myself and my daughter. My store was very small. I did not make very much money. I did not have money to pay. Even if I had the money, I would not pay the money the gang demanded because I think gang control is wrong.

A.R., Vol. I at 249. She also described hearing "gunshots in the street in front of [her] house and store" and seeing "someone had shot a young woman dead." Id. She further stated, "Everyone said it was MS-13 that shot [the young woman] because she had not paid the extortion money." Id.

In her brief before the IJ, Ms. Miguel-Peña said she held an "anti-gang political opinion," id. at 238, and was a member of a PSG of "Women Small Business Owners in El Salvador," id. at 241. She contended that the threats she received constituted past persecution and made her fear future persecution. Id. at 233-36.

4. The IJ's Decision

In May 2019, the IJ held a hearing to consider Petitioners' application for asylum, withholding of removal, and protection under the CAT. The IJ denied all relief.

The IJ denied asylum, holding that Ms. Miguel-Peña did not suffer persecution or have a well-founded fear of future persecution on account of her political opinion or membership in a PSG. Specifically, the IJ found:

• The alleged persecutors—MS-13 gang members—were part of "a criminal organization," id. at 146, and Ms. Miguel-Peña's refusal to comply with their extortionate payment demands was "not a political act," id. at 147.

• MS-13's "targeting [was] applied indiscriminately across various professions and various groups of individuals that the gang [thought] best able to pay their extortion demands." Id. at 148.

• No nexus existed between the alleged persecution and Ms. Miguel-Peña's political opinions or her asserted PSG. Id. at 145, 148.

• Ms. Miguel-Peña's asserted PSG—"women business owners in El Salvador"—is not immutable because she could relinquish her business ownership. Id. at 147-48.

Because Ms. Miguel-Peña's daughter's asylum application derived from her mother's, the IJ also denied the daughter's asylum claim. The IJ entered a final order of removal for Petitioners.

Petitioners appealed to the BIA.

C. BIA Proceedings

In their appeal to the BIA, Petitioners challenged the IJ's denial of their motion to terminate removal proceedings and denial of their asylum application.³

1. Petitioners' Arguments

On the motion to terminate, Petitioners argued that the defective NTAs and the NTAs' improper service violated due process. Id. at 17, 18-21. They abandoned their previous argument that the defective NTAs deprived the IJ of jurisdiction. See id.

On asylum, Petitioners argued the IJ erred in denying their application by considering MS-13's criminal extortion goals as the gang members' motive for persecuting Ms. Miguel-Peña, id. at 18, 24-26, 48-50, and by finding "women business owners in El Salvador" is not an immutable social group, id. at 18, 40-44.

2. BIA Decision

The BIA issued a single-member decision. It affirmed the IJ and dismissed Petitioners' appeal, id. at 3-7, making the IJ's removal order final, see 8 C.F.R. § 1241.1(a).

On the motion to terminate, the BIA addressed Petitioners' due process argument about the defective NTAs as if they had asserted the jurisdictional argument they made before the IJ. A.R., Vol. I at 4. It said that BIA and Tenth Circuit precedent holding that the lack of time or place in an NTA was not a jurisdictional defect "squarely foreclosed" the jurisdictional argument. Id. The BIA also held Petitioners had waived their argument that the NTAs were improperly served. Id.

On asylum, the BIA found no nexus between Ms. Miguel-Peña's alleged persecution and asserted political opinion because the IJ's finding that "the gang members who threatened [her] d[id] so as part of an indiscriminate effort to extort money" was "not clearly erroneous." Id. at 4-5. It did not evaluate whether Ms. Miguel-Peña's alleged persecution was on account of her asserted PSG. The BIA agreed with the IJ that "women business owners in El Salvador" is not an immutable PSG. Id. at 5-6.

D. Tenth Circuit Appeal

Petitioners timely petitioned this court for review. They allege the BIA erred in affirming the IJ's denial of (A) the motion to terminate and (B) asylum based on (i) finding no nexus between the alleged persecution and the asserted grounds for asylum and (ii) holding "women business owners in El Salvador" is not a PSG.

After the parties filed their briefs, the Supreme Court decided Santos-Zacaria v. Garland, 598 U.S. 411, 143 S. Ct. 1103, 215 L.Ed.2d 375 (2023). The Tenth Circuit had previously held that the exhaustion requirement in 8 U.S.C § 1252(d)(1) was a jurisdictional bar to appellate review of immigration decisions. See, e.g., Robles-Garcia v. Barr, 944 F.3d 1280, 1283-84 (10th Cir. 2019). Santos-Zacaria abrogated this precedent by holding that § 1252(d)(1) is a non-jurisdictional "claim-processing rule." 143 S. Ct. at 1112-13. We requested the parties file supplemental briefs addressing Santos-Zacaria's impact on this case.

After the first round of supplemental briefing, we ordered a second round to address three issues:

(1) May this court raise the exhaustion issue sua sponte, even though it is non-jurisdictional?

(2) As to the claim-processing theory [P]etitioners present in their opening brief, did they exhaust this theory before the agency?

(3) Assuming (i) [P]etitioners did not exhaust their claim-processing theory before the agency, (ii) the [G]overnment waived any exhaustion argument as to that theory, and (iii) the court does not enforce exhaustion sua sponte, are [P]etitioners correct that the alleged NTA defects they pointed out to the IJ are a violation of a claim-processing rule, and that the proper remedy for such a

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