Perez-Garcia v. Barr

BERNABE PEREZ-GARCIA, a/k/a Saul Perez-Garcia, Petitioner, v. WILLIAM P. BARR, United States Attorney General, Respondent.

No. 18-9564

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

May 15, 2020

(Petition for Review)

ORDER AND JUDGMENT^*

Before MATHESON, BALDOCK, and KELLY, Circuit Judges.

Bernabe Perez-Garcia petitions for review of the Board of Immigration Appeals ("BIA") decision affirming the immigration judge's ("IJ") denial of his application for withholding of removal and for protection under the Convention Against Torture ("CAT"). The BIA also denied Mr. Perez-Garcia's motion to remand to the IJ or for termination of the proceedings. We deny the petition.

I. BACKGROUND

Mr. Perez-Garcia is a native and citizen of Mexico. He entered the United States illegally in 1996. After twice being removed to Mexico in 2000, he illegally reentered the United States for a third time and has lived here ever since.

In 2014, the Department of Homeland Security ("DHS") reinstated Mr. Perez-Garcia's 2000 order of removal. See 8 U.S.C. § 1231(a)(5). He informed DHS that he feared persecution if returned to Mexico. An asylum officer interviewed Mr. Perez-Garcia and made a negative reasonable fear determination.

Mr. Perez-Garcia requested a review of the asylum officer's determination. DHS sent a Notice of Referral ("NOR") to the immigration court and served it on Mr. Perez-Garcia. It advised him to report for a hearing on a date and time "to be determined." Admin. R. at 634.

Before the hearing occurred, the IJ conducted a reasonable-fear review. He vacated the asylum officer's determination and placed Mr. Perez-Garcia in "withholding-only" proceedings.¹ In January 2016, the immigration court sent Mr. Perez-Garcia a notice informing him of when his initial withholding-only hearingwould occur. He later received notice that the hearing had been rescheduled to May 12, 2016.

Mr. Perez-Garcia appeared at the May 12 hearing and applied for withholding of removal and CAT protection. In August 2017, the IJ held a hearing on that application. Mr. Perez-Garcia testified. The IJ found his testimony credible.

Mr. Perez-Garcia testified that he was removed from the United States twice in 2000. Both times he was robbed soon after he arrived in Mexico—first by an unknown man and a second time by police at a checkpoint. He believed the unknown perpetrator singled him out because of his American clothing and accent. He was so disturbed that he illegally reentered the United States. During the second incident, the police threatened to take him to jail, mentioned he had come from the United States, and encouraged each other to take his money. Within days, Mr. Perez-Garcia again fled and illegally entered the United States for the third time.

The IJ denied relief, reasoning that the two robberies did not constitute past persecution that could support a withholding claim. Nor did Mr. Perez-Garcia show he was likely to be persecuted on account of a protected ground. His alleged membership in the category of "Mexican citizens who are being returned from the United States and perceived to be wealthy," id. at 90 (quotation marks omitted), was not a protected "cognizable social group," id. at 91. Finally, the IJ said the police robbery was not torture under CAT, and Mr. Perez-Garcia failed to show likelihood of torture if returned to Mexico. The IJ therefore denied relief and ordered Mr. Perez-Garcia removed to Mexico.

After Mr. Perez-Garcia appealed to the BIA, he moved to remand to the IJ to terminate proceedings. He argued, based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), that the Immigration Court had lacked jurisdiction over his removal proceedings. The BIA denied the motion, finding that the NOR and the notice of hearing together had vested the IJ with jurisdiction. Agreeing with the IJ's analysis of the withholding and CAT claims, the BIA dismissed his appeal.

II. ANALYSIS

Where, as here, a single BIA member affirmed the IJ's decision in a brief order, we review the BIA's opinion, but "when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Neri-Garcia v. Holder, 696 F.3d 1003, 1008-09 (10th Cir. 2012) (quotation marks omitted). We review the BIA's legal determinations de novo and its findings of facts for substantial evidence. See Luevano v. Holder, 660 F.3d 1207, 1211 (10th Cir. 2011). We review the BIA's denial of a motion to remand under the deferential abuse-of-discretion standard. Neri-Garcia, 696 F.3d at 1009.

1. Jurisdictional Issue

Mr. Perez-Garcia argues the BIA should have granted his motion to remand or terminate proceedings for lack of jurisdiction under Pereira. In Pereira, the Supreme Court held that a putative "notice to appear" that failed to designate the time or place of a noncitizen's removal proceedings was not a "notice to appear under section 1229(a)" of the immigration statutes. See Pereira, 138 S. Ct. at 2113; 8 U.S.C.§1229(a). Such a notice therefore did not trigger the Act's stop-time rule ending the noncitizen's period of continuous presence in the United States for purposes of an application for cancellation of removal. See id. at 2113-14; 8 U.S.C. §§ 1229b(d)(1). Mr. Perez-Garcia contends the NOR, which did not designate the date and time of his hearing was insufficient to confer jurisdiction on the immigration court. He further argues that the notice of hearing did not cure this defect. We recently rejected similar Pereira-based jurisdictional challenges in published decisions. See Martinez-Perez v. Barr, 947 F.3d 1273, 1277-78 (10th Cir. 2020); Lopez-Munoz v. Barr, 941 F.3d 1013, 1017-18 (10th Cir. 2019). We therefore reject his jurisdictional argument.²

2. Withholding of Removal

To receive withholding of removal, a noncitizen must show that his "life or freedom would be threatened in [the country of removal] because of the [noncitizen's] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). "Such persecution must be more likelythan not." Matumona v. Barr, 945 F.3d 1294, 1304 (10th Cir. 2019) (brackets and quotation marks omitted); see also 8 C.F.R. § 1208.16(b)(2). A showing of past persecution based on a protected ground results in a presumption "that the applicant's life or freedom would be threatened in the future in the country of removal on the basis of the original claim." Matumona, 945 F.3d at 1304 (quoting 8 C.F.R. § 1208.16(b)(1)(i)).

a. Past persecution

"[P]ersecution requires the infliction of suffering or harm in a way regarded as offensive and requires more than just restrictions or threats to life or liberty." Id. (ellipsis and quotation marks omitted). "[T]he ultimate determination whether [a noncitizen] has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution." Xue v. Lynch, 846 F.3d 1099, 1104 (10th Cir. 2017) (quotation marks omitted).³

The BIA determined that the robberies, in which Mr. Perez-Garcia was not physically harmed, did not constitute past persecution. Based on our precedent, we agree. See, e.g., Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (upholding BIA's finding of no past persecution where noncitizen "suffered repeated robberies and some minor injuries"); Tulengkey v. Gonzales, 425 F.3d 1277, 1281(10th Cir. 2005) (upholding finding of no past persecution where noncitizen was robbed, fondled, and suffered a minor head injury). Because Mr. Perez-Garcia has failed to establish past persecution, he is not entitled to a presumption of future persecution. He must therefore demonstrate a clear probability of future persecution based on a protected ground. See Sidabutar, 503 F.3d at 1125; 8 C.F.R. § 1208.16(b)(2).

b. Particular social group

Mr. Perez-Garcia contends he qualifies for withholding based on the likelihood of persecution due to his membership in a particular social group: Mexican citizens who are returning from the United States and perceived as wealthy.

To qualify for withholding of removal based on membership in a particular social group, a noncitizen must establish that the group (1) shares a "common, immutable characteristic such as sex, color, or kinship ties"; (2) meets the requirement of "particularity," which "means the group cannot be indeterminate," that is, "too subjective, inchoate, and variable"; and (3) meets the requirement of "social distinction," that is, it is perceived as a group by society. Rodas-Orellana v. Holder, 780 F.3d 982, 990-91 (10th Cir. 2015) (ellipsis and quotation marks omitted).

Applying this test, the BIA characterized Mr. Perez-Garcia's proposed social group as "too broad and amorphous," stating it "would include virtually any Mexican returning from the United States whom criminals might deem worth robbing," andthat the group was "indistinguishable from any other segment of Mexican society subjected to general conditions of crime and violence." Admin. R. at 4.

The BIA's conclusion finds support in many circuit cases that have rejected assertions of particular social groups resembling the one Mr. Perez-Garcia proposes. See, e.g., Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir. 2019) (upholding BIA's rejection of particular social group consisting of "individuals returning to Mexico from the United States who are believed to be wealthy" (brackets and quotation marks omitted)); Gutierrez v. Lynch, 834 F.3d 800, 805-06 (7th Cir. 2016) (rejecting particular social group consisting of "Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico"); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (rejecting particular social group consisting of persons deported from the U.S. who have money or are perceived to have money, and who have family members in the United...