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by William K. Zimmer, in Immigration Matters

 

On November 4, 2021, the Board of Immigration Appeals (“BIA”) published a decision that partially overruled Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021) to conform with the United States Supreme Court decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).  Matter of M-F-O-, 28 I&N Dec. 408 (BIA 2021).

The procedural history, facts of record, holding and rationale in Matter of M-F-O-, 28 I&N Dec. 408 (BIA 2021) are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged that the respondent is subject to removal under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended (“the Act”) as an immigrant applying for admission to the United States without an immigrant visa or other suitable travel document.

The  Immigration Judge denied the respondent’s application for asylum and withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act.  The Immigration Judge also denied the respondent’s application for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  See 8 C.F.R. §§ 1208.16(c) and 1208.18.

Finally, the Immigration Judge denied the respondent’s request for voluntary departure under section 240B(b) of the Act.

The Respondent reserved appeal and moved to terminate removal proceedings.

 

Facts

The respondent is a native and citizen of Guatemala who was placed in removal proceedings with by service of a notice to appear (“NTA”) that failed to specify the time or place of his initial removal hearing.

In support of his applications, the respondent testified that criminal gang members attacked him on six occasions, beating him each time, robbing him during some of these incidents, and threatening him with a knife during the last incident.

He further testified that the gang members approached him in an effort to recruit him because they were trying to recruit more young people.

According to the respondent, the gang members spoke to him in his indigenous dialect, demanding that he join their gang and only released him after he asked for more time to consider their demand or falsely promised to join them at a later date.

The respondent claimed the gangs harmed him, and will target him in the future, because he is a member of a particular social group composed of indigenous Guatemalan youths who have abstained from joining the street gangs.

The Immigration Judge denied the respondent’s application for asylum and withholding of removal after finding, among other things, that he had not demonstrated the requisite nexus between the past and feared harm and a valid particular social group.

Finally, in addition to denying the respondent’s CAT application, the Immigration Judge denied the respondent’s application for voluntary departure under section 240B(b) of the Act based on the conclusion that the service date of the NTA precluded the respondent from accruing the requisite period of continuous physical presence by stopping the accrual of physical presence as provided under section 240B(b)(1)(A) of the Act.
   

Held

Sustained in part with regard to eligibility for voluntary departure

Dismissed in part with regard to the respondent’s applications for asylum, withholding of removal and CAT

Denied in part with regard to the respondent’s motion to terminate removal proceedings

Remanded

 

Rationale

Voluntary Departure

In Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021), the BIA had previously concluded that a deficient NTA that does not specify the time and place of the initial removal hearing, as required by section 239(a)(1)(G)(i) of the Act, cannot end the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings.  This determination remains undisturbed.

However, the BIA overruled, in part, Matter of Viera-Garcia and Ordonez-Viera by holding that:

1. Subsequent service of a notice of hearing specifying the time and place of the initial hearing cannot perfect or complete a deficient NTA;
2.  does not satisfy the notice requirements required for NTAs under section 239(a) of the Act; and,
3. does not end the accrual of one year of physical presence required to qualify for voluntary departure at the conclusion of removal proceedings.

  The BIA reasoned as follows:

• The Supreme Court held in Niz-Chavez v. Garland, 141 S. Ct. 1474, at 1480 (2021), that, to trigger the “stop-time” rule under section 240A(d)(1) of the Act, the NTA must be a single document containing all the information about a respondent’s removal hearing specified in section 239(a) of the Act, including the time and place of the initial hearing.
• Therefore, a respondent accrues physical presence for purposes of section 240B(b)(1)(A) of the Act from the moment he enters the United States until he is served with a single document providing him with all the information required by section 239(a) of the Act.

Asylum and Withholding of Removal

Without addressing the validity of the respondent’s proposed social group of “indigenous Guatemalan youths who have abstained from joining the street gangs,” the BIA reasoned as follows:

• To establish the requisite nexus of punishment or harm of an alleged particular social group with the motive of the alleged persecutor, the asylum applicant must demonstrate that membership in the alleged particular social group was or would be “one central reason” for the past or feared harm.  See Section 208(b)(1)(B)(i) of the Act.
• For purposes of withholding of removal under 241(b)(3(A) of the Act in the Ninth Circuit Court of Appeal, a withholding of removal applicant  must only demonstrate that his membership in his proposed social group was or would be “a reason” for the harm.  Garcia v. Wilkinson, 988 F.3d 1136, at 1146 (9th Cir. 2021).
• Nevertheless, The respondent did not point to any convincing direct or circumstantial evidence that his membership in a particular social group of indigenous Guatemalan youths who have abstained from joining the street gangs was, or would be, either “one central reason” or “a reason” for past or feared harm in Guatemala.
• Therefore, applying clear error standard of review, the BIA affirmed the Immigration Judge’s decision to deny the respondent’s application for asylum under section 208(b)(1)(A) and withholding of removal under section 241(b)(3)(A) of the Act.  See Matter of J-C-H-F-, 27 I&N Dec. 211, at 217 (BIA 2018);  Matter of J-Y-C-, 24 I&N Dec. 260, 263 (BIA 2007) (noting that “a factual finding is not ‘clearly erroneous’ merely because there are two permissible views of the evidence” (citation omitted)).

 

CAT Application

The BIA agreed with the Immigration Judge with regard to the respondent’s CAT application that:

 

• According to 8 C.F.R. § 1208.18(a)(2), “Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment . . . .”
• The harm the respondent experienced in Guatemala; specifically, threats and bruises that did not require medical attention, does not satisfy the regulatory definition of torture.
• The respondent was last harmed in Guatemala more than 4 years ago, when he was a teenager, and he has not shown that the gang members who threatened and harmed him are still interested in locating him and targeting him for harm or torture.
• The respondent’s “speculative fear of torture is insufficient to satisfy the ‘more likely than not’ standard” for Convention Against Torture protection.  See 8 C.F.R. § 1208.16(c)(2).
• Therefore, the Immigration Judge’s predictive findings have not been shown to be clearly erroneous.

 

Motion to Terminate Removal Proceedings

The BIA denied the respondent’s motion to terminate removal proceedings for the following reasons:

• As explained in Matter of Bermudez-Cota, 27 I&N Dec. 441, at 447 (BIA 2018) and Matter of Arambula-Bravo, 28 I&N Dec. 388, at 390-91 (BIA 2021) the filing of a deficient NTA that fails to specify the time and place of the initial hearing vests an Immigration Judge with jurisdiction over proceedings, so long as a notice of hearing specifying this information is later sent to a respondent.
• Specifically, neither the United States Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), nor its decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), require the termination of removal proceedings when a notice to appear fails to specify the time or place of a removal hearing.  See also United States v. Bastide-Hernandez, 3 F.4th 1193, at 1196 (9th Cir. 2021).

 

Commentary

It is interesting to note that within the jurisdictions of the 9^th Circuit Court of Appeal and the 6^th Circuit Court of Appeal, the standard of proof for establishing a nexus between alleged past or potential punishment or harm and the motive of the alleged persecutor is “one central reason” for asylum applications and “a reason” for withholding of removal applications.  See Matter of M-F-O-, at 411, n.5.

The only new BIA precedent, however, that can be derived from Matter of M-F-O-  appears to be the partial overruling of  Matter of Viera-Garcia and Ordonez-Viera to align BIA jurisprudence with the United States Supreme Court decision in Niz-Chavez v. Garland.   In short, a deficient NTA will not stop the accrual of physical presence needed for cancellation of removal applicants under section 240A(b)(1) of the Act (10 years physical presence) and voluntary departure under section 240B(b)(1) of the Act (1 year physical presence).

In the good old days before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) on September 30, 1996, no physical presence requirement existed for persons seeking voluntary departure.

There have virtually always been two versions of voluntary departure; “voluntary return” (also known as pre-hearing voluntary departure) and voluntary departure at the conclusion of immigration proceedings.

  Before the passage of IIRIRA, voluntary return was exclusively administered and executed by agents and officers of the former INS.  See section 244(a)(1) of the former Act. 

Even after deportation proceedings were initiated, the respondent and the government trial attorney could independently agree to a voluntary return.  If this occurred the former INS or both parties would move to terminate deportation proceedings which would usually be granted in deference to the prosecutorial discretion of the former INS. 

If the respondent asked for voluntary departure at the conclusion of deportation proceedings the Special Inquiry Officer (a title changed to “Immigration Judge” as of 1996 - Pub. L. 104–208, §371(b)(9)) or Immigration Judge would adjudicate the request and issue a voluntary departure order if granted. 

Also, in days before September 30, 1996, no statutory time limit existed.  Special Inquiry officers or Immigration Judges sometimes granted voluntary departure for one year or more!   In 1973, the BIA held that a respondent did not have a right to remain in the United States indefinitely under a grant of indefinite voluntary departure.  Matter of Anaya, (BIA November 23, 1973) Int. Dec. #2243.   

Under current law, the period of time in which an alien granted pre-hearing voluntary departure (formerly known as “voluntary return”) must depart cannot exceed 120 days.  See section 240B(a)(2)(A) of the Act. 

The period of time under current law in which an alien may be allowed to depart at the conclusion of removal proceedings cannot exceed 60 days.  See section 240B(b)(2) of the Act.

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