LAW OFFICE OF BRYAN S. JOHNSON, P.C.

( ( 00000033853 ~.___ _______( 6)’—~ (b) ___ knowledge 1of the birth). 8 C.F.R. §§ 103.2(b), 204.2(d)(v). DNA test results may also be submitted.’ 8 C.F.R. § 204.2(d)(vi). The RFE issued to the petitioner explained these options. When a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence. Maller of Rehman, 27 I&N Dec. 124 (BIA 2017). We have considered all of the evidence submitted by the petitioner, including the delayedregistered birth certificate submitted for the petitioner, the petitioner’s own personal statement explaining that the beneficiary had lost all of his documents during the war in Cambodia, and two signed but unsworn statements by persons explaining that they have known the beneficiary for many years and “guarantee” that he is the petitioner’s father. Given this evidence, we affirm the Director’s determination that the petitioner has not met her burden of showing by a preponderance of evidence that the beneficiary is her parent. The petitioner has provided insufficient information regarding the beneficiary’s loss of all of his documents, and the two statements submitted by persons in Cambodia are insufficiently detailed to be persuasive. However, the petitioner may file a new visa petition on the beneficiary’s behalf that is supported by the evidence necessary to establish eligibility under the immigration laws. See 8 C.F.R. § 204.2(f).2 ORDER: The appeal is dismissed. 2 If the petitioner wishes to file another immigrant visa petition on behalf of the beneficiary, and she does not possess sufficient secondary evidence to prove their relationship, she and the beneficiary may wish to undergo DNA testing. The instructions for undergoing such tests and having the results sent to USCIS were included in the RFE sent to the petitioner. The RFE instructed the petitioner to consult http://www.aabb.org to locate accredited laboratories that can arrange for testing in the United States and abroad. A remand will not be granted for the purpose of allowing the petitioner and the beneficiary to undergo DNA testing, because this option was explained in the RFE. 2 . ‘ 00000030881 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATTER OF: ~—–(b_)(_6) _____ __. 1 Al._—–‘(‘-‘-b)-‘-(6,_) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Ronaldo Rauseo-Ricupero, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: Creppy, Appellate hrnnigration Judge Opinion by Appellate Immigration Judge Creppy CREPPY, Appellate Immigration Judge The respondent, a native and crt.v-en of El Salvador, seeks reconsideration of our March 27, 2019, decision dis~sing his appeal of an Imnigration Judge’s decision denying his motion to reconsider. He also filed a “Compound Statutory Motion to Reconsider and Terminate and Motion to Reopen and Terminate” in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). 1 The motions will be denied. A motion to reconsider shall specify the material errors of fact or law in the prior Board decision and shall be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(l); MatterofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). A party seeking reconsideration requests that the original decision be reexamined in light of alleged legal or factual errors, a change of law, or an argument or aspect of the case that was overlooked. Matter of O-S-G-, 24 I&N Dec. at 58; Matter of Cerna, 20 I&N Dec. 399 (BIA 1991 ). We have reviewed the contentions raised in the respondent’s motion to reconsider but find that om previous decision in these proceedings was correct. Further, we note that the respondent raised the same arguments in a petition for review with the United States Cowt of Appeals for the Fifth Circuit. In a published decision, the Fifth Circuit denied the respondent’s petition for review and affirmed our determination that the respondent did not establish that he warranted reconsideration or reopening of his removal proceedinf?$. Gonzalez Hernandez v. Garland, 9 F.4th 278 (5th Cir. 2021). Consequently, we deny the respondent’s motion to reconsider. We also deny the respondent’s motion to reopen and terminate in light of Niz-Chavez. The respondent argues that the lmmigration Judge lacked jurisdiction over his retroval proceedings because his Notice to Appear (NTA) did not contain the date and time of his initial remJval 1 The respondent’s motion to accept supplemental brief is granted. 00000030881 Al (b)(6) hearing. This argument is foreclosed by our decision in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). In that case, we confirmed that an NTA that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Irrnnigration Judge of jurisdiction over the respondent’s removal proceedings and explained that Niz-Chavez does not change this analysis. Matter of Arambula-Bravo, 28 I&N Dec. at 389-92. The Fifth Circuit has also concluded that “under the regulations, a notice to appear is sufficient to connnence proceedings even if it does not include the time, date, or place of the initial hearing.” Pierre-Paul v. Barr, 930 F.3d 684, 693 (5th Cir. 2019); see also Maniar v. Garland, 998 F.3d 235, 242 n.2 (5th Cir. 2021) (“Niz-Chavez does not dislodge our ultimate holding in Pierre-Paul that it is ‘the regulations, not [section 239(a) of the Act,] 8 U.S.C. § 1229(a), [that] govern what a notice to appear must contain to constitute a valid charging document[]’ [or] … our conclusion that Pereira [v. Sessions, 138 S. Ct. 2105 (2018)] does not extend outside the stop-time rule context.”). To the extent the respondent argues Pierre-Paul and Maniar were wrongly decided, such arguments must be made to the Fifth Circuit, not to this Board. Matter of Carachuri-Rosendo, 24 l&N Dec. 382, 387-88 (BIA 2017). Accordingly, the following orders will be entered. ORDER: The motion to reconsider is denied. FURTIIER ORDER: TI1e motion to reopen and terminate is denied. 2 00000030878 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: (h)(6) A~ (b)(6) FILED Jan 28, 2022 Respondent ON BEHALF OF RESPONDENT: Shirley Sadjadt Esquire ON BEHALF OF DHS: Elisabeth H. Pennix, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Chicago, IL Before: Owen, Appellate Immigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge The respondent, a native and citizen of Mexico, appeals from the Immigration Judge’s March 28, 2019, decision denying his application for cancellation ofremoval for nonpennanent residents \lllder section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The Innnigration Judge granted the respondent’s application for vohmtary departure. The appeal will be dismissed, and the period of vohmtary departure will not be reinstated. We review the findings of met, including the determination of credibility, made by the Immigration Judge wder the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, llllder a de novo standard. 8 C.F.R § 1003.l(d)(3)(n). We adopt and affirm the decision of the Immigration Judge. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We agree with the Immigration Judge’s determination that the respondent is subject to removal pursuant to section 212(a)(6)(A)(i) of the Act, 8 US.C. § l 182(a)(6)(A)rn (IJ at 1). We further agree with the Immigration Judge’s detennination that the respondent did not qualify for cancellation of removal as ther,e is not sufficient evidence in the record to establish that, upon his removai the hardship to his United States citizen children, ages 12, 11, and 10, at the time of the hearing, wouki rise to the level of exceptional and extremely unusual (IJ at 2, 4; Tr. at 17; Exh. 2). In reaching her conclusion, the Immigration Judge properly considered the mnnerous hardship factors in their totality, including the respondent’s son’s speech problem, and the potential loss of income to his family, but determined that the record evidence did not establish the requisite level of hardship (U at 5; Tr. at 23-28). See Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002). 00000030878 Al~_(b_)(6_) ~ The respondent submitted evidence along with his brief on appeal However, the Board is an appellate body whose fimction is to review, not create, a record. See MatterofFedorenko, 19 I&N Dec. 57, 7 4 (BIA 1984 ). The respondent has not filed a motion to remand, and we do not ordinarily consider new evidence presented for the first time on appeal 8 C.F.R. § 1003.l(d)(3)(iv). Moreover, the respondent has not dermnstrated that the new evidence i5 likely to affect the result in this case. See Matter of Coelho, 20 I&N Dec. 464, 471-72(BIA 1992). Consequently, we do not find remanded proceedings warranted to alJow the Immigration Judge to consider the new evidence in the first instance. Finally, the Innnigration Judge’s decision to grant the respondent the privilege of vohmtary departure was contingent upon the posting of a vohmtary departure bond with DHS within 5 business days. See 8 C.F .R. § 1240.26(c)(3)(i). However, to date, the respondent has not presented evidence to this Board that he posted the vohmtary departure bond. Therefore, in lieu of reinstating the Immigration Judge’s voh.mtary departure order, we will order the respondent removed from the United States pursuant to the Innnigration Judge’s alternate order. In view of the foregoing, the following orders are entered. ORDER: The appeal is dismissed. FURTI-IER ORDER: The respondent is order removed to Mexico pursuant to the Innnigration Judge’s ahernate order. 2 00000030779 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for 1mmigration Review Board of Immigration Appeals MATfER OF: ,..__ ___ –‘-(b-‘-‘)(–‘-6) ____.,L (b )( 6) ___ AJ Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Omar Z.ambrano, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the hnmigration Court, Los Angeles, CA Before: Wetmore, Chief Appellate Irmnigration Judge Opinion by Chief Appellate Immigration Judge Wetmore WE1MORE, Chief Appellate hmnigration Judge The respondent appeals the Immigration Judge’s April 5, 2019, decision pretermitting his application for cancellation ofremoval under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b), and ordering him removed to Mexico based on his conviction for vehicle theft in violation of California Vehicle Code section 1085l(a). Under then-applicable law, the Immigration Judge concluded that the respondent’s conviction constituted an aggravated felony theft or burglary conviction under sections 101(a)(43)(G) and 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §§ I I 01 (a)(43)(G), I 227(a)(2)(A)(iii), rendering him ineligible for cancellation of removal Section 240A(b)(l)(C) ofthe Act. During the pendency of the respondent’s appeaL the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction tlIB matter arises, issued its decision in Lopez-Marroquin v. Garland, 9 F.4th 1067 (9th Cir. 2021), holding that California Vehicle Code section 10851(a) is not an aggravated felony W1der the Act, as it is indivisible and does not categorically match the generic theft offense.1 Because the respondent is no longer statutorily barred from seeking cancellation of removaL we will remand the proceedin~ to the Irmnigra t ion Judge to consider the respondent’s application for cancellation of removal on the merits. We do not express an opinion on the respondent’s entitlement to relief Accordingly, the following order will be entered. Given the Ninth Circuit’s holding that Californfa Vehicle Code section 10851(a) is indivisible, the respondent’s conviction also does not constitute a crime involving moral turpitude, which would otherwise render him ineligible for cancellation of removal Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (holding that California Vehicle Code section 10851(a) is not categorically a crime involving moral turpitude, as some of the criminalized conduct is not morally twpitud ino us). 00000030779 ~~-(b_)(6_) ~ ORDER: Toe record is remanded to the Irrnnigration Judge for further proceedings consistent with this order. 2 00000030987 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review • Board of Immigration Appeals MATIER OF: ‘;:..-=–=–=–=–=–=–=–=–=-(“””‘b_).,_(_6-‘–)_-_ -_ -_ -_ -_ -_ -_-_ __.–,IAJ (b )( 6) I ,._ ____ .:..;;(b….,_)(-“-‘6)’———‘L AJ (b )( 6) ! Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Scott Bellgrau, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondents, natives and citizens of Guatemala, appeal from the decision of the Immigration Judge, issued April 12, 2019, denying the lead respondent’s application for asylum and withholding of removal under the Act, as well as protection tmder • the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAn. See sections 208(b)(l)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A) and 123I(b)(3)(A); 8 C.F.R § § 1208. I 6 and 1208. I 8. 1 Removability is not disputed. The appeal will be dismissed. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(il). We adopt and affirm the decision of the Immigration Judge. See Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). The Irrnnigration Judge correctly found that the respondent’s exboyfriend and his fumily did not abuse her because she was targeted as a member of a proposed particular group, but rather for personal reasons (IJ at 5-6; Tr. at 78). Section 208(b)(l)((B)(i) of the Act; section 24I(b)(3)(A). We note that since the respondent only lived with her ex-boyfriend for three months and then moved out (IJ at 3; Tr. at 59-63, 71), the fucts and holding of Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) does not apply. 1 The respondents are a mother and her young daughter, a derivative on her mother’s asylum application. Any references to ”the respondent” will refer to the lead respondent, the mother. 00000030987 Al (b)(6) ~t al We also agree with the lrrnnigration Judge that the respondent did not deroonstrate that the Guatemalan government was unwilling or unable to protect her (IJ at 6). See Avetova-Elisseva v. INS, 213 F .3d 1192, 1196 (9th Cir. 2000). The respondent never sought police protection for the abuse. or reported the abuse although she knew that domestic violence was i11egal (JJ at 6; Tr. at 83-87). Thus, the respondent did not demonstrate past persecution or a well-founded future fear of persecution on account of a protected ground so as to be eligible for asylum or withho Id ing of removal (IJ at 6). The Immigration Judge also correctly denied CAT relief (JJ at 7). 8 C.F.R. § 1208. I 8(a)(I ). Since the respondent chose to represent herself during her hearing on the merits (Tr. at 48), the lrrnnigration Judge had a special duty to fully develop, the record by probing into relevant mets and by providing appropriate guidance as to how the respondent could develop her case. Agyeman v. INS, 296 F.3d 871,884 (9th Cir. 2002). Here, the Immigration Judge sufficiently developed the record by, among other things, confirming the respondent’s application for asylum was correct (Tr. at 50-54), discussing the Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Guatemala Country Report on Human Rights Practices -20 l 8 and admitting it into the record over the respondent’s objection as it was relevant to the issues presented (Tr. at 48-50), questioning the respondent in depth about her asylum application and exlnbits (Tr. at 57-75), explaining the basis for her asylum request, as well as affording her the opportunity to define and explain her proposed particular social group (Tr. at 76-78). Thus, on this record, the Irrn:nigration Judge satisfied his procedural duties. Moreover, there was no due process violation as the proceeding was not so :fundamentally unfair that the respondent was prevented from reasonably presenting her case and the respondent has not demonstrated prejudice. See Zamorano v. Garland, 2 F. 4th 1213, 1226 (9th Cir. 2021). With respect to the respondent’s proposed particular social group, she defined it as “a protection group so that I can be protected.” Tr. at 78. The Immigration Judge then suggested that her group involved threats from her daughter’s abusive rather who was not providing support and asked whether her daughter’s rather was making those threats against her and harming her and his family because she belonged to a particular group (Tr. at 78). In response, the respondent stated ”No.” Tr. at 78. On appeai the respondent’s counsel has presented a different proposed particular social group consisting of “single Guatemalan roothers who are targeted by their child’s rather (Respondent’s Br. at 4). There is no need to remand to :finther consideration of the respondent’s proposed particular social groups because on this record, the respondent has not demonstrated that any proposed particular social group was a reason, let alone a central reason, for the harm inflicted on her in the past or any future harm. See Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017). The following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR pl.Jii’fii:~fiON U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: FILED Ja.n27, 2022 ~–(b_)(_6)_~1 ~ (b)(6) Respondent ON BEHALF OF RESPONDENT: Joseph A. Thomas, Esquire ON BEHALF OF DHS: Brian J. Sandberg, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Imirigration Court, Baltimore, MD Before: de Cardona, Temporary Ap°j,ellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge de Cardona DE CARDONA, Temporary Appellate Innnigration Judge 1be respondent, a _native and citizen of Zimbabwe, appeals the Innnigration Judge’s November 7, 2018, decision denying her applications for asylum, withholding of remova~ and protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). Sections 208(b)(l)(A), 24l(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l){A) and 123l(b)(3)(A); 8 C.F.R §§ 1208.16(c), 1208.18. 1be Department of Hoireland Security opposes the appeal The record will be remanded for fi.nther proceedings and the entry of a new decision We review findings of fuct determined by an Irrnnigration Judge, including credibility findings under a “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R § 1003.l(d)(3)(il). The respondent claims past and future harm by the Zinf>abwe African National UnionPatriotic Front (ZANU-PF), the ruling party in Zimbabwe, on account of her political opinion in support of the opposition party, Movement for Democratic Change (MDC) (IJ at 4, 6; Tr. at 73, 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 00000031479 Al.___(b_)( 6_) ____. 76-77, 79, 86, 90, 92-94; Exh. 5, Tabs L, U-Z, BB-FF). 2 Specifically, she asserts that in September 2009, five ZANU-PF members came to her home, beat her, tied her husband’s hands berund his back and beat him, because she had worn a MDC tee shirt (IJ at 4; Tr. at 75-79; Exh. 5, Tabs L, U-Z). The police were called and the respondent and her husband were detained for 3 days without food (IJ at 4-5; Tr. at 73-74, 78-81, 83-85; Exh. 5, Tabs L, U-Z). The Immigration Judge denied all fonns of relief and protection from removal by finding (1) the individuals who attacked the respondent were private actors, and (2) the respondent had not demonstrated a nexus between the attack and a protected grmmd because police intervened (IJ at 5-7). On appeal the respondent argues persecution by members of the ruling party is persecution by the national government, the Immigration Judge erred in not considering co\llltry conditions evidence demonstrating the government of Zimbabwe directed the attacks, and the respondent demonstrated a well-founded fear of future persecution on acco\lllt of her political opinion (Respondent’s Br. at 9-13). We conclude remand is warranted because the Immigration Judge’s decision does not contain sufficientfuctual findings or analysis to allow for meaningful appellate review. See 8 C.F.R § 1003. l(d)(3)(iv) (stating that the Board may not engage in fact-finding in deciding appeals except for taking administrative notice of commonly known facts); Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (holding that the Board’s limited fact-finding ability heightens the need for an Immigration Judge’s decision to include clear and complete findings of fact that are supported by the record and are in ·compliance with controlling law); Matter of A-P-, 22 l&N Dec. 468, 477 (BIA 1999) (holding that an oral decision must accurately summarize the relevant fucts, reflect the Immigration Judge’s analysis of the applicable law, and clearly set forth legal conclusions). On remand the Immigration Judge should consider all relevant evidence-including co\llltry conditions documents in the record-and clearly lay out his findings of fact and legal conclusions particularly as they relate to whether the respondent demonstrated (1) past persecution, (2) on acco\lllt of a protected ground, (3) by, or sponsored by, the government, or by or private actors the government is unable or unwilling to control (Exh. 5, Tabs AA-UU). See 8 C.F.R §§ 1208.13(b)(3)(i)-(ii), 1208.16(b)(3) (discussing the impact of a finding of persecution by, or sponsored by, a national government on burdens of proof); Quintero v. Garland, 998 F.3d 612, 646-47 (4th Cir. 2021) (explaining the importance of adjudicators engaging with country conditions evidence in the record); Ortez-Cruz v. Barr, 951 F.3d 190, 198 (4th Cir. 2020) (stating that adjudicators must base the decision on the entirety of the record without distorting or disregarding important aspects of the respondent’s claim or relying on speculation); Matter of ,· 2 On appeal the respondent argues for the first time that she was harmed in the past and fears future harm on account of membership in an unspecified particular social group (Respondent’s Br. at 8-9, 12). However, as the respondent did not articμlate a particular social group below, it has not been properly preserved for appellate review and we decline to address it now. See Matter of W-Y-C-& H-0-B-, 27 I&N Dec. 189, 192 (BIA 2018) (providing that the Board generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge). 2 00000031479 Aj~_(b_)(_6)~ D-1-M-, 24 I&N Dec. 448, 451 (BIA 2008) (“(I]t is of paramount: importance that Immigration Judges make a specific finding that an applicant either has or has not suffered past persecution.”). When reevaluating the respondent’s eligibility for relie( the Irrnnigration Judge should consider relevant case law developments from the Attorney General and the United States Court of Appeals for the Fourth Circuit, the jurisdiction in which this matter arises. For example, after the Immigration Judge’s decision, the Attorney General vacated Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), andMatterofA-B-, 28l&NDec. 199(A.G. 2021), in their entirety. MatterofA-B-, 28 I&N Dec. 307, 309 (A.G. 2021). On remand the parties should have the opportunity to update the evidentiary record and present arguments before the Immigration Judge. In remanding, we offer no opinion as to what should be the uhimate outcome in this case. See Matter of L-O-G-, 21 I&N Dec. 413,422 (BIA 1996). Accordingly, the following order will be entered. ORDER: The record is remanded to the Innnigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 3 00000031011 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .______ ___ ~ (b_)(_6) __,I (b)(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Shiva P. Gill, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Houston, TX Befure: Owen, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Owen OWEN, Appellate Immigration Judge ORDER: The Board affirms, without opinion, the resuhs of the decision below. The decision below is, therefore, the final agency detennination See8 C.F.R. § 1003.l(e)(4). 00000031008 NOT FOR PUBLICATION U.S: Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: (b)(6) IAl (b)(6) :=.========–___; ~—(~h~V=6)~—–l Al (b )( 6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: D. Michelle Martinez, Esquire ON BEHALF OF DHS: John Burns, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, New York, NY Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate hnmigration Judge Gonzalez GONZALEZ, Temporary Appellate hnmigration Judge The Department of Homeland Security (OHS) has appealed the April 15, 2019, decision of the Immigration Judge granting the lead respondent’s application for asyh.nn mder section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. The DHS has not filed an appellate brief The respondents have submitted a brief in opposition to the DHS ‘s appeal We will dismiss the appeal Considering our standard of review, we are unable to find that the Immigration Judge’s credibility determination and findings of fuct were “clearly erroneous.” See 8 C.F.R § 1003.l(d)(3)(0. Moreover, on de novo review, we find insufficient grotmds to reverse the Immigration Judge’s determination that the lead respondent established her eligibility for asylum. SeealsoMatterofA-B-, 28l&N.Dec. 307 (A.G. 2021). Finally, upon denovo review, we conclude that the respondents merit relief in an exercise of discretion. ORDER: The appeal is dismissed. FUR1HER ORDER: Pursuant to 8 C.F.R § 1003.l(d)(6), the record is remanded to the Immigration Judge for the pwpose of allowing the Department of Homeland Security the opportunity to complete or update identity, :law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R § 1003.47(h). 1Temporary Appellate lnnnigration Judges sit pursuant to appointment by the Attorney General . See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031005 NOT FOR PUBLICATION U.S: Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: I (b)(6) I A] (b)(6) I ~I___ (_b)_(6_)–~I Aj (b)(6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: D. Michelle Martinez, Esquire ON BEHALF OF DHS: John Burns, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, New York, NY Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate hnmigration Judge Gonzalez GONZALEZ, Temporary Appellate hnmigration Judge The Department of Homeland Security (OHS) has appealed the April 15, 2019, decision of the Immigration Judge granting the lead respondent’s application for asyh.nn mder section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. The DHS has not filed an appellate brief The respondents have submitted a brief in opposition to the DHS ‘s appeal We will dismiss the appeal Considering our standard of review, we are unable to find that the Immigration Judge’s credibility determination and findings of fuct were “clearly erroneous.” See 8 C.F.R § 1003.l(d)(3)(0. Moreover, on de novo review, we find insufficient grotmds to reverse the Immigration Judge’s determination that the lead respondent established her eligibility for asylum. SeealsoMatterofA-B-, 28l&N.Dec. 307 (A.G. 2021). Finally, upon denovo review, we conclude that the respondents merit relief in an exercise of discretion. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R § 1003.l(d)(6), the record is remanded to the Immigration Judge for the pwpose of allowing the Department of Homeland Security the opportunity to complete or update identity, :law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R § 1003.47(h). 1Temporary Appellate lnnnigration Judges sit pursuant to appointment by the Attorney General . See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031002 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board ofhnmigration Appeals MATIER OF: ..,_I_________ (b ) __( 6 __) ——-“-L ~ (b )( 6) ~I____ (b_)(6_)___ ~~ ~ (b)(6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Abraham B. Cardenas, Esquire IN REMOVAL PROCEEDINGS On Appeal :from a Decision of the Innnigration Court, Miami, FL Before: Gonzalez., Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge 1be respondents, a mother and her child who are natives and citiz.ens of Venezuela, appeal from the April 15, 2019, decision of the hmnigration Judge denying their applications for asylum wider section 208 of the Inunigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 241 (b)(3) of the Act, 8 U.S.C. § 1231 (b)(3), and their requests for protection mder the regulations implementing the Convention Against Torture and Other Crue~ Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (OHS) has not filed any opposition to the respondent’s appeal Owing the pendency ofthe respondent’s appea~ the Secretary of the Department of Homeland Security has extended and redesignated Venezuela under the Temporary Protected Status (TPS) Program See 86 Fed. Reg. 41986 (Aug. 4, 2021). 1be respondents are citiz.ens ofVeneruela and appear eligible to register fur TPS. Under these circurmtances, we will remand proceedings fur the Immigration Judge to evaluate whether administrative closure is warranted based on ctnTent case law. See Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and argwnents. 2 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). On remand, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the OHS should indicate whether the respondents are an enforcement priority and whether the DHS would 00000031002 AT”(b)(6) Iet al Accordingly, the following order will be entered. ORDER: The record isremanded for further proceeding5 consistent with the foregoing opinion and for the entry of a new decision. exercise some form of prosecutorial discretion, such as stipulating to eligibility for retie( agreeing to administrative closure, or requesting termination or dismissal of the proceedings. 2 00000030999 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board ofhnmigration Appeals MATIER OF: ::==.====(b=)(:::::::6)========lc…….,.Aj(b)(6) ~—-(b_)(_6) ____ ~l Al (b)(6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Abraham B. Cardenas, Esquire IN REMOVAL PROCEEDINGS On Appeal :from a Decision of the Innnigration Court, Miami, FL Before: Gonzalez., Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge 1be respondents, a mother and her child who are natives and citiz.ens of Venezuela, appeal from the April 15, 2019, decision of the hmnigration Judge denying their applications for asylum wider section 208 of the Inunigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 241 (b)(3) of the Act, 8 U.S.C. § 1231 (b)(3), and their requests for protection mder the regulations implementing the Convention Against Torture and Other Crue~ Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (OHS) has not filed any opposition to the respondent’s appeal Owing the pendency ofthe respondent’s appea~ the Secretary of the Department of Homeland Security has extended and redesignated Venezuela under the Temporary Protected Status (TPS) Program See 86 Fed. Reg. 41986 (Aug. 4, 2021). 1be respondents are ci&ens ofVeneruela and appear eligible to register fur TPS. Under these circurmtances, we will remand proceedings fur the Immigration Judge to evaluate whether administrative closure is warranted based on ctnTent case law. See Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and argwnents. 2 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). On remand, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the OHS should indicate whether the respondents are an enforcement priority and whether the DHS would 00000030999 Al (b)( 6) let al Accordingly, the following order will be entered. ORDER: The record isremanded for further proceeding5 consistent with the foregoing opinion and for the entry of a new decision. exercise some form of prosecutorial discretion, such as stipulating to eligibility for retie( agreeing to administrative closure, or requesting termination or dismissal of the proceedings. 2 00000030996 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Revj_ew Board oflmmigration Appeals MATIER OF: FILED Jan 28, 2022 ~====(===b)===(6===)=====L~AI (b)(6) ~——(b_)(_6) _____ ~1 Al (b)(6) Respondents ON BEHALF OF RESPONDENTS: Jessica C. Cahres, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Atlanta, GA Before: Gonzalez., Temporary Appellate Innnigration Judge 1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The respondents, a JJX)ther and her minor child who are natives and citizens of El Salvador, appeal from the April 17, 2019, decision of the Immigration Judge denying the lead respondent’s applications for asyh.un lmder section 208 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding ofreJJX)val Wlder section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and her request fur protection under the regulations implementing the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Pwushment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). The Department of Homeland Security (DHS) has not filed any opposition to the respondents’ appeal 1be record will be remanded. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge tmder the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, tmder a de novo standard. 8 C.F.R § 1003.l(d)(3){i:t). On appeal the respondents contend that the Immigration Judge erred in denying the applications for asylum, withholding of rerooval and protection W1der the CAT. We acknowledge and appreciate the Immigration Judge’s reasoning and decision. However, subsequent to the Immigration Judge’s decision, the Attorney General in Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021), vacated the prior A-B-decisions in their entirety. See also Matter ofL-E-A-, 28 I&N 304 (A.G. 2021). Under these circurrstances, and in an ablllldance of caution, the record will be 1Temporary Appellate Inn:nigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 00000030996 ~__ (b_)(6_)~Ft al remanded to the Inmigration Judge to reevaluate the respondents’ eligibility for relief based on current case law. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG. 2021); Matter of Chen, 20 I&N Dec. 16 (BIA 1989); EOIR. Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and arguments. 2 Accordingly, the following order will be entered. ORDER: The record is remmded for further proceeding.5 consistent with the foregoing opinion and for the entry of a new decision 2 On rermnd, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the OHS should indicate whether the respondents are an enforcement priority and whether the DHS would exercise soire form of prosecutorial discretion, such as stipulating to eligibility for relief; agreeing to administrative closure, or requesting termination or dismissal of the proceedings. 2 00000030993 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: .______ ___ Al (b)(6) (_b)_(6_) __.l Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Virginia E. Urenda, Esquire ON BEHALF OF DHS: Mark Hardy, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Imrnigration Court, Seattle, WA Before: Gonzalez., Temporary Appellate lnmigration Judge1 Opinion by Temporary Appellate Immigration Judge Gon2alez GONZALEZ, Temporary Appellate lnmigration Judge The respondent, a native and citizen of Honduras, bas appealed from the Immigration Judge’s decision dated April 23, 2019. The Immigration Judge fmmd the respondent removable, denied his applications for asyhnn and withholding of removal llllder sections 208 and 24l(b)(3) of the Innnigration and Nationality Act (“Act”), 8 U.S.C. §§ U58 and 123 l(b)(3), and denied his request for protection under the regulations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Pllllishment, Dec. 10, 1984, S. Treaty Doc. No. 10020, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT’). While this appeal has been pending, the respondent imved for administrative closure to pursue a provisional waiver of his lllllawful presence Wlder section 212(a)(9)(B) of the Act, 8 U.S.C. § l 182(a)(9)(B), based on a pending Petition for Alien Relative (Form 1-130) filed on his behalf by his lawful permanent resident spouse. See 8 C.F.R § 212.7(e); see also Provisional Unlawful Presence Waivers of Inadmissibility for Certain Innnediate Relatives, Final Rule, 78 Fed. Reg. 536 (January 3, 2013). Also while this appeal has been pending, the Attorney General overruled in its entirety Matter of Castro-Tum, 27 l&N Dec. 271 (A.G. 2018) (Castro-Tum II) (which concluded that the immigration courts’ use of administrative closure was not authoriz.ed). See Matterq[Cruz-Valdez, 28 I&N Dec. 326, 329 (A.G. 2021); see also EOIR Director’s Memorandum 22-03 (providing guidance on administrative closure of cases). 1 Temporary Appellate Innnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 00000030993 ~ (b)(6) The Department ofHomeland Sectnity (“DHS’) has not responded to the respondent’s motion. See 8 C.F.R §§ 1003.2(c)(4), (g)(3) (non-response to a motion can be treated as non-opposition to the motion). Under the circumstances of this case, including the lack of opposition, and because the DHS may bring a motion to recalendar if it dee~ it appropriate, we will grant the respondent’s motion fur administrative closw-e of proceeding5. If either party to this case wishes to reinstate the proceeding5, a written request to reinstate the proceeding5 may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk’s Office, without fee, but with certification of service on the opposing party. Accordingly, the following order will be entered. ORDER: The proceeding5 before the Board of Irrmigration Appeals in this case are administratively closed. 2 00000030990 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review • Board of Immigration Appeals MATIER OF: ========(b=)(= 6)====::::!.,l Al (b )( 6) l’;=I 1~—~(-b)_(6-) —~I ~ (b)(6) I Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Scott Bellgrau, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondents, natives and citizens of Guatemala, appeal from the decision of the Immigration Judge, issued April 12, 2019, denying the lead respondent’s application for asylum and withholding of removal under the Act, as well as protection tmder • the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAn. See sections 208(b)(l)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A) and 1231(b)(3)(A); 8 C.F.R § § 1208. I 6 and 1208. I 8. 1 Removability is not disputed. The appeal will be dismissed. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(il). We adopt and affirm the decision of the Immigration Judge. See Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). The Irrnnigration Judge correctly found that the respondent’s exboyfriend and his fumily did not abuse her because she was targeted as a member of a proposed particular group, but rather for personal reasons (IJ at 5-6; Tr. at 78). Section 208(b)(l)((B)(i) of the Act; section 24I(b)(3)(A). We note that since the respondent only lived with her ex-boyfriend for three months and then moved out (IJ at 3; Tr. at 59-63, 71), the fucts and holding of Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) does not apply. 1 The respondents are a mother and her young daughter, a derivative on her mother’s asylum application. Any references to ”the respondent” will refer to the lead respondent, the mother. 00000030990 Al (b)(6) letal We also agree with the lrrnnigration Judge that the respondent did not deroonstrate that the Guatemalan government was unwilling or unable to protect her (IJ at 6). See Avetova-Elisseva v. INS, 213 F .3d 1192, 1196 (9th Cir. 2000). The respondent never sought police protection for the abuse. or reported the abuse although she knew that domestic violence was i11egal (JJ at 6; Tr. at 83-87). Thus, the respondent did not demonstrate past persecution or a well-founded future fear of persecution on account of a protected ground so as to be eligible for asylum or withho Id ing of removal (IJ at 6). The Immigration Judge also correctly denied CAT relief (JJ at 7). 8 C.F.R. § 1208. I 8(a)(I ). Since the respondent chose to represent herself during her hearing on the merits (Tr. at 48), the lrrnnigration Judge had a special duty to fully develop, the record by probing into relevant mets and by providing appropriate guidance as to how the respondent could develop her case. Agyeman v. INS, 296 F.3d 871,884 (9th Cir. 2002). Here, the Immigration Judge sufficiently developed the record by, among other things, confirming the respondent’s application for asylum was correct (Tr. at 50-54), discussing the Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Guatemala Country Report on Human Rights Practices -20 l 8 and admitting it into the record over the respondent’s objection as it was relevant to the issues presented (Tr. at 48-50), questioning the respondent in depth about her asylum application and exlnbits (Tr. at 57-75), explaining the basis for her asylum request, as well as affording her the opportunity to define and explain her proposed particular social group (Tr. at 76-78). Thus, on this record, the Irrn:nigration Judge satisfied his procedw-al duties. Moreover, there was no due process violation as the proceeding was not so :fundamentally unfair that the respondent was prevented from reasonably presenting her case and the respondent has not demonstrated prejudice. See Zamorano v. Garland, 2 F. 4th 1213, 1226 (9th Cir. 2021). With respect to the respondent’s proposed particular social group, she defined it as “a protection group so that I can be protected.” Tr. at 78. The Immigration Judge then suggested that her group involved threats from her daughter’s abusive rather who was not providing support and asked whether her daughter’s rather was making those threats against her and harming her and his family because she belonged to a particular group (Tr. at 78). In response, the respondent stated ”No.” Tr. at 78. On appeai the respondent’s counsel has presented a different proposed particular social group consisting of “single Guatemalan IIX)thers who are targeted by their child’s rather (Respondent’s Br. at 4). There is no need to remand to :finther consideration of the respondent’s proposed particular social groups because on this record, the respondent has not demonstrated that any proposed particular social group was a reason, let alone a central reason, for the harm inflicted on her in the past or any future harm. See Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017). The following order will be entered. ORDER: The appeal is dismissed. 2 00000030872 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATTER OF: ,________ _____ (h\(f;) (b_)_(6_) ……,lAl Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Matthew Mendez., Esquire ON BEHALF OF DHS: Daniela K. Hogue, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Houston, TX Before: Wetmore, Chief Appellate Innnigration Judge Opinion by Chief Appellate Inmigration Judge Wetmore WETMORE, Chief Appellate lnnnigration Judge ORDER: The Board affir~, without opinion, the result of the decision below. The decision below is, therefore, the final agency detennination. See 8 C.F.R § 1003.l(e)(4). NOT FOR PUBLICATION 00000030632 U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: ——~(b_)(6_) ______ L pj (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: Ira Okyne, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, New York, NY Before: Mullane, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge ORDER: The Department ofHomeland Security’s motion to withdraw its appeal is granted. See 8 C.F.R § 1003.4. \ U.S. Department of Justice 000000308 6f>ecision of the Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 File: Al (b)(6) I-Chicago, IL Date: JAN 28 2022 In re: (b)(6) IBeneficiary of a visa petition filed by :::::==:::::::::::::::::::::::::::::::::;-;~ ,__—‘-(b”‘”‘)(_6)’—__.I Petitioner IN VISA PETITION PROCEEDINGS APPEAL ON BEHALF OF PETITIONER: James Hallagan, Esquire ON BEHALF OF DHS: Denisa Turshinka Associate Counsel APPLICATION: Petition to classify status of alien relative for issuance of immigrant visa The petitioner has appealed from the Field Office Director’s (Director) March 1,2017, decision denying the visa petition (Fonn 1-130) filed on behalf of the beneficiary as the spouse of a United States citizen. The U.S. Citizenship and Immigration Services (USCIS) opposes the petitioner’s appeal. The appeal will be sustained, and the record will be remanded. We review all questions arising in appeals from decisions ofUSCIS officers de novo. 8 C.F.R. § 1003.l(d)(3)(iii). In visa petition proceedings, it is the petitioner who bears the burden of establishing eligibility for the immigration benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The Director denied the instant visa petition because she concluded that the beneficiary’s first marriage was fraudulent under section 204(c) of the Immigration and Nationality Act. However, we disagree with the Director’s conclusion that the record contains substantial and probative evidence that the beneficiary’s first marriage was fraudulent. See Matter of P. Singh, 27 I&N Dec. 598, 605 (BIA 2019) (“If the USCIS denies the petition under section 204(c) of the Act based on marriage fraud, the record must contain substantial and probative evidence of such fraud.”). Here, the Director reevaluated the evidence from the former petitioner’s visa petition and informed the instant petitioner through a March 15, 2012, Notice oflntent to Deny (NOID) that she intended to deny the instant visa petition due to section 204( c) of the Act. See Matter o/Tawfik, 20 I&N Dec. 166, 168 (BIA 1990) ( explaining that the Director “should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his own independent conclusion based on the evidence before him”). In support of this conclusion, in part, the Director stated that the former petitioner’s father was not aware that she was married and that during a May 26, 2011, interview, the beneficiary replied that he was not sure in response to several questions such as whether his former wife’s parents were aware of their marriage, ifhe ever spent Thanksgiving or Christmas with his former wife’s parents, who witnessed his wedding, and who attended their wedding reception. 00000030869 Al (b)(6) The Director also concluded that the beneficiary provided inconsistent information between his interviews in 2005 and 2011 regarding his living arrangements with his former wife. The Director also identified that in 2011 the beneficiary provided inconsistent information with his former wife’s testimony in 2005 regarding her educational background and responded that he was unsure in response to questions about where and when she attended school. The beneficiary also incorrectly spelled his former wife’s middle name at his 2011 interview and incorrectly identified the town she was born in. While the record supports the existence of many of the above issues, the NOID does not fully or accurately consider the evidence of record on certain issues. Specifically, the Director states in the NOID that the beneficiary stated at his 2011 interview that the only address that he and his former spouse shared was the address where they shared an apartment together, and that prior to moving to that address he lived with his aunt and uncle and the petitioner lived with her parents. However, the notes from the 2011 interview reflect that the beneficiary stated that he resided with his aunt and uncle and that the petitioner resided with her parents and sometimes stayed with the beneficiary. This assertion regarding living arrangements is further generally corroborated by two affidavits submitted in response to the NOID. Further, the NOID reflects that the beneficiary stated that he never went to a restaurant where his former spouse worked during their marriage. However, the notes in the record appear to reflect that the beneficiary stated this was a location where his former spouse worked after the marriage. The record also contains evidence in support of the bona fides of the marriage which the Director did not fully consider. Specifically, in addressing the documents submitted in response to the NOID, the Director found that the written affidavits were oflittle value and did not contain descriptive events, dates, or locations. However, two of the submitted affidavits specifically address the petitioner and the beneficiary’s living situation, an issue that was raised in the NOID, asserting that the petitioner and the beneficiary lived with the authors, and provided information regarding dates, locations, and descriptive events. The Director did not provide any basis for her conclusion that the submitted photographs appear staged. Further, the Director concluded that the bank statements solely spanned 2 months. However, the record reflects bank statements in both the petitioner and beneficiary’s name for 4 months, including for l (b)(6) ~ just after their marriage in I (b )( 6) I as well as copies of several checks that appear to have been issued from the joint account. In addition, the first petitioner submitted additional bank documents as part of the I-130 submission. The record also contains several documents related to a shared lease, including several months ofrent payments in both the beneficiary’s and former petitioner’s names, as well as a utility account in the former petitioner’s name at the same address contained on the lease. The Director also did not address in her March 1, 2017, decision the beneficiary’s explanations regarding two issues raised in the NOID. First, that his former wife’s parents were unhappy with the relationship and that his former wife was hesitant to tell them that she had married. Second, the respondent’s assertion that his former attorney advised him prior to his 2011 interview not to respond to questions regarding his first marriage. We have explained that “[g]iven that the consequence of engaging in marriage fraud under section 204( c) of the Act is a permanent bar to the approval of any future visa petition, the evidence of fraud must be relatively high to trigger the bar.” Matter of P. Singh, 27 I&N Dec. at 607. 2 ….. 00000030869 Al,__(:..;;.b.:.a.)(“-‘6)_. _ Specifically, the evidence of record “must establish that it is more than probably true that the marriage is fraudulent.” Id Here, we acknowledge that some of the identified concerns are significant, particularly the beneficiary’s statements that he is unsure of details related to his prior marriage such as who witnessed his wedding and who was at his wedding reception. However, the evidence “must create more than a “reasonable inference” of fraud.” Id. at 608. Here, while the record may create a “reasonable inference” of fraud, we are not persuaded that the record establishes that it is more than probably true that the beneficiary’s prior marriage was fraudulent. We note that aspects of the Director’s NOID and final decision are not supported by the record and the beneficiary provided explanations for several of the concerns raised in the NOID that the Director did not clearly consider. Therefore, in light of the foregoing, and as the Director did not address the bona fides of the beneficiary’s marriage to the instant petitioner, we find it appropriate to remand the record to the Director for consideration of the instant petition. Due to our disposition of the appeal, we decline to address the petitioner’s remaining arguments. We further express no opinion as to the ultimate outcome of the case. Accordingly, the following order will be entered. ORDER: The record is remanded to the Director for further consideration of the visa petition consistent with the foregoing opinion and for the entry of a new decision. FOR THE BOARD Appellate Immigration Judge Garry D. Malphrus respectfully dissents without opinion. 3 00000030629 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) ======cb=)c=6)=====L l Al ;\J (b)(6) (b)(6) !I FILED Jan 13, 2022 Respondents ON BEHALF OF RESPONDENTS: Jose G. Moreno, Esquire ON BEHALF OF DHS: Clmstopher A Chaffee, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, EI Paso, TX Before: Grant, Appellate Innnigration Judge Opinion by Appellate Innnigration Judge Grant GRANT, Appellate Immigration Judge ORDER: The respondents have appealed from the lrrnnigration Judge’s April 22, 2019, decision denying their applications for asylum and withho Id ing of rerroval Wlder sections 208(b )(1 )(A) and 24J(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ J158(b)(])(A) and 1231(b)(3)(A), as well as protection Wlder the regulations implementing the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishmmt, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). While this appeal was pending with the Board, the respondents and the Department of Homeland Security filed a joint motion to dismiss these proceedings without prejudice. The joint rrotion to dismiss is granted, and these proceedings are dismissed without prejudice.· Because there is nothing now pendmg at the Board, the record is returned to the Immigration Court without further action. NOT FOR P~l,Ji~~pON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: …__ ___ __,_(b.;;…:).a..;(____ -alAl__ h~l-~ 6;..:._) (~h~)( Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Jessica K. Miles, Esquire ON BEHALF OF DHS: Christopher R. Miller, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, El Paso, TX Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondent, a native and citizen of Mexico, appeals an Immigration Judge’s decision dated March 29, 2019, which denied his motion for a continuance. While the appeal was pending, the respondent filed a motion to remand, as well as a supplement to said motion The Department of Homeland Security (DHS) has not opposed the motion to remand. 8 C.F.R. § l003.2(g)(3). The motion to remand will be granted, and the record will be remanded. The respondent requests a remand to pursue adjustment of status based on an approved visa petition (Form I-130) filed by his United States citizen son Under these circumstances, where there is an approved visa petition and no DHS opposition, the motion will be granted, and the record will be remanded to allow the respondent to pursue adjustment of status. Accordingly, the following order will be entered. ORDER: The motion to remand is granted, and the record JS remanded to the Immigration Judge for further proceedings. 00000030866 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—(~b~)(6~) ___ __,IAl (b)(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Mann, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Mann MANN, Appellate Innnigration Judge ORDER: The appeal is Sllllllmrily dismissed under the provisions of 8 C.F.R. § 1003.l(d)(2)(i)(F), (H). On July 8, 2019, the Imnigration Judge issued a decision ordering the respondent removed after the respondent failed to appear at a scheduled hearing. The respondent seeks to challenge the Innnigration Judge’s decision, but has done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Innnigration Judge in accordance with section 240(b)(5)(C) of the Innnigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circumstances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 I&N Dec. 722 (BIA 1999); 8 C.F.R. § 1240.15. Accordingly, the appeal is dirnissed. 00000030620 f).., NOT FOR PUBLICATION j’ U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—~(~b)~(6~) _____ l A] (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF OHS: Marie Brown, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irmnigration Court, Denver, CO Before: Mann, Appellate hmnigration Judge Opinion by Appellate Immigration Judge Mann MANN, Appellate Innnigration Judge ORDER: The Department of Homeland Security has notified the Board that it withdraws its appeal See 8 C.F.R § 1003.4. Since there is nothing now pending before the Board, the record is returned to the Irmnigration Court without finther action. 000000304 70 NOT FOR PUBLICATION \ U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: .__ ___ __( 6.._) ____ _.I Al (b )( 6) ____._(b….,) Respondent FILED Jan 18, 2022 ON BEHALF OF RESPONDENT: Craig Relles, &qwre ON BEHALF OF OHS: Lawrence E. Arturo, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, New York, NY Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge ORDER: The respondent and Department of Homeland Security’s joint motion to remand is granted. 00000030863 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ___:_;(b’-‘-)(:..;;.6.._) (b)( 6) ,__ ___ ___ ____.IAl Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Maria Guadalupe Mendoza, Esquire ON BEHALF OF DHS: Megan B. Shelton, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Befure: Mann, Appellate Immigration Judge • Opinion by Appellate Immigration Judge Mann MANN, Appellate lmmigration Judge ORDER: The appeal is surrnnarily dismissed under the provisions of8 C.F.R. § 1003.l(d)(2)(0(F), (H) . . On July 22, 2019, the Immigration Judge issued a decision ordering the respondent”rernoved after the respondent railed to appear at a scheduled hearing. The respondent seeks to challenge the Immigration Judge’s decision, but has done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Immigration Judge in accordance with section 240(b)(5)(C) of the lrrnnigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). The Board lacks jurisdiction over this appeal See Matter of Guzman, 22 I&N Dec. 722 (BIA 1999); 8 C.F.R. § 1240.15. Accordingly, the appeal is dismissed. 00000030984 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATIER OF: .______ ____ AJ (h )( 6) ___,_(b_,_)(._6.,_) ___,I Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Orest Bezpalko, Esquire ON BEHALF OF DHS: Daniel R Wihnoth, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Philadelphia, PA Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge A Notice of Appeal (Form EOIR-26) must be filed within 30 calendar days of an Immigration Judge’s oral decision or the mailing of a written decision tmless the last day fulls on a weekend or legal holiday, in which case the appeal must be received no later than the next business day. 8 C.F.R. § 1003.38(b), (c). In the instant case, the Immigration Judge’s decision was mailed on July 31, 2019. The appeal was accordingly due on or before August 30, 2019. The record reflects that the Notice of Appeal was filed with the Board on September 3, 2019, two days late the due date. The appeal is W1timely as the record demonstrates that the appeal was not perfected within the requisite 30-day period. In a letter submitted with the Notice of Appeai counsel for the Department of Homeland Secmity states that because the DHS office is co-located with the Immigration Court, and the Immigration Judge decision was date-stamped by DHS on August 2, 2019, the decision must not have been served on DHS lllltil August 2. The letter is insufficient to establish that this is the case, or that theAugust 2 date-stamp was not caused by internal delays in processing. Thus, the appeal will be summarily dismissed pursuant to 8 C .F .R. § 1003.l(d)(2)(i)(G). The Immigration Judge’s decision is accordingly now finai and the record will be returned to the Immigration Court without further Board action See 8 C.F.R. §§ 1003.3(a), 1003.38, 1003.39, 1240.14 and 1240.15. Because we are swnmarily dismissing the appeal as untimely, either party wishing to file a motion in this case should follow the following guidelines: If you wish to file a motion to reconsider challenging the finding that the appeal was lllltimely, you must file your motion with the Board. However, if you are challenging any other finding or seek to reopen your case, you must file your motion with the Immigration Court. See Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974); Matter of Lopez, 22 I&N Dec. 16 (BIA 1998). You should also keep in mind that there are strict time and number limits on motions to reconsider and motions to reopert See 00000030984 e Al.__(‘–‘-b)–‘-(_____. 6-‘-) sections 240(c)(6)(A) & (B) and 240(c)(7)(A) & (C) of the hmnigration and Nationality Act, 8 U.S.C. §§ 1229a(c)(6)(A) & (B) and (c)(7)(A) & (C); 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(l); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). In light of the foregoing, the following orders will be entered. ORDER: The appeal is smnmarily dismissed. FURTHER ORDER: The record is returned to the hmnigration Court without further Board actiort 2 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~–(_b)_(6) __ ~l ~,___Cb_)(6_) ____. Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Diane E. McHugh Martinez., Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the lrrnnigration Court, Arlington, VA Before: Brown, Temporary Appellate Jrrnnigration Judge1 Opinion by Temporary Appellate Immigration Judge Brown BROWN, Temporary Appellate Immigration Judge The respondent, a native and citizen of El Salvador, was ordered removed in absentia on June 9, 2004. On August 20, 2018, the respondent filed a motion to reopen his removal proceedings and rescind the in absentia removal order, but the Innnigration Judge denied the motion in a decision dated November 14, 2018. The respondent appeals from that decision. The appeal will be dismissed. We review for clear error the findings of fact, including the determination of credibility, made by the Irrnnigration Judge. 8 C.F.R. § 1003. l(d)(3)(i) (2020). We review de novo all other issues, including issues of law, judgment, or discretion. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent’s motion to reopen was filed 14 years after he was ordered removed in absentia and he has not alleged that he did not receive notice of his hearing. See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C) (providing that an in absentia order of removal may be rescinded only (1) upon a motion to reopen filed within 180 days after the in absentia order of removal if the nonciti7.en demonstrates that the failure to appear was because of exceptional circurmtances, or (2) upon a motion filed at any time if the noncitizen demonstrates that he did not receive notice).” The respondent contends that his in absentia removal order should be reopened so he can apply for asylum based on changed country conditions in El Salvador. There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 208 or 241 (b )(3) of the Act and is based on changed country conditions arising in the comtry of 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 000000314 76 ~~-(-b)_(6_) ~ nationality or the cotmtry to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceedings. Section 240(c)(7)(C)(iI) of the Act; 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R § 1003.23(v)(4). Here, the Immigration Judge determined that the respondent’s motion to reopen did not establish circumstances that warranted reopening for him to pursue asyh.nn and related relief (IJ at 2). We affirm the Innnigration Judge’s finding that the respondent did not demonstrate an exception to the time bar on reopening based on changed country conditions. See section 240(c)(7)(C) of Act; 8 C.F.R § 1003.23(b)(4)(i). In his motion, the respondent claimed that he feared retwning to El Salvador due to the problems he had in that country in 2002 and because of the general gang violence there. The respondent also descnbes problems that he had in 2007 in the United States with the son of a business competitor (who is also a gang mem:,er), and problems he experienced in 2014-2016with the same individual. As observed by the lnnnigration Judge, the threats made in 2002, prior to his arrival in the United States, could have been presented at his 2004, hearing, and the threats to the respondent surrounding his construction business are unrelated to the incidents that occurred in El Salvador. We conclude that the evidence submitted by the respondent in support of his motion does not demonstrate prima facie eligibility for asylum or withholding of removal under the circumstances descnbed by the respondent. Accordingly, the respondent has not established that reopening is warranted as a result of changed cotmtry conditions in EI° Salvador. The respondent argues that the Immigration Judge’s decision is incomplete because she did not explicitly consider his eligibility for protection under the regulations lll1)lementing the Convention Against Torture and Other cruei Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT) (8 C.F.R. §§ 1208.16-.18). We disagree. The respondent did not make any meaningful arguments supporting his prima fucie eligibility for CAT protection nor did he refer in his motion to any particularized evidence that would 1mke such a prima fucie showing for this protection. See Munyakazi v. Lynch, 829 F.3d 291,302 (4th Cir. 2016); see also Matter of J-F-F-, 23 I&N Dec. 912,913 (A.G. 2006); see also Matter of J-E-, 23 I&N Dec. 291,297 (BIA 2002). We also affirm the Irrnnigration Judge’s denial of the respondent’s motion to reopen sua sponte. The Irrnnigration Judge noted that the respondent chose not to attend his 2004 hearing and did not pursue his immigration case for nearly fourteen years thereafter. The Innnigration Judge correctly determined that the respondent had not presented an exceptional situation warranting the exercise of sua sponte authority (U at 2). See Matter of J-J-, 21 l&N Dec. 976, 984 (BIA 1997); 8 C.F.R. § 1003.23(b)(1). The following order will be entered. ORDER: The appeal is dismissed. 2 00000030617 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~—-(b_)(_6) ___ ~1~ (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Mackenzie Mackins, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Comt, Los Angeles, CA Before: Petty, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Petty PETIY, Appellate Immigration Judge lbe respondent, a native and citizen of Mexico, appeals from the Immigration Judge’s August 15, 2019, decision denying bis application for asylum and withholding of removal under sections 208(b)(l) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l), 1231 (b )(3), as well as protection under the regulations Ill1)1ementing the Convention Against Torture and Other CrueL lnhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20,1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT), 8 C.F.R §§ 1208.16(c)-1208.18. 1 The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(0. We review all other issues, including issues of law, discretion, or judgment, tlllder the de novo standard. 8 C.F.R § 1003.l(d)(3)(iI). The respondent credibly testified that on two occasions in 2011, he was he was threatened by men he believed to be cartel merroers after his son refused to join the cartel (IJ 3-5; Tr. at 32-37). ~e respondent did not report these incidents to the police, but moved his son to a different city in Mexico (IJ 3-4; Tr. at 77-39). Arolllld the same time, the respondent’s brother was also threatened by cartel members and forced to flee his hometown when he refused to join a cartel (IJ at 4; Tr. at 42-43). The respondent also testified that not long before his merits hearing, his son was again stopped and asked to join a cartel but refused (IJ at 4; Tr. at 45). In support of his applications for asylum and related relie~ the respondent asserts two different family-based social groups, defined as a family member of both his son and his brother, as well as 1 The Board cannot provide specific cites to the respondent’s brief because it is 1.mpaginated. See EOIR Policy ManuaL Board of Immigration Appeals Practice ManuaL Chapter ill.4.6(b) (last updated Mar.24, 2021). 00000030617 AJ (b)(6) a group defined as ”Mexican nationals who have lived in the United States for an aggregate of 10 years or more” (U at 6; Exh. 2; Respondent’s Br. (unpaginated)). The Imnigration Judge determined that the respondent’s proposed particular social groups were not cognizable and that the respondent did not establish a nexus between his membership in a cognizable particular social group and any past or future harm (IJ at 5-11 ). Accordingly, the Immigration Judge denied the respondent’s applications for asyhnn and withholding of removal under the Act (IJ at 11-12). The Imnigration Judge also denied the respondent’s application for CAT (IJ at 12-15). This appeal followed. For the reasons below, we affirm the Immigration Judge’s decision Assuming arguendo the respondent’s particular social groups are cognizable, we affirm the Immigration Judge’s finding that the respondent’s membership in these groups is not “one central reason” for any past or future harm (IJ at 11 ). 2 See sections 208(b )(1 )(B)(i) and 240( c )( 4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A). Specifically, the Imnigration Judge did not clearly err in finding that the cartel was targeting the respondent primarily for gang recruitment, and not based on any protected gromd (IJ at 11-12; Exh. 4 at Tab E). See Ayala v. Holder, 640 F .3d I 095, I 097 (9th Cir. 2011) (providing that, even if membership in a particular social group is established, an applicant must still show that ”persecution was or will be on accomt of his membership in that group”); Zetino v. Holder, 622 F .3d 1007, 1016 (9th Cir. 20 I 0) (“An [applicant’s] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.’); see also Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011). Therefore, we affirm the Immigration Judge’s denial of the respondent’s asyhnn claim Similarly, the respondent did not establish that his membership in a cognizable particular social group was “a reason” for his past or feared harm to be eligible for withholding of removal (IJ at 12). See Barajas-Romero v.Lynch, 846F.3d 351, 359-60(9th Cir. 2017) (holding that an applicant for withholding of removal need only show that a protected grmmd was “a reason” for the persecution). We therefore affirm the denial of withholding of removal under the Act. We also affirm the Immigration Judge’s denial of CAT protection (IJ at 12-13). We discern no legal or clear fuctual error in the Immigration Judge’s detennination that the respondent did not establic;h that he will more likely than not be tortured by or with the consent or acquiescence of a Mexican government official (IJ at 12-13). See 8 C.F.R § 1208.16(c)(2); Matter of R-A-F-, 27 I&N Dec. 778, 779 (A.G. 2020) (the Innnigration Judge’s predictive factual findings as to what will happen to the respondent if returned are reviewed for clear error, but whether the predicted outcome satisfies the definition of torture is reviewed de novo ). There is no clear error in the Immigration Judge’s finding that the respondent was threatened by a limited group of people from a single cartei and that later threats to his son and the death of his neighbor are not necessarily 2 In his analysis of the two family-based groups, the Immigration Judge noted that the groups are not socially distinct, relying in part on Matter of L-E-A-, 27 l&N Dec. 581 (A.G. 2019) (MatterofL-E-A-II) (IJ at 8-10). Subsequent to the hmnigration Judge’s decision, Matter of L-E-A-II was vacated by Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021). We therefore do not rely on Matter of L-E-A-II or any related analysis. 2 00000030617 Aj (b)(6) linked to past threats (IJ at 12-13). Moreover, contrary to the respondent’s arguments on appeaL the viability of internal relocation also weighs against a grant of relief (IJ at 12-13; Respondent’s Br. (unpaginated)).3 See 8 C.F.R. § 1208.16(c)(3,)(it). Ahhough there is some evidence of police and cartel cooperation and corruption docwnented on the record, we discern no clear error in the Immigration Judge’s finding that the respondent did not meet his burden to prove that a Mexican government official would be willfully blind to any future torture (IJ at 12-13). Further, contrary to the respondent’s arguments on appeaL the Immigration Judge properly considered the relevant cmmtry condition evidence and factors (IJ at 13). See 8 C.F.R § 1208.16(c)(3)(iii)-(iv). We therefore concur with the Immigration Judge that the respondent has only advanced a series of suppositions in support of his claim that it is more likely than not that he will be tortured upon his return (IJ at 12-13). See Matter of J-F-F-, 23 I&N Dec. 912, 917-18 (A.G. 2006). Finally, the record does not reflect that the respondent submitted timely proof of having paid the vohmtary departure bond. The Immigration Judge properly advised the respondent of the need to inform the Board, within 30 days of filing an appeaL that the bond has been paid (Notice to Respondents Granted Voluntary Departure). Therefore, the vohmtary departure period granted by the Immigration Judge will not be reinstated, and the respondent shall be removed from the United States pursuant to the Immigration Judge’s ahernate order. See 8 C.F.R. § 1240.26(c)(3); Matter of Gamero, 25 I&N Dec. 164 (BIA 2010). Accordingly, the following orders will be entered. ORDER: The respondent’s appeal is dismissed. FURTIIER ORDER: The respondent is ordered removed from the United States to Mexico. 3 In the decision, the Immigration Judge noted that the respondent could internally relocate relying in part on Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018) (Matter of A-B-II) (IJ at 12-13). Subsequent to the Immigration Judge’s decision, Matter of A-B-//was vacated by Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). We therefore do not rely onMatterofA-B-II or any related analysis. 3 00000030614 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals · MATIER OF: ,.__ ____ ___ (b_)(_6) ___,~ Al= (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Steven R Lawrence, F.squire ON BEHALF OF DHS: Jeffrey D. Clark, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, West Valley, UT Befure: Mullane, Appellate hnmigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge The respondent, a native and citiz.en of Mexico, has appealed from the Immigration Judge’s decision dated August 27, 2019. The Department of Homeland Security has filed a brief in response to the respondent’s appeal The appeal will be dismissed. We review questions of law, discretion, and judgment arising in appeals from decisions of Immigration Judges de novo, whereas we review findings of :fact in such appeals mder a clearly erroneous standard. 8 C.F.R § 1003.l(d)(3). We adopt and affirm the Immigration Judge’s decision in this case. See Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The Innnigration Judge’s :factual findings are not clearly erroneous. The respondent has not established eligibility fur cancellation ofremoval under section 240A(b) of the Irrmigration and Nationality Act, 8 U.S.C. § 1229b(b), by demonstrating that his United States citizen daughter would suffer exceptional and extremely musual hardship upon • the respondent’s removal See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001 ). The respondent submitted evidence that his daughter suffers from narcolepsy and cataplexy (Tr. at 18-19; Exh. 4 at 209). We agree with the Immigration Judge’s assessment that the respondent has not demonstrated the requisite hardship necessary to qualify for cancellation of removal (IJ at 7-8). As the Irrnnigration Judge explained, the respondent’s daughter has a structured educational program and low cost medicine regimen to assist her in her daily tasks (IJ at 7), and any reduction in the respondent’s financial income in Mexico would be offset by her ability to receive Medicaid in the United States (IJ at 7). While we sympathize with the respondent and his :family regarding the medical hurdles he descnbes, there is no error (legal or :factual) in the Immigration Judge’s determination that. the 00000030614 Al (b)(6) respondent’s child would not suffer hardship substantially beyond that which would ordinarily be expected to resuh from the respondent’s removal (I.J. at 7-8). Cancellation ofremoval is limited to “truly exceptional situations.” Matter of Monreal, 23 I&N Dec. 56, 62 (BIA 200 I). The respondent has not met this high standard. Lastly, the Immigration Judge granted the respondent vohmtary departure. Pursuant to 8 C.F.R. § 1240.26(c)(3)(il), a respondent granted vohmtary departure shall, within 30 days of filing an appeal with the Board, submit sufficient proof that the required vohmtary departure bond was posted with the Department of Homeland Security. If the respondent does not provide timely proof to the Board, the Board will not reinstate the period of vohmtary departure in its final order. Id. The record before the Board does not indicate that the respondent submitted t:irrely proof of having paid the vokmtary departure bond. Therefore, the vohmtary departure period will not be reinstated, and the respondent shall be ordered removed from the United States on the charge contained in the Notice to Appear, pursuant to the Immigration Judge’s ahernate order. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000030860 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—~(b~)~(6)~—~l Al (b)(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Fernando Gutierrez, Esquire ON BEHALF OF OHS: Ellen J. Krupp, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Chicago, IL Before: Wetmor_e, Chief Appellate Inn:nigration Judge Opinion by Chief Appellate Irrnnigration Judge Wetimre ! WETMORE, Chief Appellate Irrnnigr~tion Judge I The respondent’s appeal of the )Il1lnigration Judge’s October 3, 2019, decision is pending before the Board. On October 26, 20~1, the respondent and the Department of Homeland Security (”OHS’) filed a joint motion to dismi,5s these proceedings without prejudice based on the OHS’ determination that this case is no longer in the best interest of the government to continue as circumstances have changed extensively since the issuance of the notice to appear. See 8 C.F .R. § 239.2(a)(7). We will grant the joint motion. • Accordingly, the following order will be entered. ORDER: The joint motion is granted, and these proceedings are dismissed without prejudice. MATIER OF: 00000030857 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals FILED (b)(6) (hV6) lM Jan 28, 2022 (1,-,\(,:;\ Al /hV,:;\ I (b)(6) I~ (b)(6) I (b)(6) (b)(6) !~ (b)(6) l Al /h V ,:;\ Respondents ON BEHALF OF RESPONDENTS: Pro se ON BEHALF OF DHS: Jim S. Stolley, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Francisco, CA Before: Mann, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Mann MANN, Appellate Immigration Judge The Department of Homeland Security {”DHS”) appeals from the Irrunigration Judge’s August 16, 2019 decision terminating these proceedings. 1 The appeal will be sustained, the proceedings will be reinstated, and the records will be remanded for finther proceedings consistent with this decision. The Immigration Judge concluded that because the notice to appear did not comply with the requirements of 8 C.F.R §§ 1003.14(a) and 1003.15{b)(6), the Immigration Judge was deprived of jurisdiction over these proceedings, relying on Karin git hi v. Whitaker, 913 F .3d 1158 (9th Cir. 2019). Subsequent to the lnnnigration Judge’s decision, we issued Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), distinguish_ing Karingithi and holding that a notice to appear that does not include the address of the lnmigration Court where the DHS will file the charging document under 8 C.F.R. § 1003.15(b)(6), or include a certificate of service indicating the Irrnnigration Court in which the charging document is filed under 8 C.F.R. § 1003.14(a), does not deprive the Immigration Court of subject matter jurisdiction. See Aguilar Fermin v. Barr, 958 F.3d 887,889 {9th Cir. 2020) (agreeing with the Board’s holding in Matter of Rosales Vargas and Rosales Rosales “that an initial NTA need not contain time, date, and place infonnation to vest an 1 On June 9, 2020, the Board issued a decision in a related case (Al (b)(6) D 00000030857 Al rhV6) letal irrnnigration court with jurisdiction if such information is provided before the hearing.”). 2 Given this intervening precedent, we will sustain the appeai reinstate the proceedings, and remand the records to the Innnigration Court for further proceedings consistent with this decision. Accordingly, the following order will be entered. ORDER: The DHS’s appeal is sustained, removal proceedings are reinstated, and the records are remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and the entry of a new decision. 2 Reaffirmed in B.R v. Garland, 4 F.4th 783, 791 n.6 (9th Cir. 2021) (“Notably, a trio of cases have held that an immigration court’s jurisdiction vests upon the filing of a charging docwnent with the EOIR, even a defective one.”). 2 00000030854 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: FILED (b)(6) (b)(6) IAl I Jan 28, 2022 (b)(6) (b)(6) l~ I (b)(6) (hV61 b Pl I (h)(6) (b)(6) l Pl (h\( i;\ fh Vt:\ I, Al Respondents ON BEHALF OF RESPONDENTS: Pro se ON BEHALF OF DHS: Jim S. Stolley, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Francisco, CA Before: Mann, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Mann MANN, Appellate Immigration Judge The Department of Homeland Security {”DHS”) appeals from the Irrunigration Judge’s August 16, 2019 decision terminating these proceedings. 1 The appeal will be sustained, the proceedings will be reinstated, and the records will be remanded for finther proceedings consistent with this decision. The Immigration Judge concluded that because the notice to appear did not comply with the requirements of 8 C.F.R §§ 1003.14(a) and 1003.15{b)(6), the Immigration Judge was deprived of jurisdiction over these proceedings, relying on Karin git hi v. Whitaker, 913 F .3d 1158 (9th Cir. 2019). Subsequent to the lnnnigration Judge’s decision, we issued Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), distinguish_ing Karingithi and holding that a notice to appear that does not include the address of the lnmigration Court where the DHS will file the charging document under 8 C.F.R. § 1003.15(b)(6), or include a certificate of service indicating the Irrnnigration Cmnt in which the charging document is filed under 8 C.F.R. § 1003.14(a), does not deprive the Immigration Court of subject matter jurisdiction. See Aguilar Fermin v. Barr, 958 F.3d 887,889 {9th Cir. 2020) (agreeing with the Board’s holding in Matter of Rosales Vargas and Rosales Rosales “that an initial NTA need not contain time, date, and place infonnation to vest an 1 On June 9, 2020, the Board issued a decision in a related case (A! (b)(6) D. 00000030854 Al.______,(“”””‘b )-“-(6-‘–)____,~t al irrnnigration court with jurisdiction if such information is provided before the hearing.”). 2 Given this intervening precedent, we will sustain the appeai reinstate the proceedings, and remand the records to the Innnigration Court for further proceedings consistent with this decision. Accordingly, the following order will be entered. ORDER: The DHS’s appeal is sustained, removal proceedings are reinstated, and the records are remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and the entry of a new decision. 2 Reaffirmed in B.R v. Garland, 4 F.4th 783, 791 n.6 (9th Cir. 2021) (“Notably, a trio of cases have held that an immigration court’s jurisdiction vests upon the filing of a charging docwnent with the EOIR, even a defective one.”). 2 00000031407 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) b 6 (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) FILED Jan 27, 2022 Respondents ON BEHALF OF RESPONDENTS: Eloy A. Aguirre, &quire ON BEHALF OF DHS: Jillian L. Woods, Senior Attorney IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Liebowitz, Appellate Irrnnigration Judge Opinion by Appellate Inunigration Judge Liebowitz LIEBOWITZ, Appellate Immigration Judge On December 10, 2018, the Immigration Judge granted the respondents, 1 natives and citizens of Mexico, asyh.nn under section 208(b)(l)(A) of the lnnnigration and Nationality Act, 8 U.S.C. § 1158(b)(l)(A), and did not reach the issues of withholding ofremoval under section 24l(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), or protection under the regu]ations implementing the Convention Against Torture and Other cruei lnhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (DHS) has appealed. 2 The respondent submitted a brief in support of the Innnigration Judge’s decision. The appeal will be dismissed. The record will be remanded to the hnmigration Judge fur any necessary background and security investigations. 1 The respondents are a mother and her four children. The children are all beneficiaries on their rmther’s asylum applicatioIL See section 208(b)(3)(A) of the Act; 8 C.F.R. § 1208.3(a). They also filed independent applications. We deem the mother respondent to be the lead respondent, and refer to her herein as “the respondent.” 2 The DHS also filed a motion to remand based pm Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). The motion will be denied as that decision has been vacated. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021). 00000031407 ~ (b)(6) ~t al We review finding<; of fact determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003. l(d)(3)(~-We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(il). The Immigration Judge found that the respondent had established a well-founded fear of future persecution on account of her membership in the particular social group of “family of her husband and his brothers” (IJ at 6-9). On appea~ the DHS argues that the Immigration Judge erred in finding 1) the respondent’s proposed particular social group is cognizable; 2) that she has a wellfounded fear of future persecution on account of a protected ground; 3) that the Mexican government is unable or unwilling or control the private actors she fears; and 4) that she cannot internally relocate to avoid future persecution (DHS’s Br. at 7-16). The DHS asserts that the respondent’s proposed particular social group is not sufficiently particular or socially distinct, relying in part on Matter of L-E-A-, 27 I&N Dec. at 581 (DHS’s Br. at 7-11). Since briefing, the Attorney General has vacated that decision. Matter of L-E-A-, 28 I&N Dec. at 304. Moreover, contrary to the DHS’s appellate contention, the Immigration Judge did address the particularity and social distinction of the group, including recognizing that the family in question were members of a known musical group (IJ at 6; Tr. at 95; DHS’s Br. at 10). We uphold the Irrnnigration Judge’s detennination that under the particular circ~tances of this case, the respondent has established a cognizable particular social group. See Kaur v. Garland, 2 F.4th 823,834 (9th Cir. 2021) citing Parada v. Sessions, 902 F.3d 901,910 (9th Cir. 2018) (“[T]he family remains the quintessential particular social group.” (citation omitted)); Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (same); see also Matter of L-E-A-, 27 l&N Dec. 40, 42-43 (BIA 2017). The Immigration Judge found that the respondent had established that she has a well-founded fear of persecution (IJ at 8-9). We discern no clear error in the lnnnigration Judge’s predictive findingc;. See Matter of Z-Z-O-, 26 I&N Dec. 586,590 (BIA 2015) (stating that “an Immigration Judge’s predictive findingc; of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review.”); see also Mondaca-Vega v. Lynch, 808 F.3d 413,426 (9th Cir. 2015) (stating that a finding is not “clearly erroneous” unless, based on the entire evidence, the reviewing court is left with ”the definite and firm conviction that .a mistake has been committed’). The DHS relies on case law that indicates that threats may not constitute persecution, but here the Immigration Judge fuund that the threats did not constitute past persecution but rather relied on the threats to find that the respondent had established that her fear was objectively reasonable (IJ at 8-9; DHS ‘s Br. at 12-] 3). See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-84 (9th Cir. 2003). The DHS argues that the Immigration Judge erred because most relatives of the respondent’s husband in Mexico have not been banned (DHS’s Br. at 13). However, the brother roost similarly situated to the respondent’s husband is in the United States (IJ at 8-9; Tr. at 71, 83-84; 91, 96; Exh. 2 at 3-7). The DHS also contends that the Immigration Judge erred because the respondent had not established that any persecutory harm would be on account of the respondent’s family membership rather than personal animus (DHS’s Br. at 13). We discern no clear error in the Immigration 2 00000031407 ~.__(b_)(_6)_,~tal Judge’s finding that the motivation of the cartel members is because she is a member of her husband and his brothers’ family unit (IJ at 7). See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that the Board reviews the Irrnnigration Judge’s motivation finding for clear error); see also Garcia v. Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021) (holding that “sweeping retaliation towards a family unit over time can demonstrate a kind of arumus distinct from purely personal retnbution. ‘) (internal citations and quotations omitted). The Immigration Judge further found that the Mexican government was unable or unwilling to protect the respondent from the cartel (IJ at 7-8). Considering the record, including country conditions evidence, we do not discern clear error in the Immigration Judge’s finding.3 Finally, the DHS challenges the Immigration Judge’s finding that the respondent could not internally relocate to avoid persecution because the cartel had found the respondent’s family in Tijuana (IJ at 9). The DHS argues that the Irrnnigration Judge erred because the cartel never directly contacted the respondent in Tijuana (DHS ‘s Br. at 15-16). The Immigration Judge’s finding that the text messages indicated they had found the respondent’s family is a permissible view of the evidence (IJ at 9; Tr. at 88). See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007) (stating that an Immigration Judge is not required to interpret the evidence in the manner advocated by a party). ‘ As we find the Immigration Judge’s decision is supported by the record, we will dismiss the appeal We will remand the record for the purpose of updating the required background and security checks. Thus, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and fur the entry of an order as provided by 8 C.F.R. § 1003.47(h). 3 Insofar as the DHS relies on Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018) in its brie( that decision has been vacated. See Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021). 3 00000030611 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) I,Al (h\(6) :=.====::::::::::::::rh=,=rr:.=,====:::.._…:;I, ~–(-h-)(-6)-~ :::=======::’.:(h~)~(F,:’.::’.:)=======,:::::-1,~Al I (b)(6) ~—~(b~)~(6~) —-~I .Al (hVF.) Respondents FILED Jan 13, 2022 ON BEHALF OF RESPONDENTS: Pro se ON BEHALF OF OHS: Elizabeth A. Gross, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, San Francisco, CA Before: Mann, Appellate Imnigration Judge Opinion by Appellate Immigration Judge Mann MANN, Appellate Immigration Judge The Department of Homeland Security (“DHS’) appeals from the I.rrmigration Judge’s July 30, 2019 decision terminating these proceedings. The appeal will be sustained, the proceedings will be reinstated, and the records will be remanded for further proceedings consistent with tlm decision The Immigration Judge concluded that because the notice to appear did not colll)ly with the reqttirements of 8 C.F.R §§ 1003.14(a) and I003.15(b)(6), the Immigration Judge was deprived of jurisdiction over these proceedings, relying on Karin git hi v. Whitaker, 913 F .3d 1158 (9th Cir. 2019). Subsequent to the Immigration Judge’s decision, we issued Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), distinguishing Karingithi and holding that a notice to appear that does not include the address of the Inmigration Court where the OHS will file the charging document \lllder 8 C.F.R § 1003.15(b)(6), or include a certificate of service indicating the Immigration Court in which the charging document is filed mder 8 C.F.R § 1003.14(a), does not deprive the Immigration Court of subject matter jurisdiction. SeeAguilar Fermin v.Barr, 958 F.3d 887,889 (9th Cir. 2020) (agreeing with the Board’s holding in Matter of Rosales Vargas and Rosales Rosales “that an initial NTA need not contain time, date, and place information to vest an innnigration court with jurisdiction if such inforrmtion is provided before the hearing.”). Given tlm intervening precedent, we will sustain the appeai reinstate the proceedings, and remand the record to the Immigration Court for further proceedings consistent with tlm decision 00000030611 ~ (b)(6) let al Accordingly, the following order will be entered. ORDER: The DHS’s appeal is sustained, removal proceedings are reinstated, and the records are remanded to the Imnigration Judge for fiuther proceedings consistent with the foregoing opinion and the entry of a new decision 2 00000030608 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) (b)(6) (b)(6) (hV61 (b)(6) Respondents FILED Jan 13, 2022 ON BEHALF OF RESPONDENTS: Pro se ON BEHALF OF OHS: Elizabeth A. Gross, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, San Francisco, CA Before: Mann, Appellate Imnigration Judge Opinion by Appellate Immigration Judge Mann MANN, Appellate Immigration Judge The Department of Homeland Security (“DHS’) appeals from the I.rrmigration Judge’s July 30, 2019 decision terminating these proceedings. The appeal will be sustained, the proceedings will be reinstated, and the records will be remanded for further proceedings consistent with tlm decision The Immigration Judge concluded that because the notice to appear did not colll)ly with the reqttirements of 8 C.F.R §§ 1003.14(a) and I003.15(b)(6), the Immigration Judge was deprived of jurisdiction over these proceedings, relying on Karin git hi v. Whitaker, 913 F .3d 1158 (9th Cir. 2019). Subsequent to the Immigration Judge’s decision, we issued Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), distinguishing Karingithi and holding that a notice to appear that does not include the address of the Inmigration Court where the OHS will file the charging document \lllder 8 C.F.R § 1003.15(b)(6), or include a certificate of service indicating the Immigration Court in which the charging document is filed mder 8 C.F.R § 1003.14(a), does not deprive the Immigration Court of subject matter jurisdiction. See Aguilar Fermin v. Barr, 958 F.3d 887,889 (9th Cir. 2020) (agreeing with the Board’s holding in Matter of Rosales Vargas and Rosales Rosales “that an initial NTA need not contain time, date, and place information to vest an innnigration court with jurisdiction if such inforrmtion is provided before the hearing.”). Given tlm intervening precedent, we will sustain the appeai reinstate the proceedings, and remand the record to the Immigration Court for further proceedings consistent with tlm decision 00000030608 Al (b)(6) letal Accordingly, the following order will be entered. ORDER: The DHS’s appeal is sustained, removal proceedings are reinstated, and the records are remanded to the Imnigration Judge for fiuther proceedings consistent with the foregoing opinion and the entry of a new decision 2 00000030605 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: FILED Jan 13, 2022 ~—(b_)_(6_) –~’ )””‘””(6-‘-) ;\J,______,(-‘-‘b___. Respondent ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: Justin BtnTows, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Comt, Chicago, IL Before: Grant, Appellate Immigration Judge Opinion by Appellate hnmigration Judge Grant GRANT, Appellate Immigration Judge The Department of Homeland Security (DHS) has filed an appeal from the Immigration Judge’s decisicm dated September 26, 2019, terminating proceedings without prejudice. The appeal will be dismissed. We review the Immigration Judge’s findings offact for clear error. 8C.F.R. § 1003.l(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R. § 1003.l(d)(3)(iJ.). lhe respondent was placed into removal proceedings via a Notice to Appear (NTA) that was served on January 28, 2019, which did not include the date and time ofreIIDval proceedings. The respondent appeared at master calendar hearings on February 20, March 6, and March 25, 2019. Pleadings were not taken. The respondent appeared with counsel on Septerroer 26, 2019, and moved to terminate proceedings based on the setvice of a defective NTA. The DHS conceded that the motion was timely, but opposed it on the grounds that the NTA could be amended without proceedings being tenninated (Tr. at 13-14). The Immigration Judge granted the respondent’s motion, terminated proceedings without prejudice, citing Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), and denied the DHS’smotion to amendthe NTA. In Ortiz-Santiago v. Barr, 924 F.3d at 962-64, the Seventh Circuit held that the statutory requirement that a Notice to Appear for a removal hearing include the time, date, and place of the hearing was not jurisdictional in nature. See section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a). The Seventh Circuit held that section 239(a) of the Act is a claimsprocessing rule, as opposed to a jurisdictional one. Ortiz-Santiago v. Barr, 924 F.3d at 962-63, 966. The court finther determined that omitting the specific information in the Notice to Appear was not tmimportant or could be ignored but that an objection could be forfeited if not timely 00000030605 Aj (b)(6) ~ raised. Id. at 963, 966. The court determined, however, that the Immigration Judge could and should quash a defective Notice to Appear where there is a prompt objection and that a new Notice to Appear may be issued. Id. at 965. Subsequently, based on Seventh Circuit authority, receipt of a defective Notice to Appear followed by a timely objection entitles a respondent to have the re100val proceedings terminated, and in such instances, the respondent need not show prejudice. See De La Rosa v. Garland, 2 F.4th 685, 686-88 (7th Cir. 2021) (reversing and remanding Board’s affirmance of Immigration Judge’s denial of 100tion to terminate). We reject the DHS’s argwnents in support ofappeal 1be DHS conceded that the respondent’s rootion was timely before the Immigration Judge, and thus we find that issue waived. The DHS also argues that we should remand for the OHS to “cure” the NTA by amending it. That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective Notice to Appear. See De La Rosa v. Garland, 2 F.4th at 686-88; Ortiz-Santiago v. Barr, 924 F.3d at 965. However, because the Immigration Judge terminated proceedings without prejudice, the DHS may issue a new NTA at any time. See Ortiz-Santiago v. Barr, 924 F.3d at 965 (“A new, compliant Notice could have issued .. .’); see also, e.g., MatterofW-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017) (the DHS’s decision to institute proceedings is a matter of prosecutorial discretion within the DHS’s jurisdiction). Because the respondent received a defective Notice to Appear and raised a timely objection, termination of proceedings was appropriate.1 For that reason, we will dismiss the appeal of the DHS. ORDER: The appeal is dismissed. 1 The DHS also argues that we should remand for the OHS to “cure” the NTA by amending it (DHS Br. at 11-15). That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective Notice to Appear. See De La Rosa v. Garland, 2 F.4th at 686-88; Ortiz-Santiago v. Barr, 924 F.3d at 965. However, because the Immigration Judge terminated proceedings without prejudice, the OHS may issue a new NTA at any time. See Ortiz-Santiago v. Barr, 924 F.3d at 965 (“A new, compliant Notice could have issued .. .’); see also, e.g., Matter of W-Y-U-, 27 l&N Dec. 17, 19 (BIA 2017) (the DHS’s decision to institute proceedings is a matter of prosecutorial discretion within the DHS’s jurisdiction). 2 00000030981 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: ~—-~(b~)(~6) ____ ~1 Al (b)(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: David Cruz., Esquire ON BEHALF OF DHS: Erica J. Fitzhugh Tollette, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Memphis, 1N Before: Wetmore, Chief Appellate hnmigration Judge Opinion by Chief Appellate hnmigration Judge Wetmore WE1MORE, Chief Appellate Innnigration Judge The respondent’s appeal of the hnmigration Judge’s December 9, 2019, decision is pending before the Board. On N oveni,er 19, 2021, the respondent and the Department of Homeland Security (“DHS”) filed a joint motion to dismiss these proceedings without prejudice based on the DHS’ detennination that this case is no longer in the best interest of the government to continue as circwmtances have changed extensively since the issuance of the notice to appear. See 8 C.F.R § 239.2(a)(7). We will grant the joint motio11 Accordingly, the following order will be entered. ORDER: The joint motion is granted and these proceedings are dismissed without prejudice. NOT FOR Ptffi°t°iEXhoN U.S. Department of Justice Executive Office for hnmigration Review Board ofhnmigration Appeals MATTER OF: ~–~(b~)(~6) ___ ~1Al (b)(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: June Jasmine Hnm, Esquire ON BEHALF OF DHS: Kyle J.H. Prillaman, Assistant Chief Cmmsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Chicago, IL Before: Wetmore, Chief Appellate Immigration Judge Opinion by Chief Appellate lnnnigration Judge Wetmore WElMORE, Chief Appellate Innnigration Judge Toe Department of Homeland Security (“DHS”) appeals from the Innnigration Judge’s November 7, 2019, decision tenninating . these proceedings without prejudice. The respondent has filed a brief in opposition The DHS’ appeal will be dismissed. We review the Immigration Judge’s findings of fact for clear error. 8 C.F.R § 1003.l(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R § 1003.l(d)(3)(it). The respondent was placed into removal proceedings via a Notice to Appear (“NT A’) that was served on February 7, 2014, which did not include the date and time ofremoval proceedings. The respondent appeared with counsel at a master calendar hearing on November 7, 2019, and moved to terminate proceedings based on the service of a defective NTA (Tr. at 2). The DHS conceded the timeliness of the motion, but requested an opportlmi:ty to amend the NTA (Tr. at 3). The Immigration Judge granted the respondent’s motion as timely, terminated these proceedings without prejudice, citing Ortiz-Santiago v. Ban·, 924 F.3d 956 (7th Cir. 2019), and denied the DHS’ request to amend the NTA (IJ at 1; Tr. at 3). • In Ortiz-Santiago v. Barr, 924 F.3d at 962-64, the United States Coui-t of Appeals for the Seventh Circuit, in whose jurisdiction this matter arises, held that the statutory requirement that the NTA for a removal hearing include the time, date, and place of the hearing was not jurisdictional in nature. See section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a). It concluded that section 239(a) of the Act is a clam-processing rule, as opposed to a jurisdictional one. Ortiz-Santiago, 924 F.3d at 962-63, 966. The court further fowid that omitting the specific information in the NTA was not unimportant or could be ignored, but that an objection could be forfeited if not timely raised. Id. at 963, 966. It determined, however, that the 00000030978 AJ (b)(6) Imrnigratian Judge could and should quash a defective NTA where there is a prompt objection and that a new NTA may be issued. Id. at 965. Subsequently, based on Seventh Circuit authority, recejpt of a defective NTA followed by a timely objection entitles a respondent to have the removal proceedin~ terminated, and in such instances, the respondent need not show prejudice. See De La Rosa v. Garland, 2 F.4th 685, 68688 (7th Cir. 2021) (reversing and remanding Board’s affirmance of hnmigration Judge’s denial of motion to terminate). We reject the DHS’ arguments in support of its appeal The Immigration Judge reasonably fmmd the objection to be timely. 1 See Meraz-Saucedo v. Rosen, 986 F .3d 676, 683 (7th Cir. 2021) (indicating that ”the relevant inquiry is whether [the respondent] raised his objection during the proceedin~ before the U after receiving the defective NTA’); see also Chen v. Barr, 960 F.3d 448, 451 (7th Cir. 2020) (suggesting that objection is timely if made before or at first hearing); compare Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir. 2006) (finding that a concession by counsel of removability as charged ‘\vaives any objection to the IJ’s finding of removability, including the argument that the IJ lacked jurisdiction to find him removable’). The DHS argues on appeal that we should remand for it to “cure” the NTA by amending it (DHS Br. at 4-11 ). That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective NTA (Respondent’s Br. at 5-9). See De La Rosa, 2 F.4th at 68688; see also Ortiz-Santiago, 924 F.3d at 965. However, because the Immigration Judge terminated proceeding.5 without prejudice, the DHS may issue a new NTA at any time. See Ortiz-Santiago, 924 F.3d at 965 (“A new, compliant Notice could have issued … .’); see also, e.g., Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017) (recognizing that the DHS’ decision to institute proceeding.5 is a matter of prosecutorial discretion within the DHS’ jurisdiction). Because the respondent received a defective NTA and raised a timely objection, termination of these proceedin~ was appropriate. We will thus dismiss the DHS’ appeal Accordingly, the following order will be entered. ORDER: The DHS’ appeal is dismissed. 1 The DHS does not contest on appeal the timeliness of the objection 2 00000031404 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) b 6 (b)(6) (b)(6) (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Eloy A. Aguirre, &quire ON BEHALF OF DHS: Jillian L. Woods, Senior Attorney IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Liebowitz, Appellate Irrnnigration Judge Opinion by Appellate Inunigration Judge Liebowitz LIEBOWITZ, Appellate Immigration Judge On December 10, 2018, the Immigration Judge granted the respondents, 1 natives and citizens of Mexico, asyh.nn under section 208(b)(l)(A) of the lnnnigration and Nationality Act, 8 U.S.C. § 1158(b)(l)(A), and did not reach the issues of withholding ofremoval under section 24l(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), or protection under the regu]ations implementing the Convention Against Torture and Other cruei lnhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (DHS) has appealed. 2 The respondent submitted a brief in support of the Innnigration Judge’s decision. The appeal will be dismissed. The record will be remanded to the hnmigration Judge fur any necessary background and security investigations. 1 The respondents are a mother and her four children. The children are all beneficiaries on their rmther’s asylum applicatioIL See section 208(b)(3)(A) of the Act; 8 C.F.R. § 1208.3(a). They also filed independent applications. We deem the mother respondent to be the lead respondent, and refer to her herein as “the respondent.” 2 The DHS also filed a motion to remand based pm Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). The motion will be denied as that decision has been vacated. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021). 00000031404 Al (b)(6) letal We review findings of fact determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003. l(d)(3)(~-We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(il). The Immigration Judge found that the respondent had established a well-founded fear of future persecution on account of her membership in the particular social group of “family of her husband and his brothers” (IJ at 6-9). On appea~ the DHS argues that the Immigration Judge erred in finding 1) the respondent’s proposed particular social group is cognizable; 2) that she has a wellfounded fear of future persecution on account of a protected ground; 3) that the Mexican government is unable or unwilling or control the private actors she fears; and 4) that she cannot internally relocate to avoid future persecution (DHS’s Br. at 7-16). The DHS asserts that the respondent’s proposed particular social group is not sufficiently particular or socially distinct, relying in part on Matter of L-E-A-, 27 I&N Dec. at 581 (DHS’s Br. at 7-11). Since briefing, the Attorney General has vacated that decision. Matter of L-E-A-, 28 I&N Dec. at 304. Moreover, contrary to the DHS’s appellate contention, the Immigration Judge did address the particularity and social distinction of the group, including recognizing that the family in question were members of a known musical group (IJ at 6; Tr. at 95; DHS’s Br. at 10). We uphold the Irrnnigration Judge’s detennination that under the particular circ~tances of this case, the respondent has established a cognizable particular social group. See Kaur v. Garland, 2 F.4th 823,834 (9th Cir. 2021) citing Parada v. Sessions, 902 F.3d 901,910 (9th Cir. 2018) (“[T]he family remains the quintessential particular social group.” (citation omitted)); Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (same); see also Matter of L-E-A-, 27 l&N Dec. 40, 42-43 (BIA 2017). The Immigration Judge found that the respondent had established that she has a well-founded fear of persecution (IJ at 8-9). We discern no clear error in the lnnnigration Judge’s predictive findings. See Matter of Z-Z-O-, 26 I&N Dec. 586,590 (BIA 2015) (stating that “an Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review.”); see also Mondaca-Vega v. Lynch, 808 F.3d 413,426 (9th Cir. 2015) (stating that a finding is not “clearly erroneous” unless, based on the entire evidence, the reviewing court is left with ”the definite and firm conviction that .a mistake has been committed’). The DHS relies on case law that indicates that threats may not constitute persecution, but here the Immigration Judge fuund that the threats did not constitute past persecution but rather relied on the threats to find that the respondent had established that her fear was objectively reasonable (IJ at 8-9; DHS ‘s Br. at 12-] 3). See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-84 (9th Cir. 2003). The DHS argues that the Immigration Judge erred because most relatives of the respondent’s husband in Mexico have not been harmed (DHS’s Br. at 13). However, the brother roost similarly situated to the respondent’s husband is in the United States (IJ at 8-9; Tr. at 71, 83-84; 91, 96; Exh. 2 at 3-7). The DHS also contends that the Immigration Judge erred because the respondent had not established that any persecutory harm would be on account of the respondent’s family membership rather than personal animus (DHS’s Br. at 13). We discern no clear error in the Immigration 2 00000031404 (b)(6) ft al Judge’s finding that the motivation of the cartel members is because she is a member of her husband and his brothers’ family unit (IJ at 7). See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that the Board reviews the Irnmigration Judge’s motivation finding for clear error); see also Garcia v. Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021) (holding that “sweeping retaliation towards a family unit over time can demonstrate a kind of arumus distinct from purely personal retnbution. ‘) (internal citations and quotations omitted). The Immigration Judge further found that the Mexican government was unable or unwilling to protect the respondent from the cartel (IJ at 7-8). Considering the record, including country conditions evidence, we do not discern clear error in the Immigration Judge’s finding.3 Finally, the DHS challenges the Immigration Judge’s finding that the respondent could not internally relocate to avoid persecution because the cartel had found the respondent’s family in Tijuana (IJ at 9). The DHS argues that the Immigration Judge erred because the cartel never directly contacted the respondent in Tijuana (DHS ‘s Br. at 15-16). The Immigration Judge’s finding that the text messages indicated they had found the respondent’s family is a permissible view of the evidence (IJ at 9; Tr. at 88). See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007) (stating that an Immigration Judge is not required to interpret the evidence in the manner advocated by a party). ‘ As we find the Immigration Judge’s decision is supported by the record, we will dismiss the appeal We will remand the record for the purpose of updating the required background and security checks. Thus, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and fur the entry of an order as provided by 8 C.F.R. § 1003.47(h). 3 Insofar as the DHS relies on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) in its brie( that decision has been vacated. See Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021). 3 00000030533 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATTER OF: ~–~(b~)(~6) ___ l Al (b)(6) Respondent FILED Jan 14, 2022 ON BEHALF OF RESPONDENT: Bernal Peter Ojeda, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Inmigration Court, Miami, FL Before: Baird, Appellate Immigration Judge Opinion by Appellate lrrnnigration Judge Baird BAIRD, Appellate Immigration Judge The respondent, a native and citizen of Jamaica, appeals from the Immigration Judge’s decision dated December 11,2019, denying his rmtion to reopen based on ineffective assistance of counsel. The Department of Homeland Secmity (“DHS’) has not responded to the appeal The appeal will be dismissed. We review the findings of fact made by the Innnigration Judge, including the determination of credibility, for clear error. See 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, de novo. See 8 C.F.R § 1003.l(d)(3)(il). On July 30, 2012, the Innnigration Judge denied the respondent’s application for adjustment of status under 245(i) of the Irrnnigration and Nationality Act, 8 U.S.C. § l 255(i). Over seven years later, on November 12, 2019, the respondent filed a prose rmtion to reopen. Two weeks later, on November 26, 2019, the respondent’s counsel filed an amended motion to reopen and stay rermval In the amended motion to reopen, the respondent alleged that hisprior counsel failed to advise him of the Immigration Judge’s final order of rermvaL and did not explore his eligibility for cancellation of rermval mder section 240A(b)(l) of the Act, 8 U.S.C. § 1229b(b)(l). The DHS opposed the respondent’s motion to reopen. The Irrnnigration Judge denied the motion, and this appeal followed. We adopt and affirm the hmnigration Judge’s denial of the motion to reopen for failure to comply with the procedural requirements set-forth in Matter of Lozada, 19 l&N Dec. 637, 639 (BIA 1988). See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). Specifically, the respondent did not provide an affidavit setting forth in detail the agreement between hirrnelf and his prior counsel See Matter of Lozada, 19 l&N Dec. at 639; Point du Jour v. U.S. Att ‘.YGen., 960 F.3d 1348 (11th Cir. 2020) (upholding the denial of a motion to reopen based on a claim of ineffective assistance of counsel where the respondent neither strictly nor substantially complied 00000030533 AJ (b)(6) with th6 Lozada procedural requirements). Additionally, the amended motion lacked proof that his prior counsel was informed of the allegations against him and given an opportunity to respond. Id. On appeal the respondent argues that he complied with the Lozada requirements (Respondent’s Br. at 5). Secificallv, he argues that the Florida State Bar letter and Notice of Grievance Procedure dated (b)(6) !demonstrates that a complaint was filed with the State Bar and that his prior counsel was informed of the complaint filed against him (Id.). However, this letter was not submitted as part of the amended motion to reopen filed on November 26, 2018. We do not consider evidence first offered on appeal as our review is a review of the record created before the Immigration Judge. Matter of Fedorenko, 19 l&N Dec. 57, 74 (BIA 1984). In any event, the respondent’s complaints to the Florida Bar does not constitute notice because filing of grievance does not necessarily trigger notice being immediately sent to the prior counsel or necessarily provide him an opportunity to respond. Point du Jour v. U.S. Atty Gen., 960 F.3d at 1351 (‘The subject of the complaint does not receive notice of the complaint lDltil the Florida Bar has completed its preliminary inquiry” (citing R Reg. Fla. Bar 3-7.3(a))). Because we have decided the appeal on the preceding basis, we need not reach the Immigration Judge’s ahemative reasons for denying the respondent’s motion to reopen, or the respondent’s related arguments on appeal See Matter of K-S-E-, 27 I&N Dec. 818, 824 (BIA 2020) (citing INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is lDlnecessary to the resuhs they reach.’)). Accordingly, the following order will be entered. ORDER: The respondent’s appeal is dismissed. 2 NOT FOR PUBLICATION 00000030602 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: _____ (b_)(_6) ~1Al ___ (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: Laura Fleming, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal :from a Decision of the Immigration Court, Chicago, IL Before: Grant, Appellate Immigration Judge Opinion by Appellate Innnigratio n Judge Grant GRANT, Appellate Immigration Judge The Department of Homeland Security (DHS) has filed an appeal :from the Immigration Judge’s decision dated December 19, 2019, tenninating proceedings without prejudice. The appeal will be dismissed. We review the Immigration Judge’s findings offuct for clear error. 8 C.F.R § 1003.l(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R. § 1003 .1 ( d)(3 )(it). The respondent was placed into removal proceedings via a Notice to Appear (NTA) that was served on Jwre 27, 2018, which did not include the date and time of removal proceedings. The respondent was an unaccompanied noncitizen child at the time. The respondent appeared at a master calendar hearing on December 19, 2019, with cotmSel and moved to terminate proceedings based on the service of a defective NTA The OHS opposed the motion at the hearing, conceding that it was timely but arguing that they should be allowed to amend the NTA (Tr. at 5-6). The Immigration Judge granted the respondent’s motion because it was made before pleadings were taken, and terminated proceedings without prejudice, citing Ortiz-Santiago v. Barr, 924 F .3d 956 (7th Cir. 2019), and denied the DHS’s motion to amend the NTA. In Ortiz-Santiago v. Barr, 924 F.3d at 962-64, the Seventh Circuit held that the statutory requirement that a Notice to Appear for a removal hearing include the time, date, and place of the hearing was not jurisdictional in nature. See section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a). The Seventh Circuit held that section 239(a) of the Act is a claimsprocessing rule, as opposed to a jurisdictional one. Ortiz-Santiago v. Barr, 924 F.3d at 962-63, 966. The court further determined that omitting the specific information in the Notice to Appear was not unimportant or could be ignored but that an objection could be forfeited if not timely •· ,AJ~__ (b_)(_6)_~ 00000030602 raised. Id. at 963, 966. The court detennined, however, that the Innnigration Judge could and should quash a defective Notice to Appear where there is a prompt objection and that a new Notice to Appear may be issued. Id. at 965. Subsequently, based on Seventh Circuit authority, receipt of a defective Notice to Appear followed by a timely objection entitles a respondent to have the removal proceedings tenninated, and in such instances, the respondent need not show prejudice. See De La Rosa v. Garland, 2 F .4th 685, 686-88 (7th Cir. 2021) (reversing and remanding Board’s affirrnance of Immigration Judge’s denial of motion to terminate). We reject the DHS’s arguments in support of appeal The DHS argues that we should remand fur the DHS to “cure” the NTA by amending it. That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective Notice to Appear. See De La Rosa v. Garland, 2 F.4th at 686-88; Ortiz-Santiago v. Barr, 924 F.3d at 965. However, because the Immigration Judge terminated proceedings without prejudice, the DHS may issue a new NTA at any time. See Ortiz-Santiago v. Barr, 924 F.3d at 965 (“A new, compliant Notice could have issued … “); see also, e.g., Matter ofW-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017)(the DHS’s decision to institute proceedings is a matter of prosecutorial discretion within the DHS’s jurisdiction). Because the respondent received a defective Notice to Appear and raised a timely objection, termination of proceedings was appropriate. For that reason, we will dismiss the appeal of the DHS. ORDER: The appeal is dismissed. 2 NOT FOR PUBMGillON U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration_Appeals MATTER OF: ~—–(~b)~(6~) _____ lAl (b)(6) Beneficiary ~___ –~’• (_b)_(6_) Petitioner FILED JAN2 8 2022 ON BEHALF OF PETITIONER: Gentian Sholla, Esquire ON BEHALF OF OHS: Stacey-Ann Harris, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, St Albans, VT Before: Goodwin, Appellate Immigration Judge; Wilson, Appellate Immigration Judge; Saenz, Appellate Immigration Judge Opinion by Appellate Immigration Judge Goodwin GOODWIN, Appellate Immigration Judge ORDER: The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.l(e)(4) (2020). .) ,, NOT FOR PUBl91€3AffflION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) (b)(6) IAI Beneficiary (b)(6) IPetitioner FILED JAN2 8 2022 ON BEHALF OF PETITIONER: Emma Friaz Gallardo, Esquire ON BEHALF OF DHS: Julie Hollowell, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Lee’s Summit, MO Before: de Cardona, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge de Cardona DE CARDONA, Temporary Appellate Immigration Judge The petitioner has appealed from the Director’s June 20, 2018, decision denying the visa petition that was submitted on behalf of the beneficiary as the spouse of a United States citizen. The petitioner has also filed a motion to remand. The appeal will be dismissed. The motion will be denied.2 We review all questions arising in appeals from decisions of Service officers de novo. 8 C:F.R. § 1003.l(d)(3)(iii). On I (b)(6) Ithe petitioner was convicted of battery, sexual battery, and lewd or lascivious acts with a minor under sections 242, 243.4(e)(l), and 288(c)(l) of the California Penal Code, respectively. Based on the convictions, the Director determined that the petitioner appeared to have been convicted of a “specified offense against a minor” pursuant to section 111 (7) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. I 09-248, 120 Stat. 587 (Adam Walsh Act). A citizen who has been convicted of a specified offense against a minor is prohibited 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General. See generally 8 C.F.R. § 1003.l(a)(l), (4). 2 The petitioner did not file a separate motion but rather submitted additional evidence and requested a remand on his Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer). We construe the filing of the evidence and the remand request on the notice of appeal as a separate motion to remand. 00000030848 Al.__,(b-“-).,_( 6)’-_. from filing a family-based visa petition on behalf of a beneficiary unless the Secretary of the Department of Homeland Security (DHS) determines that the citizen poses no risk to the beneficiary. Section 204(a)(l)(A)(viii) of the Immigration and Nationality Act, 8 U.S.C. § l 154(a)(l )(A)(viii). We have reviewed the record of proceedings, including the Director’s decision; the April 26, 2017, Request for Evidence (RFE) and Notice of Intent to Deny (NOID); the response to the RFE and NOID; and the petitioner’s notice of appeal. Based on our review, we affirm the denial of the petition because the petitioner did not provide certified copies of all police reports and court records as requested by the RFE and NOID. Without the requested documents, the Director was unable to assess the nature and severity of the petitioner’s convictions. Thus, the petitioner’s failure to provide the requested documents prevented a material line of inquiry into whether he poses “no risk” to the beneficiary. Moreover, the petitioner has not argued that he has not been convicted of a specified offense against a minor. The petitioner attached to his notice of appeal evidence he claims was not previously available and warrants a remand. See Matter of L-A-C-, 26 I&N Dec. 516, 526 (BIA 2015) (a motion to remand for the purpose of presenting additional evidence must conform to the same standards as a motion to reopen and will only be granted if the evidence was previously unavailable and would likely change the result in the case). The evidence consists of (a) the police department’s report concerning the petitioner’s offenses; (b) the petitioner’s attorney’s sworn statement· explaining why the report is not certified and was not previously available; and (c) email correspondence between the attorney and the police department. We will deny the motion to remand. To the extent that the petitioner submitted the evidence to challenge the Director’s assessment that he may present a risk to the beneficiary, we lack jurisdiction to consider the assessment because Congress committed the “no risk” determination to the “sole and unreviewable discretion” of the Secretary of the DHS. Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 297, 300 (BIA 2014). Moreover, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, this Board will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 l&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The petitioner may, however, file a new visa petition on the beneficiary’s behalf that is supported by sufficient evidence to show that the beneficiary is eligible for the status sought under the immigration laws. See Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966). Accordingly, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: The motion to remand is denied. 2 NOT FOR PtmficinoN U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATTER OF: ,__ ______ _____ Al (b_)(_6) ___.I /1..\/C\ Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Gina Kieley, Esquire ON BEHALF OF OHS: Casey J. Christo, Assistant Chief Colll1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Phoenix, AZ Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULIANE, Appellate Immigration Judge ORDER: The respondent and Department of Homeland Security’s joint rootion to dismiss proceeding; is granted. NOT FOR PUliHJJ1£ATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) lAI (b)(6) FILED JAN13 2022 Beneficiary (b)(6) IPetitioner ON BEHALF OF PETITIONER: Georges S. Zeidan, Esquire ON BEHALF OF OHS: Jaclyn Brickman, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Colwnbus, OH Before: Goodwin, Appellate Immigration Judge Opinion by Appellate Immigration Judge Goodwin GOODWIN, Appellate Immigration Judge The petitioner appeals from the Field Office Director’s (“Director”) June 5, 2019, decision denying the visa petition submitted on behalf of the beneficiary as the spouse of a United States c1t1zen. See section 20l(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § l 15l(b)(2)(A)(i) (2018). The Department of Homeland Security (“OHS”) opposes the appeal. The appeal will be dismissed. 1 We review all questions arising in appeals from decisions of United States Citizenship and Immigration Services (“USCIS”) officers de novo. See 8 C.F.R. § 1003.l(d)(3)(iii) (2021). In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the immigration benefit sought and must provide evidence that a bona fide spousal relationship exists. See 8 C.F.R. § 204.2(a)(2); Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). Where the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that it was not entered into for the primary purpose of evading the immigration laws. See Matter of Phillis, 15 l&N Dec. 385 (BIA 1975); 8 C.F.R. § 204.2(a)(l)(iii)(B) (evidence to establish the bona fides of a marriage includes proof of joint ownership of property, proof of joint tenancy of a common residence, proof of commingling of financial resources, birth certificates of 1 The petitioner’s motion to submit a supplemental brief is granted. 00000030596 Al.___(b_)( 6_) ____, children bGm of the petitioner and the beneficiary, and affidavits of others having knowledge of the bona fides of the marital relationship). We adopt and affirm the Director’s decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We agree with the Director’s thorough and well-reasoned decision to deny this petition upon concluding that the petitioner had not met her burden of demonstrating the bona fide nature of her marriage to the beneficiary. See Matter of McKee, 17 I&N Dec. 332,333 (BIA 1980); Matter of Phillis, 15 I&N Dec. at 386. As discussed by the Director, the petitioner and the beneficiary provided inconsistent statements when they appeared for an interview before an immigration officer pertaining to substantial issues, including whether there was a court ceremony for their marriage, how they met, who was present for the proposal, and whether they plan to have a wedding ceremony or celebration in Palestine. Additionally, there were significant discrepancies related to when and if they lived together after their marriage; the Form I-130 indicated a response that they never lived together and the beneficiary incorrectly stated the house number where the petitioner lived, and did not know the zip code. The Director considered and rejected the petitioner’s explanations for these discrepancies. See generally Matter of D-R-, 25 I&N Dec. 445, 454-55 (BIA 2011) (holding that an adjudicator is not required to interpret the evidence in the manner advocated by a party), clarified on other grounds by Matter of D-R-, 27 I&N Dec. 105 (BIA 2017). Moreover, there was insufficient documentary evidence to establish the bona fides of the marriage. To the extent the petitioner has submitted evidence that she is (or was) pregnant with the beneficiary’s child, such evidence standing alone is not enough to show the bona fides of the marriage. Notably, the petitioner’s due date was in I (b)(6) l and she has not submitted an~ subsequent evidence related to the birth and paternity of her child. Based on the foregoing, we agree with the Director that the petitioner has not met her evidentiary burden of establishing the bona fide nature of the claimed relationship. Therefore, we affirm the Director’s denial of the visa petition. With her brief, the petitioner has submitted additional evidence on appeal. However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the Board will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (noting that a petitioner may be put on notice of evidentiary requirements by various means, including through requirements in the regulations or an oral statement at an interview); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The petitioner may file a new visa petition that is fully supported by competent evidence establishing the beneficiary’s eligibility for the benefit sought. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR pufffiEXnoN U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: ._ __ ….6)___ ___,;.,.(b””-‘)( __.I~~-~(b~)(~6)_~ Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Befure: Mann, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mann MANN, Appellate Immigration Judge ORDER: The appeal is sunnnarily dismissed under the provisions of 8 C.F.R. § 1003.l(d)(2)(i)(F), (H). On February 25, 2020, the Immigration Judge issued a decision ordering the respondent removed after the respondent railed to appear at a scheduled hearing. The respondent seeks to challenge the Inu:11igration Judge’s decision, but has done so by filing an appeal with the Board, rather than by filing a motion to reopen with the hnmigration Judge in accordance with section 240(b )(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circwmtances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 l&N Dec. 722 (BIA 1999); 8 C.F.R. § 1240.15. Accordingly, the record is returned to the Immigration Court without further Board action _ ..Qil,Q0,Q~052L NOT FOR PUHL1LAnON U.S. Department of Justice Executive Office for Immigration Review Board ofhnmigration Appeals MATIER OF: (b)(6) lAf {hV6) ! I,Al~-(b_)_( 6-) {h’\{6) FILED Jan 13, 2022 ‘——“–“(b’-‘-‘-)(-“‘-6)”–___ ____,,LAl (b )( 6) I Respondents ON BEHALF OF RESPONDENTS: Juan Gonzalez, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant . GRANT, Appellate. Immigration Judge ORDER: The appeal is summarily dismissed under the provisions of8 C.F.R § 1003.l(d)(2)@(F), (H). On March 2, 2020, the Innnigration Judge issued a decision ordering the respondents removed after the respondents fuiled to appear at a scheduled hearing. The respondents seek to challenge the Immigration Judge’s decision, but have done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Irrnnigration Judge in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circurmtances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 I&N Dec. 722 (BIA 1999); 8 C.F.R § 1240.15. Accordingly, the record is rettnned to the Immigration Court without further Board action. _ ..Qil,Q0,Q~052Q… NOT FOR PUHL1LAnON U.S. Department of Justice Executive Office for Immigration Review Board ofhnmigration Appeals MATIER OF: ~I—-~(b~)(~6)~ ____ l Af (hV/;\ I ~I——(b-)(-6)—–~,. Al~-(-b)-(6-) ~ …_I—-‘-‘-(b)….,_,_(6’-‘,.) ____ _,I AJ (b)( 6) I Respondents FILED Jan 13, 2022 ON BEHALF OF RESPONDENTS: Juan Gonzalez, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant . GRANT, Appellate. Immigration Judge ORDER: The appeal is summarily dismissed under the provisions of8 C.F.R § 1003.l(d)(2)@(F), (H). On March 2, 2020, the Innnigration Judge issued a decision ordering the respondents removed after the respondents fuiled to appear at a scheduled hearing. The respondents seek to challenge the Immigration Judge’s decision, but have done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Irrnnigration Judge in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circurmtances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 I&N Dec. 722 (BIA 1999); 8 C.F.R § 1240.15. Accordingly, the record is rettnned to the Immigration Court without further Board action. 00000031401 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) (b)(6) (b )( 6) (b)(6) (b)(6) FILED Jan 27, 2022 Respondents ON BEHALF OF RESPONDENTS: Eloy A. Aguirre, &quire ON BEHALF OF DHS: Jillian L. Woods, Senior Attorney IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Liebowitz, Appellate Irrnnigration Judge Opinion by Appellate Inunigration Judge Liebowitz LIEBOWITZ, Appellate Immigration Judge On December 10, 2018, the Immigration Judge granted the respondents, 1 natives and citizens of Mexico, asyh.nn under section 208(b)(l)(A) of the lnnnigration and Nationality Act, 8 U.S.C. § 1158(b)(l)(A), and did not reach the issues of withholding ofremoval under section 24l(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), or protection under the regu]ations implementing the Convention Against Torture and Other cruei lnhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (DHS) has appealed. 2 The respondent submitted a brief in support of the Innnigration Judge’s decision. The appeal will be dismissed. The record will be remanded to the hnmigration Judge fur any necessary background and security investigations. 1 The respondents are a mother and her four children. The children are all beneficiaries on their rmther’s asylum applicatioIL See section 208(b)(3)(A) of the Act; 8 C.F.R. § 1208.3(a). They also filed independent applications. We deem the mother respondent to be the lead respondent, and refer to her herein as “the respondent.” 2 The DHS also filed a motion to remand based pm Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). The motion will be denied as that decision has been vacated. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021). 00000031401 ~ (b)(6) let al We review findings of fact determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003. l(d)(3)(~-We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(il). The Immigration Judge found that the respondent had established a well-founded fear of future persecution on account of her membership in the particular social group of “family of her husband and his brothers” (IJ at 6-9). On appea~ the DHS argues that the Immigration Judge erred in finding 1) the respondent’s proposed particular social group is cognizable; 2) that she has a wellfounded fear of future persecution on account of a protected ground; 3) that the Mexican government is unable or unwilling or control the private actors she fears; and 4) that she cannot internally relocate to avoid future persecution (DHS’s Br. at 7-16). The DHS asserts that the respondent’s proposed particular social group is not sufficiently particular or socially distinct, relying in part on Matter of L-E-A-, 27 I&N Dec. at 581 (DHS’s Br. at 7-11). Since briefing, the Attorney General has vacated that decision. Matter of L-E-A-, 28 I&N Dec. at 304. Moreover, contrary to the DHS’s appellate contention, the Immigration Judge did address the particularity and social distinction of the group, including recognizing that the fumily in question were members of a known musical group (IJ at 6; Tr. at 95; DHS’s Br. at 10). We uphold the Irrnnigration Judge’s detennination that under the particular circ~tances of this case, the respondent has established a cognizable particular social group. See Kaur v. Garland, 2 F.4th 823,834 (9th Cir. 2021) citing Parada v. Sessions, 902 F.3d 901,910 (9th Cir. 2018) (“[T]he family remains the quintessential particular social group.” (citation omitted)); Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (same); see also Matter of L-E-A-, 27 l&N Dec. 40, 42-43 (BIA 2017). The Immigration Judge found that the respondent had established that she has a well-founded fear of persecution (IJ at 8-9). We discern no clear error in the lnnnigration Judge’s predictive findings. See Matter of Z-Z-O-, 26 I&N Dec. 586,590 (BIA 2015) (stating that “an Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review.”); see also Mondaca-Vega v. Lynch, 808 F.3d 413,426 (9th Cir. 2015) (stating that a finding is not “clearly erroneous” unless, based on the entire evidence, the reviewing court is left with ”the definite and firm conviction that .a mistake has been committed’). The DHS relies on case law that indicates that threats may not constitute persecution, but here the Immigration Judge fuund that the threats did not constitute past persecution but rather relied on the threats to find that the respondent had established that her fear was objectively reasonable (IJ at 8-9; DHS ‘s Br. at 12-] 3). See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-84 (9th Cir. 2003). The DHS argues that the Immigration Judge erred because most relatives of the respondent’s husband in Mexico have not been harmed (DHS’s Br. at 13). However, the brother roost similarly situated to the respondent’s husband is in the United States (IJ at 8-9; Tr. at 71, 83-84; 91, 96; Exh. 2 at 3-7). The DHS also contends that the Immigration Judge erred because the respondent had not established that any persecutory harm would be on account of the respondent’s fumily membership rather than personal animus (DHS’s Br. at 13). We discern no clear error in the Immigration 2 00000031401 ~ (b)(6) ptal Judge’s finding that the motivation of the cartel members is because she is a member of her husband and his brothers’ family unit (IJ at 7). See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that the Board reviews the Irrnnigration Judge’s motivation finding for clear error); see also Garcia v. Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021) (holding that “sweeping retaliation towards a family unit over time can demonstrate a kind of arumus distinct from purely personal retnbution. ‘) (internal citations and quotations omitted). The Immigration Judge further found that the Mexican government was unable or W1willing to protect the respondent from the cartel (IJ at 7-8). Considering the record, including country conditions evidence, we do not discern clear error in the Immigration Judge’s finding.3 Finally, the DHS challenges the Immigration Judge’s finding that the respondent could not internally relocate to avoid persecution because the cartel had foW1d the respondent’s family in Tijuana (IJ at 9). The DHS argues that the Irrnnigration Judge erred because the cartel never directly contacted the respondent in Tijuana (DHS ‘s Br. at 15-16). The Immigration Judge’s finding that the text messages indicated they had found the respondent’s family is a permissible view of the evidence (IJ at 9; Tr. at 88). See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007) (stating that an Immigration Judge is not required to interpret the evidence in the manner advocated by a party). ‘ As we find the Immigration Judge’s decision is supported by the record, we will dismiss the appeal We will remand the record for the purpose of updating the required background and security checks. Thus, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and fur the entry of an order as provided by 8 C.F.R. § 1003.47(h). 3 Insofar as the DHS relies on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) in its brie( that decision has been vacated. See Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021). 3 U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: ,..______ _____________ Al-_(_b)~(6-) (b)(6) __,l ~ Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Ninth Circuit . Before: Greer, Appellate Innnigration Judge; Saenz, Appellate lnnnigration Judge; Liebmann, Temporary Appellate Immigration Judge 1 Opinion by Appellate Immigration Judge Saenz SAENZ, Appellate lrrnnigration Judge The respondent is a native and citizen of Peru. This case is before the Board pursuant to a May 13, 2020, decision of the United States Colll”t of Appeals for the Ninth Circuit granting the government’s llllOpposed motion to remand. In its motion, the government asserted that a remand would allow the Board to consider the entirety of the respondent’s proposed particular social group descnbed as “civil security patrol officers in Peru who identify criminals and report criminal behavior to corrupt police officers, who in turn reveal their identities.” 1be government additionally stated that a remand would allow us to articulate fully the analysis underlying our decision regarding the group’s cognizability. The government indicated that, on remand, the Board would also be able to assess whether finther findings of fact were required to determine whether the respondent’s fear of future persecution was objectively reasonable. The respondent’s merits hearing was held in 2015. The record’s country conditions evidence dates from 2013. Given the passage of time, the stale record, and changes in the law, we conclude that a remand is warranted for further proceedings. On remand, the lnnnigration Judge should make new findings of fact pertaining to the respondent’s clam under sections 208 and 24l(b)(3) ofthe Irrnnigration and Nationality Act, 8 U.S.C §§ 1158, 1231(b)(3), and set forth a legal analysis that takes into account recent developments in the case law governing “particular social group” determinations.2 The parties also should be given the opportunity to update the record, including 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). In 2018, the Ninth Circuit affirmed our denial of the respondent’s request for protection under the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Aj (b)(6) 00000030587 by providing recent country conditions evidence. I~ on remand, the Immigration Judge concludes that the respondent established past persecution, the btrrden shifts to the Depa.rtirent of Homeland Security to establish either (a) a fimdamental change in circWTl5tances such that the respondent no longer has a well-founded fear of persecution (for asylum) or that the respondent’s life would not be threatened on account of a protected ground (for withholding of removal); or (b) that the respondent can avoid future persecution by relocating to another part of Peru. 8 C.F.R §§ 1208.13(b)(1)(iI), 1208.16(b )(1 )(iI). Accordingly, the following order will be entered. ORDER: The record is remanded for finther proceedings consistent with this opinion and for the entry of a new decision Nov. 20, 1994). (b)(6) Thus, OW’ remand instructions are limited to the respondent’s claims for asylum and withholding of removal under the Act. 2 00000031398 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATIER OF: .______ (b_)(_6)___ ___.IAl,___(b_)(6_)___, Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Matus Varga, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Miami, FL Before: Couch, Appellate Irrnnigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Irrnnigration Judge The respondent, a native and citi7.en of Mexico, has appealed from the Immigration Judge’s December 12, 2018, decision denying her request for a continuance and deeming her application for cancellation of removal under section 240A(b)(l) of the Irnmigration and Nationality Act, 8 U.S.C. § 1229b(b)(l), abandoned. The Department of Homeland Security has not filed a brief inresponse to the appeal The appeal will be dismissed. We review an Irrmigration Judge’s findings offu.ct, including credibility detenninations, under the “clearly erroneous” standard. 8C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, and judgment, under a de novo standard. 8 C.F.R. § I 003.1 (d)(3)(n). On appea~ the respondent contends that she was deprived of the opportunity to present her case for cancellation of removal (see Respondent’s Br. at 5-6). She also contends that she was prejudiced by the Immigration Judge’s decision ordering her removed as she is prirna fucie eligible for cancellation of removal (Respondent’s Br. at 6). The appeal will be dismissed. In doing so, we acknowledge that the lrrnnigration Judge (a) deemed the respondent’s application for cancellation of removal abandoned at the initial hearing, 1 and (b) denied her request for a continuance for attorney preparation without fully discussing the good cause fuctors. See 8 C.F.R. § 1003.29 (stating that an Innnigration Judge many grant a An Immigration Judge has the authority to set and extend filing deadlines for applications and related docmnents. 8 C.F.R. § 1003.31; Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010). If an application or doctunent is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived and the application abandoned. Matter ofR-R-, 20 l&N Dec. 547, 549 (BIA 1992). 00000031398 Al….._(b_)(_6)_, continuance ”for good cause shown.’); also Matter of L-A-B-R-, 27 I&N Dec. 405, 407 (A.G. 2018) (stating that the good cause standard requires consideration ofnrultiple factors). However, the respondent has not demmstrated the requisite prejudice for a due process claim, ie., “absent the violation, the outcome would have been different.” Pierre v. U.S. Att ‘.YGen., 879 F.3d 1241, 1253 (11thCir. 2018) (citation and internal quotation marks omitted); Matter of Sibrun, 18 I&N Dec. 354, 356-57 (BIA 1983) (holding that an Immigration Judge’s decision denying a motion for a continuance will not be reversed unless the denial caused “actual prejudice” and “materially affected the outcome” of the case). Here, the respondent bas not demonstrated her prima fucie eligibility for cancellation of removal In particular, the respondent has not submitted evidence, or even meaningfully specified, how her removal would resuh in exceptional and extremely unusual hardship to her United States ci&en children. See section 240A(b )(1 )(D) of the Act; Matter of Monreal, 23 I&N Dec. 56, 62 (BIA 2001) (stating that the standard of “exceptional and extremely wiusual hardship” requires a showing of hardship to a qualifying relative which is “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country” and is limited to “truly exceptional situations.”) (intern a I quotation marks and citation omitted). Accordingly, the respondent has not demonstrated the requisite prejudice and the following order will be entered. ORDER: The appeal is dismissed. 2 00000031395 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATTER OF: ,___ ___ (b_)(_6)___ __.~ Aj (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Naureen F. Hyder, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Cow1, Arlington, VA Before: Grant, Appellate Irrnnigration Judge Opinion by Appellate Innnigration Judge Grant GRANT, Appellate lrmnigration Judge The respondent, a native and citizen of Guatemala, has appealed from the Irmnigration Judge’s decision dated December 10, 2018. In that decision, the lrrnnigration Judge determined that the respondent is ineligible for asylum because he testified that his last arrival in the United States was in February 2010 and that he has not since departed, but he did not submit his 1-589, Application for Asylum and for Withholding of Removal (1-589) until July 13, 2016 (IJ at 6-7; Tr. at 72). See section 208(a)(2)(B) of the Irrnnigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). The Immigration Judge further determined that the respondent has shown neither changed nor extraordinary circurmtances excepting his asylwn application from the I-year-bar (IJ at 6-8). See section 208(a)(2)(D) of the Act; 8 C.F.R. § 1208.4(a)(2). Finally, assuming for the sake of argument that the respondent had shown either changed or extraordinary circurrntances, he determined that the respondent has not shown that he filed the 1-589 within a reasonable period of said circurmtances (IJ at 7-8). See 8 C.F.R. § 1208.4(a)(4)(il); see also Matter of T-M-H-& S-W-C-, 25 I&N Dec. 193, 193-96 (BIA 2010) (discussing the “reasonable period” regulation). In the ahernative, the Irrnnigration Judge determined the respondent to have been “generally” credible, but he denied the respondent’s applications for asylum wider section 208 of the Act, withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treabnent or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 00000031395 Al (b)(6) 85 (entered into furce fur United States Nov. 20, 1994) (CA1) (IJ at 8-16). 1 The respondent’s appeal will be dismissed. 2 We review findings of fact detennined by an Immigration Judge under a “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review questions of law, discretion, and judgment, as well as all other issues in appeals from decisions of Innnigration Judges, de novo. 8 C.F .R. § 1003.1 (d)(3)(it). We adopt and affirm the hnrnigration Judge’s decision. See Matter of Burbano, 20 l&N Dec. 872,874 (BIA 1994). Under the facts of this case, the respondent’s fear of private criminal gang members and their efforts to recruit him into the gang does not provide a basis for asyhnn or withholding of removal (Tr. at 73-77). See, e.g., Velasquez v. Sessions, 866 F.3d 188, 194-95 (4th Cir. 2017) (‘”[E]vidence consistent with acts of private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground.”‘ (brackets added in original) (quoting Sanchez v. U.S. Atty General, 392 F .3d 434, 438 (11th Cir. 2004))). The following order is entered. ORDER: The appeal is dismissed. 1 The respondent has not separately challenged the denial of his application fur protection W1der the CAT. Hence, the application for CAT protection bas been waived and abandoned. See, e.g., MatterofW-Y-C-&H-O-B-, 27 I&N Dec. 1’89, 193 n 5 (BIA 2018). 2 In view of the Immigration Judge’s citation to Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018), we expressly note that we have not relied upon that decision, which was good law at the time of the Irrnnigration Judge’s decision but now no longer is, in adjudicating the appeal {IJ at 8, 12). See Matter of A-B-, 28 I&N Dec. 307,308 & n. 2 (A.G. 2021) (reinstating Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014)). Based on our review of the record in this particular matter, we conclude that the respondent’s case has not been prejudiced by these citations because they are incidental to the Immigration Judge’s substantive analysis of her asyhnn claim See, e.g., Matter of Sibrun, 18 l&N Dec. 354, 356 (BIA 1983) (”Prejudice is the sine qua non for establishing that a hearing was unfair.” (citing Matter of Exilus, 18 I&N Dec. 276 (BIA 1982))). In any event, the respondent has not raised this as an issue on appeal (Respondent’s Br. at 2-4). Cf Matter of M-A-S-, 24 I&N Dec. 762, 767 n 2 (BIA 2009) (referencing the party presentation rule (citing Greenlaw v. United States, 554 U.S. 237 (2008))). 2 00000031392 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~–(b_)_(6) __ ~1Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Amy N. Gell, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Cotnt, New York, NY Before: de Cardona, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge de Cardona DE CARDONA, Temporary Appellate Innnigration Judge The respondent, a native and citiz.en of Pakistan, has appealed from the Immigration Judge’s December 11, 2018, decision denying his application fur asyhnn and wit:hhokting ofremoval under sections 208(a) and 241(b)(3) of the Innnigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231 (b )(3), and under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 10020, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994 (”CAT’). See 8 C.F.R. §§ 1208.13, 1208.16-.18. The Department ofHomeland Security (”OHS”) has not filed aresponse to the appeal The record will be remanded to the Immigration Cotnt for finther proceedings. We review fur clear error the :findings of fact, including the determination of credibility, made by the Irrnnigration Judge. 8 C.F.R. § 1003.l(d)(3)(0. We review de novo questions of law, discretion, and judgment, and all other issues in appeals from an Irrnnigration Judge’s decision. 8 C.F.R. § 1003.l(d)(3)(it). The respondent clairm eligibility for asyh.nn and withholding of removal under the Act based on membership in proposed particular social groups, descnbed as ”hberal anti-fimdamentalist proWestem” and “bberal anti-fundamentalist family member of Pakistani expatriate Westerner,” and on accotn1t of his pro-Western and pro-United States political opinion (IJ at2). The Immigration Judge found that the respondent was credible, but be denied relief concluding that the respondent did not demonstrate that the Pakistani authorities were unable or unwilling to protect him (IJ at 57). 1 Temporary Appellate lrnmigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031392 ~….._(_b )_( 6) _ __, On the record before us, we are unable to conduct a full and meaningful appellate review of the respondent’s claim and, consequently, we will rermnd the record to the Innnigration Judge for further findin~ of met and legal analysis. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (noting the importance of Irmnigration Judges making clear and complete find in~ of met in their decisions); Matter of A-P-, 22 l&N Dec. 468, 473-77 (BIA 1999) (explaining that an lrmnigration Judge’s decision must contain the reasons widerlying his determinations; reflect the lrmnigra tion Judge’s analysis of the applicable statutes, regulations, and legal precedents; and clearly set forth the Immigration Judge’s legal conclusions). Specifically, the Immigration Judge assumed, without deciding, that the respondent demonstrated membership in a particular social group as well as persecution on accowit of his political opinion (IJ at 5). However, the Immigration Judge’s conclusions in this regard require further findin~ of fact and legal analysis consistent with controlling law, regu]ations, and precedent decisions (ie. cognizability of his proposed particular social groups, his membership in those groups, and nexus between harm suffered and feared and membership in such groups, as well as the severity of harm suffered on account of membership in cognizable group or groups and political opinion). This is of particular importance in this case, where the Irrnnigration Judge assumed past persecution on accowit of a protected growid but subsequently concluded that the respondent did not demonstrate that the authorities were unable or tmwilling to protect him (IJ at 5-7). Where the respondent demonstrates past persecution on account of a protected ground, it is presumed that he would be persecuted upon return to Pakistan on the basis of his original claim. See 8 C.F.R § 1208.16(b)(l); see also Matter of D-1-M-, 24 l&N Dec. 448, 450 (BIA 2008) (holding that, for the purpose of establishing eligtbility for asyhnn, where the applicant demonstrates past persecution, the applicant is presumed to have a well-founded fear of future persecution on the basis of the original claim). As such, the burden then shifts to the DHS to rebut, by a preponderance of the evidence, the presumption of future persecution. See 8 C.F.R § 1208.16(b)(l)(i); see also Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021) (observing that, where the applicant demonstrates past persecution, a rebuttable presumption arises that he has a well-founded fear of future persecution, and the OHS may rebut such presumption by a preponderance of the evidence); Matter of M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)(discussing the standard and burden for rebutting the preswnption of fear of future persecution in the context of an asylum claim). We also note that the Innnigration Judge cited to and relied on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) in concluding that the respondent did not demonstrate that the government condoned the private actions of which he complained or at least demonstrated a complete helplessness to protect him (IJ at 5). However, during the pendency of this appea~ the Attorney General issued Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021), which vacated the Attorney’s General prior decisions in Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) and in Matter of A-B-, 27 I&N Dec. at 316. As such, the aforementioned precedent decision affects and alters the 2 00000031392 ~__ (b_)(6_)~ analytical framework involving the government’s ability or willingness to protect (Respondent’s Br.)2 Finally, we point out that although the respondent appears to be rearing harm at the hands of extremists who are private actors, he also indicated that the authorities in Pakistan were hostile toward him and threatened him when they learned of his pro-Western political opinion (IJ at 3-4). As such, we will remand the record to the Immigration Judge for additional findings of fact and analysis which, depending on the u1titmte outcome of each relevant step, will affect the placement of applicable burdens of proof on the correct party. See generally Singh, 11 F.4th at 106. Toe Irnnigration Judge shouJd fully reassess the respondent’s asylum, withholding ofremoval mder the Act, and protection under the CAT claim, and his analysis should include the issues of severity of the harm suffered in the past, cognizability of the proposed particular social groups and other protected bases under the Act, nexus between the harm suffered and reared and any protected ground under the Act, as well as the issues of internal relocation and the government’s ability or willingness to protect the respondent. On remand, the parties should be afforded an opportunity to present additional relevant evidence surrounding the respondent’s application for relief and protection from removal We express no opinion as to the ultimate disposition of these proceedings. In view of the foregoing, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the forgoing opinion and for the entry of a new decision 2 As the respondent’s brief is not paginated, we are unable to provide specific reference to the pertinent issues raised therein. 3 00000031575 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .___ ___ (_b)_(6) ___.I ~ ___ Aj~_(b_)(6_) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Alejandro Garcia, &quire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Atlanta, GA Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Irrnnigration Judge The respondent, a native and citizen of Hondw-as, has appealed the Immigration Judge’s decision dated December 13, 2018, denying the respondent’s applications for asyhnn and withho !ding of rerooval under sections 208(b )(1 )(B) and 241 (b )(3) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(B), 1231(b)(3) and protection mder the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Immigration Judge llllder the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, wider a de novo standard. 8 C.F.R § 1003.l(d)(3)(iI). We adopt and affirm the decision of the Irnmigration Judge for the reasons in her December 13, 2018, written order. 1 Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). Specifically, the respondent did not meet his burden of establishing that his Christian religion, sexual orientation (actual or imputed), or membership in a cognizable particular social group was or would be a “central reason” for the beatings or attempted recruitment at the hands of crimina I 1 While this Board affir~ the outcome of the Immigration Judge’s decision in this case, we do not rely on the now-vacated decision of the Attorney General in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), which was cited in the Immigration Judge’s decision (U at 10-11). See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). 00000031575 ~~_(_b)_(6_) ~ gangs in Honduras. See section 208(b)(l)(B)(i) of the Act, 8 U.S.C. § 1158(b)(1)(B)(i). See Ruiz v. United States Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (“[E]vidence that either is consistent with acts of private violence … or that merely shows that a person has been the victim of criminal activity, does not constitute evidence of persecution based on a statutorily protected ground.’); see also INS v. Elias-Zacarias, 502 U.S. 478 (1992). In this regard, the respondent’s opposition to recruitment into a gang is not a basis on which asyhnn or withholding of removal can be granted. See Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) (neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personai morai and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a ”particular social group’) clarified by Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). The respondent’s claims are further undercut by the fact he never reported any of these incidents to the police in his country (IJ at 5-6, 8-9). Tue respondent argues, through cotmSei the Immigration Judge erred in finding the cunrulative harm suffered by the respondent in Honduras was not so severe as to rise to the level of persecution (Respondent’s Brief at 4-5; lJ at 7-8). However, we need not reach this issue on appeal in light of om agreement with the lrrnnigration Judge’s finding that the respondent has not demonstrated any nexus to a protected ground in this case. See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (as a general rule, courts and agencies are not required to make findings on issues the decision of which is unnecessary to the resuhs they reach). See also IJ at 9. The respondent has not meaningfully challenged the Irrnnigration Judge’s denial of his application for protection under the CAT. We thus deem the issue waived on appeal See Matte,’ ofM-B-C-, 27 I&N Dec. 31, 31 n.l (BIA 2017). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031389 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) FILED Jan 27, 2022 Respondents ON BEHALF OF RESPONDENTS: Eloy A. Aguirre, &quire ON BEHALF OF DHS: Jillian L. Woods, Senior Attorney IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Liebowitz, Appellate Irrnnigration Judge Opinion by Appellate Inunigration Judge Liebowitz LIEBOWITZ, Appellate Immigration Judge On December 10, 2018, the Immigration Judge granted the respondents, 1 natives and citizens of Mexico, asyh.nn under section 208(b)(l)(A) of the lnnnigration and Nationality Act, 8 U.S.C. § 1158(b)(l)(A), and did not reach the issues of withholding ofremoval under section 24l(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), or protection under the regu]ations implementing the Convention Against Torture and Other cruei lnhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (DHS) has appealed. 2 The respondent submitted a brief in support of the Innnigration Judge’s decision. The appeal will be dismissed. The record will be remanded to the hnmigration Judge fur any necessary background and security investigations. 1 The respondents are a mother and her four children. The children are all beneficiaries on their rmther’s asylum applicatioIL See section 208(b)(3)(A) of the Act; 8 C.F.R. § 1208.3(a). They also filed independent applications. We deem the mother respondent to be the lead respondent, and refer to her herein as “the respondent.” 2 The DHS also filed a motion to remand based pm Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). The motion will be denied as that decision has been vacated. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021). 00000031389 Aj (b)(6) ptal We review findings of fact determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003. l(d)(3)(~-We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(il). The Immigration Judge found that the respondent had established a well-founded fear of future persecution on account of her membership in the particular social group of “family of her husband and his brothers” (IJ at 6-9). On appea~ the DHS argues that the Immigration Judge erred in finding 1) the respondent’s proposed particular social group is cognizable; 2) that she has a wellfounded fear of future persecution on account of a protected ground; 3) that the Mexican government is unable or unwilling or control the private actors she fears; and 4) that she cannot internally relocate to avoid future persecution (DHS’s Br. at 7-16). The DHS asserts that the respondent’s proposed particular social group is not sufficiently particular or socially distinct, relying in part on Matter of L-E-A-, 27 I&N Dec. at 581 (DHS’s Br. at 7-11). Since briefing, the Attorney General has vacated that decision. Matter of L-E-A-, 28 I&N Dec. at 304. Moreover, contrary to the DHS’s appellate contention, the Immigration Judge did address the particularity and social distinction of the group, including recognizing that the fumily in question were members of a known musical group (IJ at 6; Tr. at 95; DHS’s Br. at 10). We uphold the Irrnnigration Judge’s detennination that under the particular circ~tances of this case, the respondent has established a cognizable particular social group. See Kaur v. Garland, 2 F.4th 823,834 (9th Cir. 2021) citing Parada v. Sessions, 902 F.3d 901,910 (9th Cir. 2018) (“[T]he family remains the quintessential particular social group.” (citation omitted)); Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (same); see also Matter of L-E-A-, 27 l&N Dec. 40, 42-43 (BIA 2017). The Immigration Judge found that the respondent had established that she has a well-founded fear of persecution (IJ at 8-9). We discern no clear error in the lnnnigration Judge’s predictive findings. See Matter of Z-Z-O-, 26 I&N Dec. 586,590 (BIA 2015) (stating that “an Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review.”); see also Mondaca-Vega v. Lynch, 808 F.3d 413,426 (9th Cir. 2015) (stating that a finding is not “clearly erroneous” unless, based on the entire evidence, the reviewing court is left with ”the definite and firm conviction that .a mistake has been committed’). The DHS relies on case law that indicates that threats may not constitute persecution, but here the Immigration Judge fuund that the threats did not constitute past persecution but rather relied on the threats to find that the respondent had established that her fear was objectively reasonable (IJ at 8-9; DHS ‘s Br. at 12-] 3). See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-84 (9th Cir. 2003). The DHS argues that the Immigration Judge erred because most relatives of the respondent’s husband in Mexico have not been banned (DHS’s Br. at 13). However, the brother roost similarly situated to the respondent’s husband is in the United States (IJ at 8-9; Tr. at 71, 83-84; 91, 96; Exh. 2 at 3-7). The DHS also contends that the Immigration Judge erred because the respondent had not established that any persecutory harm would be on account of the respondent’s fumily membership rather than personal animus (DHS’s Br. at 13). We discern no clear error in the Immigration 2 00000031389 (b)(6) ~t al Al Judge’s finding that the motivation of the cartel members is because she is a member of her husband and his brothers’ family unit (IJ at 7). See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that the Board reviews the Irrnnigration Judge’s motivation finding for clear error); see also Garcia v. Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021) (holding that “sweeping retaliation towards a family unit over time can demonstrate a kind of arumus distinct from purely personal retnbution. ‘) (internal citations and quotations omitted). The Immigration Judge further found that the Mexican government was unable or unwilling to protect the respondent from the cartel (IJ at 7-8). Considering the record, including country conditions evidence, we do not discern clear error in the Immigration Judge’s finding.3 Finally, the DHS challenges the Immigration Judge’s finding that the respondent could not internally relocate to avoid persecution because the cartel had found the respondent’s family in Tijuana (IJ at 9). The DHS argues that the Irrnnigration Judge erred because the cartel never directly contacted the respondent in Tijuana (DHS ‘s Br. at 15-16). The Immigration Judge’s finding that the text messages indicated they had found the respondent’s family is a permissible view of the evidence (IJ at 9; Tr. at 88). See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007) (stating that an Immigration Judge is not required to interpret the evidence in the manner advocated by a party). ‘ As we find the Immigration Judge’s decision is supported by the record, we will dismiss the appeal We will remand the record for the purpose of updating the required background and security checks. Thus, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and fur the entry of an order as provided by 8 C.F.R. § 1003.47(h). 3 Insofar as the DHS relies on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) in its brie( that decision has been vacated. See Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021). 3 00000031761 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ~—(_b)_(6) ___ ~1Al (b)(6) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Fai:ze Rasul, Esquire ON BEHALF OF DHS: Sinona D. Roberts, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Arlington, VA Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate lmryligration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The respondent, a native and citizen of El Salvador, appeals from the December 13, 2017, decision of the Immigration Judge denying his applications for asylum under section 208 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 123l(b)(3), and his request for protection under the regulations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). The Department of Homeland Security (OHS) has filed a brief in opposition to the respondent’s appeal. 1be record will be remanded. We review the findings of fact, including the detennination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8C.F.R. § 1003.l(d)(3Xi). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F .R. § 1003 .1 ( d)(3 )(ii). We conclude that a remand is appropriate for further consideration of the respondent’s applications for relief The Immigration Judge did not consider the testirmny of the respondent’s expert witness with respect to his claims for asylum and withholding of removal Jnsofur as the Immigration Judge noted the expert witness’s testirmny as related to the Convention Against Torture claim, he afforded it “limited weight” (IJ at 4-5). However, we are persuaded by the respondent’s arguments that the rationale for giving such testirmny limited weight was incorrect. 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General. See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031761 Al….._(b_)( 6_)_. See Respondent’s Br. at 6-7. Finally, we note that the respondent also persuasively argues that the Immigration Judge did not address the entirety of the evidence presented. Given our limited fact-finding abilities in deciding appeals, we will remand for fin1her development of the record. See Matter of S-H-, 23 l&N Dec. 462 (BIA 2002). On remand, the lmmigration Judge should reevaluate the respondent’s eligibility for relief based on current case law. See Diaz de Gomezv. Wilkinson, 987 F.3d 359 (4th Cir. 2021); Lagos v. Barr, 927 F.3d 236 (4th Cir. 2019); Rodriguez-Arias v. Whitaker, 915 FJd 968, 975 (4th Cir. 2019); see also Matter of Cruz-Valdez, 28 l&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and arguments.2 Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 On remand, pursuant to the then-Acting EOJR Director’s Policy Memorandum 21-25, the DHS should indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relie( agreeing to administrative closure, or requesting termination or di<;missal of the proceedings. 2 00000031758 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~—(b_)(_6) __ ~1~~_(b_)(6_)~ Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Cornel Potra, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Atlanta, GA Before: Gonzalez,, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Innnigration Judge The respondent, a native and citizen of Mexico, has appealed from the lrrmigration Judge’s decision dated April 5, 2018, denying his application for cancellation of removal mder section 240A(b)(l) of the Irrmigration and Nationality Act, 8 U.S.C. § 1229b(b)(l). The Department of Homeland Security (DHS) has not filed any opposition to the respondent’s appeal The record will be remanded to the lrrmigration Judge for further proceedings. We review an Immigration Judge’s findings of fuct for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, denovo. 8C.F.R §§ 1003.l(d)(3)(0, (ii). Upon de novo review, in light of the evidence reflecting significant hardship to two of the respondent’s children given their medical and special educational needs, and the passage of time since the lrrmigration Judge’s decision, we find it appropriate to remand the record to allow the parties an opporttmity to provide additionaL updated evidence regarding hardship and the respondent’s eligibility for cancellation ofremoval See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03 (Administrative Closure). Accordingly, the following order will be entered.2 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a){l), (4). Pursuant to the Acting Director’s EOIR Policy Memorandum 21-25, the OHS, on remand, should indicate whether the respondent is an enfurcemen1i: priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for retie~ agreeing to administrative closure, or requesting termination or dismissal of the proceedings. 00000031758 ORDER: The record is remanded to the Inmigration Comt for further proceedin~ consistent with the foregoing opinion and for the entry of a new decision 2 00000031755 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~—-(b_)(_6) ____ ~1Al (b)(6) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Amin Ganjalizadeh, Esquire ON BEHALF OF DHS: Alyssa Upchurch, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Couch, Appellate Innnigration Judge Opinion by Appellate lrmnigration Judge Couch COUCH, Appellate Innnigration Judge The respondent, a native and citizen of El Salvador, appeals from the Immigration Judge’s decision dated JlDle 8, 2018, denying his application for asylwn and withhokling ofremoval lDlder sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and fur protection against removal under the regulations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Pt.nmhment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). Subsequent to the filing of his appea~ the respondent filed a motion to remand. The Department of Homeland Security opposes the appeal and the request for remand. The appeal will be dismissed, and the motion to remand will be denied. We review the findings of met, inch.Kling the detennination of credibility, made by the Innnigration Judge under the clearly erroneous standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, inch.Kling issues of law, discretion, and judgment, mxier the de novo standard. 8 C.F.R § 1003.l(d)(3)(i:t). We affirm the decision of the Innnigration Judge. The respondent has not raised any argument on appeal which persuades thisBoard that the Immigration Judge erred in denying his applications for relief On appea~ the respondent has not specifically challenged the lmnigration Judge’s detennination that he did not establish a nexus between his past harm and rear of future harm and his membership in a cognizable particular social group, or any other protected grolDld emnnerated in section 10l(a)(42)(A) of theAct, 8 U.S.C. § 1101(a)(42)(A) (IJ at 10-12). Hence, we find that the respondent has not demonstrated that the Innnigration Judge erred in denying his applications for relief on this basis. See, e.g., Matter of Cervantes, 22 I&N Dec. 560, 561 n.l (BIA 1999) ( expressly declining to address an issue not raised by party on appeal); Matter of Gutierrez, 19 l&N Dec. 562, 565 n.3 (BIA 1988) (same). 00000031755 • Aj (b)(6) The respondent also has not specifically challenged the Immigration Judge’s determination that he :failed to establish that he will tmre likely than not be tortured upon returning to El Salvador by or with the acquiescence or willful blindness of a public official (IJ at 7-8). See 8 C.F.R §§ 1208.16(c)(2) and 1208.18(a)(l); Matter of M-B-A-, 23 I&N Dec. 474, 479-80 (BIA 2002); Matter of J-F-F-, 23 I&N Dec. 912, 917-18 (A.G. 2006) (to establish eligibility for protection tmder the Convention Against Torture evidence must show that any step in the hypothetical chain of events is more likely than not to happen, and that the entire chain will come together to result in the probability of torture of applicant). On appea~ the respondent seeks remand so that he may pursue cancellation of removal under section 240A(b)(l) of the Act, 8 U.S.C. § 1229b(b)(l), based on the Supreme Court’s recent decision in Niz-Chavez v. Garland, 141S. Ct. 1474 (2021). Upon review, we do not find remanded proceedin~ to be warranted. With his tmtion to remand, the resporx:lent has submitted a completed Form EOIR-42B, along with docwrentary evidence to establish that he is the rather of three United States citi7.en children (Motion to Remand, Tab B). The record also contains some documentary evidence to indicate that the respondent may be able to establish his continuous physical presence in this country for the requisite time period (Exh. 2). Section 240A(b)(l)(A) of the Act. However, the respondent has not submitted sufficient docwnentary evidence to establish that his children would suffer exceptional and extremely unusual hardship in the event of his removal See section 240A(b )(I )(D) of the Act. Thus, as the respondent has not established his prima fucie eligibility for cancellation of remova~ we decline to remand these proceedin~. See Prasad v. Holder, 776 F.3d 222,228 (4th Cir. 2015); see also Matter of Coelho, 20 I&N Dec. 464 (BIA 1992) (alien must satisfy heavy burden of establishing that if the proceedin~ were reopened the new evidence would likely change the resuh in the case). In view of the foregoing, the following orders are entered. ORDER: The respondent’s appeal is dismissed. FURTI-IER ORDER: The respondent’s tmtion to remand is denied. 2 00000031107 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for Immigration Review Board oflmrnigration Appeals MATTER OF: (b )( 6) L AJ (b )(6) .__ _____ ____ (b)(6) I (b_)(_6) ___,~ Al Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Kathryn Maceri, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the lnnnigration Court, Merq>his, TN Before: O’Connor, Appellate Innnigration Judge Opinion by Appellate Immigration Judge O’Connor O’CONNOR, Appellate Irrnnigration Judge 1be respondents, 1 natives and citizens of Honduras, appeal from the Immigration Judge’s October 5, 2018, decision denying their applications for withholding of removal W1der section 24l(b)(3) of the Innnigration and Nationality Act, 8 U.S.C. § 123l(b)(3), and request for protection under the regulations implementing the Convention Against Torture or Other Cruel, Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT’). 2 The appeal will be dismissed. 1 The respondents in the case are the lead respondent, the mother (Al (h)(6) b,andher minor daughter (Al (b)(6) b.References in the singular to the respondent refer to the lead respondent. 2 The respondent, through counsel, withdrew her application for asylum at the hearing because it was not filed within I year of arriving in the United States (IJ at 2; Tr. at 32, 34; Exhs. 3, 3A). She asserts on appeal that she qualifies for an exception to the ]-year deadline pursuant to Mendez Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018) (Respondent’s Br. at 5). However, the respondent had the opportwrity to raise this issue before the Imnigration Judge, but did not do so (Tr.at 32). lberefore, we deem this matter waived. See Matter of J-Y-C-, 24 l&N Dec.260, 26 I n. l (BIA 2007) (issues not raised before the Immigration Judge and instead raised for the first time on appeal are deemed waived). Moreover, even had she filed a timely asylum application, we would find that any such claim would suffer from the same lack of nexus detennination that forecloses her withholding ofremoval claim 00000031107 Aj (b)(6) let al We review the findings of met, including the determination of credibility, made by the Immigration Judge tmder the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(0. We review all other issues, including issues of law, discretion, or judgment, under the de novo standard. 8 C.F.R. § 1003.l(d)(3)(i0. We agree with the Immigration Judge that the respondent did not demonstrate the requisite nexus between the harm she experienced and fears in Honduras and a protected grmmd (JJ at 5-7). To qualify for withho Id ing of removai the respondent must establish that her membership in her proposed particular social group was or will be “a reason” for her persecution. See GuzmanVazquez v. Barr, 959 F.3d 253, 270-74 (6th Cir. 2020). The respondent sought withholding of removal based upon membership in a proposed group of ”Honduran women whose former partners have hired people to find them” (IJ at 5; Tr. at 35-36). While concluding that the respondent was a domestic violence victim, the Immigration Judge found that her harm was consistent with general violence and crime, which does not constitute evidence of persecution on account of a statutorily protected ground (IJ at 6; Tr. at 42-45). See Zaldana Menijarv. lynch, 812 F.3d 491,501 (6th Cir. 2015)(“[W]idespread crime and violence does not itself constitute persecution on accmmt of a protected ground. ‘1; see also Matter of M-EV- G-, 26 I&N Dec. 227, 235 (BIA 2014) (“[A]sylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions.’} The respondent generally challenges this finding on appeai but has not identified sufficient specific evidence in the record to establish that her former partner harmed her on account of a protected ground (Respondent’s Br. at 9-11, 13-14). See INS v. Elias-Zacarias, 502 U.S. 478,483 (1992) (holding that an applicant must provide some direct or circum.5tantial evidence of a persecutor’s motives). Based on the foregoing, the respondent cannot establish that she is eligible for withholding of removal under section 24l(b)(3) of the Act. Thus, we need not address the remaining aspects of the respondent’s withholding of removal claim See MatterofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) ( declining to reach ahemative issues on appeal regarding ineligibility for relief where an applicant is otherwise statutorily ineligible for such relief). Lastly, we decline to disturb the Irrmigration Judge’s denial of the respondent’s request for CAT protection (IJ at 7). See 8 C.F.R. §§ 1208.16(c)(2) and 1208.18(a)(l); see also Marqus v. Barr, 968 F.3d 583, 587 (6th Cir. 2020) (“An applicant seeking CAT relief must demonstrate that she races a particularized and likely threat of torture . . . with the consent or acquiescence of a public official”). The respondent contends that the government’s ineffectiveness in helping victims of violent crime and in controlling criminals amounts to acquiescence (Respondent’s Br. at 15-16). However, the Immigration Judge acknowledged that dorrestic· violence was a problem in Honduras, but concluded that the respondent did not establish that it is more likely than not she would be tortured upon returning to Honduras by or with the acquiescence of the Honduran government (IJ at 7; Exh. 4, Tabs E, F, G). See Matter of S-V-, 22 I&N Dec. 1306, 1312 (BIA 2000) (noting that CAT protection does not encoJll>aSs persons fearing entities that a government is unable to controQ; cf Ali v. Reno, 237 F.3d 591,598 (6th Cir. 2001) (noting that in “situation[s] 2 00000031107 in which the authorities ignore or consent to severe domestic violence, the [CAT] appears to compel protection for a victim’). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000031104 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: J (b)(6) I.Al (b)(6) ,….l_____ _____ …:====(h=V:::6)=::::;-~ ___,_(b-‘-)(-‘-6″-) …..,]M l~_____ (_b)_(6_) —-~’ Al~~(b_)_(6_)~ Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Phung Kim Thi Duong, Esquire ON BEHALF OF DHS: Marion Maillard, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: O’Connor, Appellate Irrnnigration Judge; de Cardona, Temporary Appellate Immigration Judge; Liebmann, Temporary Appellate Immigration Judge 1 Opinion by Appellate Innnigration Judge O’Connor O’CONNOR, Appellate Immigration Judge The respondents2, natives and citizens of El Salvador, appeal from the Immigration Judge’s decision dated November 13, 2018, denying the lead respondent’s application for asyhnn and withholding of removal3 Sections 208(a)(l), 241(b)(3)(A) of the Act, 8 U.S.C. §§ 1158(a)(l), 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003. l(a)(l), (4). 2 The respondents are the lead respondent (Al (b )( 6) land her minor children (Al (b )( 6) l Al (h\(6) n. The children seek asyhnn as derivative beneficiaries of the lead respondent (U at 2). Section 208(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 1208.3(a). The lead respondent’s children do not seek relief separate from the lead respondent’s application, and they are not entitled to assert a derivative claim fur withholding of removal See Matter of A-K-, 24 I&N Dec. 275,279 (BIA 2007). Any references to the respondent in the singular refer to the lead respondent. 3 The lead respondent does not raise any meaningful challenge to the denial of her request for protection W1der the regulations implementing the Convention Against Torture and Other Cruel, Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT’). Therefore, we deem any further argument or evidence on this issue to be waived. See Matter of P-B-B-, 28 I&N Dec. 43, 44 n. 1 (BIA 2020) (stating that arguments not raised on appeal are deemed waived). 00000031104 (b)( 6) let al 1231(b)(3)(A); 8 C.F.R §§ 1208.13, 1208.16-1208.18. The Department of Homeland Security (‘DHS”) opposes the appeal The appeal will be sustained, and the record will be remanded. We review the findings of fact made by the Irmnigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l(d)(3)(0. We review all other issues, including questions of judgment, discretion, and law, under a de novo standard. 8 C.F.R § 1003.1(d)(3)(ii). Upon de novo review, we find that the respondent has established past harm which rises to the level of persecution. The respondent testified that her son’s father was shot by local gang members in December of 2014, and she was nearby and heard the attack (IJ at 4; Tr. at 24-26). The respondent called the police, but they did not come to the scene because the officer who answered the phone said he was alone at the station (IJ at 4; Tr. at 26-27). In the weeks that followed, the respondent received three phone calls in which the caller asked to speak with her, though the caller made no concrete threats nor mentioned her son or his father (IJ at 4-5; Tr. at 29, 50-54). During the third call the respondent was told to open her door, and she subsequently heard men outside of her house with gwis who were hitting her dogs to quiet their barking, but she did not open the door (Tr. at 33-34). After the third call, a note was foundoutside of the respondent’s home saying that she should “cooperate” for “the good of [her] children and for [her] own good” (IJ at 5; Tr. at 5556). Shortly afterwards, the respondent was outside her home when she heard her 3-year-old daughter scream She ran inside to discover a man with his pants down on top of her daughter attempting to rape her (IJ at 5; Tr. at 30-31). When she interrupted him, the man punched the respondent’s face (IJ at 5; Exh. 4, at 136). Afterwards, a man came to her home and told the respondent that, if she went to the police, “what happened to [her] daughter would be nothing compared to what was waiting for [her]” (Tr. at 35). We conclude that the harm to the respondent and her young daughter, combined with the threats, was sufficiently severe and concrete as to constitute past persecution. Based on the particular facts and circumstances presented and the controlling case law in the United States Court of Appeals for the Fourth Circuit, we will also reverse the Irmnigra tio n Judge’s findings on the issue of nexus. The respondent claims that her past and reared future harm is on account of her familial relationship to her son, whose father was attacked by gang members just prior to the threats and attack on her daughter (IJ at 10; Tr. at 22-23). 4 The Supreme Court has held that “direct proof of [an asylum applicant’s] persecutors’ motives” is not required, but the applicant ”must provide some evidence of it, direct or circmmtantial” INS v. Elias-Zacarias, 502 U.S. 478,483 (1992). The respondent had lived in El Salvador for her entire lire, over 30 years, and had never encountered any problem;, from gangs or otherwise, before her son’s father was attacked (Tr. at 64). The respondent also credibly testified that gang members often exact revenge by targeting people’s children (Tr. at 37). We find that the record provides definite and firm evidence that the respondent’s family membership was at least one central reason for the harm she suffered in the weeks following her son’s father’s attack, and the Irrnnigration Judge’s finding otherwise is clearly erroneous. See Matter of R-S-H-, 23 I&N Dec. 629,637 (BIA 2003). 4 The respondent does not specifically challenge the Irmnigration Judge’s finding that she did not establish the existence of a political opinion, actual or imputed, and we deem any argument on this issue waived (IJ at I 0). See Matter of P-B-B-, 28 l&N Dec. at 44 n. 1. 2 00000031104 n-,,r {-;\ let al Given om finding5, remand is necessary. On remand, the Immigration Judge should consider in the first instance whether the respondent has shown that the Salvadoran government is wiable or Wlwilling to control her persecutors. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). ”Whether a government is unable or unwilling to control a private actor is a factual question that must be resolved based on the record in each case.” See Orellana v. Barr, 925 F.3d 145, 151 (4th Cir. 2019) (internal quotation marks omitted) (quoting Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011)). If the Immigration Judge finds that the respondent has established the Salvadoran government’s unwillingness or inability to protect her, the bmden shifts to the DHS to rebut the presumed well-founded rear of future persecution We express no opinion on the ultimate outcome of the respondent’s case. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceeding5 consistent with this opinion and for entry of a new decision 3 00000031101 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: J,_____ _____ l Al (b)( 6) (‘-“b….,_)(“”‘-6)…__ I (b)(6) I (b )( 6) I l(b)(6) (b)(6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Phung Kim Thi Duong, Esquire ON BEHALF OF DHS: Marion Maillard, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: O’Connor, Appellate Irrnnigration Judge; de Cardona, Temporary Appellate Immigration Judge; Liebmann, Temporary Appellate Immigration Judge 1 Opinion by Appellate Innnigration Judge O’Connor O’CONNOR, Appellate Immigration Judge The respondents2, natives and citizens of El Salvador, appeal from the Immigration Judge’s decision dated November 13, 2018, denying the lead respondent’s application for asyhnn and withholding of removal3 Sections 208(a)(l), 241(b)(3)(A) of the Act, 8 U.S.C. §§ 1158(a)(l), 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003. l(a)(l), (4). 2 The respondents are the lead respondent (~ (b )( 6) band her minor children (Al (b )( 6) Al r1-,1r1-,) D The children seek asyhnn as derivative beneficiaries of the lead respondent (U at 2). Section 208(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 1208.3(a). The lead respondent’s children do not seek relief separate from the lead respondent’s application, and they are not entitled to assert a derivative claim fur withholding of removal See Matter of A-K-, 24 I&N Dec. 275,279 (BIA 2007). Any references to the respondent in the singular refer to the lead respondent. 3 The lead respondent does not raise any meaningful challenge to the denial of her request for protection W1der the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT’). Therefore, we deem any further argument or evidence on this issue to be waived. See Matter of P-B-B-, 28 I&N Dec. 43, 44 n. 1 (BIA 2020) (stating that arguments not raised on appeal are deemed waived). 00000031101 Al (b)(6) ~t al 1231(b)(3)(A); 8 C.F.R §§ 1208.13, 1208.16-1208.18. The Department of Homeland Security (‘DHS”) opposes the appeal The appeal will be sustained, and the record will be remanded. We review the findings of fact made by the Irmnigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l(d)(3)(0. We review all other issues, including questions of judgment, discretion, and law, under a de novo standard. 8 C.F.R § 1003.1(d)(3)(ii). Upon de novo review, we find that the respondent has established past harm which rises to the level of persecution. The respondent testified that her son’s father was shot by local gang members in December of 2014, and she was nearby and heard the attack (IJ at 4; Tr. at 24-26). The respondent called the police, but they did not come to the scene because the officer who answered the phone said he was alone at the station (IJ at 4; Tr. at 26-27). In the weeks that followed, the respondent received three phone calls in which the caller asked to speak with her, though the caller made no concrete threats nor mentioned her son or his father (IJ at 4-5; Tr. at 29, 50-54). During the third call the respondent was told to open her door, and she subsequently heard men outside of her house with gwis who were hitting her dogs to quiet their barking, but she did not open the door (Tr. at 33-34). After the third call, a note was foundoutside of the respondent’s home saying that she should “cooperate” for ”the good of [her] children and for [her] own good” (IJ at 5; Tr. at 5556). Shortly afterwards, the respondent was outside her home when she heard her 3-year-old daughter scream She ran inside to discover a man with his pants down on top of her daughter attempting to rape her (IJ at 5; Tr. at 30-31). When she interrupted him, the man punched the respondent’s face (IJ at 5; Exh. 4, at 136). Afterwards, a man came to her home and told the respondent that, if she went to the police, “what happened to [her] daughter would be nothing compared to what was waiting for [her]” (Tr. at 35). We conclude that the harm to the respondent and her young daughter, combined with the threats, was sufficiently severe and concrete as to constitute past persecution. Based on the particular facts and circumstances presented and the controlling case law in the United States Court of Appeals for the Fourth Circuit, we will also reverse the Irmnigra tio n Judge’s findings on the issue of nexus. The respondent claims that her past and reared future harm is on account of her familial relationship to her son, whose father was attacked by gang members just prior to the threats and attack on her daughter (IJ at 10; Tr. at 22-23). 4 The Supreme Court has held that “direct proof of [an asylum applicant’s] persecutors’ motives” is not required, but the applicant ”must provide some evidence of it, direct or circmmtantial” INS v. Elias-Zacarias, 502 U.S. 478,483 (1992). The respondent had lived in El Salvador for her entire lire, over 30 years, and had never encountered any problem;, from gangs or otherwise, before her son’s father was attacked (Tr. at 64). The respondent also credibly testified that gang members often exact revenge by targeting people’s children (Tr. at 37). We find that the record provides definite and firm evidence that the respondent’s :family membership was at least one central reason for the harm she suffered in the weeks following her son’s father’s attack, and the Irrnnigration Judge’s finding otherwise is clearly erroneous. See Matter of R-S-H-, 23 I&N Dec. 629,637 (BIA 2003). 4 The respondent does not specifically challenge the Irmnigration Judge’s finding that she did not establish the existence of a political opinion, actual or imputed, and we deem any argument on this issue waived (IJ at I 0). See Matter of P-B-B-, 28 l&N Dec. at 44 n. 1. 2 00000031101 (b )( 6) let al Given om finding5, remand is necessary. On remand, the Immigration Judge should consider in the first instance whether the respondent has shown that the Salvadoran government is wiable or Wlwilling to control her persecutors. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). ”Whether a government is unable or unwilling to control a private actor is a factual question that must be resolved based on the record in each case.” See Orellana v. Barr, 925 F.3d 145, 151 (4th Cir. 2019) (internal quotation marks omitted) (quoting Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011)). If the Immigration Judge finds that the respondent has established the Salvadoran government’s unwillingness or inability to protect her, the burden shifts to the DHS to rebut the presumed well-founded rear of future persecution We express no opinion on the ultimate outcome of the respondent’s case. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceeding5 consistent with this opinion and for entry of a new decision 3 00000031098 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) l Al (b)(6) ‘;::::======r”‘=v=r:.=) =====::::::;-“A1 (b)(6) l Al (b)(6) (b)(6) I I Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Phung Kim Thi Duong, Esquire ON BEHALF OF DHS: Marion Maillard, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: O’Connor, Appellate Irrnnigration Judge; de Cardona, Temporary Appellate Immigration Judge; Liebmann, Temporary Appellate Immigration Judge 1 Opinion by Appellate Innnigration Judge O’Connor O’CONNOR, Appellate Immigration Judge The respondents2, natives and citizens of El Salvador, appeal from the Immigration Judge’s decision dated November 13, 2018, denying the lead respondent’s application for asyhnn and withholding of removal3 Sections 208(a)(l), 241(b)(3)(A) of the Act, 8 U.S.C. §§ 1158(a)(l), 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003. l(a)(l), (4). 2 The respondents are the lead respondent (Al r”‘v r:.) } and her minor children (Al (h )( 6) Al (b)(6) ~-The children seek asyhnn as derivative beneficiaries of the lead respondent (U at 2). Section 208(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 1208.3(a). The lead respondent’s children do not seek relief separate from the lead respondent’s application, and they are not entitled to assert a derivative claim fur withholding of removal See Matter of A-K-, 24 I&N Dec. 275,279 (BIA 2007). Any references to the respondent in the singular refer to the lead respondent. 3 The lead respondent does not raise any meaningful challenge to the denial of her request for protection W1der the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT’). Therefore, we deem any further argument or evidence on this issue to be waived. See Matter of P-B-B-, 28 I&N Dec. 43, 44 n. 1 (BIA 2020) (stating that arguments not raised on appeal are deemed waived). 00000031098 Al (b )( 6) letal 1231(b)(3)(A); 8 C.F.R §§ 1208.13, 1208.16-1208.18. The Department of Homeland Security (‘DHS”) opposes the appeal The appeal will be sustained, and the record will be remanded. We review the findings of fact made by the Irmnigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l(d)(3)(0. We review all other issues, including questions of judgment, discretion, and law, under a de novo standard. 8 C.F.R § 1003.1(d)(3)(ii). Upon de novo review, we find that the respondent has established past harm which rises to the level of persecution. The respondent testified that her son’s father was shot by local gang members in December of 2014, and she was nearby and heard the attack (IJ at 4; Tr. at 24-26). The respondent called the police, but they did not come to the scene because the officer who answered the phone said he was alone at the station (IJ at 4; Tr. at 26-27). In the weeks that followed, the respondent received three phone calls in which the caller asked to speak with her, though the caller made no concrete threats nor mentioned her son or his father (IJ at 4-5; Tr. at 29, 50-54). During the third call the respondent was told to open her door, and she subsequently heard men outside of her house with gwis who were hitting her dogs to quiet their barking, but she did not open the door (Tr. at 33-34). After the third call, a note was foundoutside of the respondent’s home saying that she should “cooperate” for ”the good of [her] children and for [her] own good” (IJ at 5; Tr. at 5556). Shortly afterwards, the respondent was outside her home when she heard her 3-year-old daughter scream She ran inside to discover a man with his pants down on top of her daughter attempting to rape her (IJ at 5; Tr. at 30-31). When she interrupted him, the man punched the respondent’s face (IJ at 5; Exh. 4, at 136). Afterwards, a man came to her home and told the respondent that, if she went to the police, “what happened to [her] daughter would be nothing compared to what was waiting for [her]” (Tr. at 35). We conclude that the harm to the respondent and her young daughter, combined with the threats, was sufficiently severe and concrete as to constitute past persecution. Based on the particular facts and circumstances presented and the controlling case law in the United States Court of Appeals for the Fourth Circuit, we will also reverse the Irmnigra tio n Judge’s findings on the issue of nexus. The respondent claims that her past and reared future harm is on account of her familial relationship to her son, whose father was attacked by gang members just prior to the threats and attack on her daughter (IJ at 10; Tr. at 22-23). 4 The Supreme Court has held that “direct proof of [an asylum applicant’s] persecutors’ motives” is not required, but the applicant ”must provide some evidence of it, direct or circmmtantial” INS v. Elias-Zacarias, 502 U.S. 478,483 (1992). The respondent had lived in El Salvador for her entire lire, over 30 years, and had never encountered any problem;, from gangs or otherwise, before her son’s father was attacked (Tr. at 64). The respondent also credibly testified that gang members often exact revenge by targeting people’s children (Tr. at 37). We find that the record provides definite and firm evidence that the respondent’s :family membership was at least one central reason for the harm she suffered in the weeks following her son’s father’s attack, and the Irrnnigration Judge’s finding otherwise is clearly erroneous. See Matter of R-S-H-, 23 I&N Dec. 629,637 (BIA 2003). 4 The respondent does not specifically challenge the Irmnigration Judge’s finding that she did not establish the existence of a political opinion, actual or imputed, and we deem any argument on this issue waived (IJ at I 0). See Matter of P-B-B-, 28 l&N Dec. at 44 n. 1. 2 00000031098 pJ (b )( 6) !etal Given om finding5, remand is necessary. On remand, the Immigration Judge should consider in the first instance whether the respondent has shown that the Salvadoran government is wiable or Wlwilling to control her persecutors. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). ”Whether a government is unable or unwilling to control a private actor is a factual question that must be resolved based on the record in each case.” See Orellana v. Barr, 925 F.3d 145, 151 (4th Cir. 2019) (internal quotation marks omitted) (quoting Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011)). If the Immigration Judge finds that the respondent has established the Salvadoran government’s unwillingness or inability to protect her, the bmden shifts to the DHS to rebut the presumed well-founded rear of future persecution We express no opinion on the ultimate outcome of the respondent’s case. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceeding5 consistent with this opinion and for entry of a new decision 3 00000031095 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: I (b)(6) I Al (b)(6) ,_I__ )_(6_) _,l AJ (_b _ (b )( 6) I (b)(6) l AJ (b)(6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Sassollll A. Nalbandian, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before.: Creppy, Appellate Irrnnigration Judge; HW1Sucker, Appellate Immigration Judge; Petty, Appellate Immigration Judge Opinion by Appellate Irrnnigration Judge Creppy CREPPY, Appellate hmnigration Judge The respondent is a native of the fonrer Union of Soviet Socialist Republics (‘USSR”) and a citizen of Armenia. The oldest co-respondent is a native of Armenia and a citizen ofRU5sia. The youngest co-respondent is a native and citizen of Armenia. This is an appeal from the Irrnnigration Judge’s decision dated November 2, 2018, denying the lead respondent’s claims for asylum and withholding of removal pursuant to sections 208(b)(l)(A) and 24l(b)(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ 1158(b )(1 )(A), 1231 (b )(3)(A), and fur protection under the regulations implementing the Convention Against Torture and Other Cruei Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT} 1 The record will be remanded. 2 We review findings of fact detennined by an Irrnnigration Judge, including credibility findings, under a “clearly erroneoU5” standard. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law, 1 The respondents are a family unit composed of the mother (~ (b)(6) pand her two sons (Al r1,,ve:, Iand Pl rhVr;\ b-The lead respondent is the mother and the co-respondents are derivative beneficiaries of her asylum application. All references to “the respondent” are to the lead respondent. 2 The respondent filed a ”Motion to Increase Page Limit of Brief” For the purpose of this appeai we have considered the entirety of the respondent’s brief However, we disagree with the contention of the respondent’s counsel that more than 25 pages were needed to address the issues presented in this case. The respondent’s coW1Selis advised to be respectfuJ of the page limits in future submissions to the Board. 00000031095 ~ (b)(6) let al discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(ii). Given the record before us, we conclude that a remand is appropriate as the lnnnigration Judge’s decision is insufficient to permit meaningful appellate review of the respondent’s claims. See MatterofS-H-, 23 l&N Dec. 462,465 (BIA 2002); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984). The Innnigration Judge detennined that the respondent’s testimony was not credible. Her determination was based on the respondent’s inconsistent and implausible testimony, and a lack of corroborating evidence (IJ at 5-7). See section 208(b )(I )(B)(iii) of the Act. However, we cam1ot affirm the Immigration Judge’s adverse credibility finding as presently constituted because it relies on factual findings not clearly supported by the record. For example, the Immigration Judge found that the respondent provided inconsistent testimony as to when she and her sons fled Armenia (IJ at 6). However, our review of the record seem5 to indicate that the confusion could have been attnbutable to the inteipreter (Tr. at 74-75). The adverse credibility finding was also based on other improper reasons. Thus, we will remand the record to the Immigration Judge to reassess and clarify the issue of the respondent’s credibility. I( upon remand, the Innnigration Judge finds that the respondent is not credible, the Immigration Judge is not reqwred to provide the respondent with advance notice regarding the necessity of corroborative evidence orto specify what evidence is needed. See Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“An applicant must be given notice of the corroboration required, and an opportunity to either provide that corroboration or explain why he cannot do so.”); see also Lai v. Holder, 773 F.3d 966, 976 (9th Cir. 2014) (“[W]hen an [Iunnigration Judge’s] other reasons fur finding an asylum applicant not credible are not supported by substantial evidence, the applicant, being ‘otherwise credible,’ is entitled to notice that he needs to produce corroborative evidence and an opportunity to either produce the evidence or explain why it is unavailable.”). Finally, it is necessary to remand proceedings for finiher consideration of the respondent’s CAT claim (IJ at 3). The Immigration Judge summarily denied the claim, citing to the adverse credibility finding (IJ at 9). However, when evaluating the respondent’s individualized evidence of a likelihood of torture upon return to Armenia, the Irrnnigration Judge should also take into consideration any other relevant factor, including country conditions evidence. See 8 C.F.R. § 1208.16(c)(3); see also Andrade v. Lynch, 798 F.3d 1242, 1244 (9th Cir. 2015) (finding that a failure to consider country conditions evidence is reversible error where such evidence was submitted and addresses the risk of torture). Thus, additional fact finding and legal analysis is reqwred to determine if the respondent has met her burden to establish that it is more likely than not that she will be tortured by or “at the instigation of or with the consent or acquiescence [including the concept of willful blindness] of a public official or other person acting in an official capacity” upon removal to the USSR See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(l); see also Zheng v. Ashcroft, 332 F.3d 1186, 188-89 (9th Cir. 2003) (defining acquiescence as willful blindness). 2 00000031095 ftJ,______,_(b–‘-)_,_( 6)’—_.I et al Ourdecision to remand this case should not be construed as indicating any position with regard to the ultimate resolution of the respondent’s case. See Matter of L-O-G-, 21 I&N Dec. 413,422 (BIA 1996). Accordingly, the following order will be entered. ORDER: The record is remanded to the Innnigration Court for further proceedings consistent with the foregoing opinion and fur the entry of a new decision. 3 00000031092 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) L Al (b)(6) .,_I__I .._(b_..)(_6)___ (b)(6) –IL ~ (b)(6) (b)(6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Sassollll A. Nalbandian, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before.: Creppy, Appellate Irrnnigration Judge; HW1Sucker, Appellate Immigration Judge; Petty, Appellate Immigration Judge Opinion by Appellate Irrnnigration Judge Creppy CREPPY, Appellate hmnigration Judge The respondent is a native of the fonrer Union of Soviet Socialist Republics (‘USSR”) and a citizen of Armenia. The oldest co-respondent is a native of Armenia and a citizen ofRU5sia. The youngest co-respondent is a native and citizen of Armenia. This is an appeal from the Irrnnigration Judge’s decision dated November 2, 2018, denying the lead respondent’s claims for asylum and withholding of removal pursuant to sections 208(b)(l)(A) and 24l(b)(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ 1158(b )(1 )(A), 1231 (b )(3)(A), and fur protection under the regulations implementing the Convention Against Torture and Other Cruei Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT} 1 The record will be remanded. 2 We review findings of fact detennined by an Irrnnigration Judge, including credibility findings, under a “clearly erroneoU5” standard. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law, 1 The respondents are a family unit composed of the mother (fl (b)(6) Iand her two sons (Al rh1ri;, land Al (b)(6) ~-The lead respondent is the mother and the co-respondents are derivative beneficiaries of her asylum application. All references to “the respondent” are to the lead respondent. 2 The respondent filed a ”Motion to Increase Page Limit of Brief” For the purpose of this appeai we have considered the entirety of the respondent’s brief However, we disagree with the contention of the respondent’s counsel that more than 25 pages were needed to address the issues presented in this case. The respondent’s coW1Selis advised to be respectfuJ of the page limits in future submissions to the Board. 00000031092 Al (b)(6) letal discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(ii). Given the record before us, we conclude that a remand is appropriate as the lnnnigration Judge’s decision is insufficient to permit meaningful appellate review of the respondent’s claims. See MatterofS-H-, 23 l&N Dec. 462,465 (BIA 2002); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984). The Innnigration Judge detennined that the respondent’s testimony was not credible. Her determination was based on the respondent’s inconsistent and implausible testimony, and a lack of corroborating evidence (IJ at 5-7). See section 208(b )(I )(B)(iii) of the Act. However, we cam1ot affirm the Immigration Judge’s adverse credibility finding as presently constituted because it relies on factual findings not clearly supported by the record. For example, the Immigration Judge found that the respondent provided inconsistent testimony as to when she and her sons fled Armenia (IJ at 6). However, our review of the record seem5 to indicate that the confusion could have been attnbutable to the inteipreter (Tr. at 74-75). The adverse credibility finding was also based on other improper reasons. Thus, we will remand the record to the Immigration Judge to reassess and clarify the issue of the respondent’s credibility. I( upon remand, the Innnigration Judge finds that the respondent is not credible, the Immigration Judge is not required to provide the respondent with advance notice regarding the necessity of corroborative evidence orto specify what evidence is needed. See Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“An applicant must be given notice of the corroboration required, and an opportunity to either provide that corroboration or explain why he cannot do so.”); see also Lai v. Holder, 773 F.3d 966, 976 (9th Cir. 2014) (“[W]hen an [Iunnigration Judge’s] other reasons fur finding an asylum applicant not credible are not supported by substantial evidence, the applicant, being ‘otherwise credible,’ is entitled to notice that he needs to produce corroborative evidence and an opportunity to either produce the evidence or explain why it is unavailable.”). Finally, it is necessary to remand proceedings for finiher consideration of the respondent’s CAT claim (IJ at 3). The Immigration Judge summarily denied the claim, citing to the adverse credibility finding (IJ at 9). However, when evaluating the respondent’s individualized evidence of a likelihood of torture upon return to Armenia, the Irrnnigration Judge should also take into consideration any other relevant factor, including country conditions evidence. See 8 C.F.R. § 1208.16(c)(3); see also Andrade v. Lynch, 798 F.3d 1242, 1244 (9th Cir. 2015) (finding that a failure to consider country conditions evidence is reversible error where such evidence was submitted and addresses the risk of torture). Thus, additional fact finding and legal analysis is required to determine if the respondent has met her burden to establish that it is more likely than not that she will be tortured by or “at the instigation of or with the consent or acquiescence [including the concept of willful blindness] of a public official or other person acting in an official capacity” upon removal to the USSR See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(l); see also Zheng v. Ashcroft, 332 F.3d 1186, 188-89 (9th Cir. 2003) (defining acquiescence as willful blindness). 2 00000031092 Al (b)(6) letal Ourdecision to remand this case should not be construed as indicating any position with regard to the ultimate resolution of the respondent’s case. See Matter of L-O-G-, 21 I&N Dec. 413,422 (BIA 1996). Accordingly, the following order will be entered. ORDER: The record is remanded to the Innnigration Court for further proceedings consistent with the foregoing opinion and fur the entry of a new decision. 3 00000031089 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) (b)(6) l A! (b)(6) (b)(6) L AJ I ,__ __ (b_)_(6-)__ _,l Al (b )( 6) I Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Sassollll A. Nalbandian, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before.: Creppy, Appellate Irrnnigration Judge; HW1Sucker, Appellate Immigration Judge; Petty, Appellate Immigration Judge Opinion by Appellate Irrnnigration Judge Creppy CREPPY, Appellate hmnigration Judge The respondent is a native of the fonrer Union of Soviet Socialist Republics (‘USSR”) and a citizen of Armenia. The oldest co-respondent is a native of Armenia and a citizen ofRU5sia. The youngest co-respondent is a native and citizen of Armenia. This is an appeal from the Irrnnigration Judge’s decision dated November 2, 2018, denying the lead respondent’s claims for asylum and withholding of removal pursuant to sections 208(b)(l)(A) and 24l(b)(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ 1158(b )(1 )(A), 1231 (b )(3)(A), and fur protection under the regulations implementing the Convention Against Torture and Other Cruei Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT} 1 The record will be remanded. 2 We review findings of fact detennined by an Irrnnigration Judge, including credibility findings, under a “clearly erroneoU5” standard. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law, 1 The respondents are a family unit composed of the mother (A) 11–.v.:\ pand her two sons (Al rhvi;, land Al (b)(6) ~-The lead respondent is the mother and the co-respondents are derivative beneficiaries of her asylum application. All references to “the respondent” are to the lead respondent. 2 The respondent filed a ”Motion to Increase Page Limit of Brief” For the purpose of this appeai we have considered the entirety of the respondent’s brief However, we disagree with the contention of the respondent’s cmmsel that more than 25 pages were needed to address the issues presented in this case. The respondent’s coW1Selis advised to be respectfuJ of the page limits in future submissions to the Board. 00000031089 Al (b )( 6) letal discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(ii). Given the record before us, we conclude that a remand is appropriate as the lnnnigration Judge’s decision is insufficient to permit meaningful appellate review of the respondent’s claims. See MatterofS-H-, 23 l&N Dec. 462,465 (BIA 2002); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984). The Innnigration Judge detennined that the respondent’s testimony was not credible. Her determination was based on the respondent’s inconsistent and implausible testimony, and a lack of corroborating evidence (IJ at 5-7). See section 208(b )(I )(B)(iii) of the Act. However, we cam1ot affirm the Immigration Judge’s adverse credibility finding as presently constituted because it relies on factual findings not clearly supported by the record. For example, the Immigration Judge found that the respondent provided inconsistent testimony as to when she and her sons fled Armenia (IJ at 6). However, our review of the record seem5 to indicate that the confusion could have been attnbutable to the inteipreter (Tr. at 74-75). The adverse credibility finding was also based on other improper reasons. Thus, we will remand the record to the Immigration Judge to reassess and clarify the issue of the respondent’s credibility. I( upon remand, the Innnigration Judge finds that the respondent is not credible, the Immigration Judge is not required to provide the respondent with advance notice regarding the necessity of corroborative evidence orto specify what evidence is needed. See Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“An applicant must be given notice of the corroboration required, and an opportunity to either provide that corroboration or explain why he cannot do so.”); see also Lai v. Holder, 773 F.3d 966, 976 (9th Cir. 2014) (“[W]hen an [Iunnigration Judge’s] other reasons fur finding an asylum applicant not credible are not supported by substantial evidence, the applicant, being ‘otherwise credible,’ is entitled to notice that he needs to produce corroborative evidence and an opportunity to either produce the evidence or explain why it is unavailable.”). Finally, it is necessary to remand proceedings for finiher consideration of the respondent’s CAT claim (IJ at 3). The Immigration Judge summarily denied the claim, citing to the adverse credibility finding (IJ at 9). However, when evaluating the respondent’s individualized evidence of a likelihood of torture upon return to Armenia, the Irrnnigration Judge should also take into consideration any other relevant factor, including country conditions evidence. See 8 C.F.R. § 1208.16(c)(3); see also Andrade v. Lynch, 798 F.3d 1242, 1244 (9th Cir. 2015) (finding that a failure to consider country conditions evidence is reversible error where such evidence was submitted and addresses the risk of torture). Thus, additional fact finding and legal analysis is required to determine if the respondent has met her burden to establish that it is more likely than not that she will be tortured by or “at the instigation of or with the consent or acquiescence [including the concept of willful blindness] of a public official or other person acting in an official capacity” upon removal to the USSR See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(l); see also Zheng v. Ashcroft, 332 F.3d 1186, 188-89 (9th Cir. 2003) (defining acquiescence as willful blindness). 2 00000031089 Al..__”-=(b”””‘)(-=-6)’–__.I et al Ourdecision to remand this case should not be construed as indicating any position with regard to the ultimate resolution of the respondent’s case. See Matter of L-O-G-, 21 I&N Dec. 413,422 (BIA 1996). Accordingly, the following order will be entered. ORDER: The record is remanded to the Innnigration Court for further proceedings consistent with the foregoing opinion and fur the entry of a new decision. 3 NOT FOR pcfjff’f<:A.8\-ioN U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTEROF: (b)(6) AJ (h)(6) ‘;::::======~=(b=)(::::::6)========~l Al (b )( 6) ! ~—-~(b~)(_6) ____ ~1 Al (b)(6) I Respondents FILED Jan· 28, 2022 ON BEHALF OF RESPONDENTS: Vannia Glasinovic, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Com, Portland, OR Before: Creppy, Appellate Innnigration Judge; Hlmsucker, Appellate Immigration Judge; Liebowitz, Appellate Inunigration Judge Opinion by Appellate lrrnnigration Judge Creppy Appellate lnnnigration Judge Liebowitz, dissents without opinion CREPPY, Appellate Immigration Judge The respondent, a native and citizen of Guatemala, appeals from the Innnigration Judge’s November 27, 2018, decision denying her applications for asyhnn and withholding of removal tmder sections 208(b )(I )(A) and 241 (b )(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(Q(A), 1231(b)(3)(A), and fur protection under the regulations implementing the Convention Against Torture and Other Cruei • Inhwnan or Degrading Treatment or Punishrne nt, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT); 8 C.F.R. §§ 1208.16(c), 1208.18. 1 The Department ofHomeland Security has not filed a response. The appeal will be dismissed. The Board reviews the findings of fact determined by an Innnigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, judgement, and all other issues in appeals from decisions of Irrnnigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(it). The respondents in this case are the lead respondent (Al (b)(6) t who is the mother, and her two children (..hJ (b)(6) I Al (b)(6) b,who are derivative beneficiaries of the lead respondent’s asylum application. See section 208(b)(3)(A) of the Act; 8 C.F.R. § 1208.3(a). The rider respondents did not file their own applications for relief and protection from removai and as derivative beneficiaries, they are not eligible for withholding ofremoval under the Act or the CAT. See Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007). All references to “the respondent” in the singular are to the lead respondent unless otherwise noted. 00000031086 ~ (b)(6) !et al 1be respondent claims past persecution and future persecution based on her membership in two proposed particular social groups: (1) “Guatemalan women living with no male figure,” and (2) ”family of a victim of extortion for nine years” (U at 9-10; Tr. at 22-23; Respondent’s Br. at 11). The Immigration Judge’s decision fully sets out the respondent’s testimony (IJ at 2-5). As a child, the respondent was either abandoned by her parents or kidnapped by a woman, and was subjected to involuntary servitude and other mistreatment (IJ at 2-3; Tr. at 26-28). When the respondent was 10 years old, two men raped and wounded her (IJ at 2; Tr. at 28). The respondent then fled at age 13, and eventually married and had two children (IJ at 4; Tr. at 33, 45). The respondent’s husband came to the United States in 2006 and returned to Guatemala for approximately I year in 2015 (IJ at 4; Tr. at 33, 45). After her mother-in-law passed away in 2011, the respondent’s minor brother-in-law came to live with her. In March 2016, the respondent received three phone calls demanding that she pay 50,000 quet7.als, or the callers would kill her, her children, and her brother-in-law (IJ at 9; Tr. at 38). The callers claimed they were aware that her father-in-law and husband lived in the United States, and that her mother-in-law-with whom she previously lived-had passed away (IJ at 11-I 2; Tr. at 39). The respondent tiled a complaint with the police and shortly thereafter fled to the United States (IJ at 5; Tr. at 52-53). The Immigration Judge noted “serious concerns” with the respondent’s testimony, but found that the respondent was a credible witness (IJ at 8). In denying the respondent’s application, the Immigration Judge determined that the respondent’s mistreatment as a child, including her rape, rose to the level of persecution, but was not on account of a protected ground (U at 9, 11 ). She also folllld that the respondent did not establish that the threatening phone calls were on account on a protected groW1d (IJ at 9). Furthermore, the Immigration Judge determined that neither of the articulated particular social group was cognizable, and even if so, the respondent did not establish the required nexus to those groups (JJ at 9-11 ). The respondent also claimed a well-founded fear of persecution from the gang members who sought to extort her (IJ at 12). The Immigration Judge found that the respondent demonstrated that her subjective fear was objectively reasonable, but that she did not establish the feared harm was on account of a protected ground because her proposed particular social groups were not cognizable (IJ at 12-13). The Immigration Judge also denied the respondent’s request for withholding of removal and protection under the CAT (IJ at 13-14). The respondent challenges the Immigration Judge’s decision on appeal Ammg other arguments, she asserts that she established past persecution on accmmt of a protected ground and an independent well-founded rear of persecution on account of a protected ground (Respondent’s Br. at 8-10). 2 She also argues that she established eligibility for withholding of removal and protection under the CAT (Respondent’s Br. at 19-22). 2 While the respondent argues on appeal that the Guatemalan government is unable or llllwilling to protect her, the Immigration Judge did not need to address this issue below in light of her other determinations (Respondent’s Br. at 18-19). See INS v. Bagarnasbad, 429 U.S. 24, 25 (I 976). 2 00000031086 ftJ (b)(6) !et al We uphold the Imnigration Judge’s determination that the respondent is not eligible for asyhnn because she has not established past persecution or a well-founded fear of persecution (IJ at 8-13). See section 208(b )(1 )(B)(O of the Act (providing that an asyhnn applicant has the burden of proof to establish eligtbility). When an applicant is seeking asylum, or withholding of remova~ based on membership in a particular social group, she bears the burden of establishing: the existence of a cognizable particular social group; membership in that particular social group; and a risk of persecution on account of membership in the specified particular social group. Reyes v. Lynch, 842 F.3d 1125, 1132 n3 (9th Cir. 2016). To establish the requisite nexus, the applicant rrrust show that the protected ground is “at least one central reason” for the persecution for purposes of asylum and “a reason” for the persecution for purposes of withholding ofremoval BarajasRomero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017). The Immigration Judge properly determined that the respondent’s proposed particular social groups are not cognizable under the Act (IJ at 10-11; Respondent’s Br. at 11-14 ). Regarding the proposed group comprised of ”Guatemalan women living with no male figure,” this group lacks particularity, as it is amorphous and, as descnbed, a ”rm.le figure” could encompass a variety of individuals, including futhers, husbands, children, etc. (IJ at 10; Respondent’s Br. at 11-12). See Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020); Matter of S-E-G-, 24 J&N Dec. 579, 584 (BIA 2008) (providing that the particularity requirement is “whether the proposed group can accurately be descnbed in a mallller sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons’). The respondent has a~o not shown on appeal that this proposed group is irrnnutab le, as the respondent’s husband returned to Guatemala in 2015 and therefore her status as having “no male figure” is changeable (IJ at 10; Tr. at 43-44). See Plancarte v. Barr, 4 F.4th 1146, 1153-54 (9th Cir. 2021) (stating that irrnnutab le characteristics are those the noncitiz.en cannot change or should not be required to change because it is fundamental to their identities or consciences); Matter of W-G-R-, 26 I&N Dec. 208, 213 (BIA 2014) (stating the critical requirement for a proposed group is that the defining characteristic cannot be changed). Regarding the proposed particular social group comprised of ”fumily of a victim of extortion for nine years,” we agree with the Irrnnigration Judge that this group is also too amorphous to be sufficiently particular (IJ at 10-11 ). 3 As the Irrnnigration Judge found, the group as stated includes all fumilies in Guatemala who have a relative that has been extorted (IJ at 10). See Nguyen, 983 F .3d at 1103 (provided that the ”particularity element requires characteristics that ‘provide a clear •benchmark for detennining who falls within the group,’ wherein the relevant society must have a ‘comrronly accepted definition[ ]’ of the group” (citation omitted)); Matter of L-E-A-, 27 I&N Dec. 40, 42-43(BIA 2017) (”L-E-A-f) (providing that ‘1n]ot all social groups that involve fumily 3 We need not reach the Immigration Judge’s conclusion that the proposed social group was impennissibly circular, as the lack of cognizability was sufficiently dispositive (IJ at 10). See Bagamasbad, 429 U.S. at 25. 3 00000031086 Al (b )( 6) let al men:bers meet the requirements of particularity and social distinction’). 4 On appeai the respondent has not sufficiently shown, and the record does not support that her proposed particular social group has particular characteristics to set its members apart in some significant way from the rest of Guatemalan society (Respondent’s Br. at 12-13). See Villegas Sanchez v. Garland, 990 F.3d 1173, 1181 (9th Cir. 2021) (‘The particular social group analysis does not occur in isolation, but rather in the context of society out of which the claim for asyhun arises.”). Because the respondent did not establish a cognizable particular social group, she is not eligible for asyh.nn or withholding ofremoval under the Act (IJ at 11, 13). See section 101(a)(42)(A), 208(b)(l)(A), and 241(b)(3)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A); Matter ofW-G-R-, 26 I&N Dec. at 223 (“An applicant’s burden includes demonstrating the existence of a cognizable particular social group, his membership in that particular social group, and a risk of persecution on account of his rneooership in the specified particular social group.’). As the Irrnnigration Judge fomd, while the respondent established that her subjective fear was objectively reasonable, because the respondent did not establish a cognizable particular social group, she is not able to establish a nexus between her feared harm and a protected ground to show a well-founded fear of persecution for purposes of asylum (IJ at 12-13). Similarly, without establishing a cognizable social group, the respondent is not able to establish that a protected ground is “a reason” for her feared harm to be eligible for withholding ofremoval (IJ at 13). See Barajas-Romero, 846 F.3d at 359-60. Moreover, the respondent has not established a nexus between the proposed particular social groups and the past and feared future hann While we acknowledge the horrific events the respondent experienced as a child-as did the Immigration Judge-the respondent has not established a nexus between those events and the social groups comprised of”Guatemalan woman living with no male figure” or “family of a victim of extortion for nine years” (IJ at 11). As an initial matter, we note that the basis for both of these groups appears to have arisen well-after the events from the respondent’s childhood (IJ at 2-3). Moreover, on appeai the respondent does not argue that these past events are specifically linked to one of her articulated particular social groups (Respondent’s Br. at 9-10). Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (stating that a noncitizens desire to be free from harassment by criminals motivated by theft or random acts of violence by gang members bear no nexus to a protected grotmd). The respondent has also not shown a nexus between the gang members’ threats and the two articulated particular social groups (IJ at 11-12; Respondent’s Br. at 11-18). The respondent testified that the callers claimed they were aware that her father-in-law and husband lived in the United States, and that her mother-in-law-with whom she previously lived-had passed away (IJ at 11-12; Tr. at 39). She also testified that the calls were because the extortionists believed she had money, due to her ties to the United States (IJ at 12; Tr. at 38-39). However, as the Immigration Judge found, the caller did not indicate that he or she knew the respondent was living 4 OnJtme 16, 2021, the Attorney General vacated MatterofL-E-A-, 27I&N Dec. 581 (A.G. 2019) (“L-E-A-If), instructing lrrnnigration Judges and the Board to no longer follow that case, as to return the irmnigration system to ‘1)reexisting state of affairs.” Id. at 305. This now includes following the previously ovenuled portions of L-E-A-1. 4 00000031086 Al, (b)(6) !et al alone without any other male figure (IJ at 11-12). The respondent’s appellate argument that she was more vulnerable because criminals believe that those with relatives in the United States have m:mey does not establish a nexus, especially due to the widespread nature of extortion in Guatemala as a means to further criminal enterprises (U at 11). The respondent’s contention that the Immigration Judge ignored colllltry conditiom evidence connected to her claim is also not persuasive, as the Immigration Judge specifically referenced this evidence in concluding that she was a victim of generalized violence in Guatemala (IJ at 11; Respondent’s Br. at 10, 16). Given the record evidence, we uphold the Immigration Judge’s finding that the respondent’s claim, insofar as it is related to the gang’s threats, is based on general criminal activity, rather than membership in a particular social group, or any other protected grmmd (IJ at 12). See Matter of N-M-, 25 I&N Dec. at 532; see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (stating that a noncitizen’s desire to be free from harassment by criminals motivated by theft or random violence bears no nexus to a protected grmmd); Matter of M-E-V-G-, 26 l&N Dec. 227, 235 (BIA 2014) (stating that asylwn and refugee laws do not protect individuals from general conditions such as crime and other social afflictions); Matter of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997) (providing that perceived weahh is not a sufficient basis to support a claim of persecution). As the respondent did not establish past harm or well-founded fear of future harm on accollllt of a protected ground, we affirm the denial of her applications for asylum and withhokling of removal (IJ at 13). See Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir. 2005); see also Barajas-Romero, 846 F.3d at 359. Finally, we affirm the Irrnnigration Judge’s denial of the respondent’s application for protection under the CAT (IJ at 13-14). Considering the totality of the record, the Immigration Judge did not clearly err in forecasting the likelihood that the respondent woukl not be tortured upon return to Guatemala, even considering country condition evidence (IJ at 13-14; Exhs. 4, 6). See 8 C.F.R. § 1003. l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586, 590 (BIA 2015). As the Immigration Judge found, the respondent did not establish specific gromds that she would personally be at risk for torture (IJ at 14). See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (Tlbe respondent’sl generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient to meet this standard.”). On appeai the respondent argues that she submitted evidence of individualized threat of torture through her testimony about the death threats she received via telephone (Respondent’s Br. at 21). However, the respondent’s appellate contention that these threats would lead to her torture do not demonstrate clear error in the lrrnnigration Judge’s predictive findings of :ract regarding the likelihood of the respondent being tortured (Respondent’s Br. at 20-22). See Barajas-Romero, 846 F.3d at 363 (“[Protection \Dlder the CAT] is furward-looking, requiring the applicant prove that it is more likely than not that he woukl be tortured if he were removed to the proposed coW1try, not that he was tortured in the past.”). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 5 00000031086 Pl (b)(6) jet al Appellate Immigration Judge Ellen Liebowitz respectfully concurs in part and dissents in part without separate opinion. I would remand the record fur the Immigration Judge to conduct further fact finding and legal analysis regarding the respondent’s request for CAT protection. 6 NOT FOR pcfjff’f<:A8hON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTEROF: (b)(6) I Al (b)(6) :====::!0===/1,=V==”‘=====~I Al (b)(6) .__ ____ (..a,.b)(6″”‘”) _,I Al …. …. ____ (b)(6) Respondents FILED Jan· 28, 2022 ON BEHALF OF RESPONDENTS: Vannia Glasinovic, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Com, Portland, OR Before: Creppy, Appellate Innnigration Judge; Hlmsucker, Appellate Immigration Judge; Liebowitz, Appellate Inunigration Judge Opinion by Appellate lrrnnigration Judge Creppy Appellate lnnnigration Judge Liebowitz, dissents without opinion CREPPY, Appellate Immigration Judge The respondent, a native and citizen of Guatemala, appeals from the Innnigration Judge’s November 27, 2018, decision denying her applications for asyhnn and withholding of removal tmder sections 208(b )(I )(A) and 241 (b )(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(Q(A), 1231(b)(3)(A), and fur protection under the regulations implementing the Convention Against Torture and Other Cruei • Inhwnan or Degrading Treatment or Punishrne nt, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT); 8 C.F.R. §§ 1208.16(c), 1208.18. 1 The Department ofHomeland Security has not filed a response. The appeal will be dismissed. The Board reviews the findings of fact determined by an Innnigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, judgement, and all other issues in appeals from decisions of Irrnnigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(it). The respondents in this case are the lead respondent (~ (b)(6) D.who is the mother, and her two children (Al (b)(6) l .N (b)(6) D, who are derivative beneficiaries of the lead respondent’s asylum application. See section 208(b)(3)(A) of the Act; 8 C.F.R. § 1208.3(a). The rider respondents did not file their own applications for relief and protection from removai and as derivative beneficiaries, they are not eligible for withholding ofremoval under the Act or the CAT. See Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007). All references to “the respondent” in the singular are to the lead respondent unless otherwise noted. 00000031083 pJ (b )( 6) let al 1be respondent claims past persecution and future persecution based on her membership in two proposed particular social groups: (1) “Guatemalan women living with no male figure,” and (2) ”family of a victim of extortion for nine years” (U at 9-10; Tr. at 22-23; Respondent’s Br. at 11). The Immigration Judge’s decision fully sets out the respondent’s testimony (IJ at 2-5). As a child, the respondent was either abandoned by her parents or kidnapped by a woman, and was subjected to involuntary servitude and other mistreatment (IJ at 2-3; Tr. at 26-28). When the respondent was 10 years old, two men raped and wounded her (IJ at 2; Tr. at 28). The respondent then fled at age 13, and eventually married and had two children (IJ at 4; Tr. at 33, 45). The respondent’s husband came to the United States in 2006 and returned to Guatemala for approximately I year in 2015 (IJ at 4; Tr. at 33, 45). After her mother-in-law passed away in 2011, the respondent’s minor brother-in-law came to live with her. In March 2016, the respondent received three phone calls demanding that she pay I(b )( 6) ~uet7.als, or the callers would kill her, her children, and her brother-in-law (IJ at 9; Tr. at 38). The callers claimed they were aware that her father-in-law and husband lived in the United States, and that her mother-in-law-with whom she previously lived-had passed away (IJ at 11-I 2; Tr. at 39). The respondent tiled a complaint with the police and shortly thereafter fled to the United States (IJ at 5; Tr. at 52-53). The Immigration Judge noted “serious concerns” with the respondent’s testimony, but found that the respondent was a credible witness (IJ at 8). In denying the respondent’s application, the Immigration Judge determined that the respondent’s mistreatment as a child, including her rape, rose to the level of persecution, but was not on account of a protected ground (U at 9, 11 ). She also folllld that the respondent did not establish that the threatening phone calls were on account on a protected groW1d (IJ at 9). Furthermore, the Immigration Judge determined that neither of the articulated particular social group was cognizable, and even if so, the respondent did not establish the required nexus to those groups (JJ at 9-11 ). The respondent also claimed a well-founded fear of persecution from the gang members who sought to extort her (IJ at 12). The Immigration Judge found that the respondent demonstrated that her subjective fear was objectively reasonable, but that she did not establish the feared harm was on account of a protected ground because her proposed particular social groups were not cognizable (IJ at 12-13). The Immigration Judge also denied the respondent’s request for withholding of removal and protection under the CAT (IJ at 13-14). The respondent challenges the Immigration Judge’s decision on appeal Ammg other arguments, she asserts that she established past persecution on accmmt of a protected ground and an independent well-founded rear of persecution on account of a protected ground (Respondent’s Br. at 8-10). 2 She also argues that she established eligibility for withholding of removal and protection under the CAT (Respondent’s Br. at 19-22). 2 While the respondent argues on appeal that the Guatemalan government is unable or llllwilling to protect her, the Immigration Judge did not need to address this issue below in light of her other determinations (Respondent’s Br. at 18-19). See INS v. Bagarnasbad, 429 U.S. 24, 25 (I 976). 2 00000031083 We uphold the Imnigration Judge’s determination that the respondent is not eligible for asyhnn because she has not established past persecution or a well-founded fear of persecution (IJ at 8-13). See section 208(b )(1 )(B)(O of the Act (providing that an asyhnn applicant has the burden of proof to establish eligtbility). When an applicant is seeking asylum, or withholding of remova~ based on membership in a particular social group, she bears the burden of establishing: the existence of a cognizable particular social group; membership in that particular social group; and a risk of persecution on account of membership in the specified particular social group. Reyes v. Lynch, 842 F.3d 1125, 1132 n3 (9th Cir. 2016). To establish the requisite nexus, the applicant rrrust show that the protected ground is “at least one central reason” for the persecution for purposes of asylum and “a reason” for the persecution for purposes of withholding ofremoval BarajasRomero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017). The Immigration Judge properly determined that the respondent’s proposed particular social groups are not cognizable under the Act (IJ at 10-11; Respondent’s Br. at 11-14 ). Regarding the proposed group comprised of ”Guatemalan women living with no male figure,” this group lacks particularity, as it is amorphous and, as descnbed, a ”rm.le figure” could encompass a variety of individuals, including futhers, husbands, children, etc. (IJ at 10; Respondent’s Br. at 11-12). See Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020); Matter of S-E-G-, 24 J&N Dec. 579, 584 (BIA 2008) (providing that the particularity requirement is “whether the proposed group can accurately be descnbed in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons’). The respondent has a~o not shown on appeal that this proposed group is irrnnutab le, as the respondent’s husband returned to Guatemala in 2015 and therefore her status as having “no male figure” is changeable (IJ at 10; Tr. at 43-44). See Plancarte v. Barr, 4 F.4th 1146, 1153-54 (9th Cir. 2021) (stating that irrnnutab le characteristics are those the noncitiz.en cannot change or should not be required to change because it is fundamental to their identities or consciences); Matter of W-G-R-, 26 I&N Dec. 208, 213 (BIA 2014) (stating the critical requirement for a proposed group is that the defining characteristic cannot be changed). Regarding the proposed particular social group comprised of ”fumily of a victim of extortion for nine years,” we agree with the Irrnnigration Judge that this group is also too amorphous to be sufficiently particular (IJ at 10-11 ). 3 As the Irrnnigration Judge found, the group as stated includes all fumilies in Guatemala who have a relative that has been extorted (IJ at 10). See Nguyen, 983 F .3d at 1103 (provided that the ”particularity element requires characteristics that ‘provide a clear •benclnnark for detennining who falls within the group,’ wherein the relevant society must have a ‘comrronly accepted definition[ ]’ of the group” (citation omitted)); Matter of L-E-A-, 27 I&N Dec. 40, 42-43(BIA 2017) (”L-E-A-f) (providing that ‘1n]ot all social groups that involve fumily 3 We need not reach the Immigration Judge’s conclusion that the proposed social group was impennissibly circular, as the lack of cognizability was sufficiently dispositive (IJ at 10). See Bagamasbad, 429 U.S. at 25. 3 00000031083 Al (b)(6) letal . men:bers meet the requirements of particularity and social distinction’). 4 On appeai the respondent has not sufficiently shown, and the record does not support that her proposed particular social group has particular characteristics to set its members apart in some significant way from the rest of Guatemalan society (Respondent’s Br. at 12-13). See Villegas Sanchez v. Garland, 990 F.3d 1173, 1181 (9th Cir. 2021) (‘The particular social group analysis does not occur in isolation, but rather in the context of society out of which the claim for asyhun arises.”). Because the respondent did not establish a cognizable particular social group, she is not eligible for asyh.nn or withholding ofremoval under the Act (IJ at 11, 13). See section 101(a)(42)(A), 208(b)(l)(A), and 241(b)(3)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A); Matter ofW-G-R-, 26 I&N Dec. at 223 (“An applicant’s burden includes demonstrating the existence of a cognizable particular social group, his membership in that particular social group, and a risk of persecution on account of his meooership in the specified particular social group.’). As the Irrnnigration Judge fomd, while the respondent established that her subjective fear was objectively reasonable, because the respondent did not establish a cognizable particular social group, she is not able to establish a nexus between her feared harm and a protected ground to show a well-founded fear of persecution for purposes of asylum (IJ at 12-13). Similarly, without establishing a cognizable social group, the respondent is not able to establish that a protected ground is “a reason” for her feared harm to be eligible for withholding ofremoval (IJ at 13). See Barajas-Romero, 846 F.3d at 359-60. Moreover, the respondent has not established a nexus between the proposed particular social groups and the past and feared future hann While we acknowledge the horrific events the respondent experienced as a child-as did the Immigration Judge-the respondent has not established a nexus between those events and the social groups comprised of”Guatemalan woman living with no male figure” or “family of a victim of extortion for nine years” (IJ at 11). As an initial matter, we note that the basis for both of these groups appears to have arisen well-after the events from the respondent’s childhood (IJ at 2-3). Moreover, on appeai the respondent does not argue that these past events are specifically linked to one of her articulated particular social groups (Respondent’s Br. at 9-10). Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (stating that a noncitizens desire to be free from harassment by criminals motivated by theft or random acts of violence by gang members bear no nexus to a protected grotmd). The respondent has also not shown a nexus between the gang members’ threats and the two articulated particular social groups (IJ at 11-12; Respondent’s Br. at 11-18). The respondent testified that the callers claimed they were aware that her father-in-law and husband lived in the United States, and that her mother-in-law-with whom she previously lived-had passed away (IJ at 11-12; Tr. at 39). She also testified that the calls were because the extortionists believed she had money, due to her ties to the United States (IJ at 12; Tr. at 38-39). However, as the Immigration Judge found, the caller did not indicate that he or she knew the respondent was living 4 OnJtme 16, 2021, the Attorney General vacated MatterofL-E-A-, 27I&N Dec. 581 (A.G. 2019) (“L-E-A-If), instructing lrrnnigration Judges and the Board to no longer follow that case, as to return the irmnigration system to ‘1)reexisting state of affairs.” Id. at 305. This now includes following the previously ovenuled portions of L-E-A-1. 4 00000031083 Al (b)(6) let al alone without any other male figure (IJ at 11-12). The respondent’s appellate argument that she was more vulnerable because criminals believe that those with relatives in the United States have m:mey does not establish a nexus, especially due to the widespread nature of extortion in Guatemala as a means to further criminal enterprises (U at 11). The respondent’s contention that the Immigration Judge ignored colllltry conditiom evidence connected to her claim is also not persuasive, as the Immigration Judge specifically referenced this evidence in concluding that she was a victim of generalized violence in Guatemala (IJ at 11; Respondent’s Br. at 10, 16). Given the record evidence, we uphold the Immigration Judge’s finding that the respondent’s claim, insofar as it is related to the gang’s threats, is based on general criminal activity, rather than membership in a particular social group, or any other protected grmmd (IJ at 12). See Matter of N-M-, 25 I&N Dec. at 532; see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (stating that a noncitizen’s desire to be free from harassment by criminals motivated by theft or random violence bears no nexus to a protected grmmd); Matter of M-E-V-G-, 26 l&N Dec. 227, 235 (BIA 2014) (stating that asylwn and refugee laws do not protect individuals from general conditions such as crime and other social afflictions); Matter of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997) (providing that perceived weahh is not a sufficient basis to support a claim of persecution). As the respondent did not establish past harm or well-founded fear of future harm on accollllt of a protected ground, we affirm the denial of her applications for asylum and withhokling of removal (IJ at 13). See Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir. 2005); see also Barajas-Romero, 846 F.3d at 359. Finally, we affirm the Irrnnigration Judge’s denial of the respondent’s application for protection under the CAT (IJ at 13-14). Considering the totality of the record, the Immigration Judge did not clearly err in forecasting the likelihood that the respondent woukl not be tortured upon return to Guatemala, even considering country condition evidence (IJ at 13-14; Exhs. 4, 6). See 8 C.F.R. § 1003. l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586, 590 (BIA 2015). As the Immigration Judge found, the respondent did not establish specific gromds that she would personally be at risk for torture (IJ at 14). See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (Tlbe respondent’sl generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient to meet this standard.”). On appeai the respondent argues that she submitted evidence of individualized threat of torture through her testimony about the death threats she received via telephone (Respondent’s Br. at 21). However, the respondent’s appellate contention that these threats would lead to her torture do not demonstrate clear error in the lrrnnigration Judge’s predictive findings of :ract regarding the likelihood of the respondent being tortured (Respondent’s Br. at 20-22). See Barajas-Romero, 846 F.3d at 363 (“[Protection \Dlder the CAT] is furward-looking, requiring the applicant prove that it is more likely than not that he woukl be tortured if he were removed to the proposed coW1try, notthat he was tortured in the past.”). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 5 00000031083 Al (h\( ;;) Iet al Appellate Immigration Judge Ellen Liebowitz respectfully concurs in part and dissents in part without separate opinion. I would remand the record fur the Immigration Judge to conduct further fact finding and legal analysis regarding the respondent’s request for CAT protection. 6 00000031080 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) fl,.\(,;\ (hV6) l (h’\f f;’\ I (b)(6) I (b)(6) I Al (b)(6) Al (hV6) I l Al (b)(6) I I Al (b)(6) I I Al (h)(6) I L AJ (b)(6) FILED Jan 28, 2022 Respondents ON BEHALF OF RESPONDENTS: Lisa J. Herrera, Esquire ON BEHALF OF DHS: Mark Hardy, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Seattle, WA Before: Petty, Appellate Immigration Judge Opinion by Appellate hmnigration Judge Petty PETTY, Appellate Innnigration Judge The respondents, natives and citiz.ens of Guatemala, appeal the Immigration Judge’s December 14, 2018, decision denying the lead respondent’s applications for asylum, withholding of removai and protection llllder the regulations implementing the Convention Against Torture and Other Cruei Inhllllian or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). 1 See sections 208(b)(l)(A), 241(b)(3)(A) of the Act, 8 U.S.C. §§ l 158(b)(l)(A), 123 l(b)(3)(A); 8 C.F.R §§ 1208.16(c), 1208.18. The Department of Homeland Security opposes the appeal The appeal will be dismissed. We review for clear error the findings of fact,. including the detennination of credibility, made by the Jrrnnigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo questions of law, 1 The respondents are a mother (Al (b)(6) Iand her five minor children (Al (b)(6) I (b)(6) D-The lead respondent is the mother and her minor children are derivative beneficiaries on her asylum application (Exh. 2). See Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007) (stating that, although section 208(b)(3)(A) of the Immigration and Nationality Act provides for derivative asylum, it does not provide for derivative withholding of removal llllder section 241 (b )(3)(A) of the Act). Unless otherwise indicated, use of the singular “respondent” refers to the lead respondent. 00000031080 Aj (b)(6) let al discretion, and judgment, and all other issues in appeals from an Immigration Judge’s decision. 8 C.F.R § 1003.l (d)(3)(ii). The respondent seeks asylwn and related relief and protection from removal based on her experiences as a domestic violence victim (IJ at 3-4; Tr. at 40-41 ). The respondent advances a claim based upon her membership in proposed particuJar social groups consisting of ( 1) “Guatemalan women,” (2) “Guatemalan women unable to leave a domestic relationship,” and (3) “Guatemalan women who are viewed as property” (IJ at 5-8). The Immigration Judge found the respondent advanced credible evidence that she suffered harm at the hands of her ex-partner that rose to the level of persecution, but concluded that she ultimately did not meet her burden of proving eligibility for asylum, withholding of remova~ and CAT protection (IJ at 4-11 ). 2 This appeal followed. We affirm the Immigration Judge’s determination that the respondent has not met her burden to establish that the Guatemalan government would be unable or unwilling to protect her, which is dispositive of her asylwn claim (IJ at 7, 9). See Bringas-Rodriguez v. Sessions, 850 F .3d 1051, 1062 (9th Cir. 2017) (citing Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) and noting that where the persecution was not committed by the government, it is the noncitizen’s burden to establish that the persecution was committed by forces that the government was unable or unwilling to controQ. 3 Here, the police responded to the respondent’s requests for help by arriving at her home and providing assistance on 3 occasions (IJ at 9; Exh. 5 at 9-11 ). The police also advised the respondent to sue her ex-partner, as they needed a warrant to arrest him (IJ at 4, 7, 9; Tr. at 58-60; Exh. 5 at 9-11). See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (providing that when non-government actors are responsible for the persecution, courts look to whether the police responded to control the behavior where the persecution was reported to them). On appeai the respondent argues that general country conditions evidence indicates that the Guatemalan government has been unable to protect women from violence (Respondent’s Br. at 20-21). However, we note that her own experiences, as discussed above, do not support such a conclusion (lJ at 7, 9). Accordingly, on this record, we affirm the Irnrnigratio n Judge’s determination that the respondent has not established that the Guatemalan government is unable 2 In lieu of direct examination, the parties stipulated that the respondent’s testimony would be consistent with her written declaration (lJ at 3). The Immigration Judge assumed arguendo that the respondent was credible based on her written statement (JJ at 4; Exh. 5). 3 We acknowledge that the Innnigration Judge, in finding that the respondent could not establish membership in a cognizable particular social group or a nexus to a protected ground as a victim of domestic violence, cited the Attorney General’s decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), which has subsequently been overruled by Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (U at 6-7). Because we resolve the appeal on other grounds, these decisions do not impact our analysis. 2 00000031080 ~ (b)(6) Iet al or unwilling to protect her from her ex-partner (IJ at 7, 9). As we affirm this determination, we need not consider the respondent’s remaining arguments on appeal See INS v. Bagamasbad, 429 U.S. 24, 25-26 (] 976) (noting that as a general ru1e, courts and agencies are not required to -make finding; on issues the decision of which is unnecessary to the results they reach). 4 As she has not established eligibility for asylum for reasons other than nexus, the respondent has necessarily railed to establish eliglbility for withholding of removal (IJ at 9). See 8 C.F.R. § 1208.16(b); see also Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020) (upholding denial of withholding of removal under the Act because respondent had not established the government was unable or unwilling to protect her). With regard to CAT protection, the respondent argues that the harm by her ex-partner will rise to the level of torture and that the government of Guatemala will acquiesce to this torture (Respondent’s Br. at 12-14). The respondent asserts that police dismissed her complaints for help by telling her that they needed a warrant to arrest her ex-partner (Respondent’s Br. at 12-13). However, as noted by the Immigration Judge, police responded to her requests for help on 3 occasions and advised her to sue her ex-partner (IJ at IO; Exh. 5 at 9-11 ). See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular crime, but railed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime’). Moreover, the conduct of the Guatemalan authorities after the infliction of harm does not demonstrate a likelihood that they would more likely than not have knowledge of the conduct constituting torture before it occurred and thereafter breach a legal duty to intervene to prevent it from happening. See 8 C.F.R. § 1208.18(a)(7). Although the respondent asserts that the lrrnnigration Judge did not properly consider her country conditions evidence, the Immigration Judge expressly acknowledged her evidence that Guatemalan women are vulnerable to domestic violence (IJ at 10). However, the Irrnnigra tio n Judge noted that the Guatemalan government has taken steps to combat domestic violence and provides services for victims (IJ at 10; Exh. 3 at 162-63). Moreover, the respondent acknowledges on appeal that Guatemalan law prohibits domestic violence and allows restraining orders against “alleged aggressors” (Exh. 3, Tab Y; Respondent’s Br. at 12). In SUill, on this record where the government took steps to investigate and help the respondent, we affirm the finding that the respondent has not shown that a Guatemalan public official would more likely than not consent or acquiesce to the respondent’s torture. See 8 C.F.R. § 1208.16(c)(2); see also AndradeGarcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general ineffectiveness on the government’s part to investigate and prevent crime will not suffice to show acquiescence”). The respondent is thus ineligible for CAT protection. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 4 Inasmuch as the respondent has not established that she was previously persecuted in Guatemala by the government or forces the government is either unable or unwilling to contro~ she is not eligible for ”hurnmitarian” asylum (IJ at 9; Respondent’s Br. at 22-23). See 8 C.F.R. § 1208.B(b)(l)(iii). 3 00000031077 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (hV61 (b)(6) (hV6’\ I (b)(6) L A) (hV61 L Al (b)(6) I A1 (b)(6) I (b)(6) FILED Jan 28, 2022 I~ I I (b)(6) I IL (b)(6) i I (hV6’\ L ~ (b)(6) Respondents ON BEHALF OF RESPONDENTS: Lisa J. Herrera, Esquire ON BEHALF OF DHS: Mark Hardy, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Seattle, WA Before: Petty, Appellate Immigration Judge Opinion by Appellate hmnigration Judge Petty PETTY, Appellate Innnigration Judge The respondents, natives and citiz.ens of Guatemala, appeal the Immigration Judge’s December 14, 2018, decision denying the lead respondent’s applications for asylum, withholding of removai and protection llllder the regulations implementing the Convention Against Torture and Other Cruei Inhllllian or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). 1 See sections 208(b)(l)(A), 241(b)(3)(A) of the Act, 8 U.S.C. §§ l 158(b)(l)(A), 123 l(b)(3)(A); 8 C.F.R §§ 1208.16(c), 1208.18. The Department of Homeland Security opposes the appeal The appeal will be dismissed. We review for clear error the findings of fact,. including the detennination of credibility, made by the Jrrnnigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo questions of law, 1 The respondents are a mother (Al rhV6) Oand her five minor children (Al rhV61 I rhvi:;, I. The lead respondent is the mother and her minor children are derivative beneficiaries on her asylum application (Exh. 2). See Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007) (stating that, although section 208(b)(3)(A) of the Immigration and Nationality Act provides for derivative asylum, it does not provide for derivative withholding of removal llllder section 241 (b )(3)(A) of the Act). Unless otherwise indicated, use of the singular “respondent” refers to the lead respondent. 00000031077 Al rh vr;, let al discretion, and judgment, and all other issues in appeals from an Immigration Judge’s decision. 8 C.F.R § 1003.l (d)(3)(ii). The respondent seeks asylwn and related relief and protection from removal based on her experiences as a domestic violence victim (IJ at 3-4; Tr. at 40-41 ). The respondent advances a claim based upon her membership in proposed particuJar social groups consisting of ( 1) “Guatemalan women,” (2) “Guatemalan women unable to leave a domestic relationship,” and (3) “Guatemalan women who are viewed as property” (IJ at 5-8). The Immigration Judge found the respondent advanced credible evidence that she suffered harm at the hands of her ex-partner that rose to the level of persecution, but concluded that she ultimately did not meet her burden of proving eligibility for asylum, withholding of remova~ and CAT protection (IJ at 4-11 ). 2 This appeal followed. We affirm the Immigration Judge’s determination that the respondent has not met her burden to establish that the Guatemalan government would be unable or unwilling to protect her, which is dispositive of her asylwn claim (IJ at 7, 9). See Bringas-Rodriguez v. Sessions, 850 F .3d 1051, 1062 (9th Cir. 2017) (citing Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) and noting that where the persecution was not committed by the government, it is the noncitizen’s burden to establish that the persecution was committed by forces that the government was unable or unwilling to controQ. 3 Here, the police responded to the respondent’s requests for help by arriving at her home and providing assistance on 3 occasions (IJ at 9; Exh. 5 at 9-11 ). The police also advised the respondent to sue her ex-partner, as they needed a warrant to arrest him (IJ at 4, 7, 9; Tr. at 58-60; Exh. 5 at 9-11). See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (providing that when non-government actors are responsible for the persecution, courts look to whether the police responded to control the behavior where the persecution was reported to them). On appeai the respondent argues that general country conditions evidence indicates that the Guatemalan government has been unable to protect women from violence (Respondent’s Br. at 20-21). However, we note that her own experiences, as discussed above, do not support such a conclusion (lJ at 7, 9). Accordingly, on this record, we affirm the Irnrnigratio n Judge’s determination that the respondent has not established that the Guatemalan government is unable 2 In lieu of direct examination, the parties stipulated that the respondent’s testimony would be consistent with her written declaration (lJ at 3). The Immigration Judge assumed arguendo that the respondent was credible based on her written statement (JJ at 4; Exh. 5). 3 We acknowledge that the Innnigration Judge, in finding that the respondent could not establish membership in a cognizable particular social group or a nexus to a protected ground as a victim of domestic violence, cited the Attorney General’s decision in Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018), which has subsequently been overruled by Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (IJ at 6-7). Because we resolve the appeal on other grounds, these decisions do not impact our analysis. 2 00000031077 Al (b)(6) let al or unwilling to protect her from her ex-partner (IJ at 7, 9). As we affirm this determination, we need not consider the respondent’s remaining arguments on appeal See INS v. Bagamasbad, 429 U.S. 24, 25-26 (] 976) (noting that as a general ru1e, courts and agencies are not required to -make finding; on issues the decision of which is unnecessary to the results they reach). 4 As she has not established eligibility for asylum for reasons other than nexus, the respondent has necessarily railed to establish eliglbility for withholding of removal (IJ at 9). See 8 C.F.R. § 1208.16(b); see also Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020) (upholding denial of withholding of removal under the Act because respondent had not established the government was unable or unwilling to protect her). With regard to CAT protection, the respondent argues that the harm by her ex-partner will rise to the level of torture and that the government of Guatemala will acquiesce to this torture (Respondent’s Br. at 12-14). The respondent asserts that police dismissed her complaints for help by telling her that they needed a warrant to arrest her ex-partner (Respondent’s Br. at 12-13). However, as noted by the Immigration Judge, police responded to her requests for help on 3 occasions and advised her to sue her ex-partner (IJ at IO; Exh. 5 at 9-11 ). See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular crime, but railed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime’). Moreover, the conduct of the Guatemalan authorities after the infliction of harm does not demonstrate a likelihood that they would more likely than not have knowledge of the conduct constituting torture before it occurred and thereafter breach a legal duty to intervene to prevent it from happening. See 8 C.F.R. § 1208.18(a)(7). Although the respondent asserts that the lrrnnigration Judge did not properly consider her country conditions evidence, the Immigration Judge expressly acknowledged her evidence that Guatemalan women are vulnerable to domestic violence (IJ at I 0). However, the Irrnnigra tio n Judge noted that the Guatemalan government has taken steps to combat domestic violence and provides services for victims (IJ at 10; Exh. 3 at 162-63). Moreover, the respondent acknowledges on appeal that Guatemalan law prohibits domestic violence and allows restraining orders against “alleged aggressors” (Exh. 3, Tab Y; Respondent’s Br. at 12). In SUill, on this record where the government took steps to investigate and help the respondent, we affirm the finding that the respondent has not shown that a Guatemalan public official would more likely than not consent or acquiesce to the respondent’s torture. See 8 C.F.R. § 1208.16(c)(2); see also AndradeGarcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general ineffectiveness on the government’s part to investigate and prevent crime will not suffice to show acquiescence”). The respondent is thus ineligible for CAT protection. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 4 Inasmuch as the respondent has not established that she was previously persecuted in Guatemala by the government or forces the government is either unable or unwilling to contro~ she is not eligible for ”hurnmitarian” asylum (IJ at 9; Respondent’s Br. at 22-23). See 8 C.F.R. § 1208.B(b)(l)(iii). 3 00000031074 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) (b)(6) /J.,Vis\ (J., \( is\ (h)(6) (b )( 6) Respondents ~ Al (h)(6) I L ~ (b)(6) I A1 (b)(6) Al (b)(6) I l Al (b)(6) I l Al (b)(6) FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Lisa J. Herrera, Esquire ON BEHALF OF DHS: Mark Hardy, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Seattle, WA Before: Petty, Appellate Immigration Judge Opinion by Appellate hmnigration Judge Petty PETTY, Appellate Innnigration Judge The respondents, natives and citiz.ens of Guatemala, appeal the Immigration Judge’s December 14, 2018, decision denying the lead respondent’s applications for asylum, withholding of removai and protection llllder the regulations implementing the Convention Against Torture and Other Cruei Inhllllian or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). 1 See sections 208(b)(l)(A), 241(b)(3)(A) of the Act, 8 U.S.C. §§ l 158(b)(l)(A), 123 l(b)(3)(A); 8 C.F.R §§ 1208.16(c), 1208.18. The Department of Homeland Security opposes the appeal The appeal will be dismissed. We review for clear error the findings of fact,. including the detennination of credibility, made by the Jrrnnigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo questions of law, 1 The respondents are a mother (Al (b)(6) Dand her five minor children (Al r,,v,c;, L I (b)(6) h. The lead respondent is the mother and her minor children are derivative beneficiaries on her asylum application (Exh. 2). See Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007) (stating that, although section 208(b)(3)(A) of the Immigration and Nationality Act provides for derivative asylum, it does not provide for derivative withholding of removal llllder section 241 (b )(3)(A) of the Act). Unless otherwise indicated, use of the singular “respondent” refers to the lead respondent. 00000031074 Pl (b)(6) Iet al discretion, and judgment, and all other issues in appeals from an Immigration Judge’s decision. 8 C.F.R § 1003.l (d)(3)(ii). The respondent seeks asylwn and related relief and protection from removal based on her experiences as a domestic violence victim (IJ at 3-4; Tr. at 40-41 ). The respondent advances a claim based upon her membership in proposed particuJar social groups consisting of ( 1) “Guatemalan women,” (2) “Guatemalan women unable to leave a domestic relationship,” and (3) “Guatemalan women who are viewed as property” (IJ at 5-8). The Immigration Judge found the respondent advanced credible evidence that she suffered harm at the hands of her ex-partner that rose to the level of persecution, but concluded that she ultimately did not meet her burden of proving eligibility for asylum, withholding of remova~ and CAT protection (IJ at 4-11 ). 2 This appeal followed. We affirm the Immigration Judge’s determination that the respondent has not met her burden to establish that the Guatemalan government would be unable or unwilling to protect her, which is dispositive of her asylwn claim (IJ at 7, 9). See Bringas-Rodriguez v. Sessions, 850 F .3d 1051, 1062 (9th Cir. 2017) (citing Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) and noting that where the persecution was not committed by the government, it is the noncitizen’s burden to establish that the persecution was committed by forces that the government was unable or unwilling to controQ. 3 Here, the police responded to the respondent’s requests for help by arriving at her home and providing assistance on 3 occasions (IJ at 9; Exh. 5 at 9-11 ). The police also advised the respondent to sue her ex-partner, as they needed a warrant to arrest him (IJ at 4, 7, 9; Tr. at 58-60; Exh. 5 at 9-11). See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (providing that when non-government actors are responsible for the persecution, courts look to whether the police responded to control the behavior where the persecution was reported to them). On appeai the respondent argues that general country conditions evidence indicates that the Guatemalan government has been unable to protect women from violence (Respondent’s Br. at 20-21). However, we note that her own experiences, as discussed above, do not support such a conclusion (IJ at 7, 9). Accordingly, on this record, we affirm the Irnrnigration Judge’s determination that the respondent has not established that the Guatemalan government is unable 2 In lieu of direct examination, the parties stipulated that the respondent’s testimony would be consistent with her written declaration (IJ at 3). The Immigration Judge assumed arguendo that the respondent was credible based on her written statement (JJ at 4; Exh. 5). 3 We acknowledge that the Innnigration Judge, in finding that the respondent could not establish membership in a cognizable particular social group or a nexus to a protected ground as a victim of domestic violence, cited the Attorney General’s decision in Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018), which has subsequently been overruled by Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (IJ at 6-7). Because we resolve the appeal on other grounds, these decisions do not impact our analysis. 2 00000031074 Al (b)(6) Iet al or unwilling to protect her from her ex-partner (IJ at 7, 9). As we affirm this determination, we need not consider the respondent’s remaining arguments on appeal See INS v. Bagamasbad, 429 U.S. 24, 25-26 (] 976) (noting that as a general ru1e, courts and agencies are not required to -make finding; on issues the decision of which is unnecessary to the results they reach). 4 As she has not established eligibility for asylum for reasons other than nexus, the respondent has necessarily railed to establish eliglbility for withholding of removal (IJ at 9). See 8 C.F.R. § 1208.16(b); see also Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020) (upholding denial of withholding of removal under the Act because respondent had not established the government was unable or unwilling to protect her). With regard to CAT protection, the respondent argues that the harm by her ex-partner will rise to the level of torture and that the government of Guatemala will acquiesce to this torture (Respondent’s Br. at 12-14). The respondent asserts that police dismissed her complaints for help by telling her that they needed a warrant to arrest her ex-partner (Respondent’s Br. at 12-13). However, as noted by the Immigration Judge, police responded to her requests for help on 3 occasions and advised her to sue her ex-partner (IJ at IO; Exh. 5 at 9-11 ). See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular crime, but railed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime’). Moreover, the conduct of the Guatemalan authorities after the infliction of harm does not demonstrate a likelihood that they would more likely than not have knowledge of the conduct constituting torture before it occurred and thereafter breach a legal duty to intervene to prevent it from happening. See 8 C.F.R. § 1208.18(a)(7). Although the respondent asserts that the lrrnnigration Judge did not properly consider her country conditions evidence, the Immigration Judge expressly acknowledged her evidence that Guatemalan women are vulnerable to domestic violence (IJ at I 0). However, the Irrnnigra tio n Judge noted that the Guatemalan government has taken steps to combat domestic violence and provides services for victims (IJ at 10; Exh. 3 at 162-63). Moreover, the respondent acknowledges on appeal that Guatemalan law prohibits domestic violence and allows restraining orders against “alleged aggressors” (Exh. 3, Tab Y; Respondent’s Br. at 12). In SUill, on this record where the government took steps to investigate and help the respondent, we affirm the finding that the respondent has not shown that a Guatemalan public official would more likely than not consent or acquiesce to the respondent’s torture. See 8 C.F.R. § 1208.16(c)(2); see also AndradeGarcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general ineffectiveness on the government’s part to investigate and prevent crime will not suffice to show acquiescence”). The respondent is thus ineligible for CAT protection. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 4 Inasmuch as the respondent has not established that she was previously persecuted in Guatemala by the government or forces the government is either unable or unwilling to contro~ she is not eligible for ”hurnmitarian” asylum (IJ at 9; Respondent’s Br. at 22-23). See 8 C.F.R. § 1208.B(b)(l)(iii). 3 00000031071 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) ri. v ,;\ (b)(6) (b)(6) (b)(6) (l,.\(;c;\ ~ Al (b)(6) Al (1, \( i<;\ I Al (hV61 I LAl (1, \( i<;\ IAl (J,,Vi<;\ Al (l,.\(;c;\ FILED Jan 28, 2022 Respondents ON BEHALF OF RESPONDENTS: Lisa J. Herrera, Esquire ON BEHALF OF DHS: Mark Hardy, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Seattle, WA Before: Petty, Appellate Immigration Judge Opinion by Appellate hmnigration Judge Petty PETTY, Appellate Innnigration Judge The respondents, natives and citiz.ens of Guatemala, appeal the Immigration Judge’s December 14, 2018, decision denying the lead respondent’s applications for asylum, withholding of removai and protection llllder the regulations implementing the Convention Against Torture and Other Cruei Inhllllian or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). 1 See sections 208(b)(l)(A), 241(b)(3)(A) of the Act, 8 U.S.C. §§ l 158(b)(l)(A), 123 l(b)(3)(A); 8 C.F.R §§ 1208.16(c), 1208.18. The Department of Homeland Security opposes the appeal The appeal will be dismissed. We review for clear error the findings of fact,. including the determination of credibility, made by the Jrrnnigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo questions of law, 1 The respondents are a mother (A212-908-641) and her five minor children (Aj (b)(6) I (hV6) J. The lead respondent is the mother and her minor children are derivative beneficiaries on her asylum application (Exh. 2). See Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007) (stating that, although section 208(b)(3)(A) of the Immigration and Nationality Act provides for derivative asylum, it does not provide for derivative withholding of removal llllder section 241 (b )(3)(A) of the Act). Unless otherwise indicated, use of the singular “respondent” refers to the lead respondent. 00000031071 Al rhV6) Iet al discretion, and judgment, and all other issues in appeals from an Immigration Judge’s decision. 8 C.F.R § 1003.l (d)(3)(ii). The respondent seeks asylwn and related relief and protection from removal based on her experiences as a domestic violence victim (IJ at 3-4; Tr. at 40-41 ). The respondent advances a claim based upon her membership in proposed particular social groups consisting of ( 1) “Guatemalan women,” (2) “Guatemalan women unable to leave a domestic relationship,” and (3) “Guatemalan women who are viewed as property” (IJ at 5-8). The Immigration Judge found the respondent advanced credible evidence that she suffered harm at the hands of her ex-partner that rose to the level of persecution, but concluded that she ultimately did not meet her burden of proving eligibility for asylum, withholding of remova~ and CAT protection (IJ at 4-11 ). 2 This appeal followed. We affirm the Immigration Judge’s determination that the respondent has not met her burden to establish that the Guatemalan government would be unable or unwilling to protect her, which is dispositive of her asylwn claim (IJ at 7, 9). See Bringas-Rodriguez v. Sessions, 850 F .3d 1051, 1062 (9th Cir. 2017) (citing Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) and noting that where the persecution was not committed by the government, it is the noncitizen’s burden to establish that the persecution was committed by forces that the government was unable or unwilling to controQ. 3 Here, the police responded to the respondent’s requests for help by arriving at her home and providing assistance on 3 occasions (IJ at 9; Exh. 5 at 9-11 ). The police also advised the respondent to sue her ex-partner, as they needed a warrant to arrest him (IJ at 4, 7, 9; Tr. at 58-60; Exh. 5 at 9-11). See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (providing that when non-government actors are responsible for the persecution, courts look to whether the police responded to control the behavior where the persecution was reported to them). On appeai the respondent argues that general country conditions evidence indicates that the Guatemalan government has been unable to protect women from violence (Respondent’s Br. at 20-21). However, we note that her own experiences, as discussed above, do not support such a conclusion (IJ at 7, 9). Accordingly, on this record, we affirm the Irnrnigration Judge’s determination that the respondent has not established that the Guatemalan government is unable 2 In lieu of direct examination, the parties stipulated that the respondent’s testimony would be consistent with her written declaration (IJ at 3). The Immigration Judge assumed arguendo that the respondent was credible based on her written statement (JJ at 4; Exh. 5). 3 We acknowledge that the Innnigration Judge, in finding that the respondent could not establish membership in a cognizable particular social group or a nexus to a protected ground as a victim of domestic violence, cited the Attorney General’s decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), which has subsequently been overruled by Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (IJ at 6-7). Because we resolve the appeal on other grounds, these decisions do not impact our analysis. 2 00000031071 Al (b)(6) letal or unwilling to protect her from her ex-partner (IJ at 7, 9). As we affirm this determination, we need not consider the respondent’s remaining arguments on appeal See INS v. Bagamasbad, 429 U.S. 24, 25-26 (] 976) (noting that as a general ru1e, courts and agencies are not required to -make finding; on issues the decision of which is unnecessary to the results they reach). 4 As she has not established eligibility for asylum for reasons other than nexus, the respondent has necessarily railed to establish eliglbility for withholding of removal (IJ at 9). See 8 C.F.R. § 1208.16(b); see also Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020) (upholding denial of withholding of removal under the Act because respondent had not established the government was unable or unwilling to protect her). With regard to CAT protection, the respondent argues that the harm by her ex-partner will rise to the level of torture and that the government of Guatemala will acquiesce to this torture (Respondent’s Br. at 12-14). The respondent asserts that police dismissed her complaints for help by telling her that they needed a warrant to arrest her ex-partner (Respondent’s Br. at 12-13). However, as noted by the Immigration Judge, police responded to her requests for help on 3 occasions and advised her to sue her ex-partner (IJ at IO; Exh. 5 at 9-11 ). See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular crime, but railed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime’). Moreover, the conduct of the Guatemalan authorities after the infliction of harm does not demonstrate a likelihood that they would more likely than not have knowledge of the conduct constituting torture before it occurred and thereafter breach a legal duty to intervene to prevent it from happening. See 8 C.F.R. § 1208.18(a)(7). Although the respondent asserts that the lrrnnigration Judge did not properly consider her country conditions evidence, the Immigration Judge expressly acknowledged her evidence that Guatemalan women are vulnerable to domestic violence (IJ at 10). However, the Irrnnigra tio n Judge noted that the Guatemalan government has taken steps to combat domestic violence and provides services for victims (IJ at 10; Exh. 3 at 162-63). Moreover, the respondent acknowledges on appeal that Guatemalan law prohibits domestic violence and allows restraining orders against “alleged aggressors” (Exh. 3, Tab Y; Respondent’s Br. at 12). In SUill, on this record where the government took steps to investigate and help the respondent, we affirm the finding that the respondent has not shown that a Guatemalan public official would more likely than not consent or acquiesce to the respondent’s torture. See 8 C.F.R. § 1208.16(c)(2); see also AndradeGarcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general ineffectiveness on the government’s part to investigate and prevent crime will not suffice to show acquiescence”). The respondent is thus ineligible for CAT protection. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 4 Inasmuch as the respondent has not established that she was previously persecuted in Guatemala by the government or forces the government is either unable or unwilling to contro~ she is not eligible for ”hurnmitarian” asylum (IJ at 9; Respondent’s Br. at 22-23). See 8 C.F.R. § 1208.B(b)(l)(iii). 3 00000031068 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for lTmmigration Review Board of hnmigration Appeals MATIER OF: I (h)(6) ~ (b)(6) (b)(6) IAl (b)(6) I Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Ayishetu Rahaman, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, New York, NY Before: Gonzalez, Temporary Appellate Innnigration Judge 1 Opinion by Temporary Appellate Innnigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The respondents, a married couple, appeal from the decision of the Immigration Judge, dated February 7, 2019, denying their applications for cancellation ofremoval under section 240A(b){l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l), asyhnn and withholding of removal pursuant to sections 208 and 24l(b)(3) ofthe Act, 8 U.S.C. §§ 1158, 123l(b)(3), and for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No.100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). 2 See 8 C.F.R § § l 208.16-1208.18. The Department of Homeland Security (OHS) has not opposed the appeal The record will be remanded. We review the findings of fuct made by the Immigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l{d)(3)(0. We review all other issues, including questions of judgment, discretion, and law, denovo. 8 C.F.R § 1003.l{d)(3)(it). Under the particular circwmtances of tim case, we conclude that it is appropriate to remand the record to allow the parties to update the record! regarding the respondents’ eligibility for relief, 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l{a){l), (4). The female respondent is a native and citiz.en of Ecuador, and the male respondent is a native and citizen of Mexico. The female respondent filed an application for asyhnn (Form 1-589) on which the male respondent is a rider. The futmle respondent has been designated the lead respondent in these proceedings. Each respondent also filed their own application for cancellation ofremoval (Form EOIR-42B). 00000031068 including cancellation of removal In the remanded proceeding.5, the hnmigration Judge should consider the female respondent’s ctnTent health status in light of her history of cancer, as well as the hardship that may be caused to the qualifying relatives by the fuct that the respondents in this matter are from different countries. Further, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the OHS, on remand, should indicate whether the respondents are an enforcement priority and whether the OHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relie~ agreeing to administrative closure, or requesting tennination or dismissal of the proceedings. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03. Accordingly, the following order will be ente£1ed. ORDER: The record is remanded to the hnmigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 00000031065 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for lTmmigration Review Board of hnmigration Appeals MATIER OF: (b)(6) l J\l (b)(6) .__ __ )-‘–( __ A1 (‘-‘,b6′-) ___.l (b )( 6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Ayishetu Rahaman, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, New York, NY Before: Gonzalez, Temporary Appellate Innnigration Judge 1 Opinion by Temporary Appellate Innnigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The respondents, a married couple, appeal from the decision of the Immigration Judge, dated February 7, 2019, denying their applications for cancellation ofremoval under section 240A(b){l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l), asyhnn and withholding of removal pursuant to sections 208 and 24l(b)(3) ofthe Act, 8 U.S.C. §§ 1158, 123l(b)(3), and for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No.100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). 2 See 8 C.F.R § § l 208.16-1208.18. The Department of Homeland Security (OHS) has not opposed the appeal The record will be remanded. We review the findings of fuct made by the Immigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l{d)(3)(0. We review all other issues, including questions of judgment, discretion, and law, denovo. 8 C.F.R § 1003.l(d)(3)(it). Under the particular circwmtances of tim case, we conclude that it is appropriate to remand the record to allow the parties to update the record! regarding the respondents’ eligibility for relief, 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). The female respondent is a native and citiz.en of Ecuador, and the male respondent is a native and citizen of Mexico. The female respondent filed an application for asyhnn (Form 1-589) on which the male respondent is a rider. The futmle respondent has been designated the lead respondent in these proceedings. Each respondent also filed their own application for cancellation ofremoval (Form EOIR-42B). 00000031065 Al (b)(6) let al including cancellation of removal In the remanded proceeding.5, the hnmigration Judge should consider the female respondent’s ctnTent health status in light of her history of cancer, as well as the hardship that may be caused to the qualifying relatives by the fuct that the respondents in this matter are from different countries. Further, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the OHS, on remand, should indicate whether the respondents are an enforcement priority and whether the OHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relie~ agreeing to administrative closure, or requesting tennination or dismissal of the proceedings. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03. Accordingly, the following order will be ente£1ed. ORDER: The record is remanded to the hnmigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 00000031062 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: Al (hV6) (h\(6) l Al (h’\( /;’\ I I Al (hV6) I (hV6) (b)(6) 1Al I Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Souhnaz Tagbav~ Esquire ON BEHALF OF DHS: Marie V. Robinson, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Saenz., Appellate lrrnnigration Judge Opinion by Appellate Irrnnigration Judge Saenz SAENZ, Appellate Innnigration Judge The respondent 1, a native and citizen ofEl Salvador, appeals the Immigration Judge’s decision dated March 6, 2019, denying her application for asyhnn and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231 (b )(3 ), as well as her request for protection under the regulations implementing the Convention Against Torture, and Other Cruet Inhwmn or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, I994) (“CAT’). TI1e Department of Homeland Security (“OHS”) opposes the appeal The appeal will be dismissed in part, and the record will be remanded. The request for oral argwnent before the Board is denied. 8 C.F .R § 1003 .1 ( e )(7). We review the findings offuct made by the Immigration Judge, including the determination of credibility, fur clear error. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, tmder a de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondent claims to have been banned and to fear future hann on account of her relationship to her husband, because of his anti-gang activity and his position as treasurer of a The respondents in this case consist of the lead respondent (Al (hV6) ~-her husband (Al rhV6) D,and their children (Al rhV6) land AJ (b)(6) I).The lead respondent filed a Form 1-589, and her husband and children are beneficiaries on that application (Exh. 2). All references to the respondent in the singular refer to the lead respondent unless otherwise noted. 00000031062 Ai er al 11.v t:\ football club, as well as her kinsmp ties to the fhV6~! family (IJ at 3-13; Tr. at 99, March 6, 2019). The respondent and her husband testified that a man called ‘I (b)(6) I”who was a member of the football club and a gang member, threatened their family along with gang members more generally (IJ at 3-6, 14-15, 24; Tr. at 42-43). The Irrnnigration Judge fom1d that the respondent was not credible (IJ at 17-23). Alternatively, the Jrrnnigration Judge fom1d that the respondent had not established a nexus between the claimed harm and a protected groWld, or that the Salvadoran police would be unable or unwilling to protect her and her family (JJ at 23-25). The respondent argues on appeal that the Immigration Judge erroneously denied her motion for a continuance, and that this denial resulted in a fundamentally unfair hearing (Respondent’s Br. at 3-9). The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown. See Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987); 8 C.F.R §§ 1003.29, 1240.6. On October 2, 2018, the Immigration Judge set the respondent’s hearing date for February 25, 2019 and told the parties that all docwnents were to be filed by February 10, 2019 (Tr. at 11-12). On February 5, 2019, the respondent filed an Emergency Motion to Continue, claiming that counsel had only recently received a large amount of documentary evidence which they had not had sufficient time to review (Respondent’s Br. at Exh. A). The docwnentary evidence was from the respondent’s brother’s file, as he was granted withholding of removal on May IO, 2018 based upon related circumstances (Respondent’s Br. at Exh. B). The Immigration Judge denied the motion to continue, finding that the respondent had ample time to update her application or gather supplemental evidence independently of her brother (IJ at 21-22). We concur with the Immigration Judge that the respondent did not establish good cause for a continuance and the respondent was not denied a fundamentally fair hearing. Additionally,· we will deny the respondent’s request for remand on account of a Notice to Appear (“NT A’) that did not specify the time and place of the original bearing as required by the Act (Respondent’s Br. at 17). This omission does not implicate the Immigration Court’s jurisdiction, but even if this constitutes a violation of a cla~processing rule, United States v. Cortez, 930 F.3d 358 ( 4th Cir. 2019), the respondent did not make a timely objection, nor does she allege any prejudice. Matter of Rosales Vargas & Rosales Rosales, 27 I&N Dec. 745, 753 (BIA 2020). The Irrnnigration Judge does not address this issue because the respondents never raised it before the Immigration Judge; instead, the respondent admitted service of the NTA and conceded removability at the first hearing (Tr. at 5). As a result, the respondent failed to make a timely objection that woukl afford her a remedy. Turning to the respondent’s application for relief from removaL we will adopt and affirm the lrrnnigration Judge’s adverse credibility finding, as it is not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (explaining that a finding is “clearly erroneous” only when based on the entire evidence the reviewing court is left with ”the definite and firm conviction that a mistake has been connnitted”); see also Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The Jrrnnigration Judge considered the totality of the circumstances and offered specific, cogent reasons for finding that the respondent did not testify credibly, including inconsistencies, omissions, and the respondent’s unpersuasive explanations (IJ at 17-23). See section 208(b)(l)(B)(iii) of the Act; Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012). 2 00))00031062 Al (b )( 6) letal Significantly, the Irrnnigration Judge noted that the respondent did not mention her furnily’s massacre in her asylum application, although it occurred approximately 3 months before she filed it and she testified that she learned of the murders the day they occurred (IJ at 11, 18, 20-21; Tr.at 28, 83-85; Exh. 2). The respondent asserts on appeal that the Irrnnigration Judge did not consider her explanation for this omission and argues that she was not required to claim all possible grounds for asyhun in her application (Respondent’s Br. at 11-12). However, we agree with the Immigration Judge that this omission was significant:, was inadequately explained, and undermines her credibility. See Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011) (explaining that an Immigration Judge is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record); Qing Hua Ling v. Holder, 736 F.3d 343, 352 (4th Cir. 2013) (upholding reliance on significant omission in making an adverse credibility finding). We discern no clear error in this finding. 8 C.F.R. § 1003.l(d)(3)(i). We also decline to disturb the Immigration Judge’s alternative determination that the respondent did not meet her burden of proof to establish the requisite nexus between the harm she experienced and rears in El Salvador and a protected ground (IJ at 23-26). See sections 208(b)(l)(B)(i) and 241(b)(3)(C) of the Act; Matter of N-M-, 25 l&N Dec. 526,529 (BIA 2011); Matter of C-T-L-, 25 I&N Dec. 341, 346-48 (BIA 2010) (holding that the “one central reason” test applies to withholding claims under the REAL ID Act); Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 216 (an applicant must prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.); see also Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) • (the statutory nexus standard requires the consi<,leration of intertwined reasons for threats); Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019) (summarizing Fourth Circuit standard for evaluating nexus requirement). • Although the lrrnnigration Judge found the respondent and her husband credible regarding the clam of extortion, we· affirm his finding that this was criminal activity, not conducted on accO\mt of a protected ground (lJ at 23-25). The record supports the determination that the respondent has not established a nexus between the threats and a protected ground under the Act (IJ at 23-25). The respondent has not established that membership in her proposed particular social groups was or will be “at least one central reason” for any past or reared hann See Lopez Ordonez v. Barr, 956 F.3d 238, 243 (4th Cir. 2020) (citing Alvarez Lagos v. Barr, 927 F.3d at 250 (to establish the requisite nexus, a noncitiz.en must demonstrate that the protected grow1d was or will be a central reason for [her] persecution-however, the protected ground cannot be merely an “incidental, tangential, superficial, or subordinate” reason for the persecution .. .’); see also Matter of C-T-L-, 25 l&N Dec. at 346. We discern no clear error in the Irrnnigration Judge’s finding that the gang members’ motivation for threatening the respondent and her husband was for monetary gain (IJ at 24-25). Matter of N-M-, 25 I&N Dec. at 532 (persecutor’s actual motive is question of fuct to be decided by an Immigration Judge and reviewed by the Board for clear error). When considering the respondent’s threats, the Immigration Judge properly determined that the record showed I rhV6) I wanted money from the respondent’s husband and had been known to threaten people for material gain (IJ at 24-25; Tr. at 42-44; Exh. 2 at p. 5). 3 00000031062 We turn now to the respondent’s contentions in support of her application for protection tmder the CAT (IJ at 26-27; Respondent’s Br. at 15-16).. In light ofrecent decisions by the United States Court of Appeals for the Fourth Circuit, more specific factual findings are required as to the respondent’s risk of futtrre torture with the consent, acquiescence, or willful blindness of the Salvadoran government, beyond the respondent’s credibility. See Quintero v. Garland, 998 F.3d 612, 647 (4th Cir. 2021) (in considering whether a government is likely to consent or acquiesce to torture, all relevant evidence should be considered to include country conditions “and testimonial evidence); Duncan v. Ban-, 919 F.3d 209, 214 (4th Cir. 2019) (government acquiescence determination tmder the CAT is a mixed question of fuct and law); see also Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (adverse credibility determination did not necessarily preclude CAT claim). Additionally, although he noted the respondent was inconsistent regarding whether she feared the police or gangs, the hrnnigration Judge should consider the risk of torture from a II alleged sources (IJ at 26-27). See Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019) (holding that the risk of torture from all sources should be combined when determining whether the respondent is more likely than not to be tortured); cf Nolasco v. Garland, 7 F.4th 180, 190 (4th Cir. 2021) (upholding denial of CAT protection because the agency assessed the likelihood of torture from Salvadoran authorities and gangs in the aggregate, considering country reports, and found that the respondent did not show it was more likely than not he would be tortured if removed to El Salvador). Based on the foregoing, we will remand the record to the Irmnigration Judge to finther consider the respondents’ application for CAT protection. Either party should be provided an opportunity to supplement the record with additional relevant evidence.2 Accordingly, the following orders will be entered. ORDER: The appeal of the Immigration Judge’s denial of asylum and withhokling ofremoval tmder the Act is dismissed. FURTHER ORDER: The record is remanded for further proceedings consistent with this order. Pursuant to the Acting Director’s Policy Memorandum 21-25 and the Director’s Policy Memorandum 22-03, the DHS, on remand, may indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligib ii ity for re lie~ agreeing to administrative closure, or requesting termination or dismissal of the proceedin~. 4 00000031059 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (hVF.) L Al fl.Vt:\ (b)(6) l Al (b)(6) I ~====(h=)==(F.=)====:::;-L~AI (b)(6) ! .__ ____ ___ Al (1-, v F.) (.,_b”-‘)(‘–‘6)’—___,,L Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Souhnaz Tagbav~ Esquire ON BEHALF OF DHS: Marie V. Robinson, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Saenz., Appellate lrrnnigration Judge Opinion by Appellate Irrnnigration Judge Saenz SAENZ, Appellate Innnigration Judge The respondent 1, a native and citizen ofEl Salvador, appeals the Immigration Judge’s decision dated March 6, 2019, denying her application for asyhnn and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231 (b )(3 ), as well as her request for protection under the regulations implementing the Convention Against Torture, and Other Cruet Inhwmn or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, I994) (“CAT’). TI1e Department of Homeland Security (“OHS”) opposes the appeal The appeal will be dismissed in part, and the record will be remanded. The request for oral argwnent before the Board is denied. 8 C.F .R § 1003 .1 ( e )(7). We review the findings offuct made by the Immigration Judge, including the determination of credibility, fur clear error. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, tmder a de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondent claims to have been banned and to fear future hann on account of her relationship to her husband, because of his anti-gang activity and his position as treasurer of a The respondents in this case consist of the lead respondent (A! (b)(6) I,her husband (Al (b)(6) b.and their children (Al rhVli) land Al (b)(6) !).The lead respondent filed a Form 1-589, and her husband and children are beneficiaries on that application (Exh. 2). All references to the respondent in the singular rerer to the lead respondent unless otherwise noted. 00000031059 PJ,__’-‘-(h'”””V”””‘6’\,__,etal football club, as well as her kinsmp ties to the l(b)(6)I family (IJ at 3-13; Tr. at 99, March 6, 2019). The respondent and her husband testified that a man called ‘i (b)(6) I”who was a member of the football club and a gang member, threatened their family along with gang members more generally (IJ at 3-6, 14-15, 24; Tr. at 42-43). The Irrnnigration Judge fom1d that the respondent was not credible (IJ at 17-23). Alternatively, the Jrrnnigration Judge fom1d that the respondent had not established a nexus between the claimed harm and a protected groWld, or that the Salvadoran police would be unable or unwilling to protect her and her family (JJ at 23-25). The respondent argues on appeal that the Immigration Judge erroneously denied her motion for a continuance, and that this denial resulted in a fundamentally unfair hearing (Respondent’s Br. at 3-9). The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown. See Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987); 8 C.F.R §§ 1003.29, 1240.6. On October 2, 2018, the Immigration Judge set the respondent’s hearing date for February 25, 2019 and told the parties that all docwnents were to be filed by February 10, 2019 (Tr. at 11-12). On February 5, 2019, the respondent filed an Emergency Motion to Continue, claiming that counsel had only recently received a large amount of documentary evidence which they had not had sufficient time to review (Respondent’s Br. at Exh. A}. The docwnentary evidence was from the respondent’s brother’s file, as he was granted withholding of removal on May IO, 2018 based upon related circumstances (Respondent’s Br. at Exh. B). The Immigration Judge denied the motion to continue, finding that the respondent had ample time to update her application or gather supplemental evidence independently of her brother (IJ at 21-22). We concur with the Immigration Judge that the respondent did not establish good cause for a continuance and the respondent was not denied a fundamentally fair hearing. Additionally,· we will deny the respondent’s request for remand on account of a Notice to Appear (“NT A’) that did not specify the time and place of the original bearing as required by the Act (Respondent’s Br. at 17). This omission does not implicate the Immigration Court’s jurisdiction, but even if this constitutes a violation of a cla~processing rule, United States v. Cortez, 930 F.3d 358 ( 4th Cir. 2019), the respondent did not make a timely objection, nor does she allege any prejudice. Matter of Rosales Vargas & Rosales Rosales, 27 I&N Dec. 745, 753 (BIA 2020). The Irrnnigration Judge does not address this issue because the respondents never raised it before the Immigration Judge; instead, the respondent admitted service of the NTA and conceded removability at the first hearing (Tr. at 5). As a result, the respondent failed to make a timely objection that woukl afford her a remedy. Turning to the respondent’s application for relief from removaL we will adopt and affirm the lrrnnigration Judge’s adverse credibility finding, as it is not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (explaining that a finding is “clearly erroneous” only when based on the entire evidence the reviewing court is left with ”the definite and firm conviction that a mistake has been connnitted”); see also Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The Jrrnnigration Judge considered the totality of the circumstances and offered specific, cogent reasons for finding that the respondent did not testify credibly, including inconsistencies, omissions, and the respondent’s unpersuasive explanations (IJ at 17-23). See section 208(b)(l)(B)(iii) of the Act; Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012). 2 00))00031059 Al..________6)”–__ et al (h V ___ Significantly, the Irrnnigration Judge noted that the respondent did not mention her furnily’s massacre in her asylum application, although it occurred approximately 3 months before she filed it and she testified that she learned of the murders the day they occurred (IJ at 11, 18, 20-21; Tr.at 28, 83-85; Exh. 2). The respondent asserts on appeal that the Irrnnigration Judge did not consider her explanation for this omission and argues that she was not required to claim all possible grounds for asyhun in her application (Respondent’s Br. at 11-12). However, we agree with the Immigration Judge that this omission was significant:, was inadequately explained, and undermines her credibility. See Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011) (explaining that an Immigration Judge is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record); Qing Hua Ling v. Holder, 736 F.3d 343, 352 (4th Cir. 2013) (upholding reliance on significant omission in making an adverse credibility finding). We discern no clear error in this finding. 8 C.F.R. § 1003.l(d)(3)(i). We also decline to disturb the Immigration Judge’s alternative determination that the respondent did not meet her burden of proof to establish the requisite nexus between the harm she experienced and rears in El Salvador and a protected ground (IJ at 23-26). See sections 208(b)(l)(B)(i) and 241(b)(3)(C) of the Act; Matter of N-M-, 25 l&N Dec. 526,529 (BIA 2011); Matter of C-T-L-, 25 I&N Dec. 341, 346-48 (BIA 2010) (holding that the “one central reason” test applies to withholding claims under the REAL ID Act); Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 216 (an applicant must prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.); see also Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) • (the statutory nexus standard requires the consi<,leration of intertwined reasons for threats); Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019) (summarizing Fourth Circuit standard for evaluating nexus requirement). • Although the lrrnnigration Judge found the respondent and her husband credible regarding the clanm of extortion, we· affirm his finding that this was criminal activity, not conducted on accO\mt of a protected ground (lJ at 23-25). The record supports the determination that the respondent has not established a nexus between the threats and a protected ground under the Act (IJ at 23-25). The respondent has not established that membership in her proposed particular social groups was or will be “at least one central reason” for any past or reared hann See Lopez Ordonez v. Barr, 956 F.3d 238, 243 (4th Cir. 2020) (citing Alvarez Lagos v. Barr, 927 F.3d at 250 (to establish the requisite nexus, a noncitiz.en must demonstrate that the protected grow1d was or will be a central reason for [her] persecution-however, the protected ground cannot be merely an “incidental, tangential, superficial, or subordinate” reason for the persecution .. .’); see also Matter of C-T-L-, 25 l&N Dec. at 346. We discern no clear error in the Irrnnigration Judge’s finding that the gang members’ motivation for threatening the respondent and her husband was for monetary gain (IJ at 24-25). Matter of N-M-, 25 I&N Dec. at 532 (persecutor’s actual motive is question of fuct to be decided by an Immigration Judge and reviewed by the Board for clear error). When considering the respondent’s threats, the Immigration Judge properly determined that the record showed I (b)(6) I wanted money from the respondent’s husband and had been known to threaten people for material gain (IJ at 24-25; Tr. at 42-44; Exh. 2 at p. 5). 3 00000031059 Al (b)(6) !et al We turn now to the respondent’s contentions in support of her application for protection tmder the CAT (IJ at 26-27; Respondent’s Br. at 15-16).. In light ofrecent decisions by the United States Court of Appeals for the Fourth Circuit, more specific factual findings are required as to the respondent’s risk of futtrre torture with the consent, acquiescence, or willful blindness of the Salvadoran government, beyond the respondent’s credibility. See Quintero v. Garland, 998 F.3d 612, 647 (4th Cir. 2021) (in considering whether a government is likely to consent or acquiesce to torture, all relevant evidence should be considered to include country conditions “and testimonial evidence); Duncan v. Ban-, 919 F.3d 209, 214 (4th Cir. 2019) (government acquiescence determination tmder the CAT is a mixed question of fuct and law); see also Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (adverse credibility determination did not necessarily preclude CAT claim). Additionally, although he noted the respondent was inconsistent regarding whether she feared the police or gangs, the hrnnigration Judge should consider the risk of torture from a II alleged sources (IJ at 26-27). See Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019) (holding that the risk of torttrre from all sources should be combined when determining whether the respondent is more likely than not to be torttrred); cf Nolasco v. Garland, 7 F.4th 180, 190 (4th Cir. 2021) (upholding denial of CAT protection because the agency assessed the likelihood of torttrre from Salvadoran authorities and gangs in the aggregate, considering country reports, and found that the respondent did not show it was more likely than not he would be tortured if removed to El Salvador). Based on the foregoing, we will remand the record to the Irmnigration Judge to finther consider the respondents’ application for CAT protection. Either party should be provided an opportunity to supplement the record with additional relevant evidence.2 Accordingly, the following orders will be entered. ORDER: The appeal of the Immigration Judge’s denial of asylum and withhokling ofremoval tmder the Act is dismissed. FURTHER ORDER: The record is remanded for further proceedings consistent with this order. Pursuant to the Acting Director’s Policy Memorandum 21-25 and the Director’s Policy Memorandum 22-03, the DHS, on remand, may indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligib ii ity for re lie~ agreeing to administrative closure, or requesting termination or dismissal of the proceedin~. 4 00000031056 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) L Al (h)(6) ‘;================;,=:—” (b)(6) !AJ (h)(6) ! :~ ==~-r:.’.=_\’.=_ ~~L_,Al (b )(6) I ==r=h==\=_r ==~ .__ ____ .:..,:.(ha..:.:V..:..ar:.\-‘———–JI AJ (h\( 6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Souhnaz Tagbav~ Esquire ON BEHALF OF DHS: Marie V. Robinson, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Saenz.,Appellate lrrnnigration Judge Opinion by Appellate Irrnnigration Judge Saenz SAENZ, Appellate Innnigration Judge The respondent1, a native and citizen ofEl Salvador, appeals the Immigration Judge’s decision dated March 6, 2019, denying her application for asyhnn and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), as well as her request for protection under the regulations implementing the Convention Against Torture, and Other Cruet Inhwmn or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, I994) (“CAT’). TI1eDepartment of Homeland Security (“OHS”) opposes the appeal The appeal will be dismissed in part, and the record will be remanded. The request for oral argwnent before the Board is denied. 8 C.F .R § 1003.1(e)(7). We review the findings offuct made by the Immigration Judge, including the determination of credibility, fur clear error. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, tmder a de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondent claims to have been banned and to fear future hann on account of her relationship to her husband, because of his anti-gang activity and his position as treasurer of a 1 The respondents in this case consist of the lead respondent (Al ri,vr:.\ I, her husband (Al (b)(6) I.and their children (Al (1,”\(t-,\ md AJ (b)(6) ~-The lead respondent filed a Fonn 1-589, and her husband and children are beneficiaries on that application (Exh. 2). All references to the respondent in the singular rerer to the lead respondent unless otherwise noted. 00000031056 Aj (h v 6) let al football club, as well as her kinsmp ties to the j(b)(6)family IJ at 3-13; Tr. at 99, March 6, 2019). The respondent and her husband testified that a man called ‘ (b )( 6) ‘ who was a member of the football club and a gang member, threatened their family along with gang members more generally (IJ at 3-6, 14-15, 24; Tr. at 42-43). The Irrnnigration Judge fom1d that the respondent was not credible (IJ at 17-23). Alternatively, the Jrrnnigration Judge fom1d that the respondent had not established a nexus between the claimed harm and a protected groWld, or that the Salvadoran police would be unable or unwilling to protect her and her family (JJ at 23-25). The respondent argues on appeal that the Immigration Judge erroneously denied her motion for a continuance, and that this denial resulted in a fundamentally unfair hearing (Respondent’s Br. at 3-9). The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown. See Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987); 8 C.F.R §§ 1003.29, 1240.6. On October 2, 2018, the Immigration Judge set the respondent’s hearing date for February 25, 2019 and told the parties that all docwnents were to be filed by February 10, 2019 (Tr. at 11-12). On February 5, 2019, the respondent filed an Emergency Motion to Continue, claiming that counsel had only recently received a large amount of documentary evidence which they had not had sufficient time to review (Respondent’s Br. at Exh. A}. The docwnentary evidence was from the respondent’s brother’s file, as he was granted withholding of removal on May IO, 2018 based upon related circumstances (Respondent’s Br. at Exh. B). The Immigration Judge denied the motion to continue, finding that the respondent had ample time to update her application or gather supplemental evidence independently of her brother (IJ at 21-22). We concur with the Immigration Judge that the respondent did not establish good cause for a continuance and the respondent was not denied a fundamentally fair hearing. Additionally,· we will deny the respondent’s request for remand on account of a Notice to Appear (“NT A’) that did not specify the time and place of the original bearing as required by the Act (Respondent’s Br. at 17). This omission does not implicate the Immigration Court’s jurisdiction, but even if this constitutes a violation of a cla~processing rule, United States v. Cortez, 930 F.3d 358 ( 4th Cir. 2019), the respondent did not make a timely objection, nor does she allege any prejudice. Matter of Rosales Vargas & Rosales Rosales, 27 I&N Dec. 745, 753 (BIA 2020). The Irrnnigration Judge does not address this issue because the respondents never raised it before the Immigration Judge; instead, the respondent admitted service of the NTA and conceded removability at the first hearing (Tr. at 5). As a result, the respondent failed to make a timely objection that woukl afford her a remedy. Turning to the respondent’s application for relief from removaL we will adopt and affirm the lrrnnigration Judge’s adverse credibility finding, as it is not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (explaining that a finding is “clearly erroneous” only when based on the entire evidence the reviewing court is left with ”the definite and firm conviction that a mistake has been connnitted”); see also Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The Immigration Judge considered the totality of the circumstances and offered specific, cogent reasons for finding that the respondent did not testify credibly, including inconsistencies, omissions, and the respondent’s unpersuasive explanations (IJ at 17-23). See section 208(b)(l)(B)(iii) of the Act; Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012). 2 00))00031056 Al (b )( 6) letal Significantly, the Irrnnigration Judge noted that the respondent did not mention her furnily’s massacre in her asylum application, although it occurred approximately 3 months before she filed it and she testified that she learned of the murders the day they occurred (IJ at 11, 18, 20-21; Tr.at 28, 83-85; Exh. 2). The respondent asserts on appeal that the Irrnnigration Judge did not consider her explanation for this omission and argues that she was not required to claim all possible grounds for asyhun in her application (Respondent’s Br. at 11-12). However, we agree with the Immigration Judge that this omission was significant:, was inadequately explained, and undermines her credibility. See Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011) (explaining that an Immigration Judge is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record); Qing Hua Ling v. Holder, 736 F.3d 343, 352 (4th Cir. 2013) (upholding reliance on significant omission in making an adverse credibility finding). We discern no clear error in this finding. 8 C.F.R. § 1003.l(d)(3)(i). We also decline to disturb the Immigration Judge’s alternative determination that the respondent did not meet her burden of proof to establish the requisite nexus between the harm she experienced and rears in El Salvador and a protected ground (IJ at 23-26). See sections 208(b)(l)(B)(i) and 241(b)(3)(C) of the Act; Matter of N-M-, 25 l&N Dec. 526,529 (BIA 2011); Matter of C-T-L-, 25 I&N Dec. 341, 346-48 (BIA 2010) (holding that the “one central reason” test applies to withholding claims under the REAL ID Act); Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 216 (an applicant must prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.); see also Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) • (the statutory nexus standard requires the consi<,leration of intertwined reasons for threats); Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019) (summarizing Fourth Circuit standard for evaluating nexus requirement). • Although the lrrnnigration Judge found the respondent and her husband credible regarding the clanm of extortion, we· affirm his finding that this was criminal activity, not conducted on accO\mt of a protected ground (lJ at 23-25). The record supports the determination that the respondent has not established a nexus between the threats and a protected ground under the Act (IJ at 23-25). The respondent has not established that membership in her proposed particular social groups was or will be “at least one central reason” for any past or reared hann See Lopez Ordonez v. Barr, 956 F.3d 238, 243 (4th Cir. 2020) (citing Alvarez Lagos v. Barr, 927 F.3d at 250 (to establish the requisite nexus, a noncitiz.en must demonstrate that the protected grow1d was or will be a central reason for [her] persecution-however, the protected ground cannot be merely an “incidental, tangential, superficial, or subordinate” reason for the persecution .. .’); see also Matter of C-T-L-, 25 l&N Dec. at 346. We discern no clear error in the Irrnnigration Judge’s finding that the gang members’ motivation for threatening the respondent and her husband was for monetary gain (IJ at 24-25). Matter of N-M-, 25 I&N Dec. at 532 (persecutor’s actual motive is question of fuct to be decided by an Immigration Judge and reviewed by the Board for clear error). When considering the respondent’s threats, the Immigration Judge properly determined that the record showed I (b)(6) I wanted money from the respondent’s husband and had been known to threaten people for material gain (IJ at 24-25; Tr. at 42-44; Exh. 2 at p. 5). 3 00000031056 Aj (b )( 6) let al We turn now to the respondent’s contentions in support of her application for protection tmder the CAT (IJ at 26-27; Respondent’s Br. at 15-16).. In light ofrecent decisions by the United States Court of Appeals for the Fourth Circuit, more specific factual findings are required as to the respondent’s risk of futtrre torttrre with the consent, acquiescence, or willful blindness of the Salvadoran government, beyond the respondent’s credibility. See Quintero v. Garland, 998 F.3d 612, 647 (4th Cir. 2021) (in considering whether a government is likely to consent or acquiesce to torttrre, all relevant evidence should be considered to include country conditions “and testimonial evidence); Duncan v. Ban-, 919 F.3d 209, 214 (4th Cir. 2019) (government acquiescence determination tmder the CAT is a mixed question of fuct and law); see also Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (adverse credibility determination did not necessarily preclude CAT claim). Additionally, although he noted the respondent was inconsistent regarding whether she feared the police or gangs, the hrnnigration Judge should consider the risk of torture from a II alleged sources (IJ at 26-27). See Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019) (holding that the risk of torttrre from all sources should be combined when determining whether the respondent is more likely than not to be torttrred); cf Nolasco v. Garland, 7 F.4th 180, 190 (4th Cir. 2021) (upholding denial of CAT protection because the agency assessed the likelihood of torttrre from Salvadoran authorities and gangs in the aggregate, considering country reports, and found that the respondent did not show it was more likely than not he would be tortured if removed to El Salvador). Based on the foregoing, we will remand the record to the Irmnigration Judge to finther consider the respondents’ application for CAT protection. Either party should be provided an opportunity to supplement the record with additional relevant evidence.2 Accordingly, the following orders will be entered. ORDER: The appeal of the Immigration Judge’s denial of asylum and withhokling ofremoval tmder the Act is dismissed. FURTHER ORDER: The record is remanded for further proceedings consistent with this order. Pw-suant to the Acting Director’s Policy Memorandum 21-25 and the Director’s Policy Memorandum 22-03, the DHS, on remand, may indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligib ii ity for re lie~ agreeing to administrative closure, or requesting tennination or dismissal of the proceedin~. 4 00000031053 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (h’\({;’\ L ~ (b)(6) :=.I =========(=b )=(6=)========:–‘l Al (b )( 6) ! ~—~(h~\~((;~\ —–~ Al /1–V.::\ .__ ____ …,:.l.:;.:_h\”-‘( ?.:,..:\____ ——J AJ (b )( 6) Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Souhnaz Tagbav~ Esquire ON BEHALF OF DHS: Marie V. Robinson, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Saenz., Appellate lrrnnigration Judge Opinion by Appellate Irrnnigration Judge Saenz SAENZ, Appellate Immigration Judge The respondent 1, a native and citizen ofEl Salvador, appeals the Immigration Judge’s decision dated March 6, 2019, denying her application for asyhnn and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231 (b )(3 ), as well as her request for protection under the regulations implementing the Convention Against Torture, and Other Cruet Inhwmn or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, I994) (“CAT’). TI1e Department of Homeland Security (“OHS”) opposes the appeal The appeal will be dismissed in part, and the record will be remanded. The request for oral argwnent before the Board is denied. 8 C.F .R § 1003 .1 ( e )(7). We review the findings offuct made by the Immigration Judge, including the determination of credibility, fur clear error. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, tmder a de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondent claims to have been banned and to fear future hann on account of her relationship to her husband, because of his anti-gang activity and his position as treasurer of a The respondents in this case consist of the lead respondent (~ (b)(6) D,her husband (Aj (b)(6) D,and their children (A! (b)(6) lmd Aj (b)(6) ~-The lead respondent filed a Form 1-589, and her husband and children are beneficiaries on that application (Exh. 2). All references to the respondent in the singular rerer to the lead respondent unless otherwise noted. 00000031053 Al (h v6, letal football club, as well as her kinsmp ties to thel(b)(6)I family (IJ at 3-13; Tr. at 99, March 6, 2019). The respondent and her husband testified that a man called ‘1 (b )( 6) !’who was a member of the football club and a gang member, threatened their family along with gang members more generally (IJ at 3-6, 14-15, 24; Tr. at 42-43). The Irrnnigration Judge fom1d that the respondent was not credible (IJ at 17-23). Alternatively, the Jrrnnigration Judge fom1d that the respondent had not established a nexus between the claimed harm and a protected groWld, or that the Salvadoran police would be unable or unwilling to protect her and her family (JJ at 23-25). The respondent argues on appeal that the Immigration Judge erroneously denied her motion for a continuance, and that this denial resulted in a fundamentally unfair hearing (Respondent’s Br. at 3-9). The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown. See Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987); 8 C.F.R §§ 1003.29, 1240.6. On October 2, 2018, the Immigration Judge set the respondent’s hearing date for February 25, 2019 and told the parties that all docwnents were to be filed by February 10, 2019 (Tr. at 11-12). On February 5, 2019, the respondent filed an Emergency Motion to Continue, claiming that counsel had only recently received a large amount of documentary evidence which they had not had sufficient time to review (Respondent’s Br. at Exh. A). The docwnentary evidence was from the respondent’s brother’s file, as he was granted withholding of removal on May IO, 2018 based upon related circumstances (Respondent’s Br. at Exh. B). The Immigration Judge denied the motion to continue, finding that the respondent had ample time to update her application or gather supplemental evidence independently of her brother (IJ at 21-22). We concur with the Immigration Judge that the respondent did not establish good cause for a continuance and the respondent was not denied a fundamentally fair hearing. Additionally,· we will deny the respondent’s request for remand on account of a Notice to Appear (“NT A’) that did not specify the time and place of the original bearing as required by the Act (Respondent’s Br. at 17). This omission does not implicate the Immigration Court’s jurisdiction, but even if this constitutes a violation of a cla~processing rule, United States v. Cortez, 930 F.3d 358 ( 4th Cir. 2019), the respondent did not make a timely objection, nor does she allege any prejudice. Matter of Rosales Vargas & Rosales Rosales, 27 I&N Dec. 745, 753 (BIA 2020). The Irrnnigration Judge does not address this issue because the respondents never raised it before the Immigration Judge; instead, the respondent admitted service of the NTA and conceded removability at the first hearing (Tr. at 5). As a result, the respondent failed to make a timely objection that woukl afford her a remedy. Turning to the respondent’s application for relief from removaL we will adopt and affirm the lrrnnigration Judge’s adverse credibility finding, as it is not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (explaining that a finding is “clearly erroneous” only when based on the entire evidence the reviewing court is left with ”the definite and firm conviction that a mistake has been connnitted”); see also Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The Immigration Judge considered the totality of the circumstances and offered specific, cogent reasons for finding that the respondent did not testify credibly, including inconsistencies, omissions, and the respondent’s unpersuasive explanations (IJ at 17-23). See section 208(b)(l)(B)(iii) of the Act; Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012). 2 00))00031053 Significantly, the Irrnnigration Judge noted that the respondent did not mention her furnily’s massacre in her asylum application, although it occurred approximately 3 months before she filed it and she testified that she learned of the murders the day they occurred (IJ at 11, 18, 20-21; Tr.at 28, 83-85; Exh. 2). The respondent asserts on appeal that the Irrnnigration Judge did not consider her explanation for this omission and argues that she was not required to claim all possible grounds for asyhun in her application (Respondent’s Br. at 11-12). However, we agree with the Immigration Judge that this omission was significant:, was inadequately explained, and undermines her credibility. See Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011) (explaining that an Immigration Judge is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record); Qing Hua Ling v. Holder, 736 F.3d 343, 352 (4th Cir. 2013) (upholding reliance on significant omission in making an adverse credibility finding). We discern no clear error in this finding. 8 C.F.R. § 1003.l(d)(3)(i). We also decline to disturb the Immigration Judge’s alternative determination that the respondent did not meet her burden of proof to establish the requisite nexus between the harm she experienced and rears in El Salvador and a protected ground (IJ at 23-26). See sections 208(b)(l)(B)(i) and 241(b)(3)(C) of the Act; Matter of N-M-, 25 l&N Dec. 526,529 (BIA 2011); Matter of C-T-L-, 25 I&N Dec. 341, 346-48 (BIA 2010) (holding that the “one central reason” test applies to withholding claims under the REAL ID Act); Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 216 (an applicant must prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.); see also Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) • (the statutory nexus standard requires the consi<,leration of intertwined reasons for threats); Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019) (summarizing Fourth Circuit standard for evaluating nexus requirement). • Although the lrrnnigration Judge found the respondent and her husband credible regarding the clanm of extortion, we· affirm his finding that this was criminal activity, not conducted on accO\mt of a protected ground (lJ at 23-25). The record supports the determination that the respondent has not established a nexus between the threats and a protected ground under the Act (IJ at 23-25). The respondent has not established that membership in her proposed particular social groups was or will be “at least one central reason” for any past or reared hann See Lopez Ordonez v. Barr, 956 F.3d 238, 243 (4th Cir. 2020) (citing Alvarez Lagos v. Barr, 927 F.3d at 250 (to establish the requisite nexus, a noncitiz.en must demonstrate that the protected grow1d was or will be a central reason for [her] persecution-however, the protected ground cannot be merely an “incidental, tangential, superficial, or subordinate” reason for the persecution .. .’); see also Matter of C-T-L-, 25 l&N Dec. at 346. We discern no clear error in the Irrnnigration Judge’s finding that the gang members’ motivation for threatening the respondent and her husband was for monetary gain (IJ at 24-25). Matter of N-M-, 25 I&N Dec. at 532 (persecutor’s actual motive is question of fuct to be decided by an Immigration Judge and reviewed by the Board for clear error). When considering the respondent’s threats, the Immigration Judge properly determined that the record showed! (b)(6) I wanted money from the respondent’s husband and had been known to threaten people for matenal gain (IJ at 24-25; Tr. at 42-44; Exh. 2 at p. 5). 3 00000031053 We turn now to the respondent’s contentions in support of her application for protection tmder the CAT (IJ at 26-27; Respondent’s Br. at 15-16).. In light ofrecent decisions by the United States Court of Appeals for the Fourth Circuit, more specific factual findings are required as to the respondent’s risk of futtrre torttrre with the consent, acquiescence, or willful blindness of the Salvadoran government, beyond the respondent’s credibility. See Quintero v. Garland, 998 F.3d 612, 647 (4th Cir. 2021) (in considering whether a government is likely to consent or acquiesce to torttrre, all relevant evidence should be considered to include country conditions “and testimonial evidence); Duncan v. Ban-, 919 F.3d 209, 214 (4th Cir. 2019) (government acquiescence determination tmder the CAT is a mixed question of fuct and law); see also Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (adverse credibility determination did not necessarily preclude CAT claim). Additionally, although he noted the respondent was inconsistent regarding whether she feared the police or gangs, the hrnnigration Judge should consider the risk of torture from a II alleged sources (IJ at 26-27). See Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019) (holding that the risk of torture from all sources should be combined when determining whether the respondent is more likely than not to be tortured); cf Nolasco v. Garland, 7 F.4th 180, 190 (4th Cir. 2021) (upholding denial of CAT protection because the agency assessed the likelihood of torture from Salvadoran authorities and gangs in the aggregate, considering country reports, and found that the respondent did not show it was more likely than not he would be tortured if removed to El Salvador). Based on the foregoing, we will remand the record to the Irmnigration Judge to finther consider the respondents’ application for CAT protection. Either party should be provided an opportunity to supplement the record with additional relevant evidence.2 Accordingly, the following orders will be entered. ORDER: The appeal of the Immigration Judge’s denial of asylum and withhokling ofremoval tmder the Act is dismissed. FURTHER ORDER: The record is remanded for further proceedings consistent with this order. Pw-suant to the Acting Director’s Policy Memorandum 21-25 and the Director’s Policy Memorandum 22-03, the DHS, on remand, may indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligib ii ity for re lie~ agreeing to administrative closure, or requesting termination or dismissal of the proceedin~. 4 00000031038 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ,…___(b_)(_6)_ _,LAl (b )( 6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: de Cardona, Temporary AppeDate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge de Cardona DE CARDONA, TeJ:ll)orary Appellate In:nnigration Judge The respondent, a native and citizen of Haiti, appeals from the April 4, 2019, decision of the Immigration Judge denying his applications for asylum and withholding ofremoval under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), as well as protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 10020, 1465 UN.TS. 85 (entered into force for United States Nov. 20, 1994) (CA1), 8 C.F.R §§ 1208.16(c), 1208.18. The Department ofHomeland Security has not responded to the appeal The appeal will be dismissed. We review the findings of fact, including determinations of credibility made by tbe Immigration Judge, under a “clearly erroneous” standard. 8 C.F.R § 1003.1 (d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under the de nova standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent fears harm upon to return to Haiti on account of his political opinion (IJ at 2; Tr. at 27). The respondent testified that in 2015 several people from an opposing political party broke into his home in Haiti and assaulted him (IJ at 2; Tr. at 32). The respondent further testified that he was afraid to seek treatment at the hospitaL and was able to heal his injuries with natural remedies (IJ at 3; Tr. at 34). After this incident, the respondent testified that he fled to Brazil, until he saw h.i5 attackers again, and then came to the United States (IJ at 4; Tr. at 37). The Immigration Judge found that the respondent had firmly resettled in BraziL making him ineligible for asylum (U at 5-6). The Immigration Judge also found that the incident with the home invaders did not rise to the level of past persecution, the people the respondent rears are private actors, and 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003. l(a)(l), (4). 00000031038 Al (b)(6) that he can relocate within Haiti to avoid future persecution (IJ at 7). The Immigration Judge further determined that the respondent had not met his burden to show that it is more likely than not that he would be tortured with the acquiescence of the government (IJ at 7). We agree with the Immigration Judge that the respondent has not demonstrated that the harm he suffered in Haiti amounts to persecution (TJat 7). Persecution is an “extreme concept” that requires “more than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Atty Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal citations omitted). While we recognize that the respondent was attacked in his home, this was a single incident, which did not result in severe injuries (IJ at 6; Tr. at 42-43; Respondent’s Br. at 5-7). The respondent testified that he was able to treat his injuries with home remedies and that he has a scar on his waist (IJ at 6; Tr. at 42-43). While we do not intend to minimize the respondent’s experience, this incident does not rise to the level of persecution under the Act. See sections 208 and 241 (b )(3) of the Act; see also Martinez v. U.S. Atty Gen., 992 F.3d 1283, 1291-92(1 lth Cir. 2021) (finding that there was no past persecution when the respondent was beaten, arrested and detained for 3 days, and received threats of being tortured and ”made to disappear”). We also agree with the Immigration Judge that the respondent has not established that it would not be reasonable for him to internally relocate within Haiti (IJ at 7). 8 C.F.R. § 1208.13(b)(3)(i) (in cases where the respondent has not established past persecution, he has the burden to show that it would not be reasonable for him to relocate). The respondent argues on appeal that the culture and unemployment issues in Haiti, as well as the political climate, would prevent him from relocating (Respondent’s Br. at 7-8). However, the Immigration Judge considered that the respondent’s attackers were private actors, and their current location is not known (IJ at 7). Indeed, the respondent testified that he last observed his prior attackers in Brazil, not Haiti The Immigration Judge also considered that the respondent was able to relocate to Brazil and obtain erq>loyment, showing that it would be reasonable for him to relocate to another area of Haiti (JJ at 7). Accordingly, the respondent has not shown it would be unreasonable fur him to relocate to another part of Haiti, and the Immigration Judge properly denied his application for asylum and withholding ofremoval See8,C.F.R. § 1208.13(b)(l)(i)(B). 2 Finally, we discern no legal or fuctual error with the Immigration Judge’s determination that the respondent has not met his burden of proof to show eligibility for protection under the CAT (IJ at 7). See Matter of R-A-F-, 27 I&N Dec. 778, 779 (A.G. 2020) (the Immigration Judge’s predictive fuctual findings as to what will happen to the respondent if returned are reviewed for clear error, but whether the predicted outcome satisfies the definition of torture is reviewed de novo ). On appeai the respondent argues that the Haitian government will acquiesce to his torture (Respondent’s Br. at 1 I). However, the respondent has not explained how the Haitian government 2 As we find that the respondent has not established past persecution, or that, with respect to future persecution, it would be reasonable for him to relocate within Hait~ we do not need to determine whether the respondent was firmly resettled in Brazil before arriving in the United States. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating “courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.’) (citations omitted). 2 00000031038 ~ (b)(6) or a public official will acquiesce to his torture. General allegations of rugh crime rates in the country of removal are not sufficient to meet the burden of proof required for protection under the CAT. See 8 C.F.R. § 1208.17; Sanchez-Castro v. U.S. Att ‘.YGen., 998 F.3d 1281 (11th Cir. 2021) ( concluding that the mere fact that authorities are “not effective” at controlling criminal elements is insufficient to demonstrate govennnent acquiescence). Therefore, the respondent has not met his burden to show eligibility for protection under the CAT. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000031035 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnrnigration Review Board of hnrnigration Appeals MATTER OF: ‘;:::::======(b=)(=6)=====::::-‘I Al (b)(6) FILED Jan 28, 2022 b 6 (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) Respondents ON BEHALF OF RESPONDENTS: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Houston, TX Before: de Cardona, Temporary Appellate Innnigration Judge1 Opinion by Temporary Appellate Irrnnigration Judge de Cardona DE CARDONA, Temporary Appellate Irrnnigration Judge The respondents,2 natives and citiz.ens of Mexico, appeals from the Innnigration Judge’s March 29, 2019, decision denying their applications for asylum and withholding ofremoval under sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 1231(b)(3)(A).3 The appeal will be dismissed and the motion to remand will be denied. 1Temporary Appellate Irrnnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 2 The respondents in this case are a mother, who is the lead respondent (Al (b )( 6) t and her three children (Al rhVl’i’\ l A1 rhVl’i’\ I Al (b)(6) ~Each child is a derivative beneficiary of the mother’s asylum application, and each child also has filed their own individ ua I application for relie( which is based on the same set of facts as the mother. Any reference to the respondent in the singular is to the lead respondent. 3 The respondents do not meaningfully challenge the Immigration Judge’s denial of protection under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT); 8 C.F.R §§ 1208.16(c), 1208.18. As such, the issue is waived on appeal Matterof Y-1-M-, 27 l&N Dec. 724, 729-30 n2 (BIA 2019) (recogruzing that a failure to address an issue on appeal resuhs in a waiver of that issue). 00000031035 Al (b )( 6) letal The Board reviews the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003. l(d)(3)(i). The Board reviews all other issues, including issues of law, discretion, or judgement under the de novo standard. 8C.F.R. § 1003.l(d)(3)(:it). • The respondent claims past persecution and a we~founded fear of future persecution based on threats made by her brother 4 and other family members (U at 2-3; Tr. at 102-03, 139-45). Specifically, the respondent stated that her brother wanted her son to buy and sell drugs (IJ at 2-3; Tr. at 142-43). When the respondent found out, she made a report to the police (U at 2; Tr. at 10304). After making the report, her fumily grew hostile toward her (IJ at 2-3; Tr. at 119-20). TI1e respondent also testified that her brother paid money twice to the police to follow her in an attempt to drop the complaint against hin1(IJ at 3; Tr. at 120-23). As an initial matter, the respondent-appearing pro se before the Immigration Judge-claims that she was not able to properly defend herself against the charge of removability. 5 However, the lnnnigration Judge addressed the charge at the April 26, 2018, hearing (Tr. at 63-68). After discussing the matter on the record with the respondent, her adult son, and the DHS, the Innnigration Judge concluded that the respondents were not admitted on a visitor’s visa because they were intending immigrants, but rather were paroled into the United States (Tr. at 26-32; 6667). Therefore, the respondents were given a full and fair opportunity to _address any issue as to removability. And they have not presented any new or additional evidence to show that they are otherwise admissible to the United States. The Immigration Judge denied the respondents’ applications for relief, detennining that they did not show past persecution on accmmt of a protected ground (IJ at 4). The Immigration Judge analyzed all five protected grounds, and concluded that the reason the respondent’s family pressured the respondent and her son to withdraw the crin1inal complaint against her brother, was because they wanted the respondent’s brother to avoid legal trouble, and was thus the result of a personal dispute (IJ at 3-4). See Adebisi v. INS, 952 F.3d 910,913 (5th Cir. 1992) (concluding that a “personal dispute” cannot be the basis for a protected ground). He likewise fmmd that she and her children failed to establish a well-founded fear of future persecution on account of a protected ground. On appea~ the respondent argues that her situation goes beyond a mere family situation since • the police were involved. However, as the Immigration Judge noted, the police actually took action in response to the respondent’s complaint, and the respondent’s brother was arrested, tried, and convicted (IJ at 5). Therefore, it does not accord that the police would .simultaneously be pressuring the respondent to drop the complaint while also responding to her complaint, and taking action against her brother. We find no reason to disturb the findings by the Immigration Judge. 4 We observe that the respondent refers to him in her brief as her “step-brother.” 5 Because the respondent’s brief is not paginated, the Board is unable to provide crtatlons to specific pages in this decision. See BIA Practice Manuai § 3.3(c)(3) (Dec. 22, 2020) (”Briefs and other submissions should always be paginated.”). 2 00000031035 ~ (b)(6) jet al Consequently, we affirm the denial of the respondents’ applications for asylum and withholding of removal tmder the Act. See Orellana-Monson v. Holder, 685 F.3d 511,518 (5th Cir. 2012) (stating that a failure to establish a claim fur asylum also forecloses eligibility for withholding of removal). For the first time on appeai the respondent presents cotmtry condition articles in support of her claim New evidence presented on appeal i<;construed by the Board as a motion to remand. 8 C.F.R § 1003.2(c)(4). The respondent has not shown that the evidence she is seeking to offer was not available or could not have been discovered before the last hearing, or that it is likely to change the outcome of her case. Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992). 8 C.F.R. § 1003.2(c)(l). Thus, to the extent she is seeking a remand, it is denied.6 Accordingly, the following order will be entered. ORDER: The appeal is di<imissed. FURTHER ORDER: The motion to remand is denied. 6 We acknowledge the respondent wishes to remain in the United States because she rears the insecurity and violence in her home country. However, we do not have authority to grant relief to an otherwise ineligible applicant on purely humanitarian grounds. See Matter of Medina, 19 l&N Dec. 734, 746 (BIA 1988). 3 00000031032 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnrnigration Review Board of hnrnigration Appeals MATTER OF: …:l=========(b=)=( 6=) ========;-‘l Al (J,,v hi I I (b)( 6) L Al (1’ \({;’\ l …._____ (‘””b.,_,.)(-“-6)’——-“l Al (h)(6) ! I .__ ____ ‘.:.:..:(____ __,I,AJ (b )(6) I …:,(.;.:.hh.;.al Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Houston, TX Before: de Cardona, Temporary Appellate Innnigration Judge1 Opinion by Temporary Appellate Irrnnigration Judge de Cardona DE CARDONA, Temporary Appellate Irrnnigration Judge The respondents,2 natives and citiz.ens of Mexico, appeals from the Innnigration Judge’s March 29, 2019, decision denying their applications for asylum and withholding ofremoval m1der sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 1231(b)(3)(A).3 The appeal will be dismissed and the motion to remand will be denied. 1Temporary Appellate Irrnnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 2 The respondents in this case are a mother, who is the lead respondent (.N (b)(6) •• and her three children (Al r1’vi;, I, Al r1’vi;, I, Al r1’vi;, ). Each child is a derivative beneficiary of the mother’s asylum application, and each child also has filed their own individ ua I application for relie( which is based on the same set of facts as the mother. Any reference to the respondent in the singular is to the lead respondent. 3 The respondents do not meaningfully challenge the Immigration Judge’s denial of protection under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT); 8 C.F.R §§ 1208.16(c), 1208.18. As such, the issue is waived on appeal Matterof Y-1-M-, 27 l&N Dec. 724, 729-30 n2 (BIA 2019) (recogruzing that a failure to address an issue on appeal results in a waiver of that issue). 00000031032 11._______,(“”””‘”b( 6”-)___.jetal ) …… The Board reviews the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003. l(d)(3)(i). The Board reviews all other issues, including issues of law, discretion, or judgement under the de nova standard. 8C.F.R. § 1003.l(d)(3)(:it). • The respondent claims past persecution and a we~founded fear of future persecution based on threats made by her brother 4 and other family members (U at 2-3; Tr. at 102-03, 139-45). Specifically, the respondent stated that her brother wanted her son to buy and sell drugs (IJ at 2-3; Tr. at 142-43). When the respondent found out, she made a report to the police (U at 2; Tr. at 10304). After making the report, her fumily grew hostile toward her (IJ at 2-3; Tr. at 119-20). TI1e respondent also testified that her brother paid money twice to the police to follow her in an attempt to drop the complaint against hin1(IJ at 3; Tr. at 120-23). As an initial matter, the respondent-appearing pro se before the Immigration Judge-claims that she was not able to properly defend herself against the charge of removability. 5 However, the lnnnigration Judge addressed the charge at the April 26, 2018, hearing (Tr. at 63-68). After discussing the matter on the record with the respondent, her adult son, and the DHS, the Innnigration Judge concluded that the respondents were not admitted on a visitor’s visa because they were intending immigrants, but rather were paroled into the United States (Tr. at 26-32; 6667). Therefore, the respondents were given a full and fair opportunity to _address any issue as to removability. And they have not presented any new or additional evidence to show that they are otherwise admissible to the United States. The Immigration Judge denied the respondents’ applications for relief, detennining that they did not show past persecution on accmmt of a protected ground (IJ at 4). The Immigration Judge analyzed all five protected grounds, and concluded that the reason the respondent’s family pressured the respondent and her son to withdraw the crin1inal complaint against her brother, was because they wanted the respondent’s brother to avoid legal trouble, and was thus the result of a personal dispute (IJ at 3-4). See Adebisi v. INS, 952 F.3d 910,913 (5th Cir. 1992) (concluding that a “personal dispute” cannot be the basis for a protected ground). He likewise fmmd that she and her children failed to establish a well-founded fear of future persecution on account of a protected ground. On appea~ the respondent argues that her situation goes beyond a mere family situation since • the police were involved. However, as the Immigration Judge noted, the police actually took action in response to the respondent’s complaint, and the respondent’s brother was arrested, tried, and convicted (IJ at 5). Therefore, it does not accord that the police would .simultaneously be pressuring the respondent to drop the complaint while also responding to her complaint, and taking action against her brother. We find no reason to disturb the findings by the Immigration Judge. 4 We observe that the respondent refers to him in her brief as her “step-brother.” 5 Because the respondent’s brief is not paginated, the Board is unable to provide crtatlons to specific pages in this decision. See BIA Practice Manuai § 3.3(c)(3) (Dec. 22, 2020) (”Briefs and other submissions should always be paginated.”). 2 00000031032 Al (b )( 6) let al Consequently, we affirm the denial of the respondents’ applications for asylum and withholding of removal tmder the Act. See Orellana-Monson v. Holder, 685 F.3d 511,518 (5th Cir. 2012) (stating that a failure to establish a claim fur asylum also forecloses eligibility for withholding of removal). For the first time on appeai the respondent presents cotmtry condition articles in support of her claim New evidence presented on appeal i<;construed by the Board as a motion to remand. 8 C.F.R § 1003.2(c)(4). The respondent has not shown that the evidence she is seeking to offer was not available or could not have been discovered before the last hearing, or that it is likely to change the outcome of her case. Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992). 8 C.F.R. § 1003.2(c)(l). Thus, to the extent she is seeking a remand, it is denied.6 Accordingly, the following order will be entered. ORDER: The appeal is di<imissed. FURTHER ORDER: The motion to remand is denied. 6 We acknowledge the respondent wishes to remain in the United States because she rears the insecurity and violence in her home country. However, we do not have authority to grant relief to an otherwise ineligible applicant on purely humanitarian grounds. See Matter of Medina, 19 l&N Dec. 734, 746 (BIA 1988). 3 00000031029 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnrnigration Review Board of hnrnigration Appeals MATTER OF: !=====(=b)=(6=)====:::;-‘l Al_..==(=b=)(=6)=====-“I! (b)(6) I pJ (b)(6) ! I (b)(6) (b)(6) I M~ ~~ Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Houston, TX Before: de Cardona, Temporary Appellate Innnigration Judge1 Opinion by Temporary Appellate Irrnnigration Judge de Cardona DE CARDONA, Temporary Appellate Irrnnigration Judge The respondents,2 natives and citiz.ens of Mexico, appeals from the Innnigration Judge’s March 29, 2019, decision denying their applications for asylum and withholding ofremoval under sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 1231(b)(3)(A).3 The appeal will be dismissed and the motion to remand will be denied. 1Temporary Appellate Irrnnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 2 The respondents in this case are a mother, who is the lead respondent (~ (b )( 6) D,and her three children (Al r1-,v1;, L Al (b)(6) I,Al r1-,v1;, I). Each child is a derivative beneficiary of the mother’s asylum application, and each child also has filed their own individ ua I application for relie( which is based on the same set of facts as the mother. Any reference to the respondent in the singular is to the lead respondent. 3 The respondents do not meaningfully challenge the Immigration Judge’s denial of protection under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT); 8 C.F.R §§ 1208.16(c), 1208.18. As such, the issue is waived on appeal Matterof Y-1-M-, 27 l&N Dec. 724, 729-30 n2 (BIA 2019) (recogruzing that a failure to address an issue on appeal resuhs in a waiver of that issue). 00000031029 Al~_(‘-‘-b)–‘-(6-‘-)____.letal The Board reviews the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003. l(d)(3)(i). The Board reviews all other issues, including issues of law, discretion, or judgement under the de nova standard. 8C.F.R. § 1003.l(d)(3)(:it). • The respondent claims past persecution and a we~founded fear of future persecution based on threats made by her brother 4 and other family members (U at 2-3; Tr. at 102-03, 139-45). Specifically, the respondent stated that her brother wanted her son to buy and sell drugs (IJ at 2-3; Tr. at 142-43). When the respondent found out, she made a report to the police (U at 2; Tr. at 10304). After making the report, her fumily grew hostile toward her (IJ at 2-3; Tr. at 119-20). TI1e respondent also testified that her brother paid money twice to the police to follow her in an attempt to drop the complaint against hin1(IJ at 3; Tr. at 120-23). As an initial matter, the respondent-appearing pro se before the Immigration Judge-claims that she was not able to properly defend herself against the charge of removability. 5 However, the lnnnigration Judge addressed the charge at the April 26, 2018, hearing (Tr. at 63-68). After discussing the matter on the record with the respondent, her adult son, and the DHS, the Innnigration Judge concluded that the respondents were not admitted on a visitor’s visa because they were intending immigrants, but rather were paroled into the United States (Tr. at 26-32; 6667). Therefore, the respondents were given a full and fair opportunity to _address any issue as to removability. And they have not presented any new or additional evidence to show that they are otherwise admissible to the United States. The Immigration Judge denied the respondents’ applications for relief, detennining that they did not show past persecution on account of a protected ground (IJ at 4). The Immigration Judge analyzed all five protected grounds, and concluded that the reason the respondent’s family pressured the respondent and her son to withdraw the crin1inal complaint against her brother, was because they wanted the respondent’s brother to avoid legal trouble, and was thus the result of a personal dispute (IJ at 3-4). See Adebisi v. INS, 952 F.3d 910,913 (5th Cir. 1992) (concluding that a “personal dispute” cannot be the basis for a protected ground). He likewise fmmd that she and her children failed to establish a well-founded fear of future persecution on account of a protected ground. On appea~ the respondent argues that her situation goes beyond a mere family situation since • the police were involved. However, as the Immigration Judge noted, the police actually took action in response to the respondent’s complaint, and the respondent’s brother was arrested, tried, and convicted (IJ at 5). Therefore, it does not accord that the police would .simultaneously be pressuring the respondent to drop the complaint while also responding to her complaint, and taking action against her brother. We find no reason to disturb the findings by the Immigration Judge. 4 We observe that the respondent refers to him in her brief as her “step-brother.” 5 Because the respondent’s brief is not paginated, the Board is unable to provide crtatlons to specific pages in this decision. See BIA Practice Manuai § 3.3(c)(3) (Dec. 22, 2020) (”Briefs and other submissions should always be paginated.”). 2 00000031029 Pl (b)(6) let al Consequently, we affirm the denial of the respondents’ applications for asylum and withholding of removal tmder the Act. See Orellana-Monson v. Holder, 685 F.3d 511,518 (5th Cir. 2012) (stating that a failure to establish a claim fur asylum also forecloses eligibility for withholding of removal). For the first time on appeai the respondent presents cotmtry condition articles in support of her claim New evidence presented on appeal i<;construed by the Board as a motion to remand. 8 C.F.R § 1003.2(c)(4). The respondent has not shown that the evidence she is seeking to offer was not available or could not have been discovered before the last hearing, or that it is likely to change the outcome of her case. Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992). 8 C.F.R. § 1003.2(c)(l). Thus, to the extent she is seeking a remand, it is denied. 6 Accordingly, the following order will be entered. ORDER: The appeal is di<imissed. FURTHER ORDER: The motion to remand is denied. 6 We acknowledge the respondent wishes to remain in the United States because she rears the insecurity and violence in her home country. However, we do not have authority to grant relief to an otherwise ineligible applicant on purely humanitarian grounds. See Matter of Medina, 19 l&N Dec. 734, 746 (BIA 1988). 3 00000031026 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnrnigration Review Board of hnrnigration Appeals MATTER OF: I I (b)(6) (h)(6) (b)(6) (}. \( ,:;) (}.\(,:;)~ Al I (b)(6)I~ I (b)(6)1Al (b)(6)Al I I FILED Jan 28, 2022 Respondents ON BEHALF OF RESPONDENTS: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Houston, TX Before: de Cardona, Temporary Appellate Innnigration Judge1 Opinion by Temporary Appellate Irrnnigration Judge de Cardona DE CARDONA, Temporary Appellate Irrnnigration Judge The respondents,2 natives and citiz.ens of Mexico, appeals from the Innnigration Judge’s March 29, 2019, decision denying their applications for asylum and withholding ofremoval under sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 1231(b)(3)(A).3 The appeal will be dismissed and the motion to remand will be denied. 1Temporary Appellate Irrnnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 2 The respondents in this case are a mother, who is the lead respondent (Al rh v6) b,and her three children (~ (b)(6) I Al (b)(6) I, Al (b)(6) D. Each child is a derivative beneficiary of the mother’s asylum application, and each child also has filed their own individ ua I application for relie( which is based on the same set of facts as the mother. Any reference to the respondent in the singular is to the lead respondent. 3 The respondents do not meaningfully challenge the Immigration Judge’s denial of protection under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT); 8 C.F.R §§ 1208.16(c), 1208.18. As such, the issue is waived on appeal Matterof Y-1-M-, 27 l&N Dec. 724, 729-30 n2 (BIA 2019) (recogruzing that a failure to address an issue on appeal results in a waiver of that issue). 00000031026 Al~_(_b)_(6~)~let al The Board reviews the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003. l(d)(3)(i). The Board reviews all other issues, including issues of law, discretion, or judgement under the de novo standard. 8C.F.R. § 1003.l(d)(3)(:it). • The respondent claims past persecution and a we~founded fear of future persecution based on threats made by her brother 4 and other family members (U at 2-3; Tr. at 102-03, 139-45). Specifically, the respondent stated that her brother wanted her son to buy and sell drugs (IJ at 2-3; Tr. at 142-43). When the respondent found out, she made a report to the police (U at 2; Tr. at 10304). After making the report, her fumily grew hostile toward her (IJ at 2-3; Tr. at 119-20). TI1e respondent also testified that her brother paid money twice to the police to follow her in an attempt to drop the complaint against hin1(IJ at 3; Tr. at 120-23). As an initial matter, the respondent-appearing pro se before the Immigration Judge-claims that she was not able to properly defend herself against the charge of removability. 5 However, the lnnnigration Judge addressed the charge at the April 26, 2018, hearing (Tr. at 63-68). After discussing the matter on the record with the respondent, her adult son, and the DHS, the Innnigration Judge concluded that the respondents were not admitted on a visitor’s visa because they were intending immigrants, but rather were paroled into the United States (Tr. at 26-32; 6667). Therefore, the respondents were given a full and fair opportunity to _address any issue as to removability. And they have not presented any new or additional evidence to show that they are otherwise admissible to the United States. The Immigration Judge denied the respondents’ applications for relief, detennining that they did not show past persecution on accmmt of a protected ground (IJ at 4). The Immigration Judge analyzed all five protected grounds, and concluded that the reason the respondent’s family pressured the respondent and her son to withdraw the crin1inal complaint against her brother, was because they wanted the respondent’s brother to avoid legal trouble, and was thus the result of a personal dispute (IJ at 3-4). See Adebisi v. INS, 952 F.3d 910,913 (5th Cir. 1992) (concluding that a “personal dispute” cannot be the basis for a protected ground). He likewise fmmd that she and her children failed to establish a well-founded fear of fun.u-e persecution on account of a protected ground. On appea~ the respondent argues that her situation goes beyond a mere family situation since • the police were involved. However, as the Immigration Judge noted, the police actually took action in response to the respondent’s complaint, and the respondent’s brother was arrested, tried, and convicted (IJ at 5). Therefore, it does not accord that the police would .simultaneously be pressuring the respondent to drop the complaint while also responding to her complaint, and taking action against her brother. We find no reason to disturb the findings by the Immigration Judge. 4 We observe that the respondent refers to him in her brief as her “step-brother.” 5 Because the respondent’s brief is not paginated, the Board is unable to provide crtatlons to specific pages in this decision. See BIA Practice Manuai § 3.3(c)(3) (Dec. 22, 2020) (”Briefs and other submissions should always be paginated.”). 2 00000031026 ~ (b)(6) let al Consequently, we affirm the denial of the respondents’ applications for asylum and withholding of removal tmder the Act. See Orellana-Monson v. Holder, 685 F.3d 511,518 (5th Cir. 2012) (stating that a failure to establish a claim fur asylum also forecloses eligibility for withholding of removal). For the first time on appeai the respondent presents cotmtry condition articles in support of her claim New evidence presented on appeal i<;construed by the Board as a motion to remand. 8 C.F.R § 1003.2(c)(4). The respondent has not shown that the evidence she is seeking to offer was not available or could not have been discovered before the last hearing, or that it is likely to change the outcome of her case. Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992). 8 C.F.R. § 1003.2(c)(l). Thus, to the extent she is seeking a remand, it is denied.6 Accordingly, the following order will be entered. ORDER: The appeal is di<imissed. FURTHER ORDER: The motion to remand is denied. 6 We acknowledge the respondent wishes to remain in the United States because she rears the insecurity and violence in her home country. However, we do not have authority to grant relief to an otherwise ineligible applicant on purely humanitarian grounds. See Matter of Medina, 19 l&N Dec. 734, 746 (BIA 1988). 3 NOT FOR P~f~~2tJON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) lAJ (b)(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: David Bruce Gtbson, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Honohtlu, HI Before: Manuel, Temporary Appellate Jnnnigration Judge 1 Opinion by Temporary Appellate Irnmigration Judge Manuel MANUEL, Temporary Appellate Immigration Judge The respondent, a native and citiz.en of China, appeals the Iμunigration Judge’s March 26, 2019, decision denying his application for asylum and withholding, of rerooval under sections 208(b)(l)(A) and 24l(b)(3)(A) of the Immigratioh and _,Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A), 123l(b)(3)(A). We will dismiss the appeal •• We review findin~ of fact determined by an Irmnigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3){i). We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R § 1003.l{d){3)(il). The Immigration Judge found the respondent credible. The respondent’s claims are based on fear of persecution on account of-his resistance to the enforcement of China’s coercive population control (CPC) policies. In 2002, the respondent’s wife privately had her state-mandated illD removed because it caused her pain. In 2006, she became pregnant with their second child. They refused to abort the pregnancy despite local fumily planning officials instructing them to do so. Instead, the respondent’s wife··hid at a·relative’s home until their second child was born. Several days after the birth, family planning officials came to the respondent; s home·__and imposed a I(b)(6) IRMBfine. The respondent told them he could not afford such a .large fine, ·:and officials then insulted his in-laws. The respondent yelled at the officials for disrespecting his>,i~laws. Two officials responded by grabbing the respondent aro\Illd his neck. He struggled with them and deeply cut his hand on a rock when he fell during the ahercation He was then arrested, taken to a hospital to have his hand stitched, and detained for 2 days until his family patd the fine. 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General~· See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031023 We agree with the Irrnnigration Judge that the respondent did not establish that he was harmed on account of a protected ground, specifically “other resistance to a coercive population control program” See section 101(a)(42) of the Act, 8 U.S.C. § l 10l(a)(42). While the respondent and his wife engaged in actions contrary to the CPC policies, those actions are not what triggered the respondent’s mistreatment. Moreover, the respondent did not refuse to pay the fine that officials came to his home to impose, although he expressed that he could not afford it. Rather, what provoked officials was his demand that they be polite to his in-laws. He then fought back during their mistreatment of him These actions -yelling at them to be polite and :fighting back when choked -that resulted in the respondent’s mistreatment and detention are not “other resistance” to the CPC program The respondent was not refusing to pay the fine or otherwise obstructing enforcement of the consequences of violating the CPC policies. Cf Li Bin Lin v. Gonzales, 472 F.3d 1131, 1135 (9th Cir 2007) (holding that attempting to stop officials from taking away fumily property as a means of coercing compliance constituted other resistance). Thus, the respondent did not meet his burden to show that he was harmed on account of his resistance to the CPC program, and therefore did not establish past persecution. We also agree with the Tnnnigration Judge that the respondent did not establish a well-founded fear of future persecution on account of other resistance to the CPC program or any other protected ground. The respondent lived in China for IOyears after his release from detention His wife was required to have an IUD but has not been required to submit to checkups (IJ at 17). The respondent did not have any further contact with fumily planning officials. Although he worked in another city, Guangzhou, for his last 5 years in China, he was not in hiding from officials. The respondent does not raise any arguments regarding the likelihood of future persecution, and we agree with the Irrrnigration Judge that he is not eligible for asyhnn because he did not demonstrate a well-founded fear of future persecution. He thus has also not established the higher level of a clear probability of persecution that is required for withholding of removal under the Act. Accordingly, we will dismiss the appeal ORDER: The appeal is dismissed. 2 00000031020 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board ofhnmigration Appeals MATfER OF: .__ _______ (b_)(_6) ____.I (b)(6) ______ Aj Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Petro R Kostiv, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Gonzalez, Terq>orary Appe1late Innnigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate hmnigration Judge Toe respondent, a native and citizen of El. Salvador, appeals from the Apnl 11,2019, decision of the Irrnnigration Judge denying her applications for asylum under section 208 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 241(b)(3) ofthe Act, 8 U.S.C. § 123l(b)(3), and for protection under the regulations implementing the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). The Department of Homeland Security (OHS) has not opposed the respondent’s appeal The record will be remanded. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8C.F.R. § 1003.l(d)(3)(i).2 Wereview all other issues, including issues of law, di<;cretion, or judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(il). On appeai the respondent contends that the Immigration Judge erred in denying her applications fur asyhnn, withholding of removal under the Act, and protection under the CAT. We acknowledge and appreciate the Immigration Judge’s reasoning and decision However, subsequent to the Innnigration Judge’s decision in this case, the Attorney General issued Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (Matter of A-B-Ill), vacating in their entirety 1 Terq>orary Appellate hmnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003. l(a)(l), (4). We note that one page, page 57, is missing from the transcript. 00000031020 AJ (b)(6) Matter of A-B-, 27 I&N Dec. 316 (Matter of A-B-I), and Matter of A-B-, 28 l&N Dec. 199 (A.G. 2021) (Matter of A-B-11), and holding that hrnnigration Judges and the Board should apply precedent decisions that were controlling prior to these decisions in adjudicating asylum applications. Additionally, subsequent to the Innnigration Judge’s decision in this case, the Attorney General issued Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (”L-E-A-III’), holding that Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (”L-E-A-fl), is vacated in its entirety so as to return the immigration system to the preexisting state of affairs pending corq,letion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of “particular social group,” and that Immigration judges and the Board should no longer follow L-E-A-II when adjudicating pending and future cases. Under these circwmtances, and in the abW1dance of caution, the record will be remanded to the hrnnigration Judge to reevaluate the respondent’s eligibility for asylum, withholding of removal W1der the Act, and protection lIDder the CAT. See also Matter of Chen, 20 I&N Dec. 16 (BIA 1989). On remand, both parties may submit additional evidence, including further testimony at a new bearing.3 In addition., pursuant to the then-Acting EOIRDirector’s Policy Memorandum 21-25,theDHS, on remand, should indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relief: agreeing to administrative closure, or requesting termination or dismissal of the proceedings. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03 (Administrative Closw-e). Accordingly, the following order will be entered. ORDER: The record is remmded for further proceedings consi&ent with the foregoing opinion and for the entry of a new decision 3 We acknowledge the Immigration Judge’s credibility concerns, as well as the respondent’s initial omissions with the Border Patrol officer. However, based on the case as a whole, including the respondent’s credible testimony, we deem her credible for purposes of her relief applications in these removal proceedings. 2 00000031017 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ,…_______ _____ (b)(6) (b_)(_6) __.IAJ Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Adolph M. Suarez, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Houston, TX Before: d·e Cardona, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge de Cardona DE CARDONA, Temporary Appellate Immigration Judge The respondent, a native and citizen of El Salvador, appeals from an Innnigration Judge’s decision dated April 16, 2019, denying her applications for asylwn and withholding of removal under sections 208(b)(l)(A) and 24l(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ I I 58(b )(1 )(A), 1231 (b )(3)(A), as well as protection under the regu1ations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100 -20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT’). 2 The appeal will be dismissed. We review .findings of fact detennined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R. § 1003.~d)(3)(i). We review questions of law, discretion, and judgment, and all other issues de novo. 8 C.F.R. § 1003.~d)(3)(ii). The respondent argues that she suffered past persecution, and has a well-founded fear of future persecution based on her fear of gang members in El Salvador. She testified that she received threats and harassment from gang members for 3 months (lJ at 3; Tr. at 9-11; Respondent’s Br. at 6). First, on October 23, 2016, the gang members stared at her then said she will be theirs and they would have relations with her (IJ at 3; Tr. at 11; Respondent’s Br. at 6). The gang members began to hang around her house and knock on her door telling her they wanted to see her (IJ at 3; Tr. at 11;Respondent’s Br. at 6). On December 30, 2016, the men attacked her 1 Temporary Appellate Irrnnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). The respondent has not meaningfully challenged the Innnigration Judge’s denial of her application for protection under the CAT, so this issue is waived. See Matter of R-A-M-, 25 l&N Dec. 657,658 n.2 (BIA 2012) (when a respondent fails to substantively appeal an issue addressed in an Immigration Judge’s decision, that issue is waived on appeal). 00000031017 Al.__”””(b”””).,_,(_ 6″”‘”) _, by grabbing her by her hair, holding a knife against her, and beginning to take her clothes off (U at 3; Tr. at 11-12; Respondent’s Br. at 6). The respondent was able to escape unbanned (U at 3; Tr. at 11-12; Respondent’s Br. at 6). Thereafter, the respondent entered the United States on January 26, 2017 (Exh. 1 ). The Irmnigration Judge denied the respondent’s applications for relief from rernova~ finding that she did not suffer harm arnounting to past persecution (IJ at 3). Furthennore, he found that the harm the respondent did suffer was not on account of a protected ground because her particular social groups were not cognizable (IJ at 3-4). This appeal followed. The respondent claims that she will be persecuted because of her membership in the particular social groups descnbed as (1) Salvadoran women, and (2) single Salvadoran women opposed to advances and the courtship of gang members (IJ at 3-4; Respondent’s Br. at 12). We address each group in turn, but conclude that neither support her claim for asyhnn or statutory withholding of removal On appeal the respondent has not sufficiently shown that her first proposed group is defined with particularity. “A particular social group must be defined by characteristics that provide a clear benchmark for determining who falls within the group.” Matter of M-E-V-G-, 26 I&N Dec. 227, 239 (BIA 2014) (citation omitted). ‘The group must also be discrete and have definable boundaries-it must not be amorphous, overbroad, diffuse, or subjective.” Id. (citation omitted). As noted by the United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case arises, the category of “Salvadoran women” “encompasses a wide swath of society crossing many political orientations, lirestyles, and identifying factors.” Orellana-Monson v. Holder, 685 F.3d 511, 521-22 (5th Cir. 2012). Thus, we agree with the Imnigration Judge that the proposed social group is overbroad and is not cognizable. Turning to the respondent’s second proposed social group consisttng of “single Salvadoran women opposed to advances and the courtship of gang members,” we find this definition contains two parts. The first is “single Salvadoran women” and the second part is “opposed to advances and the courtship of gang members.” We find that “single” is not an irmnutable characteristic, because it is changeable. See Matter of W-G-R-, 26 I&N Dec. 208, 212-13 (BIA 2014) (an immutable characteristic is one in which the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences). In addition, the second part defines the particular social group by the bann See Matter of W-GR-, 26 I&N Dec. at 218 (explaining that a social group cannot be defined by the fact that its members have been subjected to harm); see also Gonzales-Veliz v. Bar, 938 F.3d 219, 230 (5th Cir. 2019) (a particular social group must exist independently of the harm asserted). Prior to the gang’s advances and courtships, the respondent could not say that she was a member of this group. Therefore, this is a social group that can only exist because of the prior hann. Moreover, the respondent has not met her burden of proof to show that this proposed group is socially distinct within Salvadoran society. Id. at 217-18. She has not shown how single women who oppose such behavior by gang members are perceived, considered, or recogniz.ed as socially distinct within Salvadoran society. Accordingly, contrary to the respondent’s contentions, this particular social 2 00000031017 Al (b)(6) group is not cognizable and it does not meet the requirements· of Matter of M-E-V-G-and W-GR-. As the respondent did not sufficiently establish that any harm was or would be on accmmt of her membership in her proffered social groups, she is not eligible for asylum or statutory withholding of rermval We need not reach the Immigration Judge’s other reasons for denying this relief because the aforementioned reasons are dispositive. In light of the forgoing, the respondent’s appeal will be dismissed. The following order will be entered. ORDER: The respondent’s appeal is dismissed. 3 00000031014 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board ofimmigration Appeals MATIER OF: ,…._____ ____ (b_)_(6_) _,IA._!-‘-“(b….,.)(“””6)…___, Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Ashley Lorraine Negrette, Esquire 1N REMOVAL PROCEEDINGS On Appeal from a Decision of the lnnnigration Cowt, San Diego, CA Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge ORDER: The respondent, a native and citi7.en of Guatemala, appealed from the April 11, 2019, decision of the Innnigration Judge. While the appeal was pending, the respondent, :inter alia, filed a motion to remand based on the Department of Homeland Security’s (DHS) stated non~opposition to seeking dismissal of the proceedings without prejudice, :in the exercise of prosecutorial discretion. See Motion, Exh. B. Under these circumstances, the rootion to remand is granted, and the record is remanded to the Jnnnigration Judge for further proceedings. 1 Temporary Appellate Innnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000030770 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATIER OF: ~—-(b_)(6_) ___ ~L Al (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Steven A. Goldstein, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the hmnigration Court, Miami, FL Before: Mahtabfur, Appellate Innnigration Judge Opinion by Appellate· Immigration Judge Mahtabfur MAHTABFAR, Appellate Immigration Judge The respondent appeals the Innnigration Judge’s Jtme 29, 2020, denial of her motion to reopen proceedings based on her application to adjust her status under the Cuban Refugee Adjustment Act in conjtmction with a waiver of inadmissibility pursuant to section 212(h) of the Innnigration and Nationality Act, 8 U.S.C. § 1I 82(h). The Department of Homeland Security (DHS) has not filed a brief in response to the appeai which will be dismissed. Considering the respondent’s appeaL we review Immigration Judges’ findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. See 8 C.F.R §§ 1003.l(d)(3)(i), (iJ.). Given the respondent’s argwnents on appeaL we find no reason to disturb the Immigration Judge’s June 29, 2020, decision. As an initial matter, the respondent’s motion to reopen is untimely by many years. 8 C.F.R § 1103.2(c)(2). The respondent entered into a written stipulation agreeing to an order ofremoval on October 20, 2010 (IJ at 2). We agree with the hmnigration Judge that despite the respondent’s tenuous argument that recent case law supports a fimdamental change in law, she has not demonstrated an “exceptional situation” for purposes of further proceedings under 8 C.F.R § 1003.2(a) (IJ at 2-4). See Matter of J-J-, 21 l&N Dec. 976 (BIA 1997). In support of her adjustment of status request, she has submitted an application and a statement, supported by tax fonm, and evidence that her child suffers :from diabetes. As the Innnigration Judge noted, the respondent submitted little evidence demonstrating that her qualifying relative would suffer extreme hardship for purposes of a 2 I 2(h) waiver, which the respondent requires to waive her 2009 aggravated felony conviction (Exh. 1; D at 1-2). Accordingly, we agree with the Innnigration Judge’s discretionary determination to deny the respondent’s motion, and the following order will be entered. ORDER: The appeal is dismissed. 00000030767 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,..____ )-‘–‘( __ Aj —–‘(–‘-b6)’—__,l (b )( 6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: Jodi M. Miller, Assistant Chief Collll.5el IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Otay Mesa, CA Befure: Goodwin, Appellate Immigration Judge; Wilson, Appellate Immigration Judge; Liebmann, Temporary Appellate Innnigration Judge1 Opinion by Appellate Immigration Judge Wilson WILSON, Appellate lmnigration Judge The respondent, a native and citizen of Cuba, appeals from an Immigration Judge’s July 22, 2020, decision denying Im application for asylum under section 208 of the Innnigration and Nationality Act, 8 U.S.C. § 1158; withholding ofremoval pursuant to section 241(b)(3) ofthe Act, 8 U.S.C. § 1231 (b )(3); and protection Wlder the regulations implementing the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). The Department of Homeland Security has filed a brief in opposition to the appeal The record will be remanded. Removal proceedings before the Immigration Judge in this matter were COITJ)leted in Winnfield, LA, where the respondent was located and the hearing docketed. The lmnigration Judge conducted the hearing remotely from the Imnigration Court in lmperia~ CA, through video conference pursuant to section 240(b)(2)(A) of the Act, 8 U.S.C. § 1229a(b)(2)(A).2 The docketed hearing location is within the geographic area of the United States Court of Appeals for the Fifth Circuit. Therefore, the law of that circuit controls. See Matter of R-C-R-, 28 l&N Dec. 74, 74 n.1 1 Temporary Appellate Innnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003. l(a)(l), (4). In future decisions in which a hearing has been conducted by telephone or video conference, the Innnigration Judge should identify for the record where he is conducting the hearing, as well as the parties’ location 00000030767 (BIA 2020) (explaining that the circuit law applied to proceedings conducted via video conference is the law governing the docketed hearing location). 1be respondent clam past persecution and a well-founded fear of persecution on account of political opinion (JJ at 2-3, 5; Exhs. 2, 4-5). In ruling that the respondent bad not established that the harm he suffered was sufficiently egregious to constitute past persecution, the Immigration Judge applied the law of the United States Court of Appeals for the Eighth Circuit (lJ at 5-7). We will remand the record for the entry of a new decision, including fact-finding and analysis regarding whether the respondent has made the required showing pursuant to Fifth Circuit law, which governs in this case. See 8 C.F.R § 1003.l(dX3Xiv) (stating that the Board may remand when additional fact-finding is required in a given case). Pending the remand, we withhold reVIew ofthe Immigration Judge’s remaining conclusions. Accordingly, the following order is entered. ORDER: 11le record is remanded for further proceedings and the entry of a new decision consistent with this opinion. 2 , :.) NOT FOR PUBLICATION 00000030764 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,….____ ___ __.lAl~_~(b~)(~6)_~ (_b)_(6_) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Aaron M. Morrison, Esquire ON BEHALF OF OHS: J. Mark Kang, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, San Francisco, CA Before: Baird, Appellate Innnigration Judge; Saenz, Appellate Immigration Judge; Wilson, Appellate Irrnnigration Judge Opinion by Appellate Immigration Judge Saenz SAENZ, Appellate Immigration Judge The respondent, a native and citizen of Mexico, and lawful permanent resident of the United States, appeals from the Immigration Jtrlge’s July 16, 2020, decision, finding him removable as charged, denying his requests for relief and protection from rernovaL and ordering his removal from the United States. The Department of Homeland Security (DHS) opposes the appeal. The appeal will be dismissed. The Board reviews an Immigration Judge’s findings of fuct, including findings as to the credibility of testimony, and the likelihood of future events, under the “clearly erroneous” standard. See 8 C.F.R § 1003.l(d)(3)(i); Matter ofZ-Z-O-, 26 I&N Dec. 586 (BIA 2015). The Board reviews questions of law, discretion, and judgirent and all other issues in an appeal of an Immigration Judge’s decision de novo. See 8 C.F.R. § 1003.l(d)(3)(iI). On appeal, the respondent challenges only the Immigration Judge’s denial of his application for re-adjustment of status under section § 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1225(a) and for a waiver of inadmissibility under§ 212(h) ofthe Act, 8 U.S.C. § 1182(h). 1 The respondent’s appeal does not contest the Immigration Judge’s denial of his applications for withholding of removal under the Act as well as under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Ptll1ishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for the United States on Nov. 20, 1994) (”CAT’). Thus, we deem these issues waived. See Matter of Cervantes, 22 I&N Dec. 560, 561 n 1 (declining to reach an issue not raised by a party on appeal). Aj (b)(6) 00000030764 To be granted a waiver llllder section 212(h)(l)(B), the respondent must prove, inter alia, that his removal will cause “extreme hardship” to his ”United States citizen or lawfully resident spouse, parent, son, or daughter,” and that he deserves a favorable exercise of the Attorney General’s discretion. See Matter of Mendez-Morales, 21 I&N Dec. 296 (BIA 1996). We agree with the Immigration Judge’s conclusion that the respondent has not met his burden to prove that his removal will cause extreme hardship to any qualifying relative, including his three United States citizen adult children (IJ at 5-8). Matter of Cervantes, 22 l&N Dec. 560, 568 (BIA 1999). The Immigration Judge’s decision reflects that she carefully considered the facts in this case, including the respondent’s adult children’s mental health, their age and maturity, the respondent’s health, the respondent’s family ties to Mexico, and other factors, in finding that the respondent’s children woukt not experience hardship beyond “that which is nonnally expected upon removal” (IJ at 57); see Cervantes, 22 I&N Dec. at 567. Therefore, as we agree with the Immigration Judge’s decision denying the respondent’s application for a waiver of inadmissibility under section 212(h) of the Act, the respondent remains inadmissible to the United States, and is unable to establish his statutory eligibility for adjustment of status llllder section 245(a) of the Act. Accordingly, the following order shall be entered. ORDER: The respondent’s appeal is dismissed. 2 . \ 00000030845 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATTER OF: (b )( 6) (b)(6) (b)(6) FILED Jan 28, 2022 (b)(6) Respondents ON BEHALF OF RESPONDENTS: Alberto Lopez, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflrrmigration Appeals Before: Creppy, Appellate Innnigration Judge Opinion by Appellate Innnigration Judge Creppy CREPPY, Appellate Innnigration Judge This matter was last before the Board on June 22, 2020, when we dismissed the respondents’ appeal from the Irrmigration Judge’s March 27, 20 I 8, denial of their applications for asylum and withholding of removal under sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A) and 123l(b)(3)(A), and protection under the regulations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). The respondents, who are all natives and citizens of El Salvador, have filed a motion to reconsider our June 22, 2020, decision, with respect to their eligibility for asylum and withholding of remova~ as well as their statutory eligibility to apply for voluntary departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b). The Department of Homeland Security (DHS) has not responded to the motion. The respondents’ motion to reconsider will be denied in part and granted in part, and the record will be remanded to the Immigration Judge for consideration of the respondents’ request for voluntary departure. A motion to reconsider contests the correctness of the prior decision based upon the previous fuctual record. Matter of O-S-G-, 24 I&N Dec. 56, 57-58 (BIA 2006). A party seeking reconsideration requests that the original decision be reexamined in light of alleged legal or fuctual errors, a change of law, or an argument or aspect of the case that was overlooked. Id.; Matter of Cerna, 20 I&NDec. 399 (BIA 1991). A motion to reconsider. must be filed with the Board within 30 days after the mailing of the Board decision which the movant seeks to have reconsidered. 8 C.F.R. § 1003.2(b)(2); Matter of G-D-, 22 l&N Dec. 1132, 1133 (BIA 1999). The respondents’ motion was thus due on or before July 22, 2020. The respondents initially filed an incomplete motion to reconsider, which the Board 00000030845 Al n,v,,;, letal rejected on July 24, 2020. They ultimately filed a complete motion to reconsider on August 5, 2020. The respondents’ motion was therefore untimely filed. 8 C.F.R § 1003.2(b)(2). The respondents request that we grant their untimely motion, arguing that an internal clerical mistake at counsel’s offices amounts to “exceptional circum5tances” warranting reconsideration of their case notwithstanding the untimeliness of their motion to reconsider (Respondents’ Motion at 2). However, ”we may not casually set (the time and nwnerical] limits aside or otherwise undennine them through the exercise of our independent regulatory power to reopen or reconsider cases.” Matter of G-D-, 22 I&N Dec. at 1134. Toe internal error made by counsel’s staff is not the sort of ”truly exceptiona 1 situation[]” which could overcome the time limit on filing a motion to reconsider. See generally id. at 1133-34 (“As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.’). In view of the foregoing, in relation to the respondents’ request for reconsideration of their applications for asylum and withholding of removal, we deny the respondents’ motion as untimely. In the alternative, even disregarding the untimeliness of the respondents’ motion, we nevertheless deny the motion with respect to their asylum and withholding ofremoval applications. We observe that the respondents have not challenged our June 22, 2020, decision insofar as it upheld the Innnigration Judge’s finding that they did not establish the requisite nexus between any past or feared harm and a protected characteristic , (b )( 6) lat 1 (BIA June 22, 2020); IJ at 11 (‘111here’s no indication that the respondents were targeted specifically because they were family.”) (emphasis added), 13 (observing that the respondents did not establish that their family membership was even “a reason” for past or feared hann); cf Respondent<;’ Motion at 3). See Matter of M-F-O-, 28 I&N Dec. 408, 410-13 (BIA 2021) (reviewing for clear error the Irrmigration Judge’s findings of fact regarding the persecutors’ motives for targeting the noncitizen); see also Singh v. Barr, 935 F .3d 822, 827 (9th Cir. 20 J9) (Immigration Judge finding of no nexus to a protected grolll1d means that even the lower standard of nexus for withho Id ing ofremoval is not satisfied). Therefore, irrespective of whether we were persuaded by the respondents’ argwnents concerning the cognizability of their proposed family-based particular social group, reconsideration would not be warranted as the nexus finding provides an independent basis for denial of both asylum and withho Id ing of removal (IJ at 9-13 ). See, e.g., Matter of W-G-R-, 26 I&N Dec. 208,223 (BIA 2014) (“An applicant’s burden includes demonstrating the existence of a cognizable particular social group, his membership in that particular social group, and a risk of persecution on account of his membership in the specified particular social group.’). Moreover, the respondents’ argwnents in their motion to reconsider do not persuade us that we erred in affirming the Irrmigration Judge’s detennination, for the reasons set forth in his decision, that the respondents did not establish that family members of the lead respondent (Al (b)(6) ~ comprise a cognizable particular social group for purposes of establishing their eligibility for asylum and withholding of removal (IJ at 9-12). See Matter of L-E-A-, 27 I&N Dec. 40 (BIA 201 7) ( whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by 2 00000030845 Al rhvi;, letal the society in question); see also MatterofM-F-O-, 28 I&N Dec. at 412 n.6 (explaining that Matter of L-E-A-, 27 I&N Dec. at 40, remains good law). In particular, the respondents highlight no evidence of record revealing that the Irrnnigration Judge erred in finding that they provided “no evidence that the [lead respondent’s] fumily is viewed as socially distinct within the society in question” (IJ at 11 (emphasis added); cf Respondents’ Motion at 3). See generally Matter ofH-L-S-A-, 28 I&N Dec. 228,231 (BIA 2021) (“To establish a valid particular social group under the Act, the applicant must demonstrate that his proposed group is ‘(I) composed of members who share a connnon irrnnutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'” (quoting Matter of M-E-V-G-, 26 I&N Dec. 227,237 (BIA 2014) (emphasis added))). For all the foregoing reasons, we deny the respondents’ motion to reconsider insofur as it relates t<_>the denial of their applications for asylum and withholding ofremovaL Nevertheless, we conclude that reconsideration of the respondents’ case is warranted with regard to their request for voluntary departure (Respondents’ Motion at 4). Sua sponte reconsideration of a case may be warranted where there has been a fundamental change in law which Illl)acts the disposition of the case. Matter of G-D-, 22 I&N Dec. at 1134-35. In the proceeding.5 below, the Innnigration Judge concluded that the respondents were ineligible to apply for voluntary departure because they each had been served with a Notice to Appear (Form 1-862) less than 1 year after their arrival to the United States (IJ at 15). We affirmed that determination based on then-current law, despite the fuct that the respondents’ Notices to Appear did not provide the time or date of their initial removal hearing q (b)(6) Lat 3). However, we subsequently concluded, in Matter of M-F-O-, 28 I&N Dec. at 415-17, that a notice to appear that does not specify the time or place of a respondent’s initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure under section 240B(b) of the Act, even if the respondent is later served with a notice of hearing specifying this information. Our holding in Matter of M-F-O-qualifies as a fimdamental change in law relative to the respondents’ eligibility to apply for voluntary departure under section 240B(b) of the Act. Consequently, we will grant the untimely motion for the limited purpose ofremanding the record to the Innnigration Judge so that the respondents may request voluntary departure under section 240B(b) of the Act. Accordingly, the following orders will be entered. ORDER: The motion to reconsider is denied with regard to the respondents’ applications fur asylum and withholding ofremoval FURTHER ORDER: The motion to reconsider is granted with respect to the respondents’ request to pursue voluntary departure under section 240B(b) of the Act. FURTHER ORDER: The record is remanded to the Irrnnigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 3 . \ 00000030842 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATTER OF: Respondents (b)(6) (b)(6) (b)(6) (b)(6) FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Alberto Lopez, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflrrmigration Appeals Before: Creppy, Appellate Innnigration Judge Opinion by Appellate Innnigration Judge Creppy CREPPY, Appellate Innnigration Judge This matter was last before the Board on June 22, 2020, when we dismissed the respondents’ appeal from the Irrmigration Judge’s March 27, 2018, denial of their applications for asylum and withholding of removal under sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A) and 123l(b)(3)(A), and protection under the regulations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). The respondents, who are all natives and citizens of El Salvador, have filed a motion to reconsider our June 22, 2020, decision, with respect to their eligibility for asylum and withholding of remova~ as well as their statutory eligibility to apply for voluntary departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b). The Department of Homeland Security (DHS) has not responded to the motion. The respondents’ motion to reconsider will be denied in part and granted in part, and the record will be remanded to the Immigration Judge for consideration of the respondents’ request for voluntary departure. A motion to reconsider contests the correctness of the prior decision based upon the previous fuctual record. Matter of O-S-G-, 24 I&N Dec. 56, 57-58 (BIA 2006). A party seeking reconsideration requests that the original decision be reexamined in light of alleged legal or fuctual errors, a change of law, or an argument or aspect of the case that was overlooked. Id.; Matter of Cerna, 20 I&NDec. 399 (BIA 1991). A motion to reconsider. must be filed with the Board within 30 days after the mailing of the Board decision which the movant seeks to have reconsidered. 8 C.F.R. § 1003.2(b)(2); Matter of G-D-, 22 l&N Dec. 1132, 1133 (BIA 1999). The respondents’ motion was thus due on or before July 22, 2020. The respondents initially filed an incomplete motion to reconsider, which the Board 00000030842 Aj (b)(6) let al rejected on July 24, 2020. They ultimately filed a complete motion to reconsider on August 5, 2020. The respondents’ motion was therefore untimely filed. 8 C.F.R § 1003.2(b)(2). The respondents request that we grant their untimely motion, arguing that an internal clerical mistake at counsel’s offices ani0W1ts to “exceptional circum5tances” warranting reconsideration of their case notwithstanding the untimeliness of their motion to reconsider (Respondents’ Motion at 2). However, ”we may not casually set (the time and nwnerical] limits aside or otherwise undermine them through the exercise of our independent regulatory power to reopen or reconsider cases.” Matter of G-D-, 22 I&N Dec. at 1134. Toe internal error made by counsel’s staff is not the sort of ”truly exceptiona 1 situation[]” which could overcome the time limit on filing a motion to reconsider. See generally id. at 1133-34 (“As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.’). In view of the foregoing, in relation to the respondents’ request for reconsideration of their applications for asylum and withholding of removal, we deny the respondents’ motion as untimely. In the alternative, even disregarding the untimeliness of the respondents’ motion, we nevertheless deny the motion with respect to their asylum and withholding ofremoval applications. We observe that the respondents have not challenged our June 22, 2020, decision insofar as it upheld the Innnigration Judge’s finding that they did not establish the requisite nexus between any past or feared harm and a protected characteristic f (hv61 I,at 1 (BIA June 22, 2020); IJ at 11 (‘111here’s no indication that the respondents were targeted specifically because they were family.”) (emphasis added), 13 (observing that the respondents did not establish that their family membership was even “a reason” for past or feared harm); cf Respondent<;’ Motion at 3). See Matter of M-F-O-, 28 I&N Dec. 408, 410-13 (BIA 2021) (reviewing for clear error the Irrmigration Judge’s findings of fact regarding the persecutors’ motives for targeting the noncitizen); see also Singh v. Barr, 935 F .3d 822, 827 (9th Cir. 20 J9) (Immigration Judge finding of no nexus to a protected grolll1d means that even the lower standard of nexus for withho Id ing ofremoval is not satisfied). Therefore, irrespective of whether we were persuaded by the respondents’ argwnents concerning the cognizability of their proposed family-based particular social group, reconsideration would not be warranted as the nexus finding provides an independent basis for denial of both asylum and withho Id ing of removal (IJ at 9-13 ). See, e.g., Matter of W-G-R-, 26 I&N Dec. 208,223 (BIA 2014) (“An applicant’s burden includes demonstrating the existence of a cognizable particular social group, his membership in that particular social group, and a risk of persecution on account of his membership in the specified particular social group.’). Moreover, the respondents’ argwnents in their motion to reconsider do not persuade us that we erred in affirming the Irrmigration Judge’s determination, for the reasons set forth in his decision, that the respondents did not establish that fumily members of the lead respondent (Al rhV61 ~ comprise a cognizable particular social group for purposes of establishing their eligibility for asylum and withholding of removal (IJ at 9-12). See Matter of L-E-A-, 27 I&N Dec. 40 (BIA 201 7) ( whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by 2 00000030842 rhv1,, let al the society in question); see also MatterofM-F-O-, 28 I&N Dec. at 412 n.6 (explaining that Matter of L-E-A-, 27 I&N Dec. at 40, remains good law). In particular, the respondents highlight no evidence of record revealing that the Irrnnigration Judge erred in finding that they provided “no evidence that the [lead respondent’s] fumily is viewed as socially distinct within the society in question” (IJ at 11 (emphasis added); cf Respondents’ Motion at 3). See generally Matter ofH-L-S-A-, 28 I&N Dec. 228,231 (BIA 2021) (“To establish a valid particular social group under the Act, the applicant must demonstrate that his proposed group is ‘(I) composed of members who share a connnon irrnnutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'” (quoting Matter of M-E-V-G-, 26 I&N Dec. 227,237 (BIA 2014) (emphasis added))). For all the foregoing reasons, we deny the respondents’ motion to reconsider insofur as it relates t<_>the denial of their applications for asylum and withholding ofremovaL Nevertheless, we conclude that reconsideration of the respondents’ case is warranted with regard to their request for voluntary departure (Respondents’ Motion at 4). Sua sponte reconsideration of a case may be warranted where there has been a fundamental change in law which Illl)acts the disposition of the case. Matter of G-D-, 22 I&N Dec. at 1134-35. In the proceedings below, the Innnigration Judge concluded that the respondents were ineligible to apply for voluntary departure because they each had been served with a Notice to Appear (Form I-862) less than I year after their arrival to the United States (IJ at 15). We affirmed that determination based on then-current law, despite the fuct that the respondents’ Notices to Appear did not provide the time or date of their initial removal hearing I (b)(6) L at 3). However, we subsequently concluded, in Matter of M-F-O-, 28 I&N Dec. at 415-17, that a notice to appear that does not specify the time or place of a respondent’s initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure under section 240B(b) of the Act, even if the respondent is later served with a notice of hearing specifying this information. Our holding in Matter of M-F-O-qualifies as a fimdamental change in law relative to the respondents’ eligibility to apply for voluntary departure under section 240B(b) of the Act. Consequently, we will grant the untimely motion for the limited purpose ofremanding the record to the Innnigration Judge so that the respondents may request voluntary departure under section 240B(b) of the Act. Accordingly, the following orders will be entered. ORDER: The motion to reconsider is denied with regard to the respondents’ applications fur asylum and withholding ofremoval FURTHER ORDER: The motion to reconsider is granted with respect to the respondents’ request to pursue voluntary departure under section 240B(b) of the Act. FURTHER ORDER: The record is remanded to the Irrnnigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 3 •NOT FOR PUBLICATION 00000031266 U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: Aj (b)(6) (b)(6) ~.__(_b)(_6) _ _, Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, New Orleans, LA Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondents, a mother and her minor child, natives and citizens of Honduras, appeal the Immigration Judge’s April 1, 2019, decision denying their application for asylum and withholding of removal W1der sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231 (b )(3), as well as protection under the regulations implementing the Convention Against Tortme and Other Cruet Inhuman or Degrading Treatment or PWlishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT”). The appeal will be dismissed. We review the findings of fact, including determinations as to credibility and the likelihood of future events, made by the Immigration Judge under a “clearly erroneous” standard. Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); 8 C.F .R § 1003 .1 ( d)(3 )(i); see also Matter ofZ-Z-O-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including issues of law, judgment, or discretion, W1der a de novo standard. 8 C.F.R § 1003.l(d)(3)(iI). Because the asylum application was :filed after May 11, 2005, it is governed by the provisions of the REAL ID Act of 2005. Matter ofS-B-, 24 l&N Dec. 42 (BIA 2006). On appeal, the respondents do not meaningfully challenge the Immigration Judge’s denial of asylum, withholding of removal, or CAT protection. Instead, the respondents argue that the Immigration Judge erred in denying their motion to continue proceedings to allow them additional time to obtain representation and evidence in support of their applications for relief We reject the respondents’ challenge to the Immigration Judge’s denial of their request to continue proceedings (IJ at 10). The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown. Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987); 8 C.F.R §§ 1003.29, 1240.6. The respondents have been in proceedings since March A) (b)(6) let ai 00000031266 2018 and the record reflects that the Innnigration Judge adjotnned proceedings for 4 months prior to the submission of their asylum application to seek representation On the day of the merits hearing, the lead respondent indicated that she was not able to obtain counsel or supporting documents from family and friends in Honduras because she was not employed and thus not able to pay the fees for an attorney or postage for supporting documents from her country (Tr. at 16-18, 55). The Innnigration Judge was under no obligation to indefinitely continue removal proceedings based upon the speculative possibility, at a future time, the lead respondent would obtain employment and secure cmmsel See Matter of L-A-B-R-, 27 l&N Dec. 405, 407 (A.G. 2018) (recognizing that the use of continuances as a dilatory tactic is particularly pernicious in the immigration context). To date, the respondent does not indicate that she has obtained counsel On this record, we concur with the Innnigration Judge that good cause was not established to continue proceedings. Turning to the merits of the respondents’ asylum claim, we adopt and affirm the decision of the Immigration Judge. Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). The Immigration Judge credited the lead respondent’s (hereinafter “respondent”) testimony and determined that her sexual assault in Honduras when she was a young girl rose to the level of persecution (]J at 11 ). However, the Innnigration Judge correctly determined that the respondent did not establish a nexus between the mistreatment that she experienced in Honduras and a protected ground tmder the Act (IJ at 11 ). See INS v. Elias-Zacarias, 502 U.S. 4 78, 483 (1992) (“since the statute makes motive critical, [the petitioner] must provide some evidence of [his persecutor’s motives], direct or circlllll5tantial’). Generally, private acts of violence, general criminal activity, and purely personal retribution do not qualify as persecution based on a statutorily protected ground. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) (“asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions”). The Immigration Judge’s findings are supported by the facts as presented by the respondent and background evidence. Inasmuch as the respondent has not disputed the Innnigration Judge’s analysis or explained how the Immigration Judge erred in reaching his findings, we find no reason to disturb the lmmigratio n Judge’s denial of asylwn and withho Id ing ofremoval. We also affirm the Innnigration Judge’s denial of CAT protection (IJ at 13). The evidence in the record does not show a particularized risk that the respondent will likely be tortured with the consent or acquiescence (to include the concept of willful blindness) of a public official or other person acting in an official capacity in Honduras. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(l); Matter ofY-L-, A-G-& R-S-R-, 23 I&N Dec. 270, 279-85 (A.G. 2002). Finally, we reject the respondent’s due process violation arguments. The Immigration Judge provided sufficient analysis to support bis denial of asylwn, withholding of removai and CAT protection The Immigration Judge appropriately questioned the respondent and provided her with ample opportunity to present her asylum claim As noted previously, the Immigration Judge did not find the respondent to lack credibility. We have reviewed the entire record and do not conclude that there is evidence of a prejudicial violation of the respondent’s rights to due process. See Bouchikhi v. Holder, 676 F.3d 173 (5th Cir. 2012). On the whole, the record supports the Immigration Judge’s resolution in this matter. 2 Aj (b )( 6) letal 00000031266 Accordingly, the following order is entered. ORDER:Theappealis dismissed. 3 NOT FOR PUBLICATION 00000031263 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) (b)(6) l Al I :=::==================:::::: ._ ______ _________ _.~ Al (b)(6) I (b)( 6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Adriana F. Estevez, Esquire ON BEHALF OF DHS: David J. Kelly, Deputy Chief Col.B1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Grant, Appellate Immigration Judge Opinion by Appellate lrrnnigration Judge Grant GRANT, Appellate Immigration Judge The Department of Homeland Security (OHS) appeals an Immigration Judge’s March 26, 2019, decision granting the respondents’ motion to terminate these removal proceedings. The respondents have filed a response brie~ in which they seek a remand for further proceedings. The DHS has not filed a reply to the respondents’ brief The DHS’ request for review by a threemember panel is granted. 8 C.F.R § 1003.l(e)(6). The appeal will be sustained, and the record will be remanded for further proceedings. We review the Innnigration Judge’s factual findings for clear error. 8 C.F.R. § 1003.1 (d)(3)(i). We review de novo all other issues, including issues of law, discretion, or judgment. 8 C.F.R. § 1003 .1 ( d)(3)(ii). This case has an unusual procedural history. The lead respondent (Al (b)(6) band minor respondent (Al rh\(6) D are a futher and son who are natives and citizens of El Salvador. On February 1,2017, the OHS filed Notices to Appear (NTAs) in the Arlington, Virginia, Immigration Court, charging them with inadmissibility under section 216(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United States without being inspected and admitted or paroled (Exhs. lA, lB). Although both NTAs are signed by an Immigration and Customs Enforcement (ICE) border agent attesting to their personal service, neither NTA is signed by the respondents.1 Notices of Alien Address (Form EOIR-33s) providing a noncustodial address for the respondents were also filed with the court. 1 The lead respondent’s NTA bears a blank signature line for the lead respondent. The minor respondent’s NTA is stamped: “Parent/Conservator refused to sign.” (Exhs. IA, lB). Al~~<_b )_( 6)_~~t al 00000031263 The respondents appeared prose at a master calendar hearing on April 10, 2017, and received a continuance. On November 29, 2017, the lead respondent filed an application for asylum and withholding of rernoval. The respondents appeared with counsel at a second master calendar hearing held on July 24, 2018. At the hearing, the Immigration Judge expressed her doubts about the proper service of the NTAs, asked the DHS to re-file corrected NTAs, and reset the case for another hearing on March 26, 2019 (Tr. at 8-10). In a separately issued written scheduling order, the Immigration Judge directed the DHS to serve the respondents with new NT As at least 10 days before the March 26, 2019, hearing if the parties could not reach a stipulation on the jurisdictional issue. On November 20, 2018, the respondents filed a rnotion to tenninate proceedings, arguing that the DHS had failed to properly serve them with their NTAs. (Respondents’ Nov. 20, 2018, Motion to Terminate Removal Proceedings for Lack of Jurisdiction). The respondents argued that jurisdiction never vested with the Immigration Colll1 because the DHS never filed “a document” meeting the requirements of an NTA under section 239(a) of the Act, 8 U.S.C. § 1229(a) (Id. at 24). The respondents further argued that the filing of a later hearing notice and their attendance at the hearing did not cure the jurisdictional defect (Jd. at 4-5). On the same day, the DHS filed an “Informative Filing” stating that it had re-served the original NT As by mail on the respondents’ counsel. In a contemporaneously filed brie( the DHS averred that any procedural defect in the original NTAs had been cured by the respondents’ counsel’s receipt of the re-served NTAs, in conjW1Ction with their receipt of a notice of hearing at the noncustodial address provided to the court (DHS Nov. 20, 2018, Brief). According to the DHS, there was no need to file amended NTAs in light of these circwrntances. In a decision dated March 25, 2019, the Immigration Judge denied the motion to terminate proceedings. The Immigration Judge reasoned that although the NTAs that were initially filed with the colll1 did not contain the lead respondent’s signature indicating proper service, the DHS had corrected that procedural deficiency by mailing a copy of the NTA to the respondents’ counsel (IJ Mar. 25, 2019, at 1-2). The Immigration Judge further noted that respondents had waived any challenge to the Immigration Judge’s subject-matter jurisdiction by seeking asylum and related relief (Id. at 2). The Immigration Judge also acknowledged that the DHS had provided the respondents’ noncustodial address to the immigration colll1 upon their release from custody, that the court had used that address to notify the respondents of their colll1 hearings, and that they had attended their hearings. Thus, according to the Immigration Judge, the colll1 properly exercised jurisdiction over the proceedings (Id. at 2). The Immigration Judge concluded that the court would proceed on the respondents’ applications for asyhnn and withholding of rernovai and that a master calendar hearing would “proceed, as scheduled, on March 26, 2019, at 9:00 a.m” (Id.). At the March 26, 2019, hearing, the respondents conceded rernovability and expressed their intent to pursue asylum and withholding of rernoval (Tr. at 20-21). However, the Innnigration Judge then reconsidered and granted the motion to terminate proceedings. On the face of the March 25, 2019, written decision, she wrote, ”MTT Granted, after reconsideration on 2 pJ (b)(6) let al· 00000031263 3/26/19).” The Immigration Judge also issued a separate form ord.er providing the following basis for her ruling: ”Original NTAs were not properly served. Once the NTAs are served on the cmmsel and rectified with the com, the coW1 will proceed with the section 240 rermval proceedings.” The Immigration Judge’s decisions, read together, present some ambiguity as to the basis for termination of the proceedings. However, the parties do not dispute that the Immigration Judge did, in fact, terminate proceedings. Upon review, we will sustain the appeal for the reasons set forth below. At the time of the Innnigration Judge’s decision, 8 C.F.R § 1003.14(a) (2019) read as follows: “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate showing service on the opposing party pursuant to § 1003.32 which indicates the Immigration Court in which the charging document is filed.” In turn, 8 C.F.R § 1003.32 (2019) provided that “[a] certification showing service on the opposing party or parties on a date certain shall accompany any :filing with the Immigration Judge unless service is made on the record during the hearing.” 2 Under intervening and controlling precedent, the United States Court of Appeals for the Fourth Circuit has recently held that an Immigration Judge has inherent authority to terminate rermval proceedings. See Gonzalez v. Garland, 16 F.3d 131, 139-43 (4th Cir. 2021) (abrogating Matter of S-O-G & F-D-B-, 27 I&N Dec. 462,468 (A.G. 2018)). Such inherent authority derives from the plain language of 8 C.F.R § 1003.l0(b), which authorizes Immigration Judges to take “any action consistent with their authorities tmder the Act and regulations that is appropriate and necessary for the disposition of Ocases.” Id. Notwithstanding Gonzalez, however, in this case, the Immigration Judge’s grant of the motion to terminate for lack of jurisdiction appears to be foreclosed by other intervening precedent issued by the Fourth Circuit and the Board. In United States v. Cortez, the Fourth Circuit held that the regulatory definition of ‘notice to appear,’ or that which is provided in 8 C.F.R § 1003.14(a), rather than section 239(a) of the Act, controls in detennining when a case is properly docketed with the immigration court. 930 F.3d 350, 358-363 (4th Cir. 2019). In so concluding, the Fourth Circuit clarified that 8 C.F.R § 1003.14(a) is ”not jurisdictional in the formal sense,” 930 F.3d at 359, but instead is “more like a docketing rule, providing for the orderly administration of proceedings … before the immigration judges.” Id. at 362. In a subsequent Board decision, we also clarified that 8 C.F.R. § 1003.14(a) is a “claimsprocessing rule,” rather than a provision implicating the Immigration Court’s jurisdiction over proceedings. See Matter of Rosales Vargas, 27 l&N Dec. 745, 751-52 (BIA 2020). We cited Cortez and other circuit court decisions withapproval, and expressly rejected the exact argument 2 A final rule modifying 8 C.F.R § 1003.32 is scheduled to take effect on February 22, 2022. See 86 FR 70708-1 (to be codified at 8 C.F.R. § 1003.32 (2022)). The regulations as modified will account for the service of electronic :filings. The new regulations, if and when implemented, will not impact the disposition of this case. 3 Aj (b)(6) let a~ 00000031263 presented here -that the NTA was jurisdictionally deficient based on noncompliance with the certificate of service requirement in 8 C.F.R § 1003.14(a). Id. at 752-53. We reasoned that the certification of service requirement is best viewed as a claims-processing rule that provides undocwnented individuals with notice of the location of their hearings, and .facilitates connnunications with the court where the DHS anticipates filing the NTA. Id. at 753. We ultimately concluded that the failure to comply with that requirement did not provide a reason for terminating proceedings. Id. In addition, the Fourth Circuit also later rejected a similar jurisdictional argwnent based on improper service of the initial NTA. See B.R v. Garland, 4 F.3d 783, 786-87 (4th Cir. 2021) (holding that the DHS’s failure to serve an NTA and the seven-year gap between its initial failure and its perfection did not require termination of removal proceedings, where the OHS cured the defect by re-service before any substantive proceedings, and there was no showing of prejudice). Based on this intervening precedent, we conclude that the Irrnnigration Judge’s termination of these proceedings for lack of jurisdiction is no longer valid. Although the DHS did not formally re-file the NTAs with theiraccompanying certificates of service with the Innnigration Court, such non-filing is not jurisdictionally fatal in our view, in light of the reasoning employed in Matter of Rosales Vargas and B.R v. Garland. Neither party contends that the contents of the NTAs served on the respondents’ counsel differ in kind from those already on file with the Immigration Court. Moreover, any procedural error in filing was cured when the respondents were served with and conceded proper service of the NTAs, and then conceded their removability based on the charges contained therein We are unable to conclude that the Immigration Judge’s termination of the proceedings was consistent with the concern for the orderly administration of proceedings that was noted in Gonzalez, as well as the claims-processing considerations identified by the Board in Matter of Rosales Vargas. We do not otherwise deem termination appropriate and ·necessary for the disposition of this case. 8 C.F.R § 1003.l0(b). As we have akeady stated, the respondents have received the NT As, admitted removability, and expressed an intent to apply for relief from removal. They also appear to have waived any challenge on appeal to the Immigration Judge’s jurisdiction over these proceedings. Indeed, the respondents implicitly concede the Immigration Judge’s jurisdiction over proceedings, insofar as they now seek a remand to allow the minor respondent to pursue adjustment of status based on a special immigrant jtNenile (SIJ) visa that was approved during the pendency of this appeal (Respondents’ Br. at~ 6). For all of these reasons, we conclude that Immigration Judge erred in terminating the proceedings. We will therefore sustain the DHS’s appeai reinstate the proceedings, and remand for issuance of a decision on the respondent’s removability, as well as any relief from removal they may be presently seeking, including adjustment of status. Accordingly, the following orders will be entered. ORDER: The DHS’s appeal is sustained. 4 Al.__(‘-‘-b )-‘–( al 00000031263 6′–)____.~t FURTHER ORDER: The removal proceedings are reinstated, and the record is rermnded for further proceedings consistent with this order and for the entry of a new decision 5 00000031254 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: (h)(6) IAl (b)(6) ~I_____ (_b)_(6_)—-~I, ~ (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Kevin Patrick Boyle, Esquire ON BEHALF OF DHS: Rachel L. Ketmg, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Chicago, IL Before: Couch, Appellate Immigration Judge Opinion by Appellate hmnigration Judge Couch COUCH, Appellate Innnigration Judge The respondents appeal from the Immigration Judge’s decision dated March 27, 2019, which denied their applications for asyhnn and withhokiing ofremoval mder sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), and protection under the Convention Against Torture, 8 C.F.R. § 1208.16(c). The Department of Homeland Sectttity has opposed the appeal The appeal will be dismissed. 1 We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the clearly erroneous standard. 8 C.F.R § 1003. l(d)(3)(i). We review all other issues, including issues of law, discretion, and judgment, WJ.der the de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondents are siblings, a brother who was 19 years old on the date of the decision of the Immigration Judge and a sister who was 8 years oki on that date. The male respondent claimed a fear ofreturn to El Salvador on accotmt of membership in the proposed social group of”yotmg El Salvadoran men” (Tr. at 99), and the female respondent claimed a fear of return to El Salvador on 1 The respondents have not raised a specific challenge to the Immigration Judge’s denial of their applications for protection llllder the regulations in1>1ementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). We therefore deem this issue waived. See, e.g., Matter of A. J Valdez and Z. Valdez, 27 I&N Dec. 496, 496 nl, 498 n3 (BIA 2018) (noting that an issue addressed in an Immigration Judge’s decision is waived when a party does not challenge it on appeal). 00000031254 Al (b)(6) letal’ accomt of membership in the proposed social group of “nuclear fumily being threatened by criminal gangs” (Tr. at 100). The lrrunigration Judge found that the respondents, though credible (IJ at 4), did not satisfy their burden of proof for asylum or, by extension, the higher burden of proof for withholding of removal (JJ at4-9). See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevie, 467 U.S. 407 (1984). We adopt and affirm the decision of the Immigration Judge. Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). The argwnent on appeal does not persuade us that the experiences described in the male respondent’s testimony, consisting of 20 recruitment attempts and one phone call to his mother asking that she produce him, rise to the level of persecution (IJ at 4-6; Tr. at 59-70). See OrellanaArias v. Sessions, 865 F.3d 476, 487 (7th Cir. 2017). Considering the testimony of the male respondent, and that of msmother, particularly their explanation that the gang had an interest in recruiting minors, we are tmpersuaded on this record that the male respondent was targeted for reasons other than recruitment (IJ at 5-9; Tr. at 68, 88). Thus, the respondents have not shown clear error in the Immigration Judge’s fmding on motive for targeting the male respondent. See Matter of L-E-A-, 27 I&N Dec. 40, 44 (BIA 2017). 2 3 With respect to the female respondent’s claim based upon her membership in the particular social group of “nuclear family being threatened by criminal gangs,” it is well established that targeting a family member as a means to an end is not itself sufficient to establish a claim Id. at 45. Therefore, we will affirm the lrrunigration Judge’s denial of relief in this case. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 Ahhough relied upon by the Immigration Judge, we do not rely on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), vacated by Matterof A-B-, 28 I&N Dec. 199 (A.G. 2021), in deciding this appeal 3 Matter of L-E-A-, 27 I&N Dec. 40, (BIA 2017) (”Matter of L-E-A-f) was overruled in part by Matter of L-E-A-IL 27 I&N Dec. 581 (A.G. 2019). However, the Attorney General has since vacated Matter ofL-E-A-II in its entirety. See Matter of L-E-A-Ill 28 I&N Dec. 304 (A.G. 2021). Matter of L-E-A-1 therefore serves as controlling precedent in the instant case. 2 00000031251 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: I (b)(6) l Al (b)(6) I I _____ _____ (b)(6) (_b)_(6) _.~ Al Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Kevin Patrick Boyle, Esquire ON BEHALF OF DHS: Rachel L. Ketmg, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Chicago, IL Before: Couch, Appellate Immigration Judge Opinion by Appellate hmnigration Judge Couch COUCH, Appellate Innnigration Judge The respondents appeal from the Immigration Judge’s decision dated March 27, 2019, which denied their applications for asyhnn and withhokiing ofremoval mder sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), and protection under the Convention Against Torture, 8 C.F.R. § 1208.16(c). The Department of Homeland Sectttity has opposed the appeal The appeal will be dismissed. 1 We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the clearly erroneous standard. 8 C.F.R § 1003. l(d)(3)(i). We review all other issues, including issues of law, discretion, and judgment, WJ.der the de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondents are siblings, a brother who was 19 years old on the date of the decision of the Immigration Judge and a sister who was 8 years oki on that date. The male respondent claimed a fear ofreturn to El Salvador on accotmt of membership in the proposed social group of”yomg El Salvadoran men” (Tr. at 99), and the female respondent claimed a fear of return to El Salvador on 1 The respondents have not raised a specific challenge to the Immigration Judge’s denial of their applications for protection under the regulations in1>1ementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). We therefore deem this issue waived. See, e.g., Matter of A. J Valdez and Z. Valdez, 27 I&N Dec. 496, 496 nl, 498 n3 (BIA 2018) (noting that an issue addressed in an Immigration Judge’s decision is waived when a party does not challenge it on appeal). 00000031251 Al (b)(6) letal’ accomt of membership in the proposed social group of “nuclear fumily being threatened by criminal gangs” (Tr. at 100). The lrrunigration Judge found that the respondents, though credible (IJ at 4), did not satisfy their burden of proof for asylum or, by extension, the higher burden of proof for withholding of removal (JJ at4-9). See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevie, 467 U.S. 407 (1984). We adopt and affirm the decision of the Immigration Judge. Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). The argwnent on appeal does not persuade us that the experiences described in the male respondent’s testimony, consisting of 20 recruitment attempts and one phone call to his mother asking that she produce him, rise to the level of persecution (IJ at 4-6; Tr. at 59-70). See OrellanaArias v. Sessions, 865 F.3d 476, 487 (7th Cir. 2017). Considering the testimony of the male respondent, and that of msmother, particularly their explanation that the gang had an interest in recruiting minors, we are tmpersuaded on this record that the male respondent was targeted for reasons other than recruitment (IJ at 5-9; Tr. at 68, 88). Thus, the respondents have not shown clear error in the Immigration Judge’s fmding on motive for targeting the male respondent. See Matter of L-E-A-, 27 I&N Dec. 40, 44 (BIA 2017). 2 3 With respect to the female respondent’s claim based upon her membership in the particular social group of “nuclear family being threatened by criminal gangs,” it is well established that targeting a family member as a means to an end is not itself sufficient to establish a claim Id. at 45. Therefore, we will affirm the lrrunigration Judge’s denial of relief in this case. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 Although relied upon by the Immigration Judge, we do not rely on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), vacated by Matterof A-B-, 28 I&N Dec. 199 (A.G. 2021), in deciding this appeal 3 Matter of L-E-A-, 27 I&N Dec. 40, (BIA 2017) (”Matter of L-E-A-f) was overruled in part by Matter of L-E-A-IL 27 I&N Dec. 581 (A.G. 2019). However, the Attorney General has since vacated Matter ofL-E-A-II in its entirety. See Matter of L-E-A-Ill 28 I&N Dec. 304 (A.G. 2021). Matter of L-E-A-1 therefore serves as controlling precedent in the instant case. 2 00000031248 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATIER OF: ‘——–‘-(b-‘-)-‘–(6′–) ____ __,lAJ (h)(61 Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Tori Sullette Bryant, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Diego, CA Before: Grant, Appellate Irrnnigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondent, a native and cit:i?.en of Mexico, has appealed the Innnigration Judge’s March 29, 2019, decision finding him removable, and granting him voluntary departure. The appeal will be dismissed. We review an Immigration Judge’s :findings of fuct, including the credibility determination, tmder the “clearly erroneous” standard. 8 C.F.R. § I 003.1 (d)(3)(i). We review all other issues, including issues involving questions of law, judgment and discretion, tmder a de novo standard. 8 C.F.R. § 1003. l(d)(3)(ii). The record reflects that at an October 18, 2018, hearing the Irrnnigration Judge ordered the respondent to file any application for relief and supporting documents by December 31, 2018 (Tr. at 17). The Irrnnigration Judge specifically warned the respondent that failure to file the relief application would result in it being abandoned (Tr. at 18). However, no applications were filed by the time of the Irrnnigration Judge’s decision, which was ahnost 3 months after the filing deadline had passed (IJ at 1 ). The Innnigration Judge found that the respondent had, therefore, abandoned all applications for relief On appea~ the respondent contends that non-detained docket courts were closed at the time of his filing deadline due to the government shutdown (Notice of Appeal). He states that his attorney attempted to file the docwnents, but “security in the court and notices on EOIR websites indicated that once court resumed, all respondents would be provided with new deadline.” However, he was never infonned of any new deadline. We take administrative notice of the fact that all federal government offices were closed during the government shutdown from December 22, 2018, to January 25, 2019. See 8 C.F.R. § 1003.l(d)(3)(iv) (2020) (providing that we may take administrative notice of”com1nonly known facts’). However, the respondent has not submitted a copy of any notice posted by the San Diego 00000031248 Al (b)(6) Immigration Court during that time, nor otherwise substantiated his claim that the court informed respondents that they would be informed of the setting of deadlines. 1 The statement in the Notice of Appeal by the respondent regarding his attorney’s efforts to file “documents” is vague, mclear, and unswom regarding the contents of any such notice, when counsel attempted to file the documents, and what “documents” are being referenced. No sworn statement from the respondent’s counsel was provided on appeal corroborating any aspect of these claims. An Irrnnigration Judge may “set and extend time limits for the filing of applications and related documents and responses thereto, if any,” and provides that “[i]f an application or document is not filed within the time set by the Innnigration Judge, the opportunity to file that application or document shall be deemed waived.” 8 C.F.R. § 1003.31. We understand the fact that the deadline set by the lrrnnigration Judge was during a period of the governmental shutdown. However, that did not absolve the respondent from all responsibility with respect to the filing of any applications for relief Moreover, as the Immigration Judge noted, despite the passage ofahnost 3 roonths from the expiration of the filing date, and more than 2 months after the government shutdown ended, the respondent made no apparent effort to either file any application for relie( or ascertain whether a new deadline had been set (IJ at 1 ). Given this record, we affirm the Immigration Judge’s finding that the respondent abandoned any applications for relief Since the respondent has not submitted any evidence on appeal showing that he paid the associated bond, the Immigration Judge’s grant of voluntary departure shall not be reinstated. Accordingly, the following order shall be entered. ORDER: The appeal is dismissed. 1 Although it appears that the respondent wrote the Notice of Appea~ there is no evidence that he was present when counsel allegedly atterq,ted to file unspecified documents, or that he himself saw the alleged posting from the Immigration Court regarding the resetting of deadlines. It is, therefore, unclear where be got this infonnation. 2 i NOT FOR PUBLICATION 00000031245 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,.__ ____ ( ___ ) ( 6 ___ _,l Al.__(_b )_( 6) __. b ___ ) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Juan R. Gonzalez Esquire ON BEHALF OF DHS: Stacey Esterak, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Antonio, TX Befure: Liebowitz Appellate Immigration Judge ‘ Opinion by Appellate Immigration Judge Liebowitz LIEBOWITZ, Appellate Immigration Judge The respondent, a native and citizen of Mexico, appeals the Immigration Judge’s March 26, 2019, decision denying his request for a continuance. The Immigration Judge also denied the respondent’s application for asyhnn and withholding of removaL but the respondent does not challenge those aspects of the Immigration Judge’s decision. The Department of Homeland Security (DHS) has filed a motion for summary a:ffirmance. We will dismiss the appeal We review findings of fact determined by an Immigration Judge, including credibility .findings, under a “clearly erroneous” standard. 8 C.F .R. § 1003 .1 ( d)(3 )(i). We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(ii). Prior to his merits hearing, the respondent requested a continuance based on the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), holding that the stop-time rule of section 240A(d)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(l), is not triggered by a Notice to Appear (NT A) that fuils to identify the time and place of the hearing. The respondent argued that, because his NTA did not specify the time and date of his hearing, his accrual of continuous physical presence was not terminated and he is eligible for cancellation of removal He thus requested a continuance to file an application for cancellation of removal The Irnmigration Judge’s denial of the request was proper, as the respondent did not have the requisite continuous physical presence to be prima facie eligible for cancellation of removal even if the NTA did not terminate accrual The Immigration Judge cited the respondent’s assertion in his asylum application that he entered the United States on June 26, 2009. That entry date made him 3 months short of the 10 years of continuous physical presence required to be eligible for cancellation of removal Section 240A(b)(l)(A) of the Act. Under these circumstances, the (b)(6) I 00000031245 Immigration Judge did not err by denying a last-minute continuance. See Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) (setting forth factors for assessing whether good cause exists for a continuance); 8 C.F.R §§ 1003.29, 1240.6. The subsequent holding by the Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), that, for purposes of the stop-time rule, a deficient NTA cannot be perfected by a subsequent hearing notice and does not trigger the stop-time rule, might enable the respondent to now meet the continuous physical presence requirement if he can establish the continuity of his presence in the United States. However, the respondent’s brief does not address the other factors required for cancellation of removal Specilically, the respondent’s asyhnn application indicates that he has a United States citizen child, but the brief does not proffer how the respondent would establish that his removal would cause his child exceptional and extremely unusual hardship. The application also indicates that the respondent had a pending charge for driving while :intoxicated. His brief does not address the equities and any other relevant factors that would show he merits a favorable exercise of discretion. Motions to remand are subject to the same substantive requirements as motions to reopen, including showing prima :fu.cie eligibility for the relief sought on remand. Matter of Coelho, 20 I&N Dec. 464, 471-72 (BIA 1992). The respondent has not established prima :fu.cie eligibility for cancellation of removal, and thus has not shown that a remand is warranted for the purpose of pursuing such relief We will, therefore, dismiss the appeal ORDER: The appeal is dismissed. 2 00000031242 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: FILED Jan 27, 2022 ~_(_b)_(6)_~l ~~_(_b)_(6)_~ Respondent ON BEHALF OF RESPONDENT: Zhou M. Wang, Esquire ON BEHALF OF DHS: Geoffrey Ling, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Honolulu, HI Before: Montante, Appellate Immigration Judge Opinion by Appellate Immigration Judge Montante MONTANTE, Appellate Innnigration Judge The respondent, a native and citiz.en of China, appeals the Immigration Judge’s decision dated April 19, 2019, denying his applications for asyh.nn and withholding of removal under sections 208 and 241(b)(3) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ 1158 &’ 1231l(b)(3), as well as protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Ptmishment, Dec. 10, 1984, S. Treaty Doc. No. 10020, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’). The appeal will be dismissed. The Board reviews an Irrnnigration Judge’s findings of fact, including findings as to the credibility of testimony, under the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(ii). An Irrnnigration Judge may base a credibility determination on the demeanor, candor, or responsiveness of the respondent or witness, the inherent plausibility of the accotmt, and the consistency of the evidence, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the respondent’s claim, or any other relevant factor. Section 208(b)(I )(B)(iii) of the Act; 8 U.S.C. § 115 8(b )(1 )(B)(iii). The Irrnnigration Judge denied the respondent’s applications for relief and protection because he found that the respondent was not credible (IJ at 5-8). See 8 C.F.R. § 1003.l(d)(3)(i) (providing that the Immigration Judge may consider the ”totality of the circumstances, and all relevant factors” in assessing the credibility of an alien). The Innnigration Judge considered the totality of the circumstances and offered specific, cogent reasons fur finding that the respondent did not testify credibly, including identifying internal inconsistencies in his testimony, and inconsistencies 00000031242 Aj (b)(6) between the respondent’s testimony, written declaration, and documentary evidence (IJ at 5-8; Exhs. 2, 3). See section 208(b )(1 )(B)(iii) of the Act (providing that an adverse credibility determination may be based on inconsistencies between an applicant’s written and oral statements, whenever made and whether or not mder oath, and considering the circwn5tances mder which the statements were made). We conclude that the Irrnnigration Judge’s adverse credibility detennination is not clearly erroneous. See Matter of Ku/le, 19 I&N Dec. 318, 331-32 (BIA 1985) (noting the significant deference accorded an Immigration Judge’s credibility finding); see also Ling Huang v. Holder, 744 F.3d 1149, 1156 (9th Cir. 2014) (holding that an adverse credibility finding was fatal to both an asyh.un and withholding ofremoval claim). We have considered the respondent’s explanations on appeal and do not find them to be persuasive or to adequately reconcile the inconsistencies or to overcome the hmnigration Judge’s concerns (Respondent’s Br. at 6-8). The respondent bears the burden to establish his claim before the Immigration Judge, and he has not satisfuctorily explained the evidentiary anomalies. See section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A) (providing that an alien applying for relief or eligibility requirements). In addition, because the articulated fear of torture is essentially premised on the respondent’s claims based on alleged facts and events that the Immigration Judge questioned in the adverse credibility determination, the respondent did not carry his burden in establishing that it is more likely than not that be would be subjected to torture inflicted by or at the instigation of or with the consent or acquiescence of an official or other person acting in an official capacity, so as to qualify for protection under the CAT should he be returned to China. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017) (acknowledging that ineligibility for asyh.un and withholding of removal does not necessarily preclude eligibility for Convention Against Torture relie~ but concluding that when such an application is based on same factual predicate as the claim for asyh.un and withholding of removai an adverse credibility detennination may support denial ofall claims). Absent credible evidence, the Immigration Judge correctly fom1d the respondent did not meet bis burden of proving eligibility for asylum, withholding of removai and protection m1der the CAT. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUBLIC’ATION 0000011’31239 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) (b)(6) J l A! ‘—..——-( ______________ [ Al h)(f; ) (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Shamia R Watson, Esquire ON BEHALF OF DHS: Elizabeth M. Dewar, Assistant Chief CotmSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Owen, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Owen OWEN, Appellate Immigration Judge 1berespondents, natives and citizens of El Salvador, appeal the Immigration Judge’s decision, dated April 12, 2019, denying the lead respondent’s requests for asylum tmder section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, withhok:ling ofrerooval under section 241(b)(3) of the Act, 8 U.S.C. § 1231 (b )(3), and protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhwran or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’), and ordering their rerooval from the United States.1 The Department of Homeland Security (”DHS”) is opposed to the appeal We will dismiss the respondents’ appeal We review the :findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of .law, discretion, or judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(iI). It is the lead respondent’s burden to establish eligibility for relief from removal Section 240(cX4)(A) ofthe Act, 8 U.S.C. § 1229a(c)(4XA); 8 C.F.R § 1240.S(d). The lead respondent has not established eligibility for asyhnn See 8 C.F.R § 1208.13(b). In a filing received by the Immigration Court on March 28, 2019, she has identified proposed particular social groups consisting of (1) Salvadoran women viewed as property by virtue of their position in a domestic relationship; (2) Salvadoran women with kinship ties to gang members; and 1 The respondents do not dispute that they are subject to rerooval from the United States as charged (IJ at 1-2). See section 212(a)(7)(A)(0(I) of the Act, 8 U.S.C. § I 182(aX7XA)(0(1). The rider respondent, who is the lead respondent’s child, has not filed an independent application for relief from removal ~ (b)(6) letal 00000031239 ‘ (3) Salvadoran women. We do not affirmatively endorse or reject the proposed particular social groups. However, we agree with the Innnigration Judge that the lead respondent has not established that her membership in such proposed groups is a “central reason” for the claimed persecution (IJ at 11-12). See Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 214 (BIA 2007) (requiring that a protected grolll’ld be a “central reason” for the claimed persecution). “[T]he issue of nexus will depend on the facts and circl..llIBtances of an individual claim” Matter of A-R-C-G-, 26 l&N Dec. 388, 395 (BIA 2014); see also Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (vacating the prior decisions in Matter of A-B-). As found by the Immigration Judge, without clear error, “there’s insufficient evidence to show that the persecutor was motivated by any perception of the [lead] respondent as belonging to a group larger than hersel( but instead was motivated by personal animus by a violent man who connnitted a crime against her” (IJ at 11). See Matter ofN-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that a persecutor’s actual motive is a matter offuct to be determined by the Innnigration Judge and reviewed by us fur clear error’). While we have considered the claim; set forth in their Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) and its attachment, the respondents, who have not filed a separate appeal brief: have not identified any specific testimony or evidence contained in the record which persuades this Board to disturb the Immigration Judge’s holding that “[h]er membership in those groups was incidentat tangential, and superficial to that cause,” ie., the descnbed personal animus (IJ at 12). “[l]he asylum statute was not intended as a panacea for the numerous personal altercations that invariably characterize economic and social relationships.” Saldarriaga v. Gonzales, 402 F.3d 461,467 (4th Cir. 2005). For the reasons set forth above, we will not disturb the Innnigration Judge’s decision to deny the lead respondent’s claim to asylum as she has not established that her membership in any of the three proposed particular social groups is a central reason for the claimed persecution. In turn, she has necessarily not established eligibility for withholding ofremoval lll’lder the Act (IJ at 13). See 8 C.F.R § 1208.16(b); Matter ofC-T-L-, 25 l&N Dec. 341,347 (BIA 2010). The lead respondent has also not established eligibility for protection under the CAT (IJ at 14). While she may genuinely fear a private actor in El Salvador, her arguments on appeal do not persuade this Board that she has established, upon her remov~ it is more likely than not that she will be tortured by or at the instigation of or with the consent or acquiescence (including ”willful blindness”) of a public official or other person acting in an official capacity. See 8 C.F.R §§ 1208.16(c)(2), 1208.18(a); Matter of J-F-F-, 23 I&N Dec. 912, 917-18 (A.G. 2006) (holding that a claim to protection under the CAT cannot be granted by stringing together a series of suppositions). “Domestic abuse exists on a distressingly large scale in ahnost every country, but the government’s difficulty in eliminating this scourge does not equate to condoning it.” Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 219 (4th Cir. 2020). While the Salvadoran government has not completely eradicated crime and violence, it previously issued a restraining order to protect her and, when her grandrmther called the police, they arrived (IJ at 12). Uhimately, we do not :faultthe respondents for wishing to remain in the United States. They are not precluded from requesting a stay of removal from the DHS. See 8 C.F.R § 241.6. However, for the reasons set forth above, we affirm the Immigration Judge’s decision to deny the 2 00000031239 Al (b)(6) letal lead respondent’s claims and conclude these proceedings by ordering the removal of both respondents from the United States to El Salvador. 1he following order will be entered. ORDER: The respondents’ appeal is dismissed. 3 NOT FOR PUBLIC’ATION 0000011’31236 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) IAj (b)(6) .___ ____ (b_)(_6) ___.l (b)(6) ___ Al Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Shamia R Watson, Esquire ON BEHALF OF DHS: Elizabeth M. Dewar, Assistant Chief CotmSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Arlington, VA Before: Owen, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Owen OWEN, Appellate Immigration Judge 1berespondents, natives and citizens of El Salvador, appeal the Immigration Judge’s decision, dated April 12, 2019, denying the lead respondent’s requests for asylum tmder section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, withhok:ling ofrerooval under section 241(b)(3) of the Act, 8 U.S.C. § 1231 (b )(3), and protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhwran or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’), and ordering their rerooval from the United States.1 The Department of Homeland Security (”DHS”) is opposed to the appeal We will dismiss the respondents’ appeal We review the :findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of .law, discretion, or judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(iI). It is the lead respondent’s burden to establish eligibility for relief from removal Section 240(cX4)(A) ofthe Act, 8 U.S.C. § 1229a(c)(4XA); 8 C.F.R § 1240.S(d). The lead respondent has not established eligibility for asyhnn See 8 C.F.R § 1208.13(b). In a filing received by the Immigration Court on March 28, 2019, she has identified proposed particular social groups consisting of (1) Salvadoran women viewed as property by virtue of their position in a domestic relationship; (2) Salvadoran women with kinship ties to gang members; and 1 The respondents do not dispute that they are subject to rerooval from the United States as charged (IJ at 1-2). See section 212(a)(7)(A)(0(I) of the Act, 8 U.S.C. § I 182(aX7XA)(0(1). The rider respondent, who is the lead respondent’s child, has not filed an independent application for relief from removal Al…..,,……..,….C_b)_(6)_.letal 00000031236 _ (3) Salvadoran women. We do not affirmatively endorse or reject the proposed particular social groups. However, we agree with the Innnigration Judge that the lead respondent has not established that her membership in such proposed groups is a “central reason” for the claimed persecution (IJ at 11-12). See Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 214 (BIA 2007) (requiring that a protected grolll’ld be a “central reason” for the claimed persecution). “[T]he issue of nexus will depend on the facts and circl..llIBtances of an individual claim” Matter of A-R-C-G-, 26 l&N Dec. 388, 395 (BIA 2014); see also Matter of A-B-, 28 l&N Dec. 307 (A.G. 2021) (vacating the prior decisions in Matter of A-B-). As found by the Immigration Judge, without clear error, “there’s insufficient evidence to show that the persecutor was motivated by any perception of the [lead] respondent as belonging to a group larger than hersel( but instead was motivated by personal animus by a violent man who connnitted a crime against her” (IJ at 11). See Matter ofN-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that a persecutor’s actual motive is a matter offuct to be determined by the Innnigration Judge and reviewed by us fur clear error’). While we have considered the claim; set forth in their Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) and its attachment, the respondents, who have not filed a separate appeal brief: have not identified any specific testimony or evidence contained in the record which persuades this Board to disturb the Immigration Judge’s holding that “[h]er membership in those groups was incidentat tangential, and superficial to that cause,” ie., the descnbed personal animus (IJ at 12). “[l]he asylum statute was not intended as a panacea for the numerous personal altercations that invariably characterize economic and social relationships.” Saldarriaga v. Gonzales, 402 F.3d 461,467 (4th Cir. 2005). For the reasons set forth above, we will not disturb the Innnigration Judge’s decision to deny the lead respondent’s claim to asylum as she has not established that her membership in any of the three proposed particular social groups is a central reason for the claimed persecution. In turn, she has necessarily not established eligibility for withholding ofremoval lll’lder the Act (IJ at 13). See 8 C.F.R § 1208.16(b); Matter ofC-T-L-, 25 l&N Dec. 341,347 (BIA 2010). The lead respondent has also not established eligibility for protection under the CAT (IJ at 14). While she may genuinely fear a private actor in El Salvador, her arguments on appeal do not persuade this Board that she has established, upon her remov~ it is more likely than not that she will be tortured by or at the instigation of or with the consent or acquiescence (including ”willful blindness”) of a public official or other person acting in an official capacity. See 8 C.F.R §§ 1208.16(c)(2), 1208.18(a); Matter of J-F-F-, 23 I&N Dec. 912, 917-18 (A.G. 2006) (holding that a claim to protection under the CAT cannot be granted by stringing together a series of suppositions). “Domestic abuse exists on a distressingly large scale in ahnost every country, but the government’s difficulty in eliminating this scourge does not equate to condoning it.” Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 219 (4th Cir. 2020). While the Salvadoran government has not completely eradicated crime and violence, it previously issued a restraining order to protect her and, when her grandmother called the police, they arrived (IJ at 12). Uhimately, we do not :faultthe respondents for wishing to remain in the United States. They are not precluded from requesting a stay of removal from the DHS. See 8 C.F.R § 241.6. However, for the reasons set forth above, we affirm the Irrnnigration Judge’s decision to deny the 2 00000031236 Al (b)(6) letal lead respondent’s claims and conclude these proceedings by ordering the removal of both respondents from the United States to El Salvador. 1he following order will be entered. ORDER: The respondents’ appeal is dismissed. 3 <‘ I NOT FOR PUBUCATION 00000031233 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (;….;.b)..;…(6;….) (b)(6) ._ ___ __ ___,IAl Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Nathan Menta Zaslow, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Inunigration Court, San Francisco, CA Before: Owen, Appellate Immigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Irrnnigration Judge The respondent, a native and citizen of Mexico, appeals the Irrnnigration Judge’s decision dated April 9, 2019, that denied his claims for asyhnn, withhokling ofremovat protection under the Convention Against Torture. The appeal will be dismissed. The Board reviews an Immigration Judge’s findings of :fact, including findings as to the credibility of testirmny, under a clearly erroneous standard, and all other issue de novo. See 8 C.F .R § 1003.1 (d)(3)(i), (ii). As surrnnarized in the Immigration Judge’s decision, the respondent presented a claim for relief based on his rear of the l.etas criminal cartel that kidnapped and held the respondent’s brother for ransom (IJ at 2; Tr. at 35-73; Exh. 3). The respondent paid the money for hi5 brother’s release, and the family subsequently made various complaints to Mexican and United States authorities, as well as the to the bank where the ransom money was deposited (IJ at 2; Tr. at 35-41, 46-48). The respondent rears that the cartel would seek to harm him because of his relationship to his brother, and in reprisal for :filing complaints with authorities and the bank (IJ at 2). On appea4 the respondent argues that he has a well-founded rear of persecution in Mexico on account of his family social group membership because the cartel will believe that he has returned to pursue prosecution, or to exact revenge for his brother’s kidnapping (Respondent’s Br. at 10). He also asserts that his lire is in grave danger because he is a witness in the kidnapping of his brother (Resporxient’s Br. at 11). He asserts that the cartel’s threats to come after his family if they went to authorities establishes that he has an objectively reasonable rearof future persecution (Respondent’s Br. at 11-12). Finally, the respondent argues that cotmtry conditions evidence concerning the ruthlessness of the I(b)(6) !cartel and official corruption in Mexico, together with the circUIU5tances surrounding his brother’s kidnapping, is sufficient to establish the likelihood of persecution or torture with the acquiescence or willful blindness of Mexican authorities such that Al,__(_b )_( 6_) __, 00000031233 he has established eligibility for withholding of removal and protection under the Convention Against Torture (Respondent’s Br. at 12-15). We will affirm the Immigration Judge’s decision to deny the respondent’s application for asylum because he did not establish a well-founded fear of future persecution on account of one ofthe protected grOlmds enumerated in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (IJ at 5-7). See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009); Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 211-14 (BIA 2007). The respondent does not claim past persecution (IJ at 4). Therefore, he is not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R § 1208.13(b)(l). We will uphold the Immigration Judge’s determination that the respondent did not establish a well-founded fear of future persecution (IJ at 5). As explained by the Immigration Judge, the respondent failed to show that the ~e inclined to fin1her harm the respondent with regard to his family relationship, as neither the respondent nor his family received further threats, and the respondent even testified that the I(b )( 6) Itold him that the kidnapping of his brother had been a mistake (IJ at 5). Similarly, the respondent failed to show that the I(b)(6) Ihave any interest in carrying out their threats of reprisal for reporting the kidnapping to authorities (IJ at 6). Under the circllll1Stances, we agree that the respondent did not establish that his fear of future persecution is objectively reasonable and well-founded. We will also uphold the Immigration Judge’s determination that the respondent’s proposed social group based on witnessing cartel crime is not cognizable in any event (IJ at 5-6). The respondent’s circllll1Stances as a witness to crime are distinguishable from those in HenriquezRivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (holding that alien’s particular social group consisting of individuals who have testified in open court against criminal gang members was cognizable for asylum purposes), cited on appeai as the respondent did not subsequently testify in open court, and the record does not appear to establish that witnesses to crime in general are viewed by the Mexican population as a distinct social class. Moreover, we agree that the group lacks sufficiently clear boundaries to be cognizable for asylum purposes. See Matter of M-E-V-G-, 26 I&N Dec. 227,239 (BIA 2014) (“A particular social group must not be amorphous, overbroad, diffuse, or subjective, and not every ‘irrnnutable characteristic’ is sufficiently precise to define a particular social group.’). Inasmuch as the respondent did not meet the lower burden of proof for asyhnn, he cannot meet the higher burden of establishing a clear probability of persecution on account of a protected ground to establish eligibility for withholding of removal See section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A); Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). We also affirm the denial of the respondent’s application for protection under the Convention Against Torture (IJ at 7-8). In the absence of past torture and considering the speculative nature of the respondent claim, as well as the analysis underlying the determination that the respondent did not establish an objectively reasonable fear of future persecution, the Immigration Judge’s determination concerning the likelihood of the respondent’s torture when he returns to Mexico is 2 00000031233 . ‘ not clearly erroneous. See Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012) (stating that an lrmnigration judge’s predictive findings concerning future harm are reviewed for clear error); Matter ofZ-Z-O-, 26 I&N Dec. 586 (BIA 2015) (same); see also Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006) (explaining that the burden of proof wider the Torture Convention cannot be met by stringing together a series of speculative suppositions). See 8 C.F.R §§ 1208.16(c)(2) and 1208.18(a)(l); Zheng v. Ashcroft, 332 F.3d 1186, 1194-96(9th Cir. 2003) (stating the burden of proof for protection under the Convention Against Torture). Accordingly, the following order will be entered. ORDER The appeal is dismissed. 3 NOT FOR PUBLICATION 00000031230 U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: ~–(~b)_(6_) ~,__(_b)_(6)_~ -~l Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Delfino N. Varela, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cotnt, Los Angeles, CA Before: Owen, Appellate Immigration Judge Opinion by Appellate lnnnigration Judge Owen OWEN, Appellate Immigration Judge The respondent, a native and citizen of El Salvador, appeals the Immigration Judge’s decision, dated April 10, 2019, denying her requests for asyh.nn under section 208 ofthe Immigration and Nationality Act, 8 U.S.C. § 1158, and withholding ofremoval under section 241(b)(3) of the Act, 8 U.S.C. § 1231 (b)(3), and protection under the r,egulations implementing the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’), and ordering her removal from the United States. 1 We will dismiss the appeal. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003. l(d)(3)(i). We review all other issues, including issues of Jaw, discretion, or judgment, under a de novo standard. 8 C.F.R § 1003.l(d)(3)(n). It is the respondent’s burden to establish eligibility for relief from removal. Section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). We affirm the Immigration Judge’s decisioIL The respondent has not established eligibility for asylum The respondent, who claims to fear gang members in El Salvador, has not established that a protected ground is a “central reason” for the claimed persecution See Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 214 (BIA 2007). In her unpaginated appeal brie~ she refers to “asserted psg’s [sic].” However, in such brie( she does not identify the particular social group(s) upon which she is seeking relie~ nor argue, based upon specific testimony and evidence presented, that she has shown that membership in such group(s) is a central reason for the claimed persecution. The Irrnnigration Judge, at length, addressed the particular social groups identified in the previously filed ”PSG Statement” (IJ at 8-11; Exh. 6). The respondent, on appeal, does not meaningfully challenge the Immigration Judge’s rejection of such claims. 1 It is undisputed that the respondent is subject to removal from the United States as charged (IJ at 1-3). See section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I). Al~_(_b)_(6)_~ 00000031230 The respondent has also not established that her imputed political opinion is a central reason for the claimed persecution. On appeal, she advances a claim that she is ”being imputed the Political Opinion of being Pro Government / Anti-gang / Anti-Criminal in El Salvador.” As recognized by the Immigration Judge, the respondent ”hasn’t really expressed a political opinion to anyone” (IJ at 7). “At no point did any gang member or anyone ever express to the respondent that they cared about what she thought, what she believed, or her opinion” (IJ at 7). See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (rejecting a claim where the applicant failed to present evidence that he was politically or ideologically opposed to the ideals espoused by the gang or that the gang imputed to him any particular political belief). Ultimately, the Immigration Judge’s finding that the gang’s motivation is simply ‘)Jersonal” is not clearly erroneous. See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (holding that a persecutor’s actual motive is a matter of fact to be determined by the Immigration Judge and reviewed by us for clear error’). As opposed to supporting a holding that the respondent’s “asserted psg’~” or aforementioned imputed political opinion is a central reason for the claimed persecution, the record reflects that there is simply a personal dispute between the respondent and the feared gang members as they do not want her to testify against them (IJ at 7). See Pagayon v. Holder, 642 F.3d 1226, 1235 (9th Cir. 2011) (“A personal dispute is not, standing alone, tantamount to persecution based on an imputed political opinion.”). For the reasons set forth above, the respondent has not established eligtbility for asylum In turn, she has not established eligibility for withholding of removal She has not established that a protected ground is “a reason” for the claimed persecution (IJ at 13). See Barajas-Romero v. Lynch, 846 F.3d 351, 358-59 (9th Cir. 2017); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (holding that an applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). A protected ground ”is not any reason” for the claimed persecution (IJ at 13). The respondent has also not established eligibility for protection under the CAT (IJ at 13-14). The respondent, who was not previously banned in a manner rising to the level of torture, has presented a speculative fear of future harm in El Salvador which is lacking in the requisite degree of state action. While we recognize that gang violence is a serious issue in some parts of El Salvador, she testified that, if she served as a witness against gang members, she would receive police protection for a week (IJ at 14). Moreover, the Salvadoran police have already apprehended some of the feared gang members (IJ at 4 ). Overall, considering the entirety of the record, she has not established, upon her removal, it is more likely than not he will be tortured by or at the instigation of or with the consent or acquiescence (including ”willful blindness”) of a public official or other person acting in an official capacity. See 8 C.F.R §§ 1208.16(c)(2), 1208.18(a); Barajas-Romero v. Lynch, 846 F .3d at 363 (”CAT relief is unavailable, despite a likelihood of torture, without evidence thatthe police are llllwilling or unable to oppose the crime, not just that they are unable to solve it, as when the torturers cannot be identified.”); Matter of J-F-F-, 23 I&N Dec. 912, 917-18 (A.G. 2006) (holding that a claim to protection under the CAT cannot be granted by stringing together a series of suppositions). 2 Al~__ (b_)(_6)_~ 00000031230 For the reasons set forth above, we affirm the Immigration Judge’s decision to deny the respondent’s claims and order her removal from the United States to El Salvador. The following order is entered. ORDER: The respondent’s appeal is dismissed. 3 . . U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: FILED Jan 27, 2022 Respondent ON BEHALF OF RESPONDENT: Billy Jackson, Esquire ON BEHALF OF DHS: David L. Meek, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Orlando, FL Before: Wetmore, Chief Appellate Immigration Judge Opinion by Chief Appellate Immigration Judge Wetmore WETMORE, Chief Appellate Immigration Judge The respondent, a native and citizen of Haiti, appeals the Innnigration Judge’s April 8, 2019, decision denying his applications for asylum and withholding of removal llllder sections 208 and 241(bX3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3). 1 The Department of Homeland Security has moved for summary affirmance. The respondent’s appeal will be dismissed. We review the findings of :fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003.l(dX3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). We will affirm the denial of the respondent’s application for asylum for the reasons set forth in the Immigration Judge’s decision (IJ at 2-8). Specifically, we affirm the Immigration Judge’s decision denying asylum based on the Immigration Judge’s adverse credibility finding (IJ at 3-4), the finn resettlement bar (IJ at 5-6), as well as Jack of sufficient evidence to demonstrate that the respondent suffered past persecution or has a well-founded fear of future persecution on accollllt of bis religion or his membership in a proposed particular social group, which he defined as his Protestant religion (IJ at6-8; Tr. at 31-32). 1 During the January 31, 2019, hearing before the Irrnnigration Judge, the respondent, through counsei indicated that he was not seeking protection under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Pllllishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (IJ at2 n2; Tr. at 29-30). Al~_(_b)_(6_) _ 00000031227 First, there is no clear error in the Immigration Judge’s adverse credibility detennination (IJ at 2-4). The Immigration Judge’s adverse credibility finding is supported by several unexplained, material inconsistencies and omissions between the respondent’s testimony and his written statement (IJ at 3-4; Tr. at 59, 62-70, 78-79). We thus affirm the Immigration Judge’s denial of asylum on that basis for the reasons articulated by the Immigration Judge (IJ at 3-4). Next, regarding firm resettlement, the respondent argues on appeal that the Immigration Judge erred in finding he did not claim to have sufrered harassment and racial discrimination while living in Brazil (Respondent’s Br. at 6; IJ at 6). However, the Immigration Judge acknowledged the respondent’s testimony that he was often harassed on his way to work in Brazn, which made it difficult for him to maintain employment (IJ at 6). Ahhough the Immigration Judge subsequently noted that the respondent “did not claim to have sufrered harassment, discrimination, or persecution in Brazn,” the following sentence, “[i]n fuct, he indicated that he never had any problems with the government or police in Brazil,” indicates that the Immigration Judge was referring to no claim of harassment, discrimination, or persecution by Brazilian authorities (IJ at 6). Therefore, contrary to the respondent’s argument on appea~ the Immigration Judge acknowledged that the respondent claimed he suffered harassment and racial discrimination in Brazil by some Brazilian people. However, such harassment and discrimination, according to the respondent’s testimony, was by ”racist Brazilians,” and not by the Brazilian government or police, with whom he testified he never had any problem; (IJ at 6; Tr. at 51-52, 75, 78). We agree with the Immigration Judge that the evidence demonstrates the respondent was firmly resettled in Brazil before coming to the United States based on his testimony that he lived in Brazil from January 2013 until July 2016, and that he was offered residency in Brazil, although he did not become a resident because he did not supply the requisite documentation (IJ at 5; Tr. at 45-46, 77). Further, as the Immigration Judge found, the respondent was given ”protocol” documents that enable him to work and rent hoU5ing in Brazil, and he was free to enter and later re-enter that country (IJ at 5-6; Tr. at 46-47). We also concur with the Immigration Judge that the respondent did not establish an exception to the firm resettlement bar applies (IJ at 6). We thus affirm the denial of asylt.nn on that basis for the reasons articulated by the Immigration Judge (IJ at 5-6). Additionally, we concur with the Immigration Judge’s detennination that, even if the respondent had not firmly resettled in Brazil and had demonstrated past persecution or a wellfounded fear of future persecution in Haiti by voodoo practitioners, he did not demonstrate that such past or future persecution was or will be on accomt of his religion, his membership in a proposed particular social group cornprned of members of the Protestant religion, or any other protected ground under the Act (IJ at 7-8). We agree with the Immigration Judge’s analysis that the harm to the respondent by the voodoo practitioners was not on account of his religion as a Protestant, per se, but because the voodoo practitioners believed his prayer meetings bad an adverse economic impact on them due to people using prayer instead of paying for voodoo practices to try to heal their ailments (IJ at 7-8). There is no clear error in the Immigration Judge’s finding that the voodoo practitioners’ actions were financially motivated. 8 C.F.R § 1003.1 (d)(3)(i); see Matter of N-M-, 25 I&N Dec. at 531 (recognizing that motive is a finding of fuct for 2 > • Al (b)(6) 00000031227 the Irrnnigration Jooge to determine, which is reviewed for clear error). Fmther, as the Immigration Judge noted, the respondent did not submit objective evidence that the voodoo practitioners in Haiti targeted him on account of a protected ground under the Act (IJ at 8). We thus affirmthe denial of asylum on that basis for the reasons articulated by the Immigration Judge (IJ at 6-8). Finally, we ttnn to the r_espondent’s application for withholding of removal under section 241(b)(3) of the Act. We affirm the denial of the respondent’s application based on the Immigration Judge’s adverse credibility determination, which we previously upheld (IJ at 2-4). Additionally, as the Irmnigration Judge correctly found, the respondent did not meet the lower burden of proof for asylum, and thus he necessarily cannot meet the higher burden to show that it is more likely than not that he would be persecuted on account of a protected ground under the Act (IJ at 8). See Ruiz v. U.S.Att ‘y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006); see also Sepulveda v. U.S.Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). We thus affirm the Immigration Judge’s denial of withholding ofrermval under section 241(b)(3) of the Act for the reasons articulated by the Immigration Judge (IJ at 8). Accordingly, the following order will be entered. ORDER: The respondent’s appeal is dismissed. 3 00000031224 , NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: ,…._ ____ _____ __,l (h V 1,) —-‘(-=-b )”‘-(6=-c) Al Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Randy Alexander, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Montante, Appeillate hnmigration Judge Opinion by Appellate Immigration Judge Montante MONTANTE, Appellate Immigration Judge The respondent, a native and citiz.en of Guatemala, bas appealed from the Immigration Judge’s decision dated April 12, 2019, denying his applications for asyhun and withholding of removal llllder sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), and protection wider the regu]ations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the lnnnigration Judge wider the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R § 1003.l(d)(3)(iI). We agree with the Innnigration Judge that the respondent is ineligible for asyhun because he did not timely file bis application (IJ at 4). See section 208(a)(2)(B) of the Act, 8 U.S.C. § 1158(a)(2)(B). In bis brie( the respondent does not argue either that he filed bis asylum application within a year after he arrived in the United States or that an exception to the filing deadline applies. Rather, the respondent argues that the filing deadline is tmfair and should be waived. However, the Board is bound by the statutes. See MatterofG-K-, 26 I&N Dec. 88 (BIA 2013). In addition, the respondent argues that he experienced past persecution in Guatemala and faces a clear probability of persecution on accotmt of his membership in a particular social group composed of everyone in Guatemala who is not a member of a criminal gang (Respondent’s Br. at 7). See section 208(b )(1 )(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010) (holding that a protected grotmd nnist be a “central reason” for claimed persecution). The 00000031224 AJ (h)(6) respondent testified that gang members robbed him in 2001 and 2002 because he was in possession ofnxmey (IJ at3-4; Tr. at 17-20). While the respondent’s experiences are regrettable, there is no clear error in the Immigration Judge’s determination that the respondent provided insufficient evidence to establish that gang members targeted him as punishment because he was not a member of a criminal gang (IJ at 7). See Barajas-Romero v. Lynch, 846 F.3d 351, 359 (9th Cir. 2017) (protected ground must be a reason for claimed persecution for withholding of removal). The respondent’s rear of criminality in Guatemala is not a basis for withholding ofremoval See Zetino v.Holder, 622F.3d 1007, 1015 (9th Cir. 2010). In addition, based on the reasons stated by the Innnigration Judge, the respondent did not establish meDDership in a cognizable particular social group (IJ ay 6-7). Hence, the respondent is ineligible for withholding of removal Fwther, the respondent argues that he is eligible for protection under the CAT. However, we agree with the Immigration Judge that the respondent provided insufficient evidence to establish that it is more likely than not that he will suffer torture in Guatemala and his government would turn a blind eye to it (IJ at 9). Hence, the respondent is ineligible for CAT protection. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031221 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~I_____ (~h~V~”‘~—–l Al (b)(6) ! ~I~_-_-_-_-_-_-_-_-~(b=)(=6)=========l Al (b )( 6) ! Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Pro se ON BEHALF OF DHS: Ian Tomasic, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Imnigration Court, Kansas City, MO Before: Grant, Appellate Irrmigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate hmnigration Judge ORDER: The Board affirms, without opinion, the resuh of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R § 1003.l(e)(4). 1 The hmnigration Judge’s order incorrectly lists the rider respondent’s name (b)(6) asl I (b)(6) I ._ __ _. NOT FOR PUBLICATION 00000031218 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ___._(b'”-‘)a…;( ..__ ___ 6_._)____ _,,lAl (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Patricia M. Mendoza, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Miami, FL Before: Cassidy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge The respondent, a native and citizen of Guatemala, appealed the Immigration Judge’s decision, dated April 17, 2019, which denied her applications for asyhun, withholding of reroovai and protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, I 994) (CAT). See sections 208, 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123 I(b)(3); 8 C.F.R. § § 1208 .16, 18. The appeal will be dismissed. We review the findings of fact, including the detennination of credibility, made by the Immigration Judge mder the “clearly erroneous” standard. See 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under ade novo standard. See 8 C.F.R. § 1003.l(d)(3)(ii). The respondent did not raise an argument on appeal concerning the Immigration Judge’s lack of credibility finding or the CAT determination. Thus, we find these arguments waived. See Matter of R-A-M-, 25 l&N Dec. 657, 658 n2 (BIA 2012) (observing that the failure to meaningfully appeal an issue from an Immigration Judge’s decision constitutes waiver before the Board); Matter of Edwards, 20 I&N Dec. 191, 196-97 n4 (BIA 1990) (noting that issues not addressed on appeal are deemed waived). Prestnning the issue of credibility were properly before us, we agree with the Immigration Jooge’s determination that the applicant’s testimony lacked credibility, because the testimony was not consistent, detailed, and persuasive (IJ at 10-13). See 8 C.F.R. § 1003.l(d)(3)(i). The Immigration Judge properly considered the totality of the circurmtances and reasonably relied on the discrepancies between the respondent’s testimony and documentary evidence regarding the Al,__(_b )_( 6_) ___, 00000031218 events that occtnTed in Guatemala (IJ at 10-13; Tr. at 65). See section 240(c)(4)(C) of the Act, 8 U.S.C. § 1229a(c)(4)(C). The Immigration Judge considered the applicant’s explanations, but did not find them persuasive. We discern no clear error in the Immigration Judge’s adverse credibility finding. See Matter QfD-A-C-, 27 I&N Dec. 575, 579 (BIA 2019) (“An Immigration Judge ‘is not required to accept a respondent’s assertions, even if plausible, where there are other permissible views of the evidence based on the record.”). The Immigration Judge found the respondent’s demeanor was non-responsive several times when she was asked questions and :failed to answer (IJ at 10). Further, when the respondent was asked about the sequence of events that occtnTed, concerning her uncle’s death and her :father paying gang members, she provided non-responsive answers (IJ at 1 0; Tr. at 107-08; Exh 5 at 85). The respondent’s asylum application omitted significant details which concerned direct telephone calls from gang members that threatened her life and demanded that she pay money each week (IJ at 11; Tr. at 101-05, 108-09). The respondent’s asylum application indicated she resided three hours away from her parents for approximately 10 years prior to leaving Guatemala; however, she testified at the removal hearing that she lived with her parents when the threats occtnTed and prior to leaving to the United States (IJ at 11; Tr. at 89-90, 92, 95, 109-11 ). The Innnigration Judge provided the respondent with an opportunity to update or correct her asylum application prior to the commencement of the removal hearing, and no updates to the application were made (IJ at 11; Tr. at 65). We agree with the Immigration Judge’s consideration that this discrepancy directly relates to her claim, because she claims she was with her family and it was her relationship to her :family that caused her to flee Guatemala; however, her asylum application indicated she apparently actually lived three hours away from her parents (IJ at 11-12; Tr. at 8990, 92, 95, 109-11} Additionally, the respondent testified she left Guatemala after her father commenced paying the gang members extortion (IJ at 12; Tr. at 99, 111-13). She also testified, however, that her father did not start paying the gang members until _after her uncle was killed, which was subsequent to when she fled Guatemala (IJ at 12; Tr. at 96, 101, 111-13 ). The respondent was provided an opportunity to resolve these inconsistencies, but the Immigration Judge found she either did not offer an explanation concerning the discrepancy, or the account she provided was not persuasive (IJ at 12; Tr. at 112-13). The Immigration Judge further found the respondent :failed to corroborate her claim by providing birth certificates for her uncle, her parents, and herself (IJ at 12-13; Tr. at 73-74). The record did not establish the claimed relationship to her uncle, the one mtrrdered by the gang members (IJ at 12-13; Tr. at 73-74 ). The respondent did not provide an original copy of the newspaper article examining the death of her uncle (IJ at 13; Tr. at 68-69, 97-99; Exh. 5, Tab E). In light of these and other discrepancies in the record, we agree with the Immigration Judge’s determination that the respondent’s testimony lacked credibility (IJ at 10-13). The respondent argues she is eligible for a discretionary grant of humanitarian asylum (Respondent’s Br. at 7-8). See Matter of L-S-, 25 I&N Dec. 705, 710 (BIA 2012); 8 C.F.R 2 Al (b)(6) 00000031218 § 1208.13(b)(l)(i)(A)-(B) The Immigration Judge fomd the respondent did not establish that she was banned in Guatemala, because her testimony was fotllld to lack credibility (IJ at 10-13). As the respondent did not establish that she was persecuted on accowit of an enumerated grollllds, she is not eliglb le for humanitarian asylum, which is a form of relief available only to individuals who have established past persecution on account of an enumerated grolllld and is reserved for the most extraordinary cases. See 8 C.F.R § 1208.13(b)(l)(iii)(A)-(B); Mehmeti v. US Att’y Gen., 572 F.3d 1196, 1200-01 (11th Cir. 2009); MatterofL-S-, 25 l&N Dec. at 707-15. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 NOT FOR PlJIM;~,\IJON U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATfEROF: .____….;_(b.;;._;)(….;_6)___,t (b)(6) _ Aj Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Suraj R. Singh, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondent, a native and citizen of India, appeals from an Immigration Judge’s December 20, 2018, decision, denying his motion to reopen proceedings in which he was ordered removed in absentia on November 1, 2018. The Immigration Judge’s November 1,2018, decision is the finaladministrative decision in this matter. The appeal will be dismissed. We review findings offuct determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R. § 1003.l{d)(3)(i). We review de nova questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges. 8 C.F.R. § 1003.l(d)(3)(ii). We adopt and affirm the Immigration Judge’s decision Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). While we acknowledge that the respondent’s counsel filed a written motion for a change of venue with the Irrnnigration Court on October 31, 2018, the mere filing of such motion’ did not excuse the respondent from appearing at his removal hearing on November 1, 2018. See Matter of Rivera, 19 l&N Dec. 688 (BIA 1988) (“‘The respondent could not merely assmne that the motion for a venue change would be granted, or would result in a continuance.’). Moreover, the motion was denied the same day it was filed. • We affirm the Irrnnigration Judge’s conclusion that the respondent did not establish that his failure to appear was due to exceptional circumstances beyond his control See section 240(b)(5)(C)(0 ofthe Immigration and Nationality Act; 8 C.F.R § 1003.23(b)(4)(ii). We also affirm the Immigration Judge’s determination that respondent did not warrant sua sponte reopening. See MatterofG-D-, 22 I&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 l&N Dec. 976 (BIA 1997). Accordingly, the following order will be entered. Al.__(b_)(_6)_ _, 00000031215 ORDER: The respondent’s appeal is dismissed. 2 NOT FOR PUBLICATION 00000031212 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ._ ___ (b ….. …… _,,lAl ……)(6) ___ (b)(6) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: G1selle E.Reid, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, New Orleans, LA Before: Gonzalez., Temporary Appellate Innnigration Judge1 Opinion by Temporary Appellate Innnigration Judge Gonzalez GONZALEZ, Temporary Appellate Innnigration Judge The respondent, a native and citizen of Guatemala, appeals from the April 11, 2019, decision of the Innnigration Judge denying her applications for asyhnn under section 208 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and her request for protection under the regulations implementing the Convention Against Torture and Other Cruei Inlu:nnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). The Department of Homeland Security has not :filedany opposition to the respondent’s appeal The record will be remanded. We review the findings of fact, including the determination of credibility, trade by the Innnigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003.1(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R § 1003 .1 ( d)(3 )(ii). On appeai the respondent contends that the Innnigration Judge erred in denying her applications for asylum, withholding ofremov~ and protection under the CAT. The lnnnigration Judge determined that the respondent credibly testified to having experienced severe doirestic violence rising to the level of past persecution (IJ at 5-9, 12). The Immigration Judge further found, inter alia, that the respondent did not establish a cognizable particular social group, relying on Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018) (IJ at 10-11). However, subsequent to the Immigration Judge’s decision, the Attorney Generai in Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021), vacated the prior A-B-decisions in their entirety. See also Matter of L-E-A-, 28 I&N 1 Temporary Appellate Innnigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). Al.__(_b )_( 6_) ____. 00000031212 304 (A.G. 2021). Under these circlD’IlStances, the record will be remanded to the Immigration Judge to reevaluate the respondent’s eligibility for relief based on ctnTent case law. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); Matter of Chen, 20 I&N Dec. 16 (BIA 1989); EOIR Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and arguments. 2 Accordingly, the following order will be entered. ORDER: The record is remanded for fin-ther proceedings consistent with the foregoing opinion and for the entry of a new decision 2 On remand, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the DHS should indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relie( agreeing to administrative closure, or requesting termination or dismissal of the proceedings. 2 00000031209 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: FILED Jan 27, 2022 Respondent ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Orlando, FL Before: Grant, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Grant GRANT, Appellate Innnigration Judge The respondent’s appeal will be dismissed. Efforts by the Clerk’s Office at the Board of Irrnnigration Appeals to reach the respondent by mail have been unsuccessful, and we lack an address to which mail can effectively be sent. The record does not contain a change of address notification reflecting a new mailing address. This order will, nevertheless, be mailed to the last address of the appealing party. In the event that this order is received by the appealing party, we will consider reinstating the appeal if we receive a timely motion to reconsider. See 8 C.F.R. § 1003.2(b)(2) (providing that a motion to reconsider must be received by the i:3oard within 30 days of the mailing of the Board’s decision in a case). 0 RDER: The appeal is dismissed. 00000031206 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~—-(b_)(_6) ___ ~1Al (h)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Rosa Maria Berdeja, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cow1, Dallas, TX Before: Mullane, Appellate lmnigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge ORDER: The Board affirms, without opinion, the resuh of the decision below. The decision below is, … therefore, the final agency determination. See8 C.F.R § 1003.l(e)(4). 00000031203 N()T FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: Respondent (b)(6) FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Murray D. Hilts, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Diego, CA Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge The respondent, a native and citizen of Mexico, appeals an hnmigration Judge’s April 30, 2019, decision denying her cancellation of removal fur certain nonpennanent residents, but granting her vohmtary departure. See sections 240A(b) and 240B(b) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229b(b), 1229c{b). The Depart:rrent of Homeland Security (DHS) has not filed an opposition brief The appeal will be dismissed, and the period of vohmtary departure will be reinstated. 1 Wereview the Immigration Judge’s factual findings for clear error. 8C.F.R § 1003.1 (d)(3)(i). We review de novo all other issues, including issues of law, discretion, or judgment. 8 C.F.R § 1003 .1 (d)(3 )(ii). The Immigration Judge foWld that the respondent was ineligible for cancellation of removal because her sole qualifying relative -her United States citizen child -had “aged out” by turning 21 before the cancellation application was adjudicated (IJ at 3-6). See section 240A{b)(l)(D) of the Act; see also section l0l(b)(l) of the Act, 8 U.S.C. § l l0l(b)(l) (defining “child” under the Act as “an unmarried person W1der twenty-one years of age’). We adopt and affirm the Immigration Judge’s decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We discern no clearly erroneous facts in the decision, and the decision also comports with the legal precedent cited therein. We have reviewed the respondent’s arguments on appeal but deem them unpersuasive. The respondent has not shown a due process violation for the reasons set forth by the Immigration Judge. Accordingly, the appeal will be dismissed. However, because the respondent has proffered The respondent’s request for review by a three-member panel is denied. 8 C.F.R. § I 003.1 (e)(6). 00000031203 Al.__ _,_(b-‘–‘)(—‘6)’—__, proof of payment of the requisite bond, we will reinstate the period of vohmtary departure granted by the Inunigration Judge. See 8 C.F.R § 1240.26(c)(3). Accordingly, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge’s order and conditioned upon compliance with conditions set forth by the Inunigration Judge and the staMe, the respondent is pennitted to vohmtarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (DHS). See section 240B(b) of the Irrnnigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R § 1240.26(c), (f). In the event a respondent mils to vohmtarily depart the United States, the respondent shall be removed as provided in the lnnnigration Judge’s order. NOTICE: If a respondent mils to vohmtarily depart the United States within the time period specified, or any extensions granted by the OHS, the respondent shall be subject to a civil penalty as provided by the regu]atio ns and the statute, and shall be ineligible for a period of 10 years for any fi.nther relief W1der section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B( d) of the Act. WARNING: If a respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of vohmtary departure is automatically terminated; the period allowed for vohmtary departure is not stayed, tolled, or extended. If the grant of vohmtary departure is automatically tennina ted upon the filing of a motion, the penalties for :failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R § 1240.26(e)(l). WARNING: If; prior to departing the United States, a respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of vohmtary departure is automatically terminated, and the alternate order of removal shall innnediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order ofremoval if the alien provides to the OHS such evidence of his or her departure that the Inunigration and Customs Enforcement Field Office Director of the OHS may require and provides evidence OHS dee~ sufficient that he or she has remained outside of the United States. The penalties for :failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R § 1240.26(i). 2 00000031200 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ——(b-)(-6) (b)(6) _____ ~ AJ….,IAl (b)(6) (b)(6) FILED Jan 27, 2022 Respondents ON BEHALF OF RESPONDENTS: Frank E. Ronzio, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Los Angeles, CA Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The respondents, a mother and her minor child who are natives and citizens of Guatemala, appeal from the April 11, 2019, decision of the lmmigratio n Judge denying the respondents’ applications for asyhnn under section 208 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 24l(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and their requests for protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). The Department of Homeland Security (DHS) has not filed any opposition to the respondents’ appeal The record will be remanded. We review the findings of :met, including the determination of credibility, made by the . Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F .R. § 1003.l(d)(3)(it). On appeaL the respondents contend that the hnmigration Judge erred in denying the applications for asyhnn, withholding ofremovaL and protection mder the CAT. We acknowledge and appreciate the lnnnigration Judge’s reasoning and decision. However, subsequent to the Irrnnigration Judge’s decision, the Attorney Genera~ in Matter of A-B-, 28 I&N Dec. 307 {A.G.2021 ), vacated the prior A-B-decisions in their entirety. See also Matter ofL-E-A-, 28 I&N 304 (A.G. 2021 ). Under these circumstances, and in an abundance of caution, the record will be 1 Temporary Appellate hnmigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031200 ,AJ (b )( 6) let al remanded to the Irrn:nigration Judge to reevaluate the respondents’ eligibility for relief based on current case law. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); Matter of Chen, 20 I&N Dec. 16 (BIA 1989); EOIR Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and arguments. 2 Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 On remand, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the DHS should indicate whether the respondents are an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relief: agreeing to administrative closure, or requesting termination or disIIIBsal of the proceedings. 2 00000031197 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: I (b)(6) l ftJ (b)(6) ,._I —-(-b)-(6-) —-, Al (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Frank E. Ronzio, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Los Angeles, CA Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The respondents, a mother and her minor child who are natives and citizens of Guatemala, appeal from the April 11, 2019, decision of the Immigration Judge denying the respondents’ applications for asyhnn under section 208 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1158, withholding of removal under section 24l(b)(3) of the Act, 8 U.S.C. § 123l(b)(3), and their requests for protection under the regulations implementing the Convention Agairlst Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). The Department of Homeland Security (DHS) has not filed any opposition to the respondents’ appeal The record will be remanded. We review the findings of :met, including the determination of credibility, made by the . Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F .R. § 1003.l(d)(3)(it). On appeaL the respondents contend that the hnmigration Judge erred in denying the applications for asyhnn, withholding ofremovaL and protection mder the CAT. We acknowledge and appreciate the lnnnigration Judge’s reasoning and decision. However, subsequent to the lrrnnigration Judge’s decision, the Attorney GeneraL in Matter of A-B-, 28 I&N Dec. 307 {A.G.2021 ), vacated the prior A-B-decisions in their entirety. See also Matter ofL-E-A-, 28 I&N 304 (A.G. 2021 ). Under these circumstances, and in an abundance of caution, the record will be 1 Temporary Appellate hnmigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031197 1′,,_—–‘(….;..b )…;._( 6′-)__,let al remanded to the Irrn:nigration Judge to reevaluate the respondents’ eligibility for relief based on current case law. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); Matter of Chen, 20 I&N Dec. 16 (BIA 1989); EOIR Director’s Memorandum 22-03 (Administrative Closure). On remand, both parties may submit additional evidence and arguments. 2 Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 On remand, pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the DHS should indicate whether the respondents are an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relief: agreeing to administrative closure, or requesting termination or disIIIBsal of the proceedings. 2 NOT FOR pl.JWfi~:.i.tloN U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: _____ r_i,,,~rr:._, ___,\ (b)(6) ____ AJ ._ ____ …..) _____ _,lAj (b)(6)____.(..;;.b)’-‘-(6 Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Bernadine H. Layne, Esquire ON BEHALF OF DHS: Melissa E. Lanning, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Charlotte, NC Before: Mullane, Appellate Immigration Judge Opinion by Appellate Inn:nigration Judge Mullane MULLANE, Appellate Irrnnigration Judge ORDER: The Department of Homeland Security’s motion to withdraw its appeal is granted. See8 C.F. R. § 1003.4. NOT FOR pl.JWfi~:.i.TION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) I.,AJ (b)(6)._I______ (.;…b….._____ _,l,AJ (b)(6) ….)(6 ) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Bernadine H. Layne, Esquire ON BEHALF OF DHS: Melissa E. Lanning, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Charlotte, NC Before: Mullane, Appellate Immigration Judge Opinion by Appellate Inn:nigration Judge Mullane MULLANE, Appellate Irrnnigration Judge ORDER: The Department of Homeland Security’s motion to withdraw its appeal is granted. See8 C.F. R. § 1003.4. 1\ ‘ • • 00000031182 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—~(b~)(~6) ____ ~1Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Rasha Qwmiyeh, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Marui, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Mann MANN, Appellate Immigration Judge A Notice of Appeal (Form EOIR-26) must be filed ‘within 30 calendar days of an Immigration Judge’s oral decision or the mailing of a written decision mtless the last day railson a weekend or legal holiday, in which case the appeal must be received no· later than the next business day. 8 C.F.R § 1003.38(b), (c). In the instant case, the Immigration Judge’s decision was rendered orally on November 4, 2019. The appeal was accordingly due on or before December 4, 2019. The record reflects that the Notice of Appeal was filled with the Board on December 5, 2019. The appeal will be sunnnarily dismissed pursuant to 8 C.F.R § 1003.l(d)(2)(i)(G) as it was late. The Immigration Judge’s decision is accordingly now finai and the record will be returned to the Immigration Court without further Board action. See 8 C.F.R §§ 1003.3(a), 1003.38, 1003.39, 1240.14 and 1240.15. In light of the foregoing, the following orders will be entered. ORDER: The appeal is smnmarily dismissed. .. NOT FOR PUJ!~’JJON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~—-~<b~)(_6)~ ____ __,lAl (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Timothy R Woods, Esquire ON BEHALF OF DHS: Brian Sandberg, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Bahimore, MD Before: Mahtabfur, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mahtabfur MAHT ABF AR, Appellate Immigration Judge This Board has been advised that the Department of Homeland ~ecurity’s (DHS) appeal has been withdrawn See 8 C.F.R. § 1003.4. ORDER: The Immigration Judge’s November 8, 2019, decision granting the respondent withholding of rermval under Article III of the Convention Against Torture relief will remain in effect and is the final administrative decision The record is returned to the lrrunigration Court without further action NOT FOR P~Jrr!~hiTJON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~—(~b)~(6~) (b)(6) –~I Al Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Brian Seyfried, Esquire ON BEHALF OF OHS: Tracy C. Riley, Assistant Chief Cotm.5el IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Phoenix, AZ Before: Grant, Appellate Immigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge ORDER: This Board has been advised that the respondent’s appeal has been withdrawn See 8 C.F.R. § 1003.4. Since there is nothing now pending before the Board, the record is returned to the Immigration Court without :further action. 00000031173 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATTER OF: ~——(b_)(_6) _____ ~1 Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: Laura Fleming, Deputy Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Chicago, IL Before: Mann, Appellate Immigration Judge Opinion by Appel.late Immigration Judge Mann MANN, Appel.late Immigration Judge The Department of Homeland Security (DHS) has filed an appeal from the Innnigration Judge’s decision dated December 19, 2019, terminating proceedings without prejudice. The appeal will be dismissed. We review the Innnigration Judge’s findings of fact for clear error. 8 C.F.R. § 1003.l(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R. § 1003 .1 ( d)(3 )(h). The respondent was placed into removal proceedings via a Notice to Appear (NTA) that was served on June 22, 2018, which did not include the date and time of removal proceedings. At the first hearing, the respondent moved to terminate proceedings based on the service of a defective NTA. The DHS opposed the motion at the hearing (Tr. at 2-3). The Immigration Judge granted the respondent’s motion as timely because it was made before pleadings were taken, terminated proceedings without prejudice, citing Ortiz-Santiago v. Barr, 924 F .3d 956 (7th Cir. 2019), and denied the DHS ‘s request to amend the NT A (IJ at 1 ; Tr. at 3 ). In Ortiz-Santiago v. Barr, 924 F.3d at 962-64, the Seventh Circuit held that the statutory requirement that a Notice to Appear for a removal hearing include the time, date, and place of the hearing was not jurisdictional in nature. See section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a). The Seventh Circuit held that section 239(a) of the Act is a claimsprocessing rule, as opposed to a jurisdictional one. Ortiz-Santiago v. Barr, 924 F.3d at 962-63, 966. The court further detennined that omitting the specific infunnation in the Notice to Appear was not unimportant or could be ignored but that an objection could be forfeited if not timely raised. Id. at 963, 966. The court determined, however, that the Innnigration Judge could and J 00000031173 11..______,(“””‘”b )-“-(6,_) __. should quash a defective Notice to Appear where there is a prot11Jt objection and that a new Notice to Appear may be issued. Id. at 965. Subsequently, based on Seventh Circuit authority, receipt of a defective Notice to Appear followed by a timely objection entitles a respondent to have the removal proceedin~ terminated, and in such instances, the respondent need not show prejudice. See De La Rosa v. Garland, 2 F.4th 685, 686-88 (7th Cir. 2021) (reversing and remanding Board’s affirrnance of Irrnnigration Judge’s denial of motion to terminate). The Seventh Circuit has indicated that an objection made after the respondent conceded removability would be untimely. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir. 2006) (concession by cotmSel of removability as charged “waives any objection to the IJ’s finding of removability, including the argument that the IJ lacked jurndiction to find him removable.’). The respondent here moved to terminate prior to pleadin~ being taken. As such, the Irrnnigration Judge reasonably found the objection to be timely. Cf Meraz-Saucedo v. Rosen, 986 F.3d 676, 683 (7th Cir. 2021) (“the relevant inquiry is whether [the respondent] raised his objection during the proceedin~ before the IJ after receiving the defective NTA’). Because the respondent received a defective Notice to Appear and raised a timely objection, termination of proceedings was appropriate.1 For that reason, we will dismiss the appeal of the DHS. ORDER: The appeal is dismissed. 1 The DHS argues that we should remand for the DHS to “cure” the NTA by amending it. That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective Notice to Appear. See De La Rosa v. Garland, 2 F.4th at 686-88; Ortiz-Santiago v. Barr, 924 F.3d at 965. However, because the Immigration Judge terminated proceedings without prejudice, the DHS may issue a new NTA at any time. See Ortiz-Santiago v. Barr, 924 F.3d at 965 (“A new, compliant Notice could have issued .. .”); see also, e.g., Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017) (the DHS ‘s decision to institute proceedings is a matter of prosecutorial discretion within the DHS’s jurisdiction). 2 . \ 00000030839 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATTER OF: ! (h)(6’\ L Aj (b)(6) I ‘-;:I ==========(b=)(=6)==========~b AJ (b )( 6) ! l~______ _______ (b)(6) ___,_(b.._,)(_.6) _,lAl Respondents FILED Jan 28, 2022 ON BEHALF OF RESPONDENTS: Alberto Lopez, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflrrmigration Appeals Before: Creppy, Appellate Innnigration Judge Opinion by Appellate Innnigration Judge Creppy CREPPY, Appellate Innnigration Judge This matter was last before the Board on June 22, 2020, when we dismissed the respondents’ appeal from the Irrmigration Judge’s March 27, 2018, denial of their applications for asylum and withholding of removal under sections 208(b)(l)(A) and 241(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A) and 123l(b)(3)(A), and protection under the regulations implementing the Convention Against Torture and Other Crue~ Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA’I). The respondents, who are all natives and citizens of El Salvador, have filed a motion to reconsider our June 22, 2020, decision, with respect to their eligibility for asylum and withholding of remova~ as well as their statutory eligibility to apply for voluntary departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b). The Department of Homeland Security (DHS) has not responded to the motion. The respondents’ motion to reconsider will be denied in part and granted in part, and the record will be remanded to the Immigration Judge for consideration of the respondents’ request for voluntary departure. A motion to reconsider contests the correctness of the prior decision based upon the previous fuctual record. Matter of O-S-G-, 24 I&N Dec. 56, 57-58 (BIA 2006). A party seeking reconsideration requests that the original decision be reexamined in light of alleged legal or fuctual errors, a change of law, or an argument or aspect of the case that was overlooked. Id.; Matter of Cerna, 20 I&NDec. 399 (BIA 1991). A motion to reconsider. must be filed with the Board within 30 days after the mailing of the Board decision which the movant seeks to have reconsidered. 8 C.F.R. § 1003.2(b)(2); Matter of G-D-, 22 l&N Dec. 1132, 1133 (BIA 1999). The respondents’ motion was thus due on or befure July 22, 2020. The respondents initially filed an incomplete motion to reconsider, which the Board 00000030839 ~ (b)(6) Iet al rejected on July 24, 2020. They ultimately filed a complete motion to reconsider on August 5, 2020. The respondents’ motion was therefore untimely filed. 8 C.F.R § 1003.2(b)(2). The respondents request that we grant their untimely motion, arguing that an internal clerical mistake at counsel’s offices amounts to “exceptional circum5tances” warranting reconsideration of their case notwithstanding the untimeliness of their motion to reconsider (Respondents’ Motion at 2). However, ”we may not casually set (the time and nwnerical] limits aside or otherwise undennine them through the exercise of our independent regulatory power to reopen or reconsider cases.” Matter of G-D-, 22 I&N Dec. at 1134. Toe internal error made by counsel’s staff is not the sort of ”truly exceptiona 1 situation[]” which could overcome the time limit on filing a motion to reconsider. See generally id. at 1133-34 (“As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.’). In view of the foregoing, in relation to the respondents’ request for reconsideration of their applications for asylwn and withholding of removal, we deny the respondents’ motion as untimely. In the alternative, even disregarding the untimeliness of the respondents’ motion, we nevertheless deny the motion with respect to their asylwn and withholding ofremoval applications. We observe that the respondents have not challenged our June 22, 2020, decision insofar as it upheld the Innnigration Judge’s finding that they did not establish the requisite nexus between any past or feared harm and a protected characteristic ~ (b)( 6) I et al, Al (h )( 6) Iat 1 (BIA June 22, 2020); IJ at 11 (‘111here’s no indication that the respondents were targeted specifically because they were family.”) (emphasis added), 13 (observing that the respondents did not establish that their family membership was even “a reason” for past or feared hann); cf Respondent<;’ Motion at 3). See Matter of M-F-O-, 28 I&N Dec. 408, 410-13 (BIA 2021) (reviewing for clear error the Irrmigration Judge’s findings of fact regarding the persecutors’ motives for targeting the noncitizen); see also Singh v. Barr, 935 F .3d 822, 827 (9th Cir. 20 J9) (Immigration Judge finding of no nexus to a protected grolll1d means that even the lower standard of nexus for withho Id ing ofremoval is not satisfied). Therefore, irrespective of whether we were persuaded by the respondents’ argwnents concerning the cognizability of their proposed family-based particular social group, reconsideration would not be warranted as the nexus finding provides an independent basis for denial of both asylum and withho Id ing of removal (IJ at 9-13 ). See, e.g., Matter of W-G-R-, 26 I&N Dec. 208,223 (BIA 2014) (“An applicant’s burden includes demonstrating the existence of a cognizable particular social group, his membership in that particular social group, and a risk of persecution on account of his membership in the specified particular social group.’). Moreover, the respondents’ argwnents in their motion to reconsider do not persuade us that we erred in affirming the Irrmigration Judge’s detennination, for the reasons set forth in his decision, that the respondents did not establish that family members of the lead respondent (Al (h)(6) b comprise a cognizable particular social group for purposes of establishing their eligibility for asylum and withholding of removal (IJ at 9-12). See Matter of L-E-A-, 27 I&N Dec. 40 (BIA 201 7) ( whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by 2 00000030839 Al (b)(6) letal the society in question); see also MatterofM-F-O-, 28 I&N Dec. at 412 n.6 (explaining that Matter of L-E-A-, 27 I&N Dec. at 40, remains good law). In particular, the respondents highlight no evidence of record revealing that the Irrnnigration Judge erred in finding that they provided “no evidence that the [lead respondent’s] fumily is viewed as socially distinct within the society in question” (IJ at 11 (emphasis added); cf Respondents’ Motion at 3). See generally Matter ofH-L-S-A-, 28 I&N Dec. 228,231 (BIA 2021) (“To establish a valid particular social group under the Act, the applicant must demonstrate that his proposed group is ‘(I) composed of members who share a connnon immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'” (quoting Matter of M-E-V-G-, 26 I&N Dec. 227,237 (BIA 2014) (emphasis added))). For all the foregoing reasons, we deny the respondents’ motion to reconsider insofur as it relates t<_>the denial of their applications for asylum and withholding ofremovaL Nevertheless, we conclude that reconsideration of the respondents’ case is warranted with regard to their request for voluntary departure (Respondents’ Motion at 4). Sua sponte reconsideration of a case may be warranted where there has been a fundamental change in law which Illl)acts the disposition of the case. Matter of G-D-, 22 I&N Dec. at 1134-35. In the proceeding.5 below, the Innnigration Judge concluded that the respondents were ineligible to apply for volwitary departure because they each had been served with a Notice to Appear (Form I-862) less than I year after their arrival to the United States (IJ at 15). We affirmed that determination based on then-current law, despite the fuct that the respondents’ Notices to Appear did not provide the time or date of their initial removal hearing O (b)(6) ~However, we subsequently concluded, in Matter of M-F-O-, 28 I&N Dec. at 415-17, that a notice to appear that does not specify the time or place of a respondent’s initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure under section 240B(b) of the Act, even if the respondent is later served with a notice of hearing specifying this information. Our holding in Matter of M-F-O-qualifies as a fimdamental change in law relative to the respondents’ eligibility to apply for voluntary departure under section 240B(b) of the Act. Consequently, we will grant the untimely motion for the limited purpose ofremanding the record to the Innnigration Judge so that the respondents may request voluntary departure under section 240B(b) of the Act. Accordingly, the following orders will be entered. ORDER: The motion to reconsider is denied with regard to the respondents’ applications fur asylum and withholding ofremoval FURTHER ORDER: The motion to reconsider is granted with respect to the respondents’ request to pursue voluntary departure under section 240B(b) of the Act. FURTHER ORDER: The record is remanded to the Irrnnigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 3 NOT FOR PUJ&l,~o’\,1lON U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ~–(b_)(6_) __ ~~ Al (b)(6) Beneficiary ….._ ………. Petitioner (b…,)(6.._.)_….,~ FILED .JAfJ14 2022 ON BEHALF OF PETITIONER: Orlando Mondragon, Esquire ON BEHALF OF DHS: Julie Hollowell, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, National Benefits Center Before: Gorman, Appellate Immigration Judge; Goodwin, Appellate Immigration Judge; Greer, Appellate Immigration Judge Opinion by Appellate Immigration Judge Gorman; Appellate Immigration Judge Greer, dissents without opinion GORMAN, Appellate Immigration Judge The Notice of Appeal to the Board of Immigration Appeals from the Decision of a USCIS Officer (Form EOIR-29) in this case is not signed by the petitioner, which is the party who has standing to appeal. 8 C.F.R. § 1003.3(a)(2). Nor is the appeal accompanied by a Notice of Entry of Appearance as Attorney or Representative before the Board (Form EOIR-27) filed by counsel for the petitioner, as required by 8 C.F.R. § 1003.3(a)(3). Rather, the Form EOIR-29 is signed by counsel who submitted a Form EOIR-27 that indicates counsel represents the beneficiary. The regulations at 8 C.F.R. § 1003.3(a)(2) state that only the party affected by a decision is entitled to appeal to the Board. See Matter of Sano, 19 l&N Dec. 299 (BIA 1985); Matter of DaBaase, 16 I&N Dec. 720 (BIA 1979). Considering the circumstances above, it is not evident from the record that the appeal was initiated by the petitioner or an authorized representative. 8 C.F.R. § 1292.4(a). Thus, we lack jurisdiction to consider the appeal. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. Appellate Immigration Judge Anne J. Greer respectfully dissents without opinion. 00000030761 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,____(_b )_( 6_) ___,lAl (b )( 6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Theodore N. Cox, Esquire IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Eleventh Circuit Before: Brown, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge Brown BROWN, Temporary Appellate Immigration Judge The respondent is a native and citizen of the People’s Republic of China. The case is before the Board pursuant to an August 26, 2020, order from the United States Court of Appeals for the Eleventh Circuit. 2 The court construed the government’s W1opposed motion to remand as a motion to vacate, and vacated the Board’s March 2, 2020, decision affirming the Immigration Judge’s denial of the respondent’s motion to reopen. The court remanded the record to the Board for finther proceedings as outlined in the government’s motion to reassess our determination that the respondent was required to demonstrate a change i:ncoW1try conditions when the motion to reopen filed with the Immigration Judge was timely. A noncitiz.en who has been ordered removed cannot file a successive asylum application except as part of a timely and properly filed motion to reopen or one that claims that the late motion is excused because of changed coWltry conditions. Chen v. U.S. Atty. Gen., 565 F.3d 805, 810 (11th Cir. 2009). In om prior decision we cast the issue in terms of whether the respondent established changed comtry conditions because we affirmed the Immigration Judge’s finding that the respondent’s successive asylum application was l.llltimely (BIA at 2). We mistakenly overlooked that the respondent’s motion was timely. Upon our reassessment, we conclude that we should have considered whether the Immigration Judge correctly detennined that the respondent did not establish her prima fucie eligibility for asylum based on either her newfound Christian belief or the upcoming birth of her third child (IJ at 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003. l(a)(l), (4). 2 The respondent’s case has an extensive procedural history, which the Immigration Judge set forth in his last decision. We will grant the respondent’s motion to accept her late filed brief 00000030761 ;\J (b)(6) 5-11; Respondent’s Br. at 13). INS v. Abudu, 485 U.S. 94, 104 (1988) (stating that a m:>tion to reopen will not be granted unless the respondent establishes prima facie eliglbility for the W1derlying relief sought). An applicant dem:>nstrates prima fucie eligibility when the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied. MatterofL-O-G-, 21 I&N Dec. 413 (BIA 1996). The Irrnnigration Judge concluded that the respondent did not dem:>nstrate prirna fucie eliglbility for asyhnn because her subjective fear of persecution on accoWlt of her religious belief was not objectively reasonable (IJ at 5-8). Sepulveda v. U.S. Att’y. Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (looking to record evidence to detennine whether the nonciti.zen’s subjective fear of returning to her native country was objectively reasonable); Matter of J-W-S-, 24 I&N Dec. 185, 188 (BIA 2007) (citing INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)). The Immigration Judge folllld that there was insuffJCient record evidence that Chinese authorities were aware, or were likely to become aware, of the respondent’s conversion to Christianity in the United States (IJ at 6). We discern no clear error in this finding. The respondent did not provide independent evidence reflecting awareness of the respondent’s conversion, and her statement that she would attend an underground church and spread the gospel is not sufficient to establish a reasonable likeliliood that she wouJd be singled out for persecution on accoW1t of her religion (IJ at 6; Motion, Attachment at 14). Based on country condition evidence, the Immigration Judge also found that ahbough there were reports of the destruction of religious buildings and arrests of individuals worshipping in house churches, the evidence was not with respect to the respondent’s native provioce of Fajian (IJ at7; Motion, Attached Exh. Rat 100-04,Exh. Vat 122, Exh. Wat 129-30). The Immigration Judge correctly determined that the respondent did not establish that her subjective fear of persecution on account of her Christian religion was objectively reasonable. Similarly, the respondent did not establish her prima fucie eligibility for asyh.Im based on her third pregnancy (IJ at 8-11 ). The respondent relied on evidence that was already part of the record (IJ at 9, 10; Motion to Reopen at 15). Hence, this evidence does not constitute new, material evidence that was previously unavailable or not discoverable. 8 C.F.R § 1003.23(b)(3). Moreover, it does not address the family planning policies in place after China implemented its two-child policy in January 2016 (IJ at 10). See Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, China Country Reports on Human Rights Practices (2017) (”CoW1try Report for 2017”) at 54; 8 C.F.R § 1003.1(d)(3)(iv). We agree with the Immigration Judge that the respondent did not provide evidence of CWTent family planning or sterilization policies relevant to a woman such as the respondent who was pregnant with her third child (IJ at 10). Moreover, as with her religious asylum claim, the respondent did not provide sufficient evidence reflecting that similarly situated persons are persecuted in Fujian (IJ at 10, 11). There is no clear error in the Immigration Judge’s finding, based on admirustrative notice of the Country Report for 2017 (then the roost recently available), that there was in.5ufficient evidence to show the enforcement of forced abortions on, or forced sterilization o( Fujian women who violate the two-cbild policy (U at 11). Cm.mtry Report for 2017 at 55; 8 C.F.R § 1003.l(d)(3)(iv). 2 00000030761 Al,..__-‘-‘(h-‘-‘1’–‘-(6″‘-1_ _, The cmmtry report reflects that married couples may apply for permission to have a third child if they meet certain regulations (IJ at 11 ). Id. at 54. For these reasons the respondent did not demonstrate a reasonable likelihood that the requirements fur establishing a well-founded fear of persecution on account of her Christian religion or third pregnancy would be met. Hence, because the respondent did not establish her prima facie eligibility for asylum, we affirm the Immigration Judge’s decision to deny the motion to reopen The respondent has also filed a motion to remand. She asserts again that she is eligible for asyhnn based on her Christian religion and the birth of her third child in 2018. The requirements for a motion to remand are essentially the same as the requirements for a motion to reopen Matter o/Coelho, 20 I&N Dec. 464 (BIA 1992); 8 C.F.R. § 1003.2(c). We will deny the motion to remand. First, the respondent did not provide any new and previously unavailable evidence concerning the forced sterilization of women who violated China’s two-child policy in Fujian province. Rather, the respondent relies on Qiu Yun Chen v. Holder, 715 F.3d 207, 212 (7th Cir. 2013), a case that discusses the now outdated policies regarding sterilization of women in Fujian who violated China’s one-child policy (Motion to Remand at 15). 1l1e outdated decision carries no persuasive weight. Second, although the evidence reflects increased restrictions on religious freedom in general, and the closure of hundreds of home churches, the evidence (including portions highlighted by the respondent) does not make sufficient reference to such restrictions and closures in Fujian. For example, the 2019 Annual Report of the Congressional-Executive Commission on China mentions restrictions in several provinces, but not in Fujian (Motion to Remand, Tab C at 15-17). Throughout the 2017 China Aid annual report there are references to Zhejiang, Henan, Jiangsu, Shandon, Shanxi, and Hebei provinces but references to instances of religious persecution or mistreatment in Fujian province is limited to a warning given to a Ph.D. candidate for distributing Gospel tracts on campus (Motion to Remand, Attached Documents at 93) and the closure of a house church for “Korean collaboration” (Motion to Remand, Attached Documents at 89, 110). Therefore, we are not persuaded that the respondent has established her prima facie eligibility for asylwn on acco\lllt of her Christian religion based on the evidence provided with the motion to remand. Accordingly, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: The motion to remand is denied. 3 NOT FOR PUBLICATION 00000030758 U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATIER OF: ______ (b_)(6_)____ ~l Al (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Cesar Martin Estela, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Grant, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge This case was last before the Board on May 10, 2019. By a decision of that date, relying on Matter of Bermudez-Cota, 27 l&N Dec. 441,447 (BIA 2018), the Board denied the respondent’s motion for reconsideration filed in reliance on Pereira v. Sessions, 138 S. Ct. 2105 (2018). On October 21, 2020, the respondent filed a motion to reopen proceedings relying on Guadalupe v. Att’y Gen of U.S., 951 F.3d 161 (3d Cir. 2020), seeking the sua sponte reopening of these proceedings. The Department of Homeland Security (DHS) has not responded to the motion The motion will be denied. 1he respondent argues that the Notice to Appear that initiated his removal proceedings was defective, and, thus, did not trigger the “stop-time rule” for purposes of cancellation of removal. 1 See Guadalupe v. Att’y Gen of U.S., 951 F.3d at 162, 164-67 (rejecting the contrary holding in Matter of Mendoza-Hernandez, 27 l&N Dec. 520 (BIA 2019)).2 The record reflects that the respondent entered the United States in May of 2005 and was served with a defective Notice to Appear on May 25, 2005 (Exh. I). Nonetheless, to the extent that the respondent is seeking cancellation of removal under section 240A(b)(l) of the Act, reopening is not warranted as he has 1 The respondent’s motion is not paginated. As such, we cannot provide citations to specific pages of the motion Subsequent to the decision in Guadalupe v. Att ‘y Gen of U.S., the Supreme Court’s decision in Niz-Chavez v. Garland, No. 19-836, 141 S. Ct. 1474 (2021), held that a Notice to Appear that does not contain the date, time, and location of the initial hearing cannot be cured by a subsequent Notice of Hearing containing the missing information for purposes of ending the accrual of continuous physical presence for purposes of an application for cancellation ofremovaL Al (b)(6) 00000030758 not established prima facie eligibility for such relief See INS v. Abudu, 485 U.S. 94, 105 (1988); Matter of F-S-N-, 28 I&N Dec. 1, 3 (BIA 2020). In support of the motion, the respondent has submitted an application for cancellation of removal for nonpermanent residents, under section 240A(b) of the Act, 8 U.S.C. § 1229b(b), birth certificates of his United States citizen children, and copies of his tax returns. However, he has not articulated any reason to hold that, if proceedings were r~opened, there would be a reasonable probability he would demonstrate that his removal from this country would result in exceptional and extremely unusual hardship to his United States citizen children. See section 240A(b)(Q(D) of the Act; Matter of J-J-G-, 27 I&N Dec. 808, 814-15 (BIA 2020) (reiterating that the application of the exceptional and extremely unusual hardship standard at section 240A(b )(Q(D) of the Act must be limited to truly exceptional situations). Finally, sua sponte reopening is not warranted. While we recognize that the respondent may have accrued equities in this country, he has not established an exceptional situation which warrants sua sponte reopening. See Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999) (recognizing that, as a general matter, sua sponte authority is invoked sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations); Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Further, the respondent has not set forth any reasons why he failed to attend the hearing that resulted in the entry of an in absentia order of removal For the reasons set forth above, the following order is entered. ORDER: The motion to reopen is denied. 2 NOT FOR PUBLICATION 00000030755 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ~——(b_)(_6) _____ ___.IAl (b)(6) Beneficiary .__ __ )::….:.r___ Petitioner ___,_r.:..:.h __.,l F..;..;.)_, FILED JAN 13 2022 ON BEHALF OF PETITIONER: Rusty O’Brien, Esquire ON BEHALF OF DHS: Christopher Zervic, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Louisville, KY Before: Goodwin, Appellate Immigration Judge Opinion by Appellate Immigration Judge Goodwin GOODWIN, Appellate Immigration Judge The petitioner appeals from the Field Office Director’s (“Director”) December 11, 2018, decision denying the visa petition submitted on behalf of the beneficiary as the spouse of a United States citizen. See section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 115 l(b)(2)(A)(i) (2018). The Department of Homeland Security (“DRS”) opposes the appeal. The appeal will be dismissed. 1 We review all questions arising in appeals from decisions of United States Citizenship and Immigration Services (“USCIS”) officers de novo. See 8 C.F.R. § 1003.l(d)(3)(iii) (2021). The Director denied the instant visa petition pursuant to section 204(c) of the Act, 8 U.S.C. § 1154( c ). Under section 204( c) of the Act, a visa petition cannot be granted on behalf of a beneficiary who has sought to be accorded immediate relative or preference status as the spouse of a United States citizen or lawful permanent resident by reason of a marriage determined to have been entered into for the purpose of evading the immigration laws. The evidence of a fraudulent marriage “must be documented in the alien’s file and must be substantial and probative.” Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990); see also Matter of P. Singh, 27 l&N Dec. 598 (BIA 2019). We have reviewed the record of proceedings, including the December 11, 2018, 1 The petitioner’s request for oral argument before the Board is denied. Al.,__..;..;(b”””‘)(“”-6)’–_. 00000030755 decision of the Director, the September 20, 2018, Notice oflntent to Deny (NOID), the petitioner’s response to the NOID, and the parties’ arguments on appeal. Based on our review of the evidence of record, we adopt and affirm the December 11, 2018, decision of the Director denying the petitioner’s-visa petition pursuant to section 204( c) of the Act. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). The record supports a finding, by substantial and probative evidence that the beneficiary’s prior marriage was entered into for the purpose of evading the immigration laws. See Matter ofTawjik, 20 I&N Dec. at 167. Further, contrary to the petitioner’s assertion, we determine that the Director properly considered and weighed the evidence of record and made an independent conclusion with regard to the applicability of section 204( c) of the Act even though the prior petition had been withdrawn. Id. at 168;see also 8 C.F.R. § 103.2(15). Although the beneficiary’s former spouse’s infidelity contributed to the brevity and breakup of their marriage, there was insufficient evidence presented to show that the parties ever lived together, held themselves out as a married couple, or co-mingled their funds; and the former spouse’s death certificate stated that she was never married. As such, the Director properly considered and weighed the evidence of record to conclude that there was substantial and probative evidence of marriage fraud. Thus, section 204( c) of the Act applies in the instant case and serves to bar the approval of the visa petition filed by the petitioner on the beneficiary’s behalf. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUBLICATION 00000031170 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) ~ AJ (b)(6) Respondent .FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Eric H. Singer, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Atlanta, GA Before: Goodwin, Appellate Immigration Judge; Gorman, Appellate hnmigration Judge; Greer, Appellate Immigration Judge Opinion by Appellate Immigration Judge Gorman GORMAN, Appellate Immigration Judge This case was last before us on August 27, 2020, pursuant to an order issued by the United States Court of Appeals for the Eleventh Circuit. I (b)(6) II (b)(6) I In our August 27, 2020, decision, we vacated the Immigration Judge’s March 6, 2019, decision denying the respondent’s applications for asylum and withholding ofremoval under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), as well as his request for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. IO, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). We remanded the record to the Immigration Judge for further fact-finding and analysis, and the Immigration Judge again denied the respondent’s applications on November 20, 2020. The respondent filed this timely appeal. The Department of Homeland Security (OHS) has not responded to the appeal. The record will be remand~d again for further proceedings and the entry of a new decision. We review the findings of fact made by the Immigration Judge, including the determination of credibility, for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, de novo. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent, a native and citizen of Bangladesh, filed for asylum claiming past harm and a fear of future harm on account of his political opinion and membership in a particular social group comprised of members of the Liberal Democratic Party (LDP). The Immigration Judge found that the respondent credibly testified as follows (IJ at 3-4). Between 2017 and 2018, the respondent was threatened, attacked, and beaten by J (b)(6) Ithe current ruling political party in Bangladesh, because of his support for the LDP, the minority political party (IJ at 4; Tr. at 4, 22-23, 45, 49). Al (b)(6) 00000031170 At the outset, we note that the Immigration Judge’s decision is problematic for appellate review, in part, because, although he found the respondent’s testimony credible, he made several comments in his decision questioning the veracity of the respondent’s claim (IJ at 3-4). Thus, it is unclear whether he gave the respondent’s credible testimony the appropriate weight in analyzing the respondent’s claim. Moreover, the Immigration Judge’s decision, at times, conflates the issues of credibility and corroboration. For example, the Immigration Judge concluded in one instance that a lack of corroboration undermined the veracity of the respondent’s claim that he was attacked by AL supporters, notwithstanding the positive credibility finding (IJ at 4-5). See section 208(b )(1 )(B)(ii) of the Act (“The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee”). Accordingly, for purposes of this appeal, we afford the respondent’s testimony full weight. Nevertheless, in doing so, we are unable to determine whether the respondent carried his burden of proof to establish eligibility for the reliefrequested, as the Immigration Judge did not engage in adequate fact-finding on certain key issues (IJ at 4-7). See Sanchez Jimenez v. US. Att’y Gen., 492 F.3d 1223, 1237 (11th Cir. 2007); see also Matter of A-P-, 22 I&N Dec. 468 (BIA 1999); Matter of M-P-, 20 I&N Dec. 786, 787-88 (BIA 1994) (stating that an Immigration Judge must fully explain a decision’s reasoning in order to allow the respondent a fair opportunity to contest the decision and the Board an opportunity for meaningful appellate review). For instance, we cannot determine whether the past harm experienced by the respondent is sufficiently severe, when considered cumulatively, to rise to the level of persecution, as the Immigration Judge did not make sufficient findings of fact concerning the specific mistreatment the respondent experienced, or any resultant injuries, treatment, or on-going consequences of the encounters (IJ at 7; Tr. at 30-31, 34, 63-64, 66-70; Exh. 7 at Tab A). See Martinez v. US. Att ‘y Gen., 992 F.3d 1283, 1291 (11th Cir. 2021) (stating that the evaluation of the evidence of persecution, which is an “extreme concept,” must be based on the cumulative effect of the allegedly persecutory incidents); Niftaliev v. US. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007) (finding that the cumulative effect of numerous beatings, arrests, searches, and interrogations, culminating in a fifteen-day food-deprived detention, compelled a finding of past persecution). Accordingly, on remand, the Immigration Judge should make specific factual findings regarding the respondent’s encounters with AL members between 2017 and 2018, including, but not limited to, findings regarding any threats, attacks, and beatings by the AL members and with what frequency such events occurred in making a determination as to whether the harm cumulatively rose to the level of persecution (U at 4; Tr. at 4, 22-23, 45, 49; Respondent’s Br. at 2, 4). Similarly, the Immigration Judge did not make specific findings of fact with respect to the motivation of the AL members in their encounters with the respondent when evaluating whether there was a nexus between the asserted harm and a protected ground (IJ at 4, 8-9). As motive is a factual finding critical to the nexus analysis, we conclude that remand of the record is further required for the Immigration Judge to make the necessary motive findings. 2 Al.,__.,_,(b”-‘-”)(-=6).,___. 00000031170 See Matter ofN-M-, 25 I&N Dec. 526, 532 (BIA 2011); see also Corralles-Hernandez v. US. Att’y Gen., 836 F. App’x 761, 764 (11th Cir. 2020). Moreover, we discern no clear error in the Immigration Judge’s finding that the AL attackers were private individuals, particularly in the absence of any meaningful appellate challenge to this finding. In light of the AL attackers’ private-actor status, however, we conclude that further factfinding and analysis is required with respect to whether the government was or is willing and able to protect the respondent from the AL members (IJ at 4). See Ayala v. US. Att’y Gen:, 605 F .3d 941, 950 (11th Cir. 2010) (holding that [ a ]n applicant for asylum who alleges persecution by a private actor must prove that his home country is unable or unwilling to protect him because “[t]he statutes governing asylum and withholding of removal protect … against persecution by non-governmental groups that the government cannot control.”). In determining that the Bangladeshi government was able and willing to protect the respondent, the Immigration Judge acknowledged the respondent’s attempts to make police reports, but stated that “mere inaction by local police on two occasions does not establish that the government condoned the action of the private actors or that they were unable or unwilling to control them” (IJ at 5).1 However, the Immigration Judge did not adequately address the ~espondent’s testimony that the police threatened to take him into custody if he continued in his efforts to report the attacks by the AL attackers (IJ at 7; Tr. at 34-35, 66, 70). See Lopez v. US Au ‘y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (holding that an applicant who alleged persecution by a private actor must prove that he “is unable to avail [him]self of the protection of h[is] home country” by presenting evidence that he reported the persecution to local government authorities or that it would have been useless to do so); see also Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000). Thus, we conclude that the Immigration Judge must further address the question of the Bangladeshi government’s ability and willingness to protect the respondent in evaluating his eligibility for asylum. On remand, the Immigration Judge should give both parties an opportunity to update the record. The Immigration Judge may take any other action he deems appropriate for resolution of the respondent’s case. In remanding, we express no opinion regarding the ultimate·outcome of these proceedings. :: Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with this decision and for the entry of a new decision. 1 Although the Immigration Judge relied on Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018) (“A-B-I”) for this proposition, Matter of A-B-1 was vacated during the pendency of this appeal, and there is no published precedent from the Eleventh Circuit adopting or rejecting the unable or unwilling standard set forth in Matter of A-B-I. See Matter of A-B-, 28 I&N Dec. 307, 309 (A.G. 2021) (“A-B-Ilf’). Accordingly, we decline to rely on this portion of A-B-1 in our analysis here. 3 NOT FOR P~f’i~A1nON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ‘—–‘-(b-‘-)(‘–‘6) __ ___,lA] (h )( 6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Cassidy, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge This case was last before us on January 14, 2021, when we dismissed the Wltimely appeal by the respondent of the hnmigration Judge’s October 5, 2020, decision denying his request for a reduction of the bond set for his release. On January 29, 2021, the respondent filed the in.5tant motion seeking reopening. The motion will be denied. The respondent’s motion to reopen is timely, as it was filed within the 90 day period following the Board’s January 14, 2021, decision See section 240(c)(7)(C)(i) of the hnmigration Nationality Act, 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R § 1003.2(c)(2). and However, the respondent’s motion neither includes previously unavailable establishes that we erred in our prior decision to deny his appeal as witimely. evidence nor In any event, inmediately after the hnmigration Judge’s denial of the respondent’s request for bond, the Irmnigration Judge granted the respondent vohmtary departure, with an alternate order ofremovaL on October 5, 2020. Neither the respondent nor the Department ofHorreland Security {DHS) submitted an appeal of that decision in the time period allowed. The respondent is therefore subject to an administrative 1 y final order in his removal proceedings. See 8 C .F .R § 1241.1 ( c ). The respondent’s detention wider section 236(a) of the Act, 8 U.S.C. § 1226(a), ended upon the entry of a final order in his removal proceedings, after which time the respondent may be detained wider section 24l{a)(2) of the Act, 8 U.S.C. § 123 l{a)(2). The Immigration Judge’s authority to set bond conditions for the respondent, as a respondent detained wider section 236(a) of the Act, ceased at the entry of a final administrative order in his removal proceedings. See 8 C.F.R § 1236.l(d). This Board’s authority to set bond conditions on appeal from an hnmigration Judge’s order derives from the Immigration Judge’s mderlying authority to 00000030581 Al,___”-“(b-‘-‘-)(“”‘”6)’–__, redetermine conditions of custody. It follows that as of the entry of a final administrative order, neither the Immigration Judge nor this Board has had regulatory authority to set or review bond conditions. ORDER: The rootion is denied. 2 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~—–‘(‘”””b)-‘-(6-‘-) ____ __,~ A4 (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Hayley Upshaw, Esquire ON BEHALF OF OHS: Olga Kelley, Assistant Chief Counsel IN BOND PROCEEDINGS On Appeal from a Decision of the lnnnigration Court, San Francisco, CA Before: Goodwin, Appellate Irnmigration Judge; Wilson. Appellate Immigration Judge; Liebmann, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Irrnnigration Judge Liebmann LIEBMANN, Temporary Appellate Immigration Judge The Department of Homeland Secwity (”DHS “) appeals from the Irnmigra tio n Judge’s January 29, 2021, decision granting the respondent a bond in the amount of ~(b)(6)l The respondent opposes the appeal The Immigration Judge’s reasoning for granting a bond is provided in a memorandum dated March 5, 2021. The DHS’s appeal will be sustained, the order granting a bond will be vacated, and the respondent will be ordered detained without bond. The Immigration Judge held a bond hearing after a district court granted the respondent’s petition for a writ of habeas corpus (IJ at 1 ). At this hearing, the DHS bore the burden of proof to establish by clear and convincing evidence that the respondent is a danger to the community or a flight risk (IJ at 1 ). The Immigration Judge found that the OHS did not carry its burden of proof in either regard (lJ at 1-3 ). We reverse both of these conclusions. The respondent has a lengthy and severe criminal history. In l(b )( 6)[ he was convicted of carrying a concealed weapon (IJ at 2). A year later, he was convicted of carrying a concealed weapon and criminal mischief (IJ at 2). All of these o:frenses occtnTed when the respondent was a juvenile (IJ at 2). However, in Kb)(6\ he was convicted as an adult of terrorist threats (IJ at 2). The respondent’s most serious criminal history is much more recent. In l(b)(6)Lhe was convicted of two counts of lewd and lascivious conduct with a minor in violation of California Penal Code (Cal Penal Code)§ 288(a) (IJ at 2). He received a six year prison sentence. 1 Temporary Appellate Irnmigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). fi.__(_b )_( 6_) _____. 00000030752 Immigration Judges have broad discretion in making bond decisions. See Matter of Guerra, 24 l&N Dec. 37, 40 (BIA 2006) (providing nonexhaustive factors that are relevant in assessing both dangerousness and flight risk). These factors may include any or all of the following: (I) whether the alien has a fixed address in the United States; (2) the alien’s length of residence in the United States; (3) the alien’s family ties in the United States, and whether they may entitle the alien to reside pennanently in the United States in the future; (4) the alien’s employment history; (5) the alien’s record of appearance in cotut; (6) the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry to the United States. Id. “The Immigration Judge may choose to give greater weight to one factor over others, as long as the decision is reasonable.” Id.; see also Singh v. Holder, 638 F.3d 1196, 1206 (9th Cir. 2011) (relying on Matter of Guerra’s nonexhaustive factors in the context of bond hearings). We first reverse the Immigration Judge’s determination that the respondent is not a danger. The Immigration Judge’s finding that the respondent’s most recent criminal conduct included a singular “offense” and “conviction” is clearly erroneous (IJ at 2). The respondent was convicted of two counts of lewd or lascivious acts with a minor child under 14 years old. In her analysis, the Immigration Judge did not consider the Guerra factors, including the respondent’s lengthy concurrent six-year prison sentences for these convictions (Exh. B.2). Additionally, the Immigration Judge dkt not analyz.e the respondent’s underlying criminal conduct that led to the muhiple convictions of Cal Penal Code§ 288(a). The respondent sexually assauhed his I (b)(6) Ineighbor approximately IC~((!times (DHS Exh. at 2) .. The respondent was aware of the child victim’s age (DHS Exh. at 3). The respondent was a neighbor and the longtime friend of the child victim’s fumily (DHS Exh. at 2). He sent the child victim sexually explicit text messages (DHS Exh. at 3). On at least one occasion, he plied her with approximately five beers before sexually assauhing her (DHS Exh. at 3). The child victim overheard the respondent tell his brother that he could have sex with her if he wanted (DHS Exh. at 3). When the respondent believed that the child victim was pregnant, he toki her to undergo an abortion (DHS Exh. at 3). The Immigration Judge did not consider the gravity of the underlying criminal conduct. The Immigration Judge noted that the ”bulk” of the respondent’s convictions were from over KbXlyears ago, with many occurring while he was a juvenile (IJ at 2). This quantitative analysis does not consider, as Guerra requires, the recency of the resQondent’ s most severe criminaI conduct, and the extensive behavior, sexually molesting a child ICb)(~imes. Immigration Judges should consider “the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.” Matter of Guerra, 24 l&N Dec. at 40. Here, the respondent’s criminal conduct has persisted over several decades, from when the respondent was a juvenile until as an aduh he sexually abused a child victim The most severe 2 pj (b)(6) 00000030752 criminal conduct is the most recent conduct. By focusing on the ”bulk” of the respondent’s convictions, the Immigration Judge did not fuithfully apply Matter of Guerra and misapprehended the seriousness of the respondent’s recent criminal history. Second, the Irrnnigration Judge positively credited the respondent’s “strong support network in the United States of fumily, friends, his sponsor, and community members, who stated in signed letters to the Court their dedication to supporting the respondent” (IJ at 2). The Immigration Judge did not elaborate on how this network alleviates the respondent’s risk to the community. While we acknowledge this evidence, we conclude that the respondent’s family and community ties do not sufficiently mitigate the respondent’s dangerousness to the community. Third, the Irrnnigration Judge noted that the respondent is subject to extensive conditions as part of his parole in state-court proceedings, including polygraph testing and ankle monitoring (IJ at 2). These substantial restraints on hberty cut in fuvor of the DHS, as onerous conditions of parole reflect the state’s judgment as to the respondent’s risk of re-offending. Fourth, the Immigration Judge relied on the respondent’s efforts at rehabilitation while detained (IJ at 2-3). The Immigration Judge stated that the respondent completed a range of academic and skill-based courses (IJ at 2-3). These efforts include obtaining certificates for “craft skills” and advanced curriculum for Microsoft Office 2013, among others (Respondent’s Exh. at 65, 69). While laudable, they are at most minimally relevant as to whether the respondent is a danger to the comrmmity., Fifth, the Immigration Judge gave substantial weight to, and relied heavily on a full psychological evaluation of the respondent (IJ at 2). The doctor conducting this assessment found that the respondent has a low to low-moderate chance of reoffending (IJ at 2; Exh. B.3, Tab B at 37). The doctor found that the respondent did not show any indications of suffering from an illness that might cause him to commit a sexual offense in the future (IJ at 2; Exh. B.3, Tab Bat 36). The doctor fi.nther found nothing indicating that the respondent would act violently in the future . (Exh. B.3, Tab Bat 39). While this report may cut in fuvor of the respondent, it is not dispositive. The Immigration Judge focused on whether the respondent is diagnosed with an illness that might cause the respondent to reoffend, but did not adequately assess the Guerra fuctors, specifically the recency of the convictions, the nature of the respondent’s underlying behavior, the lengthy sentence and onerous probation hberty restraints, the long term damage resulting from sexual abuse of a child, and the respondent’s other criminal behavior. In sum, we have considered the totality of the evidence. The DHS sufficiently carried its burden of proof to establish that the respondent is a danger to persons and property. We also reverse the Immigration Judge’s analysis of the respondent’s risk of flight We measure flight risk to determine if there is adequate assmance that the respondent will appear for his removal proceedings and, if necessary, removal from the United States. Matter of R-A-V-P-, 27 I&N Dec. 803,806 (BIA 2020); see also Zadvydas v. Davis, 533 U.S. 678,699 (2001) (noting J Al (b)(6) 00000030752 that a “basic purpose” of immigration detention is to assme ”the alien’s presence at the moment of removal”). Before the Immigration Judge, the DHS correctly noted that the respondent’s applications for relief from removal had been denied in Innnigration Colll’t (IJ at 3). We take administrative notice that the respondent’s appeal remains pending before this Board. 1bese circumstances cut in favor of finding that the respondent is a flight risk. See Matter of Andrade, 19 l&N Dec. 488, 490 (BIA 1987) (“A respondent with a greater likelihood of being granted relief from deportation has a greater motivation to appear for a deportation hearing that one who, based on a criminal record or otherwise, has less potential of being granted such relief”). The respondent concedes that he was brought to the United States as an infant, has no knowledge of life in El Salvador, and has no family there (Exh. B.3 at 1). His incentive to voluntarily appear for removal is thus minimal. We disagree with the Immigration Judge’s :finding that this risk is outweighed by the respondent’s family and connmmity ties (IJ at 3). The generalized assurances of family and friends do not provide sufficient detail to establish that the family members and sponsors will assme the respondent appears for possible removal These general assertions must be measmed against the respondent’s minimal motivation to appear for future proceedings. His applications for relief from removal have been denied at the trial levei he asserts a fear that he will be tortlll’ed in an tmfuniliar, violent country, and all his family remains in the United States. The DHS has established by clear and convincing evidence that the respondent is a flight risk that no amount of bond could ameliorate. Accordingly, the following order will be entered. ORDER: The appeal is sustained, the Innnigration Judge’s bond order is vacated, and the respondent is ordered detained without bond. 4 NOT FOR PUBLICATION 00000030578 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: FILED Jan 13, 2022 ‘;======(=b )=( 6=) ======;;—‘L ..:.Al-====(b:::::::::)(=6):::::::::;-__, ,.._____ ___ Al~_(b_)(6_) ~ _,_(b-‘-‘-)(6–‘-) ___,l Respondents ON BEHALF OF RESPONDENTS: Erica T. Yitzhak, Esquire ON BEHALF OF DHS: &lvin Markisich, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: O’Connor, Appellate Immigration Judge Opinion by Appellate Irmnigration Judge O’Connor O’CONNOR, Appellate Immigration Judge This case was last before us on January 26, 2021, when we dismissed the respondents’ appeal of the Immigration Judge’s November 13, 2018, decision denying their applications for cancellation of removal for certain nonpennanent residents under section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l). 1 On March 31, 2021, the respondents filed the instant motion to reconsider. The Department of Homeland Security has filed a brief in opposition to the motion The motion will be denied. The respondents’ motion was not filed within the thirty-day filing period set forth at section 240(c)(6)(B) of the Act, 8 U.S.C. § 1229a(c)(6)(B) and 8 C.F.R § 1003.2(b)(2), as the motion was due on or before February 25, 2021, and it was received by the Board on March 31, 2021. We will thus deny the respondents’ motion to reconsider as tn1timely. Even assuming the motion was timely filed, the respondents generally argue that we did not consider the appropriate hardship factors in the aggregate and that they would be deported to difrerent countries (Respondent’s Mot.) (unpaginated).2 However, we did consider the totality of 1 The respondents are a husband (the lead), who is a native and citizen of El Salvador, and a wife (the rider), who is a native and citizen of Ecuador (Exhs. 1, IA). As the respondents’ motion is not paginated, we are unable to provide citations to specific pages of the _motion in this decision See BIA Prac. Man Ch. 3 .3( c )(iii) (”Briefs and other submissions should always be paginated.’) (January 8, 2021 ). Al.__’-“-‘rh””‘”)r”‘”‘n)’—_.let 00000030578 al the circumstances in this case in our prior dec~ion. As part of our review we took into consideration the respondents’ children’s medical and educational needs, the diminished economic, educationaL and medical opportunities both in El Salvador and Ecuador, adverse country conditions in El Salvador and Ecuaddr, the children’s psychological symptoms, and the lead respondent’s mother’s medical condition (BIA at 2-4). See Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (“A motion to reconsider is a request that the Board reexamine its [previous] decision in light of additional legal argmnents, a change of law, or perhaps an argument or aspect of the case which was overlooked.” (internal quotation marks and citations omitted)); see also 8 C.F.R § 1003.2(b)(l). We are therefore not persuaded that there is any basis to reconsider our prior decision in this case. Accordingly, the following order will be entered. ORDER: The respondents’ motion to reconsider is denied. 2 NOT FOR PU~J.Jit;o\JION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ~—–‘-(-“-h )”””(6-‘-‘-)________ IAl (b )( 6) Beneficiary ~-~rh=V=6),….._ __ ( Petitioner FILED JAN 14 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Peter N. Schmalz, Deputy Chief IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Potomac Service Center Before: Wetmore, Chief Appellate Judge Opinion by Chief Appellate Immigration Judge Wetmore WETMORE, Chief Appellate Immigration Judge The petitioner appeals from the decision of the Potomac Service Center Director (“Director”) dated May 23, 2019, denying the Petition for Alien Relative, Form 1-130 (“visa petition”), filed on behalf of the beneficiary as the unmarried son of a United States citizen. See section 20 I (b )(2) of the Immigration and° Nationality Act, 8 U.S.C. § l 15l{b)(2); 8 C.F.R. § 204.2(d). The United States Citizenship and Immigration Services (“USCIS”) filed a response in opposition to the appeal. The appeal will be dismissed. We review all questions arising in appeals from decisions of USCIS officers de novo. See 8 C.F.R. § 1003.l(d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Brantigan, 11 I&N Dec. 493,495 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA 1989). A petition must be accompanied by all the required documents. See 8 C.F.R. § 103.2(b). The evidence required to support a petition for a child is set forth at 8 C.F.R. § 204.2(d)(2)(i), (ii), and (iii). This includes evidence that the beneficiary meets the definition of a “child” as set forth in section lOl(b)(l)(B) of the Act. The petitioner filed a visa petition on behalf of the beneficiary without adequate evidence to establish the parent-stepchild relationship required to obtain benefits under the Immigration and Nationality Act. On March 29, 2019, the Director issued a Notice oflntent to Deny that requested specific evidence to prove the petitioner’s United States citizenship, the beneficiary’s birth Al (b)(6) 00000030485 certificate, the petitioner’s marriage certificate with the beneficiary’s mother, and proof of the legal termination of the petitioner’s marriage to his prior spouse. In response, the petitioner submitted a bank receipt, the beneficiary’s passport, and the beneficiary’s birth certificate. The petitioner did not submit his marriage certificate for his current marriage and evidence of the legal termination of his prior marriage. Because the petitioner did not submit all of the relevant evidence requested by the NOID, the Director denied the visa petition for lack of evidence to establish the parent-stepchild relationship. On appeal, the petitioner argues that he provided all the requested documentation and resubmitted the evidence he provided in response to the NOID. However, the petitioner did not submit evidence that demonstrates that he is a United States citizen, his marriage certificate showing he married the beneficiary’s mother, and did not submit proof that his marriage to his prior spouse was legally terminated. Additionally, the petitioner did not submit evidence to show that he has a bona fide parent-child relationship with the beneficiary. Thus, the petitioner did not demonstrate that he has a bona fide parent-child relationship with the beneficiary. Section I0l(b)(l)(B) of the Act. The petitioner may file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is eligible for the status sought under immigration laws. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 U.S. Department of Justice 0000003091;oecisionof the Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 File: Al,…._(b””””)(__,6)’—__,~ D~te: ….. Newark, NJ JAN 2 8 2022 In re: ,..!:I====r”=\=r i::.=\===:!:…L Beneficiary of a visa petition filed by I (b )( 6) l Petitioner IN VISA PETITION PROCEEDINGS APPEAL ON BEHALF OF PETITIONER: Allison N. Grosz, Esquire ON BEHALF OF DHS: Seth L. Brugger Associate Counsel APPLICATION: Petition to classify status of alien relative for issuance of immigrant visa The petitioner has appealed from the decision of the Field Office Director (Director) of the U.S. Citizenship and Immigration Services (USCIS), dated July 16,2019, denying the Petition for Alien Relative (Form I-130) that was filed on behalf of the beneficiary as the spouse of a United States citizen. The Department of Homeland Security, USCIS, opposes the appeal. The record will be remanded. We review all questions arising in appeals from decisions ofUSCIS officers de novo. 8 C.F.R. § I003.l(d)(3)(iii). The petitioner married the beneficiary on I (hV6) land filed a visa petition on his behalf on October 8, 2015. In support of the visa petition, the petitioner included a Certificate About Non-Existence of Obstacle Conditions for Marriage from the Ministry of Justice of Georgia, Public Service Development Agency, dated! (b)(6) Istating that the beneficiary was not married “according to submitted documents.” On May 23, 2019, the Director issued a Notice of Intent to Deny (NOID) based, in pertinent part, that the beneficiary’s nonimmigrant visa petition from 2006 indicated that he was married to another woman, but there was no evidence that this marriage had been terminated prior to his marriage to the petitioner. The petitioner responded to the NOID with sub~ssion of the following documents: (A) Affidavit of the Beneficiary; (B) Affidavit of the Petitioner; (C) Letter from Ministry of Justice of Georgia, Public Service Development Agency; (D) Excerpt from “Civil Act” Law of Georgia with corresponding translation into English; (E) Letter from Ministry of Georgia, Public Service Development Agency NOl/174446; and, (F) Letter from Ministry of Georgia, Public Service Development Agency NOl/169579. Following receipt of the petitioner’s response to the NOID, the Director issued a decision on July 16, 2019, denying the visa petition. In the decision, the Director noted that the petitioner responded to the NOID and submitted the aforementioned documents in an attempt to establish that the beneficiary was free to marry the petitioner onl (b)(6) IHowever, the petitioner’s . complete response to the NOID is not in the record. Specifically, all 3 attachments referred to as letters from Ministry of Georgia are missing from the record (Tabs C, E, F). In addition, although 00000030972 Al (b)(6) the decision specifically relies upon statements purportedly made in a 2006 nonimmigrant visa application, a copy of that application is not in the record. Thus, while the Director’s decision may or may not be correct, the record itselfis incomplete, and the Board is unable to review the decision properly for purposes of the appeal. On remand, the Director shall incorporate the missing evidence into the record. Furthermore, both sides may update the record with relevant evidence relating to the beneficiary’s eligibility for the benefits sought, and if the evidence is found to be sufficient that Georgia does not recognize common-law marriages, then any such prior relationship would not preclude the beneficiary from entering into a valid legal marriage. Accordingly, the record will be remanded to the Director to complete the record and render a new decision based on the record evidence. ORDER: The record is remanded to the Director for further proceedings consistent with the foregoing opinion and entry of a new decision. 2 ‘ ..,, NOT FOR PUBf.fE1’1oN U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATTER OF: ,__ ___ ___,_(b-‘-‘)(….,6)’——-‘I AJ (b )(6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Seth Alexander Lupton, Esquire IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Ninth Circuit Before: Wilson, Appellate Irrnnigration Judge Opinion by Appellate Inmigration Judge Wilson WILSON, Appellate Imnigration Judge This matter was last before the Board on January 29, 2020, when we dismissed the respondent’s appeal from an Irrnnigration Judge’s July 10, 2019, decision denying his motion to reopen removal proceeding.5. The respondent thereafter filed a petition for review with the United States Court of Appeals for the Ninth Circuit, which has now remanded the matter for our further review. (h”\(6) The record will be remanded. Though the respondent is subject to a final removal order issued in 2017, he argued in his motion to reopen that changed country conditions in Mexico render him prima facie eligible for withholding of removal w1der section 241 (b )(3) of the Irrnnigration and Nationality Act, 8 U.S.C. § 123l(b)(3), and protection under 8C.F.R §§ 1208.16(c)-1208.18, the regulations implementing the Convention Against Torture and Other Crue4 Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force fur United States Nov. 20, ~994) (”CAT). The lrrnnigration Judge denied the motion, concluding that the respondent’s criminal record precludes him from being granted withholding of removal and that his evidence of changed country conditions did not establish his prima fucie eligibility for CAT protection, as required for reopening. We affirmed the lrrnnigration Judge’s decision. On judicial review, the Ninth Circuit agreed that the respondent is ineligible for withho Id ing of remova4 but remanded for further consideration ofhis request for CAT protection, concluding that we “did not adequately evaluate acquiescence and relocation” in that regard. I (b )( 6) ~ Toe Ninth Circuit found our acquiescence and relocation analysis incomplete because we did notconsider “evidence that [the respondent’s] family was threatened with torture by gang members who were affiliated with local municipal govermnent police” or a “threatening video [the 00000030836 Al (b)(6) respondent’s] sister received, which stated that people seeking to harm him were ‘everywhere.'” Id. The Immigration Judge alluded to this evidence during the withholding of removal portion of her decision (IJ at 5, July 10, 2019), but she did not consider it in detail or explain during the CAT portion of her decision why-at the prima facie eligib ii ity stage of review-the evidence did not demonstrate a ”reasonable likelihood” that the respondent could prove official acquiescence or the unavailability of internal relocation in a reopened proceeding. Matter of L-O-G-, 2 l T&N Dec. 413, 419 (BIA 1996). As we cannot engage in fuctfinding in the course of deciding appeals, 8 C.F.R § 1003.l(d)(3)(iv), the record will be remanded to the Innnigration Judge to reconsider the respondent’s motion in light of the specific issues cited by the Ninth Circuit. ORDER: The record is remanded for further consideration of the respondent’s motion to reopen and for entry of a new decision. 2 00000030572 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATIER OF: ‘—–‘-(b-‘-)(‘-‘6)’—_ ___,IA! (b )( 6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Michael Ernest Rosado, Esquire ON BEHALF OF DHS: Brian Sandberg, Assi<.tant Chief Cmmsel IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Fourth Circuit Before: Mullane, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Innnigration Judge This matter was last before us on November 27, 2020, when we dismissed the respondent’s appeal from the Immigration Judge’s denial of asyhnn llllder section 208(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § l 158(b)(l)(A), and withholding of removal under section 24l(b)(3)(A) of the Act, 8 U.S.C. § 123l(b)(3)(A), as well as protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force fur United States Nov. 20, 1994) (CA 1). On April 21, 2021, the United States Court of Appeals fur the Fourth Circuit (”Fourth Circuit’) granted the government’s unopposed motion to remand these proceedings for fi.nther consideration of the respondent’s claim in light of the Fourth Circuit’s intervening precedent decision in Amayav. Rosen, 986 F.3d 424 (4th Cir. 2021). Further, the Fourth Circuit instructed us to clarify our determination regarding CAT. While the remand was pending, the Department of Homeland Security filed a motion to remand to the Innnigra t ion Judge. We conclude that a remand to the lnnnigration Judge is appropriate for fin1her findings of fact in light of intervening precedent. See 8 C.F.R § 1003.l(d)(3)(iv)(stating that the Board may not engage in fact finding in the course of deciding appeals except for taking administrative notice of commonly known facts). Upon remand, the Immigration Judge shall reconsider respondent’s claim for asylum, withholding of removal, and prrotection under CAT. Both parties shall be provided with an opportunity to present additional evidence, both testiroonial and docwnentary. Accordingly, the following order will be entered. 00000030572 Aj~_(b_)(6_) ~ ORDER: The record is remanded for finther proceeding; consistent with this order and for the entry of a new decision. 2 NOT FOR PUiff,Cfe~TION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: Beneficiary .__ __ —–‘(b–‘-)-‘-(___ _,lPetitioner 6-=–) FILED JAN2 8 2022 ON BEHALF OF PETITIONER: Jeffrey Y. Bennett, Esquire ON BEHALF OF DHS: Aaron W. Todd, Associate Counsel IN VISA PETITION PROCEEDINGS On APPEAL from a Decision of the Department of Homeland Security, Kansas City, MO Before: Creppy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Creppy CREPPY, Appellate Immigration Judge The petitioner appeals from the April 20, 2020, decision of the Field Office Director (“Director”) denying the Petition for Alien Relative (Form 1-130) that the petitioner filed on behalf of the beneficiary as the spouse of a United States citizen. The Department of Homeland Security opposes the appeal. The appeal will be dismissed. We review all questions arising in appeals from decisions issued by officers of the United States Citizenship and Immigration Services (“USCIS”) de nova. 8 C.F.R. § 1003.l(d)(3)(iii). In visa petition proceedings, it is the petitioner who bears the burden of establishing eligibility for the immigration benefit sought. Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966). The petitioner also bears the burden of proof to demonstrate that a marriage is bona fide in nature and was not entered into for the primary purpose of evading the immigration laws. Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). We adopt and affirm the Director’s decision. See generally Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). Under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § l 154(c), a visa petition cannot be granted on behalf of a beneficiary who has sought to be accorded immediate relative or preference status as the spouse of a United States citizen or lawful permanent resident by reason of a marriage determined to have been entered into for the purpose of evading immigration laws. For USCIS to deny a petition based on marriage fraud, the record must contain , J —…_:..:, 00000030969 Al…__(_b )_( 6_) ___, substantial and probative evidence of such fraud. Matter of P. Singh, 27 I&N Dec. 598, 605-06 (BIA 2019). The “substantive and probative evidence” standard of proof means that the evidence establishes that it is more than probably true that the marriage is fraudulent. Id. at 607 (explaining that this standard is “higher than preponderance of the evidence and closer to clear and convincing evidence”). In making this determination, we consider “the nature, quality, quantity, and credibility of the evidence in the record” in its totality, which may include “direct or circumstantial evidence.” Id. at 610. The “central question” in detennining whether a sham marriage exists is whether the parties “intended to establish a life together at the time they were married.” See id. at 601 (citing Matter of Laureano, 19 I&N Dec. 1, 2-3 (BIA 1983)). We have reviewed the record of proceedings, including the February 12, 2020, Notice of Intent to Deny (“NOID”), the petitioner’s response to the NOID, and the parties’ contentions on appeal. We agree with the Director that substantial and probative evidence of marriage fraud exists in the record and that approval of this visa petition is barred under section 204( c) of the Act. Specifically, there is substantial and probative evidence in the record that the beneficiary’s prior marriage was fraudulent. The underlying facts of the petitioner’s claim are set out in the Director’s decision (Director’s Dec. at 2-4 ). In denying the petitioner’s I-130, the Director properly considered the findings ofUSCIS officers regarding a lease agreement for the beneficiary and her prior spouse, to which the beneficiary was fraudulently added (Director’s Dec. at 3; NOID at 3). In addition, the record contains inconsistent evidence regarding whether the beneficiary resided with her ex-spouse (Director’s Dec. at 3; NOID at 4). Furthermore, the Director identified numerous inconsistencies in the responses given by the beneficiary and her prior spouse during their I (b)(6) L interview with USICS (Director’s Dec. at 3-4; NOID at 4-6). The banking evidence submitted by the petitioner ultimately did not demonstrate that the beneficiary’s prior marriage was bona fide (Director’s Dec. at 3; NOID at 2-3). We agree with the Director that there are discrepancies in the record relating to matters central to the marital relationship, which constitute substantial and probative evidence to support the denial of the visa petition under section 204( c) of the Act. See Matter of P. Singh, 27 l&N Dec. at 598; Matter of Tawjik, 20 I&N Dec. 166, 167 (BIA 1990). We have considered all of the petitioner’s assertions and explanations on appeal and we do not find them to be persuasive or adequately reconcile the derogatory information in the record (Petitioner’s Br. at 1-11 ). The proffered possible explanations and limited evidence of a joint life were not persuasive bas_ed on the totality of the record and do not meet the petitioner’s burden of proof to establish that the beneficiary’s prior marriage was not fraudulent. We find that the Director independently reviewed the evidence and correctly concluded that the visa petition may not be approved because the record contains substantial and probative evidence of prior marriage fraud by the beneficiary. See id. The petitioner has also submitted additional evidence on appeal. However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, this Board will not accept evidence offered for the 2 J ., -· …. 00000030969 Al (b)(6) first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000030527 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATTER OF: ~—(b_)(_6) __ ~1 Aj (b)(6) Respondent FILED Jan 14, 2022 ON BEHALF OF RESPONDENT: Reuben S. Kerben, Esquire ON BEHALF OF DHS: Ted Y. Yamada, Deputy Chief Comsel IN DEPORTATION PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Wetmore, Chief Appellate Immigration Judge Opinion by Chief Appellate Irrmigration Judge Wetmore WETMORE, Chief Appellate lnnnigration Judge This matter was last before the Board on July 12, 2018, when we denied the respondent’s untimely and nwnber barred motion to reopen and rescind her in absentia deportation order issued on April 28, 1994. On JW1e 4, 2021, the respondent filed the instant motion to reconsider and reopen in light of the Supreme Court of the United States’ decision in Niz-Chavezv. Garland, 141 S. Ct. 1474 (2021). The Department of Homeland Security has filed an opposition to the respondent’s motion The respondent’s motion will be denied. A motion to reconsider a decision must be filed with the Board within 30 days after the mailing of the Board decision 8 C.F.R § 1003.2(b). A motion to reconsider nrust identify an error of :fact or law in the Board’s prior decision or argue a relevant change in the law. See section 240(c)(6) of the Irrnnigration and Nationality Act, 8 U.S.C. § 1229a(c)(6); 8 C.F.R § 1003.2(b); see also Matter ofO-S-G-, 24 I&N Dec. 56 (BIA 2006) (providing that a motion to reconsider must allege a material factual or legal error or argue a change in law). A motion to reconsider challenges the original decision as defective in some respect, based on the previous :factual record. Matter of Cerna, 20 I&N Dec. 399, 402-03 (BIA 1991 ). The filing of a motion to reconsider is not a process through which a party may submit, in essence, the same brief and seek reconsideration by generally alleging error in the prior decision See Matter of O-S-G-, 24 l&N Dec. at 58. The movant must specify the :factual and legal issues raised that were erroneously decided or overlooked in the initial decision, or show how a change in the law materially affects the prior decision See id. We will deny the respondent’s motion to reconsider as it is untimely filed. Also, the respondent has not identified factual or legal error in the Board’s July 12, 2018, decision in relation to the 00000030527 arguments she presented to the Board in her prior motion to reopen See Matter of Lodge, 19 l&N Dec. 500 (BIA 1987); see also Matter of Valencia, 19 I&N Dec. 354 (BIA 1986). To the extent that the respondent’s rmtion could be construed as a request that we exercise our sua sponte authority to consider her untimely rmtion, we conclude that the respondent has not demonstrated an exceptional situation such that exercising our sua sponte authority to reconsider is warranted. See 8 C.F.R § 1003.2(a); see also Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 l&N Dec. 976, 984 (BIA 1997). Specifically, the respondent argues that these proceedings should be tenninated for lack of jurisdiction pursuant to the Supreme Court’s decision in NizChavez. However, in Matter of Arambula-Bravo, 28 l&N Dec. 388 (BIA 2021), we confirmed that a Notice to Appear that does not specify the time and place of a respondent’s initial rermval hearing does not deprive the Innnigration Judge of jurisdiction over the respondent’s removal proceedings, and we explained that Niz-Chavez does not change this analysis. Id. at 389 (citing Matter of Bermudez-Cota, 27 I&N Dec. 441,443 (BIA 2018));see also Aguilar Fermin v. Barr, 958 F .3d 887, 893-95 (9th Cir. 2020); Karingithi v. Whitaker, 913 F .3d 1158, 1159 (9th Cir. 2019). Thus, jurisdiction was established in this case. We will therefore deny the respondent’s W1timely rmtion to reconsider. We will al.so deny the respondent’s tmtimely and nmnber-barred motion to reopen A party may file only one rmtion to reopen, with certain exceptions, no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. See section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7); 8 C.F.R § 1003.2(c). The Board’s final administrative decision was issued on February 29, 2008, and the instant motion to reopen is the respondent’s third such motion. Additionally, like our denial of the respondent’s motion to reconsider, we decline to exercise our discretionary authority to reopen these proceedings sua sponte. As a general rule, sua sponte authority is used sparingly and it is not used as a general remedy for any hardships created by enfurcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved fur truly exceptional situations. See Matter of G-D-, 22 I&N Dec. at 1133-34 (“As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and nmnber limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.”); see also Matter of Jean, 23 I&N Dec. 373, 380 n.9 (A.G. 2002). Becoming potentially eligible to adjust status many years after expiration of the 90-day time limitation on reopening is not an exceptional situation. See Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 2009) (noting that W1timely motions to reopen to apply for adjustment of status do not fall within any exception to the regulatory and statutory exceptions to the time limits on motions and will generally be denied); see also Matter of J-J-, 21 l&N Dec. at 984 (holding that the Board’s power to reopen or reconsider cases sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circwnve nt the regulations, where enforcing them might result in hardship); 8 C.F.R. § 1003.2(a); l 003 .23(b )( 1 ). Accordingly, the following orders will be entered. ORDER: The respondent’s motion to reconsider is denied. 2 00000030527 Al.__(_b )_( 6_) ___, FURTHER ORDER: The respondent’s motion to reopen and tenninate proceeding.5is denied. FURTHER ORDER; The respondent’s request for a stay ofremoval is denied as moot. 3 NOT FOR PUQMiw\JION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: .__ _____ _,(-‘-b)..,_(6″””)_____ ___.~ Al (b)(6) Beneficiary ~—-(b_)(_6) ___ ~1Petitioner FILED JAN 14 2022 ON BEHALF OF PETITIONER: Remand A. Atie, Esquire ON BEHALF OF OHS: Michael Ammerman, Associate Counsel IN VISA PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Cassidy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge The petitioner has appealed from the California Service Center Director’s decision, dated January 1 3, 2020, denying the Petition for Alien Relative (Form 1-130) submitted on behalf of the beneficiary, as the spouse of a lawful permanent resident. We review all questions arising in appeals from decisions of United States Citizenship and Immigration Services officers de novo. See 8 C.F.R. § I 003.1 (d)(3)(iii). The appeal will be dismissed. In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Kodwo, 24 I&N Dec. 479, 482 (BIA 2008). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA 1989). We have reviewed the record of proceedings, including the decision of the Director, the Request for Evidence (RFE), dated August 20, 20 I 9, the response to the RFE, and the petitioner’s statements on appeal. Upon review of the record, we conclude that, under the preponderance of evidence standard, the petitioner did not meet his burden of establishing a bona fide marital relationship. Thus, we affirm the denial of the visa petition on that ground, for the reasons stated in the Director’s decision and the RFE. While we recognize the challenges presented by the beneficiary residing abroad, considering the limited amount of evidence of a shared life from the Al.__(‘—‘b )_,_( ____. 000000304 79 6″-) time the couple married on I (b)(6) Ithe record does not contain sufficient evidence for the petitioner to meet his burden to establish the claimed relationship. 1 The petitioner may file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is eligible for the status sought under the immigration laws. Based on the forgoing, we will affirm the denial of the visa petition and dismiss the appeal. The following order is entered. ORDER: The appeal is dismissed. 1 On appeal, the petitioner has proffered additional evidence. We will not consider this evidence. Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, this Board generally will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 l&N Dec. 764 (BIA 1988); Mafler of Obaigbena, 19 I&N Dec. 533 (BIA 1988). • 2 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~-(~b)~(6_) -~L Al (b)(6) Beneficiary ,___—“(“””b )_( 6..;..) __.~Petitioner FILED JAN13 2022 ON BEHALF OF PETITIONER: Prose ON BEHALF OF DHS: Allen D. Kenny, Deputy Chief IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Nebraska Service Center Before: Gonzalez, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The petitioner has appealed the Director’s decision, dated December 31, 2019, which denied the visa petition filed on behalf of the beneficiary, as the child of a lawful permanent resident, pursuant to section 203(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2)(A). The Department of Homeland Security (OHS) opposes the appeal. We review all questions arising in appeals from Director’s decisions de novo. See 8 C.F.R. § 1003.l(d)(3). The appeal will be dismissed. The visa petition. filed by the petitioner was denied by the. Director because the Director concluded that the evidence submitted did not establish the claimed relationship. On September 17, 2019, a Request for Evidence (RFE) was issued indicating the type of evidence required to support the visa petition. The petitioner claims on appeal that Nepal is an underdeveloped country that does not regularly provide documents such as birth and marriage certificates. The petitioner indicates that Nepal only recently required birth certificates for applying for citizenship at the age of 16. The petitioner indicates that he submitted a Verification Certificate of the Relationship from Nepal. He claims the government of Nepal shut down all nonessential activity due to the outbreak of COVID-19. 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General. See 8 C.F.R. § 1003.l(a)(4). A!.__—‘(‘–‘-b6”-) 00000030569 )-‘–( ___, We note, however, that the issue is not whether the petitioner has established the biological relationship between himself and the beneficiary. Rather, the visa petition was denied because the petitioner did not establish that the beneficiary was born in wedlock, was legitimated before the age of 18, or had a bona fide parent/child relationship with the petitioner before the beneficiary reached the age of 21. To the extent that the petitioner submitted a Verification Certificate from the Village Development Committee to establish that he is married to the beneficiary’s mother and that, thus, the beneficiary was born in wedlock, a Verification Certificate is not an acceptable proof of marriage, according to the Department of State’s Reciprocity Schedule for Nepal. Rather, marriage certificates are entitled Marriage Registration Certificates and are issued either by the ward officer of the municipality office or by a District Court. Specifically, the issuing person would be a ward office secretary, a local registrar, or a chief administrator. Absent such evidence, we affirm the Director’s conclusion that the petitioner did not meet his burden of proof with respect to the claimed relationship. The petitioner may file a new petition on the beneficiary’s behalf that is supported by evidence necessary to establish that the beneficiary is eligible for the status sought under the immigration laws. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000030566 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,…__—-‘-(b-‘–)(‘-‘-6)_ ___.IAJ (b )( 6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Adedayo Idowu, Esquire ON BEHALF OF DHS: Gregor McConnell, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Inmigration Appeals Before: Wetmore, Chief Appellate Inmigration Judge Opinion by Chief Appellate Irrnnigration Judge Wetnx>re WEfMORE, Chief Appellate Immigration Judge 1bis matter was last before the Board on October 18, 2018, when we dismissed the respondent’s appeal of the Irrnnigration Judge’s October 17, 2017, denial of his applications for asyhnn and related forms of relief and protection. On Jtme 23, 2021, the respondent, a native and citizen of China, filed the instant motion to reopen and terminate these proceedings in light of the Supreme Court of the United States’ decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). The Department of Homeland Security has opposed the motion. The respondent’s motion to reopen will be denied. The respondent’s motion to reopen is \llltimeIy, as it was oot filed within 90 days of the Board’s final administrative decision issued on October 18, 2018. Section 240(c)(7)(C)(~ of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(7)(C)W; 8 C.F.R. § 1003.2(c)(2). The respondent argues that termination is warranted llllder the Supreme Court’s decisions in Pereira and Niz-Chavez, because the Notice to Appear issued in this case did not contain the date and time of the initial removal hearing, and thus the Jnnnigration Court and the Board lacked jurisdiction over these removal proceedings. As we noted in Matter of Bermudez-Cota, 27 l&N Dec. 441 (BIA 2018), the Supreme Court’s decision in Pereira concerns the application of the stop-time rule set forth in section 240A(d)(l) of the Act, 8 U.S.C. § 1229b(d)(l), not the Immigration Court’s jwisdiction. MatterofBermudezCota, 27 I&N Dec. at 442-44; see also Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019). Subsequent to Niz-Chavez, in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), we confirmed that a Notice of Appear that does not specify the time and place of a respondent’s initial removal bearing does not deprive the Innnigration Court of jtnisdiction over the respondent’s removal proceedings, and we explained that Niz-Chavez does not change this analysis. Matter of 00000030566 fi,___(b_)( 6_) _____. Arambula-Bravo, 28 I&N Dec. at 389-92; see also Chery v. Garland, 16 F.4th 980, 986-87.(2d Cir. 2021). For the reasons set forth in the above decisions, we reject the respondent’s jurisdictional argurrent and find that tennination of these proceedin~ is unwarranted. The respondent also argues that the country conditions in China remain “harsh” and that these proceeding.5 should be tenninated or remanded for ”humanitarianism” (Motion at 7-8). These argurrents do not establish that the respondent’s rmtion fulls within any exception to the rrotion to reopen time limitations enumerated in section 240(c)(7)(C) of the Act and 8 C.F.R § 1003.2(c)(3). For the foregoing reasons, we will deny the respondent’s untimely rootion to reopen. Accordingly, the following order will be entered. ORDER: The respondent’s rmtion is denied. 2 NOT FOR Puiti~itJoN U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATTER OF: ,__ __ 6 ….. ) __ __,lAl (b )(6) ….a.(b__.)..,_( Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Dmitry Paniotto, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrmigration Court, Los Angeles, CA Before: Mahtabfar, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Mahtabfur MAIITABFAR, Appellate Immigration Judge A Notice of Appeal (Form EOIR-26) must be filed within 30 calendar days of an Innnigration Judge’s oral decision or the mailing of a written decision unless the last day fulls on a weekend or legal holiday, in which case the appeal must be received no later than the next business day. 8 C.F.R § 1003.38(b), (c). 1n the instant case, the Immigration Judge’s decision was mailed on April 26, 2021. The appeal was accordingly due on or before May 26, 2021. The record reflects that the Notice of Appeal was submitted to the Board of Immigration Appeals on May 24, 2021, and JW1e 2, 2021, but were rejected due to filing defects. Such defects were remedied, and the appeal was again filed with the Board on JW1e 23, 2021. The record demonstrates that the appeal was not re-filled within the requisite 15-days period. In conjunction with the appeaL the respondent’s attomey has filed a motion requesting that the Board accept the late-filed appeal on certification The r~spondent’s attorney alleges that the appeal was untimely on June 23, 2021 because it was an innocent mistake due to a prior notice of filing fees increase. The foregoing explanation is insufficient for us to consider this appeal by certification given ahnost a month delay in filing. The appeal will be sumnarily dismissed pursuant to 8 C.F.R § 1003.l(d)(2)(~(G). The Innnigration Judge’s decision is accordingly now finaL and the record will be returned to the Innni_gration Court without further Board action. See 8 C.F.R §§ 1003.3(a), 1003.38, 1003.39, 1240.14 and 1240.15. Because we are surrmarily dismissing the appeal as untimely, either party wishing to file a rrotion in this case should follow the following guidelines: If you wish to file a rmtion to reconsider challenging the finding that the appeal was untimely, you rrrust file your motion with the Board. However, if you are challenging any other finding or seek to reopen yom case, you must file your motion with the hnmigration Court. See Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974); Matter of Lopez, 22 I&N Dec. 16 (BIA 1998). You should also keep in mind that there are strict time and mlllDer limits on IIX)tions to reconsider and rrotions to reopen See 00000030749 sections 240(c)(6)(A) & (B) and 240(c)(7)(A) & (C) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229a(c)(6)(A) & (B) and (c)(7)(A) & (C); 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(l); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). In light of the foregoing, the following orders will be entered. ORDER: The appeal is swnmarily dismissed. FURTHER ORDER: The record is returned to the lnnnigration Court without further Board action 2 00000031167 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) (b)(6) (b)(6) (b)(6) • Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Hedy Tahbaz, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals . Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge We entered the final administrative decision on October 5, 2020, when we dismissed the appeal of the Immigration Judge’s September 4, 2018, decision denying the lead respondent’s applications for asyhnn, withholding of rem:>Vai and protection tmder the regulations implementing the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). The respondent seeks reopening based on her status as a potential class member in a category specified in Rojas v. Johnson, 305 F.Supp. 3d 1176 (W.D. Wash. 2018). 1 We will deny the motion, as the respondent has not demonstrated that an exception to the 90-day deadline applies, or an exceptional situation warranting sua sponte reopening. Section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7); 8 C.F.R § 1003.2(a), (c)(3); Matter of J-J-, 21 l&NDec. 976, 984 (BIA 1997). Establishing Rojas v. Johnson membership excuses the 1-year deadline on asylum applications. But that benefit is irmnaterial in this case, given that the respondent’s asylum application was not denied as time-barred. Rather; the Immigration Judge and the Board fully considered the merits of the_ respondent’s application before concluding that she did not meet her burden of proof Accordingly, the motion will be denied. ORDER: • The motion is denied. 1 The motion really on relates to res:ondent ~I___(_b)_( 6_) __ ~1(~.__(_b_)(_6)_ …..~ as respondent (b)(6) l(AI (b)(6) Jis deceased 00000031164 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ::I =========(=h )=((,=)=======—‘ Al~—___ (=h_)_(~6_)==.~I (b_)(_6) __.IAl._____,_(b””–‘-)-‘-‘-( …..I _____ ____ 6.._)____.I • Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Hedy Tahbaz, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals . Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge We entered the final administrative decision on October 5, 2020, when we dismissed the appeal of the Immigration Judge’s September 4, 2018, decision denying the lead respondent’s applications for asyhnn, withholding of rem:>Vai and protection tmder the regulations implementing the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). The respondent seeks reopening based on her status as a potential class member in a category specified in Rojas v. Johnson, 305 F.Supp. 3d 1176 (W.D. Wash. 2018). 1 We will deny the motion, as the respondent has not demonstrated that an exception to the 90-day deadline applies, or an exceptional situation warranting sua sponte reopening. Section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7); 8 C.F.R § 1003.2(a), (c)(3); Matter of J-J-, 21 l&NDec. 976, 984 (BIA 1997). Establishing Rojas v. Johnson membership excuses the 1-year deadline on asylum applications. But that benefit is irmnaterial in this case, given that the respondent’s asylum application was not denied as time-barred. Rather; the Immigration Judge and the Board fully considered the merits of the_ respondent’s application before concluding that she did not meet her burden of proof Accordingly, the motion will be denied. ORDER: • The motion is denied. 1 The motion really on relates to respondent I (b )( 6) I(~ (b )( 6) Das respondent (h v 6) I ( Al (h v 6) Dis deceased 00000030524 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board ofhnmigration Appeals MATTER OF: ~—(b_)(_6) __ ~1 Al (b)(6) Respondent FILED Jan 14, 2022 ON BEHALF OF RESPONDENT: Marina Marjorita Blake, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the lnnnigration Cotnt, New York, NY Before: Mann, Appellate Immigration Judge Opinion by Appellate Innnigration Judge Mann MANN, Appellate hnmigration Judge A Notice of Appeal (Form EOIR-26) must be filed within 30 calendar days ofan Immigration Judge’s oral decision or the mailing of a written decision unless the last day fulls on a weekend or legal holiday, in which case the appeal must be received no later than the next working day. 8 C.F.R. § 1003.38(b), (c). In the instant case, the lnnnigration Judge’s decision was mailed on March 30, 2021. The appeal was accordingly due on or before April 29, 2021. The record reflects, however, that the Notice of Appeal was filed with the Board on July 1, 2021. The appeal is lllltimely and will be summarily dismissed pursuant to 8 C.F.R. § 1003.l(d)(2)(i)(G). The respondent has filed a IOOtion asking the Board to take the appeal as timely. The respondent, through cotmSet states that the he did not receive the Immigration Judge decision until after the appeal period had expired. The decision does not indicate that the hnmigration Cotnt reserved or mailed the decision later than March 30, 2021. While the respondent submits a copy of an envelope showing a mailing date of June 21, 2021, it is not evident what the envelope contained. CotmSel bas sub1nitted an affirmation that the dlecision was received on Jtme 21, 2021, but the statement is llllSWom. CotmSel has not indicated what remedy was sought from the Immigration Cotnt. Therefore, we do not find the foregoing to be sufficient for us to consider this appeal by certification. The Innnigration Judge’s decision is therefore now finat and the record will be returned to the Immigration Court without further action. See 8 C.F.R. §§ 1003.3(a), 1003.38, 1003.39, 1240.14 and 1240.15. In light of the foregoing, the following orders will be entered. ORDER: The appeal is swJJm1rily dismissed. NOT FOR PUBLlGA.i’tlON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,.__~(h.,:.:.’)(=6)’—__.I, (b )( 6) Al Beneficiary ,.__(b_)_(6_)_ _.IPetitioner FILED JAN 2 7 2022 ON BEHALF OF PETITIONER: Andres Rivera-Ortiz, Esquire ON BEHALF OF DHS: Robert A. Brown , Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Miami, FL Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge ORDER: The petitioner has filed an appeal from the Director’s April 7, 2020, decision denying the visa petition filed on behalf of the beneficiary as the spouse of a United States citizen. On appeal, counsel for the U.S. Citizenship and Immigration Services requests that the record be remanded to give the petitioner an additional opportunity to submit evidence in support of the visa petition. The petitioner has not indicated any opposition to remand. Accordingly, the record is remanded for further proceedings and the entry of a new decision. 00000030966 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .______ )..:….(___ Al (b )( 6) _____:(-‘-b6-‘-) _,L Beneficiary .__ _ ___,_Cb…..)_,_(6-‘-)–~l Petitioner FILED JAN 2 8 2022 ON BEHALF OF PETITIONER: Akindiji 0. Oloko, Esquire ON BEHALF OF DHS: Juanita Simmons, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Atlanta, GA Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner appeals from the decision of the Field Office Director (Director) dated December 14, 2020, denying the visa petition on the basis of abandonment for failure to appear for an interview as requested. The appeal will be dismissed. We review the record de novo. See 8 C.F.R. § 1003. l(d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). On appeal, the petitioner contends that she did not receive the Director’s request for an interview (Notice of Appeal). However, we note that the request was addressed to the petitioner’s correct address as written on the visa petition. There is no evidence in the record that the request was retumed. 1 Consequently, we asswne that the request was mailed and delivered in the normal Counsel alleges that petitioner contacted the United States Citizenship and Immigration Service (USCIS) regarding the status of the case, and was informed on November 13, 2020, that “on November 6, 2_020, the Post Office retum.ed a notice we sent you for your Form 1-485, Application Al (b)(6) 00000030966 course of government business. We have no jurisdiction to consider an appeal of a denial of a visa petition due to abandonment. The Director advised the petitioner that she could file a motion to reopen based on an abandonment denial and advised her to fill out a Form 1-290B. See 8 C.F.R. § 103.2(b )(13)(i). Accordingly, the appeal will be dismissed for lack of jurisdiction. ORDER: The appeal is dismissed. to Register Permanent Residence or Adjust Status, Receipt, because they could not deliver it” (Petitioner’s Br. at 4). Further, counsel alleges that the petitioner and the beneficiary never received any notice to appear for an interview with USCIS on November 23, 2020, as alleged in the Director’s decision (Id.). In this regard, we note that statements by counsel in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight. Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (counsel’s arguments are not evidence). There is no evidence in the record that the request to appear for an interview on November 23, 2020, was returned. Further, the petitioner states in the Notice of Appeal, “There has been no change in Petitioner and the Applicant’s address and Petitioner and Applicant have received all other notices from USCIS including the denial notice.” 00000031293 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .__ ___ (b_)(_6) __,I, (b )(6) ___ Al Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Roberto Alvarez, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Liebowitz, AppeDate Immigration Judge Opinion by Appellate Immigration Judge Liebowitz LIEBOWITZ; Appellate Immigration Judge The respondent, a native and citizen of El Salvador, appeals from the Innnigration Judge’s decision dated November 6, 2018, denying his application for asyhnn and withholding ofremoval under sections 208(b)(l)(A) and 24l(b)(3)(A) of the Innnigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3)(A), and his request for protection under the regulations implementing the Convention Against Torture and Other cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’), 8 C.F.R. §§ 1208.16(c), 1208.18.1 The Department of Homeland Security has not responded to the appeal The appeal will be dismissed. The respondent’s request for a stay of rerroval will be denied. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under the de novo standard. 8 C.F.R § 1003.l(d)(3)(iI). We affirm the decision of the Immigration Judge. The Immigration Judge rendered a partial adverse credibility finding (IJ at 6-8). However, even assuming the respondent testified credibly, we agree with the Immigration Judge’s conclusion that the respondent did not establish that any past or feared future harm would be on accowit of a protected growid wider the Act to qualify for The respondent did not challenge the Innnigration Judge’s denial of his request for postconclusion vohmtary departure llllder section 240B(b) of the Act, 8 U.S.C. § 1229c(b). Accordingly, we deem this issue waived on appeal See Matter of W-E-R-B-, 27 I&N Dec. 795, 795 nl (BIA 2020) (explaining that issues not raised on appeal may be deemed waived). 00000031293 Al (b)(6) asyhnn (IJ at 8-10). Section 208(b)(l)(B)(0 of the Act; Matter of N-M-, 25 I&N Dec. 526, 529 (BIA 2011); Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009) (‘The Real ID Act requires that a protected ground represent ‘one central reason’ for an asylum applicant’s persecution’} The respondent claims past persecution and a well-founded fear of persecution on account of his membership in two particular social groups: (1) merchants talcingconcrete steps to oppose illegal gang activities that authorities fuil to protect, and (2) relatives of law enforcement officers targeted for gang activities that authorities fuil to protect. We agree with the Immigration Judge’s conclusion that the respondent did not dermnstrate that either of these formulations are cognizable tmder the Act (IJ at 8-lO;Exh. 5).2 SeeMatterofH-L-S-A-, 28 I&N Dec. 228,231 (BIA 2021) (‘To establish a val.id particular social group tmder the Act, the applicant nrust deroonstrate that his proposed group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question” (internal quotation omitted). The respondent has not shown that members of Salvadoran society generally agree on the temis used to define the groups (ie., “oppose illegal gang activities,” ”relatives of law enforcement officers,” and “authorities fuil to protect’) such that the characteristics create a definable bmmdary for the groups. He also does not point to evidence in the record to show that society considers either group to be a distinct group within Salvadoran society (Respondent’s Br. at 6-7). The Inn:nigration Judge also fowid that both proposed particular social groups are impermissibly circular (IJ at 10). The respondent has not raised this issue on appeal and it is therefore waived. The respondent argues on appeal that his proposed particular social group of ”merchants taking concrete steps to oppose illegal gang activities that authorities fuil to protect” is comparable to the group in Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (“persons taking concrete steps to oppose gang membership and gang authority”) (Respondent’s Br. at 7). We do not agree. The respondent did not introduce evidence that he testified in court against any gang member such that it would make him a ”wilness” and give him social distinction. See e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir. 2013) (recognizing the unique vulnerability of witnesses who testify against gang members in criminal proceedings). Further, this particular social group is not socially distinct, as the respondent argues, because the gang perceived him to be a witness to their crime (Respondent’s Br. at 7). See Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020) (explaining that “social distinction” is assessed through the perspective of society as a whole, not the persecutors); see also Matter ofM-E-V-G-, 26 I&N Dec. at 242 (same). Moreover, the Immigration Judge found that the respondent was not a member of this group, as he has not shown that he took any concrete steps to oppose gangs or cartels. We discern no clear error in this assessment. Rather, the respondent simply refused to comply with the demands made 2 On June 16, 2021, the Attorney General vacated Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018) (A-B-l) and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (A-B-JI). See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). While the Immigration Judge cited to Matter of A-B-1, we do not rely upon this decision in reviewing the Immigration Judge’s legal determinations. 2 00000031293 AJ (b)(6) by gang members to transport their weapons because it was illegal (IJ at 9-1 0; Tr. at 22-24, 28; Exh 3, Tab Cat 13-14). Cf Pirir-Boc, 750 F.3d at 1084-85 (holding that individuals “taking concrete steps to oppose gang membership and gang authority” may satisfy the particularity requirement to constitute a particular social group). As such, we concur with the Innnigration Judge that the respondent did not establish past persecution or a well-founded fear of future persecution on account of a cognizable particular social group of which he is a member. Further, we discern no clear error in the Immitgration Judge’s finding that the respondent did not establish that the motivation of his persecutors was based, as at least one central reason, on his membership in either of the proposed particular social groups (IJ at 10). The evidence of record, including the respondent’s testimony, supports the Immigration Judge’s finding that the threats the respondent received were on account of criminality, which does not constitute a basis for asylum (IJ at 10). See Matter of M-E-V-G-, 26 l&N Dec. at 235 (stating that asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (finding that a noncitiz.en’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground). As such, the respondent is not eligible for asylum Based on the foregoing analysis, we will uphold the Innnigration Judge’s finding that the respondent has not demonstrated, in accordance with applicable circuit precedent, that it is more likely than not that his membership in either proposed particular social group will be “a reason” for any persecution he may experience in El Salvador (IJ at 10). Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). The respondent has therefore not established his eligibility for withholding ofremoval under section 24l{b)(3)(A) of the Act. Finally, we affirm the Jnnnigration Judge’s denial of protection under the CAT. Based on the entirety of the record, the respondent has not established that it is more likely than not that he will be tortured by or “at the instigation of or with the consent or acquiescence of a public official or other person acting in an ofli.c ial capacity” upon removal to El Salvador (IJ at 10-12). 8 C.F.R §§ 1208.16(c)(2), 1208.18(a)(l); Garcia-Milian v. Holder, 730 F.3d 996, 1000-01 (9th Cir. 2013) (“[R]elief under the Convention Against Torture requires a two part analysisfirst, is it more likely than not that the alien will. be tortured upon retwn to his homeland; and second, is there sufficient state action involved in that torture.”); Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006). The Innnigration Judge did not clearly err in forecasting future events insofar as detennining the likelihood that the respondent wou1d be tortured upon retwn to El Salvador, with the requisite government acquiescence, even considering general country conditions. See Matter of Z-Z-O-, 26 J&N Dec. 586, 589-90 (BIA 2015). The Jnnnigration Judge properly considered the respondent’s ability to avoid future torture by relocating within El Salvador as a fuctor in determining whether the respondent established that it is more likely than not that he would be tortured upon return to El Salvador (IJ at 11-12). See Maldonado v. Lynch, 786 F.3d 1155, 1162-64 (9th Cir. 2015). The Innnigration Judge also considered that the respondent’s fumily members, including two brothers and a third brother who is a police officer, residing in El Salvador have not been harmed (IJ at 11-12). Given the lnnnigration Judge’s findings of fuct, the 3 00000031293 Al (b)(6) respondent did not establish that he would be subjected to treatment that qualifies as ”torture” under the governing CAT regulations and the relevant precedents. Matter of R-A-F-, 27 I&N Dec. 778, 779-80 (A.G. 2020) (holding that the Board reviews predictive facts for clear error, but whether the predicted outcorre constitutes ”torture” llllder the regulations is subject to de novo review); see also Matter of M-B-A-, 23 I&N Dec. 474, 479-80 (BIA 2002); Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). Therefore, the respondent has not established eligibility for protection under the CAT. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 4 NOT F()R Pl.WU~AJION ‘ U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) A1 (b)(6) FILED Jan 27, 2022 (h)(6) Al,__.:..;;(b.:.:.)(-“-‘6)’—_.I Respondents ON BEHALF OF RESPONDENTS: Chad M. Brandt, Esquire ON BEHALF OF DHS: Brandon M. Bayliss, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cotn1, Orlando, FL Before: Couch, Appellate Inunigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondents, a mother and her minor child, natives and citizens ofHondmas, appeal from the Innnigration Judge’s December 6, 2018, decision denyjng their application for asyhnn and withholding ofremoval under sections 208 and 241(b)(3) of the Inunigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l(b)(3), as well as protection under the regu}atioIB implementing the Convention Against Torn.rre and Other CIU!i lnhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No.100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT”). The Departrrent of Homeland Security (DHS) has filed an opposition to the respondents’ appeal The appeal will be dismissed. We review findin~ of fact, including the determination of credibility, for clear error. 8 C.F.R § 1003.l(d)(3)(0 (2018). We review questions of law, discretion, or judgment, and other issues denovo. 8 C.F.R § 1003.l(d)(3)(ii). The adult respondent (hereinafter “respondent”) fears criminals who attempted to extort money from her place of employment (IJ at 4-6; Exh 4 at 19). 1 The respondent claims that she was also a victim of robbery and sexual assault (IJ at 4; Exh 4 at 19). The respondent claims that she met her burden of proof for asylum based on her membership in the particular social groups comprised of “Honduran women who are victims of abuse” and “Honduran women who resist gan~ in Honduras” (IJ at 7; Tr. at 26-27). 1 The parties agreed that the respondent’s testimony would be consistent with her asylum application and her personal statement (Tr. at 29; Exlt 4 at 19). 00000031290 /\J (b)(6) let al We adopt and affirm the Innnigration Judge’s finding that the respondent did not rreet her btll”den of proof fur asylum (IJ at 6-11 ). Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). The Immigration Judge properly determined that the respondent did not establish that her claimed particular social groups are cognizable (IJ at 6-8). To demonstrate that a proposed particular social group is cognizable, the applicant must show that the group: (I) is composed of members who share a connmn innnutable characteristic, (2) is defined with particularity, and (3) is socially distinct within the society in question. Matter of W-G-R-, 26 I&N Dec. 208, 2 I 2-18 (BIA 2014); Matter of Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014). To satisfy the particularity requirement, a group must be discrete and have definable boundaries. See Matter of W-G-R-, 26 I&N Dec. at 214. To demonstrate social distinction, an applicant must provide evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group. See id at 217 (“Although the society in question need not be able to easily identify who is a member of the group, it must be commonly recognized that the shared characteristic is one that defines the group.’). Whether a proposed particular social group is cognizable is a question of law that we review de novo. See MatterofW-Y-C-& H-O-B-, supra at 191; see also Alvarado v. U.S. Att ‘y Gen., 984 F .3d 982, 988 (11th Cir. 2020); Main v. U.S. Att ‘.Y Gen., 764 F.3d 1282, 1290 (11th Cir. 2014). The respondent’s proposed group of ”Honduran women who resist gangs in Hondlll”as” is not cognizable because it lacks particularity and social distinction (IJ at 7). While the group includes immutable characteristics like nationality and gender, it is overbroad as it could encompass a diverse group of women with different religious, ethnic, sociai and economic backgrounds. See Alvarado, 984 F.3d at 991-92. With respect to the requirement of social distinction, the evidence in the record does not show that the respondent’s claimed group of “”Hondlll”an women who resist gangs in Hondtll”as” is perceived, considered, or recognized by Honduran society to be a distinct social group. We also agree with the Immigration Judge that the respondent’s proposed particular social group consisting of ”Hondlll”an women who are victims of abuse” is not a cognizable particular social group because it is impermissibly circularly defined by the fact that its members have been persecuted. See Alvarado v. U.S. Att’y Gen., 984 F.3d at 991 (holding ”Hondlll”an women who are llllable to leave a domestic relationship” is not legally cognizable because it is impermissibly defined by the harm itsel( it is not particular, and it lacks distinction in the relevant society); Amezcua-Preciado v. U.S. Att ‘y Gen., 943 F.3d 1337, 1344-46 (11th Cir. 2019) (holding ”women in Mexico who are unable to leave their domestic relationships” is not legally cognizable because it is circularly defined by the harm and lacks particularity and social distinction). For these reasons, the respondent has not demonstrated membership in a cognizable particular social group. Also, the Immigration Judge correctly concluded that the respondent did not establish that any harm that she encountered in Hondtrras was on account of a protected ground as is required to establish eligibility for asylum (IJ at 8). See Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir. 2021) (in order for protected ground to be central reason for persecuting applicant, as necessary for applicant for asylum or withholding of removal to satisfy nexus requirement, any past or reared future persecution must be at least in significant part because of the protected ground); Rodriguez v. U.S. Att ‘y. Gen., 735 F.3d 1302, 1310 (11th Cir. 2013). The respondent was 2 00000031290 A1 (b)(6) letal a victim of crures (IJ at 8-10). There is no evidence in the record that the persons who mistreated the respondent held any arumus towards her on accoW1t of her membership. in her claimed particular social groups or any other protected ground Wlder the Act. Sanchez-Castro v. U.S. Atty Gen., 998 F.3d 1281, 1283 (finding that the gang that targeted applicant’s family did so only as a means to the end of obtaining funds, not because of any ammus against her family); Sepulveda v. US. Att ‘y Gen., 401 F.3d 1226, 1230-31 (11th Cir. 2005); Matter of C-T-L-, 25 l&N Dec. 341 (BIA 2010) (holding that absent a showing that a protected ground would be a “central reason” for the claimed past or future harm, the respondent cannot establish eligibility for either asylum or withholding ofremoval); MatterofN-M-, 25 I&N Dec. 526 (BIA 201 l)(the motive of a persecutor is a finding of fact to be detennined by the Immigration Judge and is reviewed by the Board Wlder the clearly erroneous standard). On this record, we discern no legal error or clear factual error in the Immigration Judge’s detennination that the respondent did not meet her burden of proof for asylum Inasmuch as the respondent was properly found to have failed to establish eligibility for asylum, it follows that she cannot establish eligibility for withholding of removal, which has a higher burden of proof See INS v. Stevie, 467 U.S. 407 (1984). Additionally, the Immigration Judge did not err in denying the respondent’s application for CAT protection (IJ at 11-14). The respondent was never tortured in Honduras. Moreover, the evidence in the record does not show that the respondent will likely be tortured with the consent or acquiescence (to include the concept of willful blindness) of a public official or other person acting in an official capacity in Honduras. 8 C.F.R §§ 1208.16(c)(2), 1208.18(a)(l); Matter of Y-L-, A-G-& R-S-R-, 23 I&N Dec. 270, 27985 (A.G. 2002). On the whole, the record supports the Irrnnigration Judge’s resolution in this matter. Accordingly, the following order will be entered: ORDER: The respondent’s appeal is dismissed. 3 NOT FOR PUBLICATION 00000031287 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ._I_____ (_b)_(6) _.l A! ____ (b)(6) ! Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Christina Brown, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Denver, CO Before: Grant, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondents are a mother (”the lead respondent’) and child (”the minor respondent”) who are natives and citizens of El Salvador. They appeal an Innnigration Judge’s November 29, 2018, decision denying their applications for asylwn and withholding ofremoval under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(bX3), as well as protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Ptmishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAI). 1 The Department of Homeland Security (DHS) has not filed a response brief The respondents’ motion for review by a three-member panel is granted, but their request for oral argwnent is denied. 8 C.F.R §§ 1003.l(e)(6), 1003.l(e)(7). Toe appeal will be dismissed. We review the Immigration Judge’s factual :findings for clear error. 8 C.F.R § 1003.1 (dX3)(i). We review de novo all other issues, including issues of law, discretion, or judgment. 8 C.F.R § 1003.1 (d)(3)(iI). 1be respondents allege that they have sufl.ered and will sufl.er harm in El Salvador at the hands of MS-13. They claim they have been and will be targeted by the gang based on their political opinion and on accmmt of their membership in five particular social groups: (1) Salvadoran women; (2) Salvadoran females; (3) Salvadoran single women; ( 4) Salvadoran women who fled Because the Immigration Judge’s decision is tmpaginated, we cite only to the general sections designated by the Immigration Judge in her decision, except when we reference a footnote in the decision ~ (b)(6) let al 00000031287 El Salvador; and (5) immediate furrnly merri:>ers ot I (b)(6) p (IJ at sec. IV(B)(2)(i) (Asylum); Respondents’ Nov. 16, 2018, Prehearing Staterrent; Exhs. 2, 2A).2 The following facts are not in dispute. I(b )( 6) Ifled El Salvador for the United States in 2016 after he defied MS-13’s efforts to extort and recruit him (Tr. at 37-39; Exh. 3B). After he arrived in this country, the gang continued to threaten l1hlfil]via social media that they would kill his family if he did not pay them money (Exh. 3B). As found by the Innnigration Judge, after I(b)(6) lleft El Salvador, the gang threatened to kidnap or kill the respondents on at least three occasions in August and September 2016 ((IJ Nov. 29, 2018, at secs. IV(B)(I), IV(B)(2) (Asylwn); Tr. at 40-51). During the first incident, the gang member who had attempted to recruit I (b)(6) I called the lead resporxlent an “old whore” and threatened to kidnap the minor respondent (lJ Nov. 29, 2018, at sec. IV (Asylum) (B)(l); Tr. at 42-44). On the second occasion, gang members approached the respondents and stated that since I (b)(6) I was not “around,” the minor respondent “would pay for it” and ”if not,” the gang would kill both of the respondents (Tr. at 46-47). The lead respondent believed that the gang intended to rape or kill the minor respondent to take revenge on I(b)(6) I(Tr. at 48-49). During the third encounter, the gang attempted to extort the lead respondent and repeated their threats against both respondents (Tr. at 49-51). The Innnigration Judge found that the resporxients failed to meet their btrrden of proof on their applications for relief for a number of reasons (IJ Nov. 29, 2018, at secs. IV (Asylum), IV Withholding of Removal, and V (Convention Against Torttrre)). We will address only those reasons provided that are dispositive of this appeal See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (recognizing that, as a general rule, cotrrts and agencies are not required to mike findings on issues the dec~ion of which is unnecessary to the results they reach). We affirm the Immigration Judge’s denial of asylum and statutory withholding ofreiroval (IJ at sec. IV (Asylum) and sec. IV (Withholding of Removal)). The respondents did not establish past persecution. See 8 C.F .R § l 208.13(b )(1 ). While the respondents’ fear based on the gang’s threats was certainly understandable, we agree with the Innnigration Judge that the threats were not so severe and menacing as to constitute past persecution under the Act. See Vatulev v. Ashcroft; 354 F.3d 1207, 1210 (10th Cir. 2003) (”lbreats alone generally do not constitute actual persecution; only rarely, when they are so immediate and menacing as to cause significant suffering or harm in themselves, do threats per se qualify· as persecution.”). We find no merit to the resporxients’ contentions that the threats rose to the level of persecution in light of the widespread gang and gender-based violence in El Salvador (Respondents’ Br. at 79). While the fur-reaching and reprehensible criminal conduct of MS-13 in El Salvador is wellknown, the respondents have not shown thatthe threats against them caused significant suffering or harm. Moreover, the gang member’s offensive slur against the lead resporxient fell within the 2 The Immigration Judge found arxi the record shows that the respondents did not pmsue any claims for relief based on their fumilial relationship to the lead respondent’s spouse, who was a50 apparently extorted by the gang (IJ Nov. 29, 2018, at nl; Tr. at 120-21). 2 pJ (b)(6) let al 00000031287 bmmds of harassment, not persecution See Vatulev v. Ashcroft, 354 F.3d at 1210; see also Zhi Wei Pangv. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012) (“[p]ersecution is an extreme concept that does not include every sort of treatment om society regards as offensive.” (internal quotation marks omitted)). We also agree with the Immigration Judge that the respondents have not otherwise demonstrated an independent well-founded fear or likelihood of future persecution in El Salvador (IJ Nov. 29, 2018, at sec. IV(B)(2) (Asylum) and sec. IV (Withholding ofRemovaQ). See 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2). First, we discern no clear error in the Immigration Judge’s detennination that the gang’s motives in threatening the respondents were criminal and pecuniary in natme and were not related to their gender, their membership in their proposed gender-related groups, or any political opinion they may have held. Vatulev v. Ashcroft, 3 54 F .3d at 1209-10 (finding that some of the acts against the petitioner and her fumily, including the kidnapping of her son and mugging of her husband, were based upon ”financial extortion[,]” and also stating that something larger than personal hostility must be involved to be eligible for asylwn). It is undisputed that the MS-13 gang members who threatened the respondents were motivated, for at least one central reason, by revenge based onl (b)(6) Ifuilme to join their ranks or pay them money. ‘The respondents have not set forth specific evidence that the gang was further motivated, for one central reason, by animus against women or any of the gender-based social groups to which the respondents claim to belong. Rather, the respondents’ gender bears only a tangential nexus to the threatened harm Moreover, mistreatment for being “anti-gang” or opposed to the actions of gangs, without more, is not persecution on accmmt of an actual or imputed political opinion. See, e.g., Rivera Barrientos v. Holder, 658 F.3d 1222, 1228 (10th Cir. 2011) (rejecting a claim that the applicant’s political opinion was “one central reason” for the gang’s conduct, where there was some evidence that the gang was motivated by the applicant’s opposition to gangs, but it was “equally as likely” that the gang’s actions were motivated by the respondent’s opposition to recruit efforts, and not by her vocal opposition to gangs). Notwithstanding the foregoing, however, even assmning for pmposes of this appeal that the gang members were centrally motivated by the respondents’ fumilial relationship tq (b)(6) Ior any other asserted protected grO\md, the Innnigration Judge correctly concluded that they have not shown that their past harm or any future harm was or would be inflicted by the Salvadoran government or individuals that the government is either unable or unwilling to control See Batalova v. Ashcroft, 355 F.3d 1246, 1253 (10th Cir. 2004).3 We acknowledge the Immigration Judge’s reliance on then-controlling precedent in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“Matter of A-B-l), in addressing the Salvadoran government’s willingness and ability to control MS-13. While the Attorney General has now vacated Matter of A-B-1 in its entirety, its vacatur does not and need not govern our decision on this issue. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“Matter of A-B-Ill). We will assess the Salvadoran government’s pmported inability and llllwillingness to control the respondents’ persecutors under binding and nonbinding circuit comt precedent on this issue. 3 Al (b)(6) let al 00000031287 As found by the Immigration Judge, the respondents never sought police protection from MS13 in El Salvador (IJ Nov. 29, 2018, at sec. IV(B)(2)(ii) (Asylum); Tr. at 54). See Cisneros-Diaz v. Holder, 415 F. App’x 940, 943 (10th Cir. 2011) (explaining that where an applicant does not enlist the help of police, he lacks :firsthand koowledge of what assistance the police could offer). Moreover, the Immigration Judge found, and the record shows, that notwithstanding some evidence of government complicity in gang activities, there is also evidence that Salvadoran authorities have also cracked down heavily on gang violence (IJNov. 29, 2018, at sec. 1V(B)(2)(ii) (Asylum); Exh 3 at 59-60, 143-46, 163-64). Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (holding that the government of Indonesia was not unwilling or unable to control individuals who targeted Christians for harm where the government bad taken steps to stop and ptmish sectarian violence). As found by the Immigration Judge, the Salvadoran legislature has also enacted laws to investigate and prosecute government corruption with local gangs (IJ Nov. 29, 2018, at sec. IV(B)(2) (Asylum); Exh 3 at 76). In sum, while the evidence shows that the Salvadoran government has failed to completely eradicate gang violence and crime in the country, there is insufficient evidence on the whole to show that the Salvadoran government was or would be unwilling or unable to control the respondents’ persecutors. Based on the foregoing, the respondents have not met their burden of proof for asylum and withholding of removal. We also affirm the lrrnnigration Judge’s denial of CAT protection (IJ Nov. 29, 2018, sec. V). See 8 C.F.R §§ 1208.16-1208.18. As fmmd by the Immigration Judge, the respondents have not shown that they have suffered past torture (IJ Nov. 29, 2018, sec V). See 8 C.F.R. § 1208.18(a)(l). They also have not demonstrated that they will more likely than not face torture by the government or anyone else in El Salvador. See 8 C.F.R §§ 1208.16(b)(2). The regulations do not require evidence showing that the government’s previous efforts were successful in order to conclude that it is not likely that a public official would acquiesce to any potential torture. 8 C.F.R. § 1208.16(c)(3); see Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); see e.g., Medina-Velasquez v. Sessions, 680 F. App’x 744, 753 (10th Cir. 2017) (noting that the Honduran government’s inability to provide complete protection to its citizens against cartels does not, in itse~ demonstrate acquiescence); Hernandez-Torres v. Lynch, 642 F. App’x 814, 81920 (10th Cir. 2016) ( explaining that a government’s “inability to ofter complete protection did not rise to the level of government acquiescence” and citing other circuit court decisions that have reached the same conclusion, including Tamara-Gomez v. Gonzales, 447 F.3d 343,351 (5th Cir. 2006) (Colombian government’s inability to provide complete security from guerilla group did not constitute acquiescence)). Thus, contrary to the respondents’ appellate arguments, the presence of widespread corruption and the government’s general inability to protect all of its citizens, including women, from gang violence are not enough to establish likely acquiescence by a public official This is so particularly when the record, as noted by the Immigration Judge, contains evidence of the Salvadoran government making a concerted effort to crackdown against corruption and other efforts to protect citizens from gang violence. 8 C.F.R § 1208.18(a)(7) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to 4 (b )( 6) let al 00000031287 prevent such activity.’); see, e.g., Hernandez-Ortiz v. Barr, 791 F. App’x 758,762 (10th Cir. 2019) (”To the extent the Guatemalan governrrent’s efforts have fallen short with regard to gang activity, we have not required evidence that policing efforts be successful to conclude that a government would not be willfully blind to criminal activity that could constitute torture.’); Cruz-Funez v. Gonzales, 406 F .3d 1187, 1192 (10th Cir. 2005) (providing that evidence of governrrent corruption and llllderfimding of police was insufficient to compel a conclusion of governrrent acquiescence to criminal activity by a private individual). Accordingly, we decline to disturb the Irrmigration Judge’s denial of CAT protection. As a final matter, we are unpersuaded by the respondents’ arguments that they were deprived of a fair hearing (Respondents’ Br. at 23-25). We discern no basis for their allegations that the Immigration Judge’s adverse decision was influenced by political rhetoric regarding Central American asylum claims (Id). Moreover, the fuct that many asylum claims have been unsuccessful does not, in and of itsel( demonstrate the existence of bias. Each asylum case is decided on its own fucts and evidence. We are satisfied that the Immigration Judge’s decision in this case was fair and otherwise comported with due process. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 5 NOT FOR PUBLICATION 00000031284 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b)(6) L /lJ Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Christina Brown, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Denver, CO Before: Grant, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The respondents are a mother (”the lead respondent’) and child (”the minor respondent”) who are natives and citizens of El Salvador. They appeal an Innnigration Judge’s November 29, 2018, decision denying their applications for asylwn and withholding ofremoval under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(bX3), as well as protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Ptmishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAI). 1 The Department of Homeland Security (DHS) has not filed a response brief The respondents’ motion for review by a three-member panel is granted, but their request for oral argwnent is denied. 8 C.F.R §§ 1003.l(e)(6), 1003.l(e)(7). Toe appeal will be dismissed. We review the Immigration Judge’s factual :findingsfor clear error. 8 C.F.R § 1003.1 (dX3)(i). We review de novo all other issues, including issues of law, discretion, or judgment. 8 C.F.R § 1003.1 (d)(3)(iI). 1be respondents allege that they have sufl.ered and will sufl.er harm in El Salvador at the hands of MS-13. They claim they have been and will be targeted by the gang based on their political opinion and on accmmt of their membership in five particular social groups: (1) Salvadoran women; (2) Salvadoran females; (3) Salvadoran single women; ( 4) Salvadoran women who fled Because the Immigration Judge’s decision is tmpaginated, we cite only to the general sections designated by the Immigration Judge in her decision, except when we reference a footnote in the decision Pj (b)(6) let al 00000031284 El Salvador; and (5) immediate furrnly merri:>ers o~ (b)(6) I)(IJ at sec. IV(B)(2)(i) (Asylum); Respondents’ Nov. 16, 2018, Prehearmg Staterrent; Exhs. 2, 2A).2 The following facts are not in dispute. I (b )( 6) I fled El Salvador for the United States in 2016 after he defied MS-13’s efforts to extort and recruit him (Tr. at 37-39; Exh. 3B). After he arrived in this country, the gang continued to threaten I rhV1>1 I via social media that they would kill his family if he did not pay them money (Exh. 3B). As found by the Innnigratio n Judge, after I(b )( 6) Ileft El Salvador, the gang threatened to kidnap or kill the respondents on at least three occasions in August and September 2016 ((IJ Nov. 29, 2018, at secs. IV(B)(I), IV(B)(2) (Asylwn); Tr. at 40-51). During the first incident, the gang member who had attempted to recruit I (b)(6) I called the lead resporxlent an “old whore” and threatened to kidnap the minor respondent (lJ Nov. 29, 2018, at sec. IV (Asylum) (B)(l); Tr. at 42-44). On the second occasion, gang members approached the respondents and stated that since I (b)(6) Iwas not “around,” the minor respondent “would pay for it” and ”if not,” the gang would kill both of the respondents (Tr. at 46-47). The lead respondent believed that the gang intended to rape or kill the minor respondent to take revenge on I (b)(6) I(Tr. at 48-49). During the third encounter, the gang attempted to extort the lead respondent and repeated their threats against both respondents (Tr. at 49-51). The Innnigration Judge found that the resporxients failed to meet their btrrden of proof on their applications for relief for a number of reasons (IJ Nov. 29, 2018, at secs. IV (Asylum), IV Withholding of Removal, and V (Convention Against Torttrre)). We will address only those reasons provided that are dispositive of this appeal See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (recognizing that, as a general rule, cotrrts and agencies are not required to mike findings on issues the dec~ion of which is unnecessary to the results they reach). We affirm the Immigration Judge’s denial of asylum and statutory withholding ofreiroval (IJ at sec. IV (Asylum) and sec. IV (Withholding of Removal)). The respondents did not establish past persecution. See 8 C.F .R § l 208.13(b )(1 ). While the respondents’ fear based on the gang’s threats was certainly understandable, we agree with the Innnigration Judge that the threats were not so severe and menacing as to constitute past persecution under the Act. See Vatulev v. Ashcroft; 354 F.3d 1207, 1210 (10th Cir. 2003) (”lbreats alone generally do not constitute actual persecution; only rarely, when they are so immediate and menacing as to cause significant suffering or harm in themselves, do threats per se qualify· as persecution.”). We find no merit to the resporxients’ contentions that the threats rose to the level of persecution in light of the widespread gang and gender-based violence in El Salvador (Respondents’ Br. at 79). While the fur-reaching and reprehensible criminal conduct of MS-13 in El Salvador is wellknown, the respondents have not shown that the threats against them caused significant suffering or harm. Moreover, the gang member’s offensive slur against the lead resporxient fell within the 2 The Immigration Judge found arxi the record shows that the respondents did not pmsue any claims for relief based on their fumilial relationship to the lead respondent’s spouse, who was a50 apparently extorted by the gang (IJ Nov. 29, 2018, at nl; Tr. at 120-21). 2 Al rhV1-,) let al 00000031284 bmmds of harassment, not persecution See Vatulev v. Ashcroft, 354 F.3d at 1210; see also Zhi Wei Pangv. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012) (“[p]ersecution is an extreme concept that does not include every sort of treatment om society regards as offensive.” (internal quotation marks omitted)). We also agree with the Immigration Judge that the respondents have not otherwise demonstrated an independent well-founded fear or likelihood of future persecution in El Salvador (IJ Nov. 29, 2018, at sec. IV(B)(2) (Asylum) and sec. IV (Withholding ofRemovaQ). See 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2). First, we discern no clear error in the Immigration Judge’s detennination that the gang’s motives in threatening the respondents were criminal and pecuniary in natme and were not related to their gender, their membership in their proposed gender-related groups, or any political opinion they may have held. Vatulev v. Ashcroft, 3 54 F .3d at 1209-10 (finding that some of the acts against the petitioner and her fumily, including the kidnapping of her son and mugging of her husband, were based upon ”financial extortion[,]” and also stating that something larger than personal hostility must be involved to be eligible for asylwn). It is undisputed that the MS-13 gang members who threatened the respondents were motivated, for at least one central reason, by revenge based on I (b)(6) I fuilme to join their ranks or pay them money. ‘The respondents have not set forth specific evidence that the gang was further motivated, for one central reason, by animus against women or any of the gender-based social groups to which the respondents claim to belong. Rather, the respondents’ gender bears only a tangential nexus to the threatened harm Moreover, mistreatment for being “anti-gang” or opposed to the actions of gangs, without more, is not persecution on accmmt of an actual or imputed political opinion. See, e.g., Rivera Barrientos v. Holder, 658 F.3d 1222, 1228 (10th Cir. 2011) (rejecting a claim that the applicant’s political opinion was “one central reason” for the gang’s conduct, where there was some evidence that the gang was motivated by the applicant’s opposition to gangs, but it was “equally as likely” that the gang’s actions were motivated by the respondent’s opposition to recruit efforts, and not by her vocal opposition to gangs). Notwithstanding the foregoing, however, even assmning for pmposes of this appeal that the gang members were centrally motivated by the respondents’ furnilial relationship tol (b)(6) !or any other asserted protected ground, the Inmngration Judge correctly concluded that they have not shown that their past harm or any future harm was or would be inflicted by the Salvadoran government or individuals that the government is either unable or unwilling to control See Batalova v. Ashcroft, 355 F.3d 1246, 1253 (10th Cir. 2004).3 We acknowledge the Immigration Judge’s reliance on then-controlling precedent in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“Matter of A-B-l), in addressing the Salvadoran government’s willingness and ability to control MS-13. While the Attorney General has now vacated Matter of A-B-1 in its entirety, its vacatur does not and need not govern our decision on this issue. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“Matter of A-B-Ill). We will assess the Salvadoran government’s pmported inability and unwillingness to control the respondents’ persecutors under binding and nonbinding circuit court precedent on this issue. 3 ftJ (b)(6) let al 00000031284 As found by the Immigration Judge, the respondents never sought police protection from MS13 in El Salvador (IJ Nov. 29, 2018, at sec. IV(B)(2)(ii) (Asylum); Tr. at 54). See Cisneros-Diaz v. Holder, 415 F. App’x 940, 943 (10th Cir. 2011) (explaining that where an applicant does not enlist the help of police, he lacks :firsthand koowledge of what assistance the police could offer). Moreover, the Immigration Judge found, and the record shows, that notwithstanding some evidence of government complicity in gang activities, there is also evidence that Salvadoran authorities have also cracked down heavily on gang violence (IJNov. 29, 2018, at sec. 1V(B)(2)(ii) (Asylum); Exh 3 at 59-60, 143-46, 163-64). Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (holding that the government of Indonesia was not unwilling or unable to control individuals who targeted Christians for harm where the government bad taken steps to stop and ptmish sectarian violence). As found by the Immigration Judge, the Salvadoran legislature has also enacted laws to investigate and prosecute government corruption with local gangs (IJ Nov. 29, 2018, at sec. IV(B)(2) (Asylum); Exh 3 at 76). In sum, while the evidence shows that the Salvadoran government has failed to completely eradicate gang violence and crime in the country, there is insufficient evidence on the whole to show that the Salvadoran government was or would be unwilling or unable to control the respondents’ persecutors. Based on the foregoing, the respondents have not met their burden of proof for asylum and withholding of removal. We also affirm the lrrnnigration Judge’s denial of CAT protection (IJ Nov. 29, 2018, sec. V). See 8 C.F.R §§ 1208.16-1208.18. As fmmd by the Immigration Judge, the respondents have not shown that they have suffered past torture (IJ Nov. 29, 2018, sec V). See 8 C.F.R. § 1208.18(a)(l). They also have not demonstrated that they will more likely than not face torture by the government or anyone else in El Salvador. See 8 C.F.R §§ 1208.16(b)(2). The regulations do not require evidence showing that the government’s previous efforts were successful in order to conclude that it is not likely that a public official would acquiesce to any potential torture. 8 C.F.R. § 1208.16(c)(3); see Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); see e.g., Medina-Velasquez v. Sessions, 680 F. App’x 744, 753 (10th Cir. 2017) (noting that the Honduran government’s inability to provide complete protection to its citizens against cartels does not, in itse~ demonstrate acquiescence); Hernandez-Torres v. Lynch, 642 F. App’x 814, 81920 (10th Cir. 2016) ( explaining that a government’s “inability to ofter complete protection did not rise to the level of government acquiescence” and citing other circuit court decisions that have reached the same conclusion, including Tamara-Gomez v. Gonzales, 447 F.3d 343,351 (5th Cir. 2006) (Colombian government’s inability to provide complete security from guerilla group did not constitute acquiescence)). Thus, contrary to the respondents’ appellate arguments, the presence of widespread corruption and the government’s general inability to protect all of its citizens, including women, from gang violence are not enough to establish likely acquiescence by a public official This is so particularly when the record, as noted by the Immigration Judge, contains evidence of the Salvadoran government making a concerted effort to crackdown against corruption and other efforts to protect citizens from gang violence. 8 C.F.R § 1208.18(a)(7) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to 4 00000031284 Al (b)(6) letal prevent such activity.’); see, e.g., Hernandez-Ortiz v. Barr, 791 F. App’x 758,762 (10th Cir. 2019) (”To the extent the Guatemalan governrrent’s efforts have fallen short with regard to gang activity, we have not required evidence that policing efforts be successful to conclude that a government would not be willfully blind to criminal activity that could constitute torture.’); Cruz-Funez v. Gonzales, 406 F .3d 1187, 1192 (10th Cir. 2005) (providing that evidence of governrrent corruption and llllderfimding of police was insufficient to compel a conclusion of governrrent acquiescence to criminal activity by a private individual). Accordingly, we decline to disturb the Irrmigration Judge’s denial of CAT protection. As a final matter, we are unpersuaded by the respondents’ arguments that they were deprived of a fair hearing (Respondents’ Br. at 23-25). We discern no basis for their allegations that the Immigration Judge’s adverse decision was influenced by political rhetoric regarding Central American asylum claims (Id). Moreover, the fuct that many asylum claims have been unsuccessful does not, in and of itsel( demonstrate the existence of bias. Each asylum case is decided on its own facts and evidence. We are satisfied that the Immigration Judge’s decision in this case was fair and otherwise comported with due process. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 5 00000031386 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board ofhnmigration Appeals MATIER OF: .__ ____ (_b)_( 6_) ___ ___,lAl (h )(6′) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Edward Cifuentes, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the lrmnigration Court, Miami, FL Before: Couch, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondent, a native and citiz.en of Honduras, appeal<; the Immigration Judge’s decision, dated February 26, 2019, denying his requests for asylwn under section 208 of the Innnigration and Nationality Act, 8 U.S.C. § 1158, withbo lding of removal under section 241 (b )(3) of the Act, 8 U.S.C. § 123l(b)(3), and protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or PUIIBhment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT), and ordering his removal from the United States. 1 We will dismiss his appeal We review the findings of met, including the determination of credibility, made by the Irrnnigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.1 (d)(3)(0. We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(il). It is the respondent’s burden to establish eligibility for relief from removal Section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). We agree with the Immigration Judge that the respondent has not established eligibility for asylum orwithholding ofremoval See8C.F.R.§ 1208.B(b), 1208.16(b). OnappeaL hepursues a claim based upon mermership in a particular social group premised “on his kinship ties to his [deceased] grandfather” (Respondent’s Br. at 10). While not affirmatively endorsing or rejecting the proposed particular social group, the respondent has not established that his membership in such group is a “central reason” for the claimed past or reared persecution OJ at 4). See Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 214 (BIA 2007) (requiring that a protected ground be a “central reason” for the asylum applicant’s claimed persecution); see also Matter of C-T-L-, 25 I&N Dec. 341,347 (BIA 2010) (same with respect to a withhokling applicant). The respondent does not dispute that he is subject to removal from the United States as charged (JJ at 1-2; Exh. 1). See section 212(a)(6)(A)(~ of the Act, 8 U.S.C. § l 182(a)(6)(A)(i). 00000031386 The respondent testified that he recalls being threatened “four or five” times by “text messages or calls” (Tr. at 22) bywlidentified individuals from the age of 12 to 14 (Tr. at 27). ‘The majority were to collect or to get their monies” (Tr. at 22). Apparently, his grandfather, prior to his death, was paying fur a life insurance policy (Tr. at 23). The respondent, while not fully disclosing his socio-economic status in Hondw-as, explained that ”It’s not that we were living bad economically” (Tr. at 23). He further iterated that he feared future harm because “if someone’s in this country and they go to Hondw-as, they believe that they have a lot more money … and they have a bigger reason” (Tr. at 29). While, on appea~ he argues that the unidentified fear individuals “wanted to wipe out the fumily so the fumily could not seek revenge against these people for killing their grandfuther” (Respondent’s Br. at 3), he offered no testimony that the reared individuals relayed such a claim specifically to him Instead, he made a general andunspecific claim that ”they wanted to wipe out my whole entire fumily because they maybe thought that we were going to take revenge against them because of what they did to my grandfuther” (Tr. at 30-31 ). He did not explain how he learned of such intention. It is also unclear why unnamed individuals whose identities are unknown would believe that the respondent, either during his childhood or at the present time, would fear that he would take ”revenge against them” Considering the circumstances set forth above, we agree with the Immigration Judge that the respondent has not established eligibility for asylum or withholding of removal (IJ at 4-5). The respondent may genuinely rear wlidentified individuals in Honduras who sought to extort him for money and now believe he has a “lot more money.” However, when a fumily is targeted because its wealth makes it an obvious target for extortionate demands, that motivation does not constitute extortion because of family relationships. Sanchez-Castro v. U.S. Att ‘.YGen., 998 F.3d 1281, 1287 (11th Cir. 2021) (citing Cambara-Cambara v. Lynch, 837 F.3d 822, 826 (8th Cir. 2016)). Mere speculation that the unidentified individuals wish to harm the respondent because they think that they are going to “take revenge” again.st them is insufficient to establish a per se anim.ls against him on account of his family ties. Ultimately, we recognize that the respondent, like many Honduran nationals, may genuinely fear extortion and other forms of crime in his home country. However, as is demonstrated here, evidence that merely shows that a person has been the victim of criminal activity and fears future criminal activity does not constitute evidence of persecution based on a statutorily protected ground. See Ruiz v. U.S. Alty. Gen., 440 F.3d I 247, 1258 (11th Cir. 2006); see also Matter of A-M-E-& J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007)(rejecting a claim where “(t)he respondents have produced no evidence to show that the anonymous caller or callers had any motive other than attelll)ted criminal extortion.”); Matter of T-M-B-, 21 l&N Dec. 775, 779 (BIA 1997) (finding no persecution on account of a protected grmmd where the feared group’s “practice of securing financial support by the threats of force and actual harm [was] motivated by the victim’s wealth, not the victim’s political opinion”). Finally, the respondent has not established eligibility for protection tmder the CAT (IJ at 4). The respondent, who was not previously tortured, has presented a speculative claim that now, several years after leaving Honduras, the feared individuals still remain inclined to harm him. Moreover, aside from speculation, the respondent has not offered any persuasive testimony or evidence that the feared individuals have any actual connection with the Honduran government (Tr. at 3 I). Considering the entirety of the record, he bas not established, upon his remova~ it is more likely than not that he will be tortured by or at the instigation of or with the consent or 2 00000031386 ~ (b)(6) acquiescence (including “willful blindness”) of a public official or other person acting in an official capacity. See 8 C.F.R §§ 1208.16(c)(2), 1208.18(a); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1241 (11th Cir. 2004); Matter of J-F-F-, 23 I&N Dec. 912, 917-18 (A.G. 2006) (holding that a claim to protection under the CAT cannot be granted by stringing together a series of suppositions). Ultimately, we do not fault the respondent for wishing to remain in the United States. He is not precluded from requesting a stay of removal from the Department of Homeland Security. See 8 C.F.R § 241.6. However, for the reasons set forth above, we affirm the Immigration Judge’s decision to deny his clam and conclude these proceedin~ by ordering his removal from the United States to Honduras. Accordingly, the following order’ will be entered. ORDER: The respondent’s appeal is dismissed. 3 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: .____(b_)(_6)_ ___.IAJ (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Audi Flenmings, Esquire ON BEHALF OF OHS: Vera Hochberg, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Comt, Miami, FL Befure: Liebowitz,, Appellate Immigration Judge Opinion by Appellate Immigration Judge Liebowitz LIEBOWITZ, Appellate Immigration Judge The respondent, a native and citizen of Ghana, appeals the Innnigration Judge’s February 12, 2019, decision denying his application for asylum, withholding of rernova4 and protection under the regulations implementing the Convention Against Torture and Other Crue4 Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT} See sections 208, 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. §§ 1208.13, 1208.16(c)-1208.18. The respondent also filed a motion to remand. The Department of Homeland Security opposes the motion to remand. The appeal will be dismissed, and the motion will be denied. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(D. We review all other issues, including issues of law, discretion, or judgment, under the de novo standard. 8 C.F.R. § 1003.I(d)(3)(ii). The respondent seeks asylum, withholding of remova4 and protection Wlder the CAT based on his fear of harm in Ghana on account of his religion and his membership in his particular social groups based on his gender and family membership (IJ at 5; Tr. at 52; Exh. 3, 3A). The Immigration Judge denied the respondent’s applications because she fuund the respondent was not credible (IJ at 3-5). Ahernatively, the Immigration Judge found that the respondent did not meet hisburden of proof to establish eligibility fur asylum, withholding ofremova4 or protection under the CAT (IJ at 5-7). The respondent now appeals. We affirm the Immigration Judge’s adverse credibility determination (IJ at 3-5). See Lyashchynska v. U.S. Att ‘.YGen., 676 F.3d 962, 967 (11th Cir. 2012) (“A denial of relie( however, 00000031383 AJ (b)(6) can be supported solely by an adverse credibility detennination, especially if the alien rails to produce corroborating evidence.”); Shkambiv. U.S. Att ‘yGen., 584F.3d 1041, 1050 n. 7 (11th Cir. 2009); see also section 208(b)(l)(B)(iii) of the Act (under the REAL ID Act, an Innnigration Judge may, considering the totality of the circumstances, base a credibility fmding on the applicant’s “demeanor, candor, or responsiveness,” the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim”). Specifically, the Immigration Judge found inconsistencies in the respondent’s testimony and documentar evidence including: 1) the timeline of his fleeing from Ghana; 2) details surrounding (b)(6) I (b )( 6) I assistance; 3) why I (b )( 6) I did not write a letter in support of his claim; and 4) the secret meeting with his rather and other tnbal members (IJ at 3-5). 1 The Immigration Judge found the respondent’s testimony and documentary evidence inconsistent regarding his timeline of fleeing from Ghana (IJ at 3-4). The respondent testified he left Ghana otj (b)(6) Istowed away on a boat for 1-2 months, disembarked in Mexico, and a week later entered the United States (IJ at 3; Tr. at 105-107, 126). The Immigration Judge noted this woukl have the respondent arriving in the United States in early to mid-March 2013 (IJ at3; Tr. at 128). However, the respondent did not enter the United States untilI (b)(6) l(IJ at 3; Tr. at 129; Exl1. I). Therefore, the Innnigration Judge found the respondent’s timeline was missing 2 months or more (IJ at 3). When questioned about this inconsistency, the respondent said he was not sure he left Ghana in January 2013 (lJ at 4). However, the respondent filed two applications for Asylum and Withholding. of Removal (Form I-589), and both gave I (b)(6) ~ !(b)(6)1 as the date he left Ghana (IJ at 4; Exh. 3, 3A; Tr. at 129). Contrary to the respondent’s argument on appeai the Immigration Judge considered the respondent’s explanation that he was not sure how long he was on the boat, but did not credit this as explaining the inconsistency (IJ at 4; Tr. at 129-130; Respondent’s Br. at 17-18). Further, we are not persuaded by the respondent’s argurnent on appeal that the Innnigration Judge should not have considered this discrepancy as it does not go to the heart of his claim (Respondent’s Br at 18). See section 208(b )(1 )(B)(iii) of the Act; Shkambi, 585 F.3d at 1050 n 7. The Immigration Judge also found the respondent’s testimony and documentary evidence inconsistent as to the details ofl (hV6) Iassistance (IJ at 4-5). See Chen v. U.S. Atty Gen., 463 F. 3d 1228, 1231 (l l th Cir. 2006) (holding that an adverse credibility finding may be supported by inconsistencies between written statements and the respondent’s testimony among other things). The respondent testified that after the 2011 secret meeting, he ran to the house of I (b)(6) I a woman he knew from church (lJ at 2, 4; Tr. at 92, 117). The Immigration Judge noted that the respondent testified he remained in hiding at her house from 2011 to 2013 (IJ at 3; Tr. at 100). However, the respondent submitted a news article from the Daily Post that stated he left his village in 2013 (lJ at 4; Tr. at 125; Exh. 7 at Tab G). The respondent a~o testified it took him about an hour walking to get to I (b)(6) Ihouse (IJ at 2, 4; Tr. at 93). The Immigration Judge found this inconsistent withthe Accra Times article stating the respondent was chased from one village to another until I (b)(6) j found him and offered help (IJ at 4; Tr. at 126, 155; Exh. 7 at Tab G). When asked about this inconsistency, the respondent testified that 1 As the factors mentioned above amply support the adverse credibility detennination, we do not address the other factors relied on by the Immigration Judge in her credibility assessment. 2 00000031383 Al,…._(_b )_( 6″‘-)____. I (b)(6) Imeant to say the respondent came to her and she gave him help. He also asserted that Ghanaians do not provide details like that (IJ at 4; Tr. at 126, 155). The Immigration Judge did not credit this explanation for the inconsistencies (IJ at 4). We are not persuaded by the respondent’s reassertion on appeal that Ghanaian culture exaggerates facts and the respondent did not know where the articles obtained their information (Respondent’s Br. at 8, 11 ). The Jrrmigration Judge also noted an implausibility as to why I (b)(6) Idid not send a letter in support of the respondent to the Immigration Court (IJ at 4). The respondent testified thatI (b)(6) !would not send a letter in support of his claim because she feared trouble if someone found out (IJ at 4; Tr. at 122). The Immigration Judge found this testimony inconsistent with the Accra Times article the respondent provided, in which I (b)(6) Iis featured prominently byname and details the help she provided the respondent (IJ at4; Tr. at 122-124; Exh. 7 at Tab G). When asked about this, the respondent stated I (b)(6) I is no longer afraid because she left the village (Tr. at 124). The Immigration Judge found the respondent was nonresponsive as to the inquiry of why f (b )( 6) l would be afraid to write a letter to the lrrmigration Court (IJ at 4; Tr. at 124). See Chen, 463 F.3d at 1232-33 (affirming an adverse credibility finding where the alien provided vague responses and the testimony was inconsistent with the documentary evidence). ,-I –‘–(b_)_( 6-) -~ The Immigration Judge also noted inconsistencies as to the respondent’s testimony and record evidence on the secret meeting the respondent attended with his futher and other tribe members. The respondent testified the secret meeting took place in Ghana. However, his uncle’s declaration stated the meeting took place in Togo (IJ at 4; Tr. at 74, 94, 139; Exh. 7 at F). When questioned about this inconsistency, the respondent testified that he lived near the border of Ghana and Togo, so he believed the meeting was in Ghana (IJ at 4; Tr. at 139). The Irrmigration Judge did not credit this explanation (IJ at 4). See MatterofD-R-, 25 I&N Dec. 445,455 (BIA 201 J)(explaining that an Immigration Judge is not required to accept a noncitizen’s explanation, even if plausible, where other permissible views of the evidence are supported by the record). The respondent also testified that he did not see anyone getting hurt at the meeting (IJ at 4; Tr. at 75, 145). However, the respondent told the Asylum Officer at his credible fear interview he saw the tnbe sacrificing human beings (IJ at 4-5; Tr. at 145-146; Exh. 7 at Tab C, 3, 6). When questioned about this inconsistency, the respondent testified that he did not tell the Asylum Officer that he saw human sacrifice (Tr. at 154-155). The Immigration Judge did not credit this explanatiorL She noted the respondent mentioned human sacrifice twice during the interview. Additionally, the Asylum Officer read a synopsis of the claim to the respondent, which specifically mentioned the sacrifice of human beings (JJ at 4-5; Exh. 7 at Tab C, 3, 6). See Shkambi, 584 F.3d at 1050-51 (distinguishing between an alien’s prior statements to immigration officials that may be “less detailed” than court testimony, and statements that “actually contradict[]” or “cannot be squared with” prior statements). Overall, the Immigration Judge’s adverse credibility determination was based on the totality ofthe circumstances. Although the respondent argues on appeal that his testimony was sufficiently detailed to support his claim, we discern no reason to set aside the Immigration Judge’s adverse credibility determination as clearly erroneous (IJ at 3-5; Respondent’s Br. at 9-11 ). See Xiu Ying Wu v. U.S. Att ‘y Gen., 712 F.3d 486,493 (11th Cir. 2013); Seckv. U.S. Att ‘y Gen., 663 F.3d 1356, 3 00000031383 pJ (b)(6) 1364 (11th Cir. 201 I); Matter of.1-Y-C-, 24 I&N Dec. 260, 266 (BIA 2007). We also point out that the Innnigration Judge indicated she considered all the evidence submitted in reaching her decision (IJ at 5) and mentioned the documentary evidence throughout her decision. In the absence of credible testimony or other persuasive corroborating evidence, the respondent has not met his burden of estabfuhing eligibility for relief for asyhnn and withholding of removal (IJ at 5-7; Respondent’s Br. at 6-8).2 See 8 C.F.R. § 1208.13(a); Forgue v. U.S. Att’yGen., 401 F.3d 1282, 1287 (11th Cir. 2005) (explaining that an adverse credibility determination alone may be sufficient to support the denial of an application where a noncitizen fails to produce other evidence of persecution); Matter of M-S-, 21 l&N Dec. 125, 129 (BIA 1995) (persecution claim that lacks veracity cannot satisfy burdens of proof necessary to establish eligibility for asyhnn and withholding of removal). 3 The respondent also filed a motion to remand in order to pursue adjustment of status tmder section 245(a) of the Act, 8 U.S.C. § 1225(a), based on a pending Petition fur Alien Relative (I 130) filed by his United States citi7.enwire (Respondent’s Mot. at 3, Exh. H). See Matter of L-AC-, 26 l&N Dec. 516, 526 (BIA 2015) (“A motion to remand for the purpose of presenting additional evidence must conform to the same standards as a motion to reopen and will only be granted if the evidence was previously wiavailable and would likely change the result in the case.’). The parties were married on! (b)(6) La few days after the Immigration Judge’s decision. We will deny the motion First, we point out the DHS ‘s opposition to the motion to reopen and agree with its point that the respondent’s claim is speculative as his visa petition has not yet been approv~d (DRS opposition at 3). Moreover, the Notice to Appear indicates that the respondent is an arriving alien (Exh. 1). Except in limited circurrntances not relevant here, an Immigration Judge does not have jurisdiction to adjudicate an application for adjustment of status filed by an arriving alien See MatterofSilitonga, 25 I&N Dec. 89, 91 (BIA 2009); 8 C.F.R § 1245.2(a)(l)(ii). Rather, the U.S. Citiz.enship and Immigration Services (”lJSCIS’) has sole jurisdiction over the respondent’s adjustment of status application (Respondent’s Mot. at 5; DHS Opp. at 2). See 8 C.F.R. § 245.2(a)(l); see also Matter of Silitonga, 25 l&N Dec. at 91-92).). The fact that the respondent is subject to a final order ofremoval does not in itself, preclude the USCIS from granting adjustment if he is otherwise eligible. Matter of Yauri, 25 I&N Dec. 103,107 (BIA 2009). Accordingly, the following order will be entered. 2 As the issues above are dispositive of the respondent’s eligibility for asyhnn and withholding of removai we need not address his remaining appellate arguments related to the merits of his application. See Matter of J-G-, 26 I&N Dec. 161, 170 (BIA 2013) (reiterating the general rule that courts and agencies are not required to make findings on issues which are not dispositive to the outcome of cases) (citing TNS v. Bagamasbad, 429 U.S. 24, 25-26 (1976)). 3 On appeai the respondent does not challenge the Immigration Judge’s denial of his claim for protection under the CAT (IJ at 6-7). ‘Therefore, we consider this issue waived. See Matter of RA- M-, 25 I&N Dec. 657,658 n2 (BIA 2012) 4 00000031383 Aj (b)(6) ORDER: The respondent’s appeal is dismi5sed. FURTI-IER ORDER: The respondent’s rrotion is denied. 5 ———–·———————- 00000031281 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) I.AJ (h”\(6″\ ~—–(_b)_(6_) ____ ~I Al {h){6″\ Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Juan Manuel Gonzalez., Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondents, natives and citizens of Honduras, appeal from the decision of the Irnmigra t ion Judge, issued March 6, 2019, denying their applications for asylum and withholding ofremoval under the Act, as well as protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100—20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). See sections 208(b)(l)(A) and 24I(b)(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ l l 58(b)(I )(A) and 123 l(b)(3)(A); 8 C.F.R §§ 1208.16 and 1208.18. 1 Removability is not disputed. The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Innnigration Judge llllder the “clearly erroneous” standard. 8C.F.R:§ 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de nova standard. 8 C.F .R. § 1003.l(d)(3)(ii). We adopt and affirm the decision of the Irrnnigration Judge. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We agree with the Innnigration Judge that the respondent did not demonstrate that her proposed particular social group was cognizable (IJ at 5). The Immigration Judge correctly concluded that ”victim of a crime that police is unable to protect” did not satisfy the requirements of social distinction, particularity or immutability (IJ at 5). See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1309 (11th Cir. 2019) (discussing particularity and social 1 TI1e respondents are a mother and her daughter. Any references to “the respondent” will refer to the lead respondent, the mother. On appeaL the respondent does not challenge the Irrnnigra t ion Judge’s denial of CAT (IJ at 7). Accordingly, this issue has been waived. Matter of L-G-H-, 26 I&N_ Dec. 365,366 n 1 (BIA 2014); Matter of R-A-M-, 25 l&N Dec. 657,658 n.2 (BIA 2012). 00000031281 ~ (b)(6) Iet al distinction); Matter of J-G-D-F-, 27 I&N Dec. 82, 89-90 (BIA 2017) (discussing particularity); Matter of M-E-V-G-, 26 I&N Dec. 227, 245-47 (BIA 2014) (discussing inmutability); Matter of W-G-R-, 26 I&N Dec. 208, 212-13 (BIA 2014) (discussing inmutability). We also agree with the Immigration Judge’s finding that the respondent did not demonstrate the requisite nexus between her harm and a protected ground (IJ at 5-6). General crime and violence in a country do not satisfy the nexus requirement. Matter of M-E-V-G-, 26 I&N Dec. at 235 (“asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions”). See also Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (I 1th Cir. 2013) (per curiam) (noncitizens who fear crime in their home countries are not members of valid social groups); Matter of H-L-S-A-, 28 I&N Dec. 228, 231 (BIA 2021) (victims of crime or those who fear crin-ie are not members of a cogniz.ab le particular social group). In addition, we also agree with the Innnigration Judge that the respondent did not demonstrate a well-founded future fear of harm on account of a protected gro1llld as there was no evidence the respondent was being targeted at the present time (IJ at 6-7). 8 C.F.R § 1208.13(b)(2). Since the respondent did not satisfy the requirements of asyh.nn, her application for withholding was also properly denied. For the first time on appeai the respondent contends that the Immigration Judge did not have jurisdiction over this proceeding because the Notice to Appear, which did not include the date or time of the first hearing, was defective and proceeding5 should be terminated. We disagree as a Notice to Appear that does not include the date and time does not require termination of proceeding5. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153-57 (11th Cir. 2019) ( concluding that a Notice to Appear that did not specify the time and place of the removal hearing as required .by section 239(a) of the Act did not deprive the Innnigration Court of jurisdiction); Matter of Arambula-Bravo, 28 I&N Dec. 388, 391-92 (BIA 2021) (holding that neither Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) nor Pereira v. Sessions, 138 S. Ct. 2105 (2018) require termination of removal proceeding5 for lack of jurisdiction based on the absence of information required under section 239(a) of the Act). Last, the respondent’s assertion, raised for the first time on appeal and contained within her Pereira argument, that she was underage when she entered the United States is meritless. The respondent was over the age of2 l when she entered and her minor daughter accompanied her and was a derivative on her asylum application (Exhs. 1-2). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031278 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) ‘;=====::::::::::::(h=V=6)=====—_,L I Al (b)(6)AJ (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Juan Manuel Gonzalez., Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondents, natives and citizens of Honduras, appeal from the decision of the Irnmigra t ion Judge, issued March 6, 2019, denying their applications for asylum and withholding ofremoval under the Act, as well as protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100—20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). See sections 208(b)(l)(A) and 24I(b)(3)(A) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ l l 58(b)(I )(A) and 123 l(b)(3)(A); 8 C.F.R §§ 1208.16 and 1208.18. 1 Removability is not disputed. The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Innnigration Judge llllder the “clearly erroneous” standard. 8C.F.R:§ 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de nova standard. 8 C.F .R. § 1003.l(d)(3)(ii). We adopt and affirm the decision of the Irrnnigration Judge. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We agree with the Innnigration Judge that the respondent did not demonstrate that her proposed particular social group was cognizable (IJ at 5). The Immigration Judge correctly concluded that ”victim of a crime that police is unable to protect” did not satisfy the requirements of social distinction, particularity or immutability (IJ at 5). See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1309 (11th Cir. 2019) (discussing particularity and social 1 TI1e respondents are a mother and her daughter. Any references to “the respondent” will refer to the lead respondent, the mother. On appeaL the respondent does not challenge the Immigration Judge’s denial of CAT (IJ at 7). Accordingly, this issue has been waived. Matter of L-G-H-, 26 I&N_ Dec. 365,366 n 1 (BIA 2014); Matter of R-A-M-, 25 l&N Dec. 657,658 n.2 (BIA 2012). 00000031278 ~ (h\(1,) let al distinction); Matter of J-G-D-F-, 27 I&N Dec. 82, 89-90 (BIA 2017) (discussing particularity); Matter of M-E-V-G-, 26 I&N Dec. 227, 245-47 (BIA 2014) (discussing inmutability); Matter of W-G-R-, 26 I&N Dec. 208, 212-13 (BIA 2014) (discussing inmutability). We also agree with the Immigration Judge’s finding that the respondent did not demonstrate the requisite nexus between her harm and a protected ground (IJ at 5-6). General crime and violence in a country do not satisfy the nexus requirement. Matter of M-E-V-G-, 26 I&N Dec. at 235 (“asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions”). See also Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (I 1th Cir. 2013) (per curiam) (noncitizens who fear crime in their home countries are not members of valid social groups); Matter of H-L-S-A-, 28 I&N Dec. 228, 231 (BIA 2021) (victims of crime or those who fear crin-ie are not members of a cogniz.ab le particular social group). In addition, we also agree with the Innnigration Judge that the respondent did not demonstrate a well-founded future fear of harm on account of a protected gro1llld as there was no evidence the respondent was being targeted at the present time (IJ at 6-7). 8 C.F.R § 1208.13(b)(2). Since the respondent did not satisfy the requirements of asyh.nn, her application for withholding was also properly denied. For the first time on appeai the respondent contends that the Immigration Judge did not have jurisdiction over this proceeding because the Notice to Appear, which did not include the date or time of the first hearing, was defective and proceeding5 should be terminated. We disagree as a Notice to Appear that does not include the date and time does not require termination of proceeding5. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153-57 (11th Cir. 2019) ( concluding that a Notice to Appear that did not specify the time and place of the removal hearing as required .by section 239(a) of the Act did not deprive the Innnigration Court of jurisdiction); Matter of Arambula-Bravo, 28 I&N Dec. 388, 391-92 (BIA 2021) (holding that neither Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) nor Pereira v. Sessions, 138 S. Ct. 2105 (2018) require termination of removal proceeding5 for lack of jurisdiction based on the absence of information required under section 239(a) of the Act). Last, the respondent’s assertion, raised for the first time on appeal and contained within her Pereira argument, that she was underage when she entered the United States is meritless. The respondent was over the age of21 when she entered and her minor daughter accompanied her and was a derivative on her asylum application (Exhs. 1-2). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031380 N()T FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: I (b)(6) I Al :=.I ===::::::::::::=(=b):::::(6=)===!….._.::::::;I (b)(6)AJ (b)(6) ! (h)(6) l AJ (b)(6) ,=.I======(h=)(=6)======~1 Al (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Marc A. Karlin, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrmigration Court, Los Angeles, CA Before: Petty, Appellate Immigration Judge Opinion by Appellate Immigration Judge Petty PETTY, Appellate Irrnnigration Judge The respondents, 1 natives and citizens of Mexico, appeal from the lrmnigration Judge’s oral decision dated February 28, 2019, denying the respondent’s clai:rm for asylum and withholding of removal pmsuant to sections 208{b)(l)(A) and 241{b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3)(A). 2 The appeal will be dismissed. We review findings offuct determined by an Immigration Judge, including credibility findings, tmder a “clearly erroneous” standard. 8 C .F .R § 1003 .1 ( d)(3 )(0. We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Irrmigration Judges de novo. 8 C.F.R § 1003.l{d)(3)(ii). 1 The lead respondent (A.1 (b)(6) is the mother of the minor co-respondents (-1 (b)(6) b. The co-respondents are derivative beneficiaries of their mother’s asylum application. However, the oldest co-respondent {!(b)(6D did file her own asylum application (Tr. at 43). The Innnigration Judge did not make any separate findings but her claim is based on the same :factual circumstances as the lead respondent. Thus, all references to “the respondents” will be to the lead respondent and the oldest co-respondent. 2 The Immigration Judge also denied vohmtary departme and protection llllder the regulations implementing the Convention Against Torture and Other Cru.ei Inhuman or Degrading Treatment or Punishirent, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT). The respondents do not challenge the denial of these foam of relief on appeal (see generally Respondent’s Br.). Accordingly, the clai:rm are waived. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n2 (BIA 2012) (stating that :failure to raise an issue constitutes a waiver of the claim). 00000031380 The respondents testified that they are afraid to return to Mexico because they were threatened in 2013 by the local gang for wearing white, which was the color worn by the opposing gang (IJ at 3; Tr. at 49-50, 57-58). Before the Immigration Judge, the respondents based their asylum and withholding claims on membership in a particular social group, consisting of people taking concrete steps to oppose gang membership and authority (IJ at 5; Exl1. 5) The Innnigration Judge detennined that the respondents did not establish a cognizable particular social group, his membership in that group, and persecution or fear of persecution on accowit of his membership in that group (IJ at 5-7). The respondents have not set forth any argument on appeal to establish that the Innnigration Judge erred in his assessment of these issues. Rather, the respondents aver that they should be granted relief because they have a genuine fear of gangs in their comtry, and they testified credibly (Respondent’s Br. at 6, 9-11). The respondents’ general fear of gang violence is not sufficient to establish eligibility for asyhnn and withholding ofrermvaL See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (“Asylum is not available to victim, of indiscriminate violence, unless they are singled out on accmmt of a protected growid.’); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 20 I 0) (finding that an alien’s desire to be free from harassment by criminals rmtivated by theft or random violence by gang members bears no nexus to a protected ground); see also Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA 2014) (stating that asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031377 N()T FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: FILED I (b)(6) l Al (b)(6) Jan27, 2022 I (b)(6) I AJ (b)(6) :I,_=-:…:_=-:_:_=-:_:_=-:_:_=-:_:_=-:_r’.=1’_,:r_r:.:_,’.:_=-::…:_=-:…:_=-:…:_=-:…:_-:!….-:…,~L Al (h )( 61 I… …. ___,;,(h ‘=(6…_1 ___,lAJ I I ____ …. ____ (b )( 6) Respondents ON BEHALF OF RESPONDENTS: Marc A. Karlin, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrmigration Court, Los Angeles, CA Before: Petty, Appellate Immigration Judge Opinion by Appellate Immigration Judge Petty PETTY, Appellate Irrnnigration Judge The respondents, 1 natives and citizens of Mexico, appeal from the lrmnigration Judge’s oral decision dated February 28, 2019, denying the respondent’s clai:rm for asylum and withholding of removal pmsuant to sections 208{b)(l)(A) and 24l{b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A), 123l(b)(3)(A). 2 The appeal will be dismissed. We review findings offuct determined by an Immigration Judge, including credibility findings, tmder a “clearly erroneous” standard. 8 C .F .R § 1003 .1 ( d)(3 )(0. We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Irrmigration Judges de novo. 8 C.F.R § 1003.l{d)(3)(ii). 1 The lead respondent (Al (hV61 D is the mother of the minor co-respondents (-1 (b)(6) D-The co-respondents are derivative beneficiaries of their mother’s asylum application. However, the oldest co-respondent (!(b)(6D did file her own asylum application (Tr. at 43). The Innnigration Judge did not make any separate findings but her claim is based on the same :factual circumstances as the lead respondent. Thus, all references to “the respondents” will be to the lead respondent and the oldest co-respondent. 2 The Immigration Judge also denied vohmtary departure and protection llllder the regulations implementing the Convention Against Torture and Other Cru.ei Inhuman or Degrading Treatment or Punishirent, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT). The respondents do not challenge the denial of these foam of relief on appeal (see generally Respondent’s Br.). Accordingly, the clai:rm are waived. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n2 (BIA 2012) (stating that :failure to raise an issue constitutes a waiver of the claim). 00000031377 Al (b)(6) !et al The respondents testified that they are afraid to return to Mexico because they were threatened in 2013 by the local gang for wearing white, which was the color worn by the opposing gang (IJ at 3; Tr. at 49-50, 57-58). Before the Immigration Judge, the respondents based their asylum and withholding claims on membership in a particular social group, consisting of people taking concrete steps to oppose gang membership and authority (IJ at 5; Exl1. 5) The Innnigration Judge detennined that the respondents did not establish a cognizable particular social group, his membership in that group, and persecution or fear of persecution on account of his membership in that group (IJ at 5-7). The respondents have not set forth any argument on appeal to establish that the Innnigration Judge erred in his assessment of these issues. Rather, the respondents aver that they should be granted relief because they have a genuine fear of gangs in their comtry, and they testified credibly (Respondent’s Br. at 6, 9-11). The respondents’ general fear of gang violence is not sufficient to establish eligibility for asyhnn and withholding ofrermval See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (“Asylum is not available to victim, of indiscriminate violence, unless they are singled out on account of a protected ground.’); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 20 I 0) (finding that an alien’s desire to be free from harassment by criminals rmtivated by theft or random violence by gang members bears no nexus to a protected ground); see also Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA 2014) (stating that asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031374 N()T FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals I MATTER OF: I (b)(6) (b)(6) (1,., \( ,:;, (h\(6) Respondents l Al (b)(6) I Al (1-,\(,:;\ M (b)(6) 1Al (b)(6) FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Marc A. Karlin, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrmigration Court, Los Angeles, CA Before: Petty, Appellate Immigration Judge Opinion by Appellate Immigration Judge Petty PETTY, Appellate Irrnnigration Judge The respondents, 1 natives and citizens of Mexico, appeal from the lrmnigration Judge’s oral decision dated February 28, 2019, denying the respondent’s clai:rm for asylum and withholding of removal pmsuant to sections 208{b)(l)(A) and 241{b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3)(A). 2 The appeal will be dismissed. We review findings offuct determined by an Immigration Judge, including credibility findings, tmder a “clearly erroneous” standard. 8 C .F .R § 1003 .1 ( d)(3 )(0. We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Irrmigration Judges de novo. 8 C.F.R § 1003.l{d)(3)(ii). 1 The lead respondent (Al (b)(6) D is the mother of the minor co-respondents (-1 (h)(6) D. The co-respondents are derivative beneficiaries of their mother’s asylum application. However, the oldest co-respondent {-lrb,d did file her own asylum application (Tr. at 43). The lnnnigration Judge did not make any separate findings but her claim is based on the same :factual circwmtances as the lead respondent. Thus, all references to “the respondents” will be to the lead respondent and the oldest co-respondent. 2 The Immigration Judge also denied vohmtary departure and protection llllder the regulations implementing the Convention Against Torture and Other Cru.ei Inhuman or Degrading Treatment or Pllllishirent, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT). The respondents do not challenge the denial of these foam of relief on appeal (see generally Respondent’s Br.). Accordingly, the claims are waived. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n2 (BIA 2012) (stating that :failure to raise an issue constitutes a waiver of the claim). 00000031374 Al (b)(6) let al The respondents testified that they are afraid to return to Mexico because they were threatened in 2013 by the local gang for wearing white, which was the color worn by the opposing gang (IJ at 3; Tr. at 49-50, 57-58). Before the Immigration Judge, the respondents based their asylum and withholding claims on membership in a particular social group, consisting of people taking concrete steps to oppose gang membership and authority (IJ at 5; Exl1. 5) The Innnigration Judge detennined that the respondents did not establish a cognizable particular social group, his membership in that group, and persecution or fear of persecution on account of his membership in that group (IJ at 5-7). The respondents have not set forth any argument on appeal to establish that the Innnigration Judge erred in his assessment of these issues. Rather, the respondents aver that they should be granted relief because they have a genuine fear of gangs in their comtry, and they testified credibly (Respondent’s Br. at 6, 9-11). The respondents’ general fear of gang violence is not sufficient to establish eligibility for asyhnn and withholding ofrermval See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (“Asylum is not available to victim, of indiscriminate violence, unless they are singled out on account of a protected ground.’); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 20 I 0) (finding that an alien’s desire to be free from harassment by criminals rmtivated by theft or random violence by gang members bears no nexus to a protected ground); see also Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA 2014) (stating that asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUBLICATION 00000031371 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: FILED Jan 27, 2022 Respondent ON BEHALF OF RESPONDENT: Sergio Valdovinos, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Adelanto, CA Before: Owen, Appellate Inrrnigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Innnigration Judge 1be respondent, a native and citizen of Mexico, appeals from the decision of the Jrnmigra t ion Judge, dated February 27, 2019, denying his applications for withholding of removal pursuant to sections 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’). See 8 C.F.R §§ 1208.16-.18. 1 The respondent’s appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgirent, under a de novo standard. 8 C.F.R § 1003.l(d)(3)(ii). The respondent’s application for withholding of removal is based on his claim that he will be harmed by criminals if he returns to Mexico because of his relationship with his father and the business his father operates. In this regard, the respondent contends that his father and llllCle run a law school in Mexico that members of a criminal organization want to use to traffic illegal narcotics (IJ at 4). We adopt and affirm the Immigration Judge’s thorough and well-reasoned determination that the respondent did not establish eligibility for withholding of removal under the Act (IJ at 6-7). Matter of Burbano, 20 I&N Dec. 872,874 (BIA 1994) (explaining that “our independent review 1 1be respondent conceded before the Immigration Judge that he is ineligible for asylwn because he did not file his application for that relief within 1 year of arriving in the United States (IJ at 5-6; Tr. at 32). See section 208(a)(2)(B) of the Act, 8 U.S.C. §§ 1158(a)(2)(B). Al~_(_b)_(6)_~ 00000031371 authority does not preclude the Board from adopting or affirming a decision of the immigration judge, in whole or in part, when we are in agreement with the reasoning and resuh of that decision”). We do not perceive any error of law or clear error offu.ct in the Imnigration Judge’s decision For the reasons stated by the Immigration Judge in the decision, we affirm the denial of withholding of removal under the Act. Specifically, we affirm the Immigration Judge’s determination that the respondent has not met his burden of proof to establish he is more likely than not to be persecuted based on membership in a cognizable particular social group or any other protected basis under the Act (IJ at 6-7). For the reasons stated in the decision, we affirm the Immigration Judge’s determination that the respondent did not meet his burden of proof Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that ”persecution was or will be on account of his membership in such group”); Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”); see also Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA 2014) (“asylum and refugee Jaws do not protect people from general conditions of strife, such as crime and other societal afflictions”) On appeaL the respondent does not allege any specific error in the lmmigra tio n Judge’s determination that he did not establish eligibility for protection under the CAT (IJ at 7-8). Thus, we deem this issue to be waived. See Matter of Cervantes, 22 l&N Dec. 560,561 nl (BIA 1999) (expressly declining to address an issue not raised by a party on appea~; Matter of Gutierrez, 19 I&N Dec. 562,565 n3 (BIA 1988) (same). Accordingly, the following orders will be entered. ORDER: The respondent’s appeal is dismissed. 2 00000031275 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board ofimmigration Appeals MATTER OF: (b)(6) I Al (b)(6) ._ ___ )”‘-‘(____ __, Al,_ _,_(b-‘-‘)(‘-“6)_.I ___,_(.;.;..h6.;..;.) _ _ Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Jose E. Perez, Esquire ON BEHALF OF DHS: Catherine Dagonese, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrmigration Court, Buffalo, NY Before: Cassidy, Appellate Immigration Judge Opinion by Appellate lnnnigration Judge Cassidy CASSIDY, Appellate Irrnnigration Judge The respondents, natives and citizens of Guatemala, appeal from the decision of the Itmnigration Judge, dated March 14, 2019, denying their applications for asyhnn and withholding of removal pursuant to sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and protection under the Convention Against Torture. See 8 C.F.R §§ 1208.16-.18. 1 The respondents’ appeal will be dismissed. We review the finding5of fact made by the Itmnigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l(d)(3)(i); see also MatterofZ-Z-O-, 26 l&N Dec. 586 (BIA 2015). We review all other issues, including questions of judgment, discretion, and law, de novo. 8 C.F.R § 1003.l(d)(3)(it). The respondents’ removability is undisputed (IJ at 2; Tr. at 19-20). Therefore, the issue on appeal is whether the Immigration Judge properly denied their applications for asylum, withholding of removai and protection under the CAT (Respondent’s Br.) (unpaginated); Notice of Appeal at 2). The respondent clairm that he has been harmed in the past and WJ11 suffer additional harm in the futw-ein relation to criminal gang members in Guatemala. The respondent contends that the harm he experienced and fears was and will be inflicted upon him on account of his membership in a particular social group of”Guatemalan men who fear gang violence given the 1 The respondents are an aduh father (Al (b)(6) Dand his minor child. The child is rider on his father’s asylum application. All references to ”the respondent” refer to the aduh male respondent. 00000031275 Aj (b)(6) Iet al targeting of their family members” and an actual or imputed anti-gang political opinion (IJ at 11-14). We affirm the Immigration Judge’s determination that the respondent did not establish eligibility for relief because he did not establish a nexus between the harm he experienced and fears and a protected ground under the Act (IJ at 10-14). 2 See sections 208(b )(1 )(B)(i) and 24l(b)(3)(A) of the Act; Matter ofC-T-L-, 25 I&N Dec. 341 (BIA 2010) (holding that absent a showing that a protected ground would be one “central reason” for the claimed past or future harm, the respondent cannot establish eligibility for either asyhnn or withholding ofremovaQ. The respondent’s statement on appeal does not persuade us of clear error in the Irrnnigra t ion Judge’s finding that the respondent did not establish a nexus between the harm he experienced and fears and a protected grmmd under the Act (IJ at 12-13). Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (stating, “[a] persecutor’s actual motive is a matter of fact to be determined by the Innnigration Judge and reviewed by us for clear error.”); see Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (holding that on clear error review, “[a] finding that is ‘plausible’ in light of the full record-even if another is equally or more so-must govem”). In this regard, we agree with the Innnigration Judge that the respondent has not established that criminals who harmed, and whom he fears, were or will be motivated by anything other than general criminal intent and the narrow desire to advance their personal interests (IJ at 12). Because the respondent has not established a nexus between the harm he experienced and fears and a protected ground under the Act, he cannot establish eligibility for either asyhun or withholding. Fear of being subjected to crime is not a basis for either asyhnn or withholding of removal W1der the Act. Matter of M-E-V-G-, 26 I&N Dec. 227,235 (BIA 2014) (“asylum and refugee laws do not protect people from general conditions of strife, such as crime and other societal afflictions’); Matter ofW-G-R-, 26 I&N Dec. 208, 223 (BIA 2014) (noting that it is the “applicant’s burden … [to] demonstrate the exic;tence of a cognizable particular social group, bis membership [therein], and a risk of persecution on account of his membership in the particular social group’), vacated in part and remanded on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), cert. denied sub nom. Reyes v. Sessions, 138 S. Ct. 736 (2018). We also affirm the Immigration Judge’s detennination that the respondent did not establish eligibility for protection W1der the CAT (IJ at 14-15). The respondent did not establish it is more likely than that not he will be tortured with the acquiescence of a government official if he returns to Guatemala (IJ at 14-15). 8 C.F.R §§ 1208.16(c)(2), 1208.18(a)(l). We do not find legal error or clear factual error in the Immigration Judge’s determination that the record does not establish that it is more likely than not that the respondent will be tortured by or at the instigation o( or with the consent or acquiescence (to include the concept of willful blindness) o( a public official or other person acting in an official capacity upon removal to Guatemala. Th.ere is insufficient 2 For purposes of our analysis, we asswne arguendo that the 1-year filing deadline does not bar the respondent’s application for asylum. We therefore decline to consider the respondent’s argwnents regarding the application of the 1-year filing deadline (IJ at 6; Respondent’s Br. (unpaginated) ). 2 00000031275 Al (b)(6) letal evidence in the record to establish that Guatemalan officials acting in an official capacity have any specific interest in banning the respondent or would likely acquiesce to any harm he may experience in the future. Matter ofO-F-A-S-, 27 I&N Dec. 709, 718 (BIA 2019); Matter of J-F-F-, 23 l&N Dec. 912 (A.G. 2006) (to be eligible for protection under the Convention Against Torture, the applicant must establish that each step in the hypothetical chain of events i5 more likely than not to happen). We therefore affirm the lnnnigration Judge’s detennination that the respondent did not establish eligibility for protection mder the Convention Against Torture. Accordingly, the following order will be entered. ORDER: The respondents’ appeal is dismissed. 3 00000031368 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .____Cb_)( 6_) _ _,lM (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Ilya Laksin, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Im.nigration Court, New York, NY Before: Owen, Appellate Irrnnigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge Tue respondent, a native and citizen ofNepat appeals from the Immigration Judge’s March 12, 201 9, decision denying his applications for asylum and withho Id i ng of removal under sections 208(b)(l)(A) and 24l(b)(3)(A) of the Irnrnigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A) and 1231(b)(3)(A). The Department of Homeland Security has not responded to the appeal Tue record will be remanded. We review findings offuct determined by an Irnrnigration Judge, including credibility findings, WKler a “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)rn. We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Innnigration Judges de novo. 8 C.F.R § 1003.l(d)(3)(il). The Immigration Judge found that the respondent was not credible (IJ at 3-4). In addition, the Immigration Judge folUld that even if the respondent were credible, he did not sufficiently meet his burden of establishing his eligibility for asylum and withholding of removal (IJ at 6-10). We conclude that a remand of the record is appropriate because the Irrnnigration Judge’s decision lacks sufficient findings of fuct and analysis regarding the respondent’s applications for relief See 8 C.F.R § l 003. l (d)(3)(iv) (the Board shall not engage in fuct finding in the course of deciding appeals, with very limited exception). An Immigration Judge’s decision must accurately sunnnarize the relevant fucts, reflect the Immigration Judge’s analysis of the applicable statutes, regulations, and legal precedents, and clearly set forth the Irnrnigration Judge’s legal conclusions. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016) (requiring that an Immigration Judge provide specific, cogent reasons to support his or her rulings); Matter of A-P-, 22 I&N Dec. 468 (BIA 1999); see also Matter of S-H-, 23 I&N Dec. 462, 463-65 (BIA 2002) (providing that Board has limited fact-finding authority on appeal). A review of the record indicates that the lmnigration Judge did not cite to sufficient legal authority or conduct sufficient analysis as to whether the respondent established eligibility for relief (IJ at 3-10). Furthennore, we take note that the Immigration Judge did not make any findings as to the respondent’s request for protection under 00000031368 the regulations implementing the Convention Against Tortw-e and Other Cruei Inhuman or Degrading Treatment or Pllllishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 . .1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT), 8 C.F.R §§ 1208.16(c)-1208.18 (Respondent’s Br. at25; Tr. at9). We find that the Immigration Judge’s decision lacks sufficient :findings of fact and analysis regarding the respondent’s request for relief and protection. Without such :findings, we are tmab le to adequately review the Irrnnigratio n Judge’s conclusions. Consequently, it is necessary to remand the record for further proceedings and preparation of a new decision that includes specific :findings as to whether the respondent has met his burden of proof to establish eligibility for relief and protection. On remand the Immigration Judge should make clear findings of fact; make new specific findings regarding whether the respondent has established eligibility for relief and protection, and to issue a new decision. In the remanded proceedings, the parties shall be pennitted an opportunity to present additional evidence relevant to the respondent’s claim, including testimony and updated country condition material We express no opinion regarding the merits of the claim for relief Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings and the entry of a new decision. 2 00000031473 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ,..___(b_)(_6)_ ___.IAl (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Antonio Santarell~ &quire IN DEPORTATION PROCEEDINGS On Motion from a Decision of the Board oflrrnnigration Appeals Before: Couch, Appellate lrrnnigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge This matter was last before the Board on November 20, 2015, when we granted the parties’ joint motion to tenninate the proceedings without prejudice so that the respondent could apply for adjustment of status with the U.S. Citiz.enship and Immigration Services (”USCIS’). Over 3 years later, the respondent has filed a motion to reopen the proceedings. We will deny the respondent’s motion, as it is not properly before the Board, given that we previously tenninated these proceedings. Notwithstanding the respondent’s allegations, the parties’ joint motion to tenninate the proceedings does not constitute an exception to the statutory requirement of being admitted or paroled into the United States to adjust status under section 245(a) of the lrrnnigra tio n and Nationality Act, 8 U.S.C. § 1255(a). Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (to prevail on a motion to reopen an alien must establish prima fucie eligibility for relief). Nevertheless, the respondent is potentially eligtble to adjust status under section 245(i) of the Act with the requisite unlawful presence waiver of inadmissibility (Form l-601A). The USCIS has exclusive jurisdiction over such applications, and the respondent may pursue a waiver irrespective of irmnigration proceedings. 1 Further, denying this motion does not inhibit the respondent’s ability to process her visa through an American consulate and be lawfully admitted to the United States. Accordingly, the motion will be denied. ORDER:. The motion is denied. She may also request a stay of removal from the Department of Homeland Security while the application is pending before the USCIS. 8 C.F.R. § 241.6(a). 00000031272 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: (b)(6) l A] (b)(6) ~____ —-~’ (b)(6) (_b)_(6_) Al Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Petro R Kostiv, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Couch, Appellate Immigration Judge Opinion by Appellate Inunigration Judge Couch COUCH, Appellate Immigration Judge The respondents are a mother and daughter and are natives and citiz.ens of El Salvador. They have appealed from an Immigration Judge’s March 29, 2019, decision denying their applications for asylum, withholding ofremoval under section 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1231 (b )(3)(A), and protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). Toe record does not contain a response from the Department of Homeland Security. We review the Inunigration Judge’s findings of fuct for clear error. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law, discretion and judgment, and all other issues in appeals, de novo. 8 C.F.R § 1003.l(d)(3)(iI). On appeaL the lead respondent argues that her experiences in El Salvador rose to the level of persecution, that the particular social groups she identified are cognii.ab le, and that the harm she experienced and fears was inflicted on account of her membership in these groups (Respondents’ Br. at 4-9). The lead respondent also contends that she is eligible for protection wider the CAT because the police in El Salvador will not protect her (Respondents’ Br. at I 0-11 ). We are uaable to review the Immigration Judge’s findings regarding past persecution, the cogniz.ability of the claimed particular social groups, and nexus because the Immigration Judge did not make sufficient fuctual findings on these issues (IJ at 2-3). See, e.f!., Matter of S-H-, 23 I&N Dec. 462,465 (BIA 2002) (emphasizing the need for Immigration Judges to include clear and complete findings of fuct in their decisions given the Board’s inability to make fuctual findings on appeal). In particular, the Irrnnigration Judge did not address all of the lead respondent’s evidence regarding her past experiences, including her testimony and evidence regarding the death of her cousin’s husband (Tr. at21-26, 31-36,41-45, 53-57, 61-62, 64; Exh. 2, 4). The Immigration 00000031272 ~ (b)(6) let al Judge also did not specifically identify the particular social groups the lead respondent had named (fuh. 3) and did not address whether these groups were sufficiently immutable, particular, and socially distinct within El Salvador to meet the definition of a particular social group under the Act (D at 1-3).1 Further, the Innnigration Judge did not make a specific finding as to whether the gang that targeted the lead respondent was acting on account of her membership in either of the groups she identified (U at 1-3). Finally, the Immigration Judge did not make a complete finding on the issue of the government’s willingness or ability to control the gang or the government’s acquiescence in any harm, and the Immigration Judge did not address the lead respondent’s testimony on the issue of relocation (IJ at 3-4; Tr. at 45-48). Because we cannot make :factual findings on appeaL we must remand the record to the Immigration Judge for further proceedings if necessary and for a new decision containing sufficient :factual findings to allow meaningful review. ORDER: The record is remanded to the Immigration Judge for further ·proceedings if necessary and for the entry of a new decision containing sufficient :factual findings. 1be question whether a group qualifies as a particular social group is a legal question that we review de novo. We, however, must rely on the Immigration Judge’s :factual findings on each of the issues relevant to a cognizability finding to make a legal determination In this case, the Immigration Judge did not make :factual findings on these points. The Innnigration Judge’s citation to Matter of A-B-, 27 l&N Dec. 316 (A.G. 2018), further is not sufficient to explain the lack of cognizability because the Attorney General has now overruled that decision. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). 2 00000031269 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: I (b)(6) I Al (b)(6) I ~I____ (b_)(_6)___ ~1A1 (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Alicia Margarita Arana, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Cowt, Charlotte, NC Before: O’Connor, Appellate Immigration Judge Opinion by Appellate Inunigration Judge O’Cormor O’CONNOR, Appellate Inunigration Judge The respondent,1 a native and citizen of Mexico, appeals the hnmigration Judge’s decision dated April 15, 2019, denying her applications for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), as well as her request for protection under the regulations implementing the Convention Against Torture, and Other Cruei Inhmnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT). The Department of Homeland Security (”OHS’) has not responded to the appeal The appeal will be dismissed. We review the findings of fact made by the Inunigration Judge, including the determination of credibility, for clear error. See 8 C.F.R § 1003.l(d)(3Xi). We review all other issues, including questions of judgment, discretion, and law, de novo. See 8 C.F.R § 1003.l(d)(3)(ii). Toe respondent seeks relief and protection from removal on account of her political opinion and membership in particular social groups identified as ”Mexican women in an abusive domestic relationship who are unable to leave” and ”Mexican women who are viewed as property by their The respondents in this case include the lead respondent (~ (b)(6) I,who is the principal applicant for asylum, and her minor son, who is a derivative applicant (Exh. 3 at 2). Unless otherwi<;e indicated, the singular “respondent” shall refer to the lead respondent. Toe minor son did not file his own application for relief from removal 00000031269 (b )( 6) let al domestic partners” (Exh. 7, unpaginated ). 2 .In particular, the respondent testified she was mi5treated by her domestic partner, who beat and abused her, and who kidnapped her son from school on one occasion (IJ at 3; Tr. at 18, 21-23). She further testified that she fears returning to Mexico because her domestic partner and his friends would hann her (IJ at 3; Tr. at 50-51). The Innnigration Judge fuund the respondent not credible (IJ at 3-4, 6). The Immigration Judge ahernatively denied the respondent’s applications on the merits (IJ at 4-5, 6-7). Assuming, without deciding, that the respondent testified credibly, we affirm the Imnigra t ion Judge’s decision to deny asylum and withholding ofremoval under the Act because the respondent did not establish a nexus between any past persecution or potential future persecution and a protected grolllld (IJ at 4-5). See 8 C.F.R §§ 1208.B(b), 1208.16(b). In her Notice of Appeal, the respondent asserts that the Immigration Judge erred in finding that (1) she failed to establish past persecution, a well-founded fear of future persecution, or a clear probability of future persecution on accmmt of her membership in a particular social group; and (2) the harm she suffered was not motivated, at least in part, by an actual or imputed protected ground (Attachment to Notice of Appeal). These bare assertions offer no meaningful challenge to the lrrnnigration Judge’s nexus determination. The respondent did not otherwise elaborate on these assertions in her appellate brief As the nexus determination is dispositive of her claims for asyhnn and withholding of removaL we need not reach her remaining appellate arguments.3 See MatterofKS- E-, 27 I&N Dec. 818,824 (BIA 2020) (citing INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule cow-ts and agencies are not required to make :findings on issues the decision of which is unnecessary to the resuhs they reach.’)). Likewise, the respondent makes a bare assertion that the Immigration Judge erred in denying her request for CAT protection (Attachment to Notice of Appeal). This argument does not allege any specific error in the Immigration Judge’s determinations that she did not suffer past torture, that she can relocate to a part of the coW1ty where she is lllllikely to be tortured by her domestic partner, and that she did not establish government acquiescence (IJ at 4, 7). See 8 C.F.R §§ 1208.16(c)(2)-(3), 1208.18(a)(l); Turkson v. Holder, 667 F.3d 523, 526 (4th Cir. 2012) (‘To warrant CAT protection, an [applicant] must prove, first, that it is more likely than not that he will be tortured if removed to the proposed country of removal and, second, that this torture will occur 2 1be respondent argues on appeal that the Immigration Judge “never properly addressed” her proposed particular social groups (Respondent’s Br. at 4-5, 9, 12), and instead recharacteriz.ed her proposed social group as “women in Mexico” (IJ at 5; Tr. at 8-9). We find any such error to be hannless given that, even assuming the respondent’s proposed particular social groups are cognizable, she failed to establish that any past harms suffered or future harm feared was or would be on accoW1t of her membership in those groups. 3 We nevertheless acknowledge the respondent’s appellate argmnent that the Irrnnigration Judge erred by not considering her request fur humanitarian asylum (Respondent’s Br. at 3, 8-9). Such consideration was unnecessary because she did not establish past persecution on account of a protected ground. See 8 C.F.R § 1208.B(b)(l)(iit); Matter of L-S-, 25 l&N Dec. 705, 710 (BIA 2012) (providing that humanitarian asylum is only available where an applicant demonstrates past harm rising to the level of persecution and that such harm was on accomt of a statutorily protected ground). 2 00000031269 Al (h )( 6) let al at the hands of government or with the consent or acquiescence of government.”). We therefore find no basis to disturb the lnnnigration Judge’s denial of the respondent’s request for CAT protection. Lastly, the respondent argues that the Immigration Judge ”ignored, disregarded, or refused to consider W1disputed and credible evidence” in denying her applications for relief (Attachment to Notice of Appeai Respondent’s Br. at 1). Ow-review of the record shows that the Innnigration Judge properly considered the docwnentary and testirmnial evidence, as well as the respondent’s memorandum of law, and we have no reason to doubt that the Immigration Judge gave due consideration to all the evidence ofrecord. Accordingly, the following order will be entered. ORDER: The respondent’s appeal is dismissed. 3 000000314 70 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,..__ ___ (b_)(_6)___ __,!AJ (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Jeffrey B. Rubin, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The Board entered a final administrative decision in this case on June 21, 2010. On April 22, 2019, the respondent filed the instant untimely motion to reopen. See section 240(c)(7)(C)(~ of the Immigration and Nationality Act, 8 U.S.C. § 1220a(c)(7)(C)m; 8 C.F.R. § 1003.2(c)(2). The Department of Homeland Security (OHS) has not responded to the motion. The motion will be denied. The respondent seeks reopening sua sponte so she can pursue adjustment of status based on the approval ofan 1-360, special immigrant-juvenile visa petition (Motion to Reopen and Remand at 2-5). See 8 C.F.R. § 1003.2(a); Matter of J-J-, 21 J&N Dec. 976, 984 (BIA 1997) (Board will exercise its sua sponte authority over an untime I y motion only in an “exceptiona I situation”). When a respondent seeks reopening to apply for discretionary relief from removal, the motion must be supported by the appropriate application and all supporting evidence. See 8 C.F.R. § 1003.2(c)(l). The respondent has not submitted the appropriate application and has not otherwise established that she is prima facie eligible for adjustment of status. See Matter of Coelho, 20 I&N Dec. 464,471-72(BIA 1992). Specifically, an individual is eligible for classification as a special immigrant juvenile under section IOI (a)(27)(J) of the Act, 8 U.S.C. § 1101 (a)(27)(J), if the alien is under 21 years old. 8C.F.R. § 204.ll(c)(I). However, an approved special immigrant-juvenile visa petition is revoked automatically upon a respondent turning 21 years old, if her adjustment of status application is pending. 8 C.F .R. § 205.1 (a)(3)(iv)(A). Although the respondent fiJed her visa petition prior to turning 21~ according to the birth date listed on documentation she submitted with her motion, the respondent turned 21 years old on (b)(6) I (Motion to Reopen and Remand, Exhs. B-C). Therefore, she is not eligible to adjust status as a special immigrant juvenile. Accordingly, the following order will be entered. 00000031470 ~ (b)(6) ORDER: The respondent’s rmtion is denied. 2 00000031362 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ~__ 6__) l Al~~(=b )~( (b_)””‘”(____ 6~) ___. Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Reza Baniassad~ Esquire ON BEHALF OF DHS: Lyrm K. Hollander, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Jnnnigration Court, Chicago, IL Before: Couch, Appellate Immigration Judge; Opinion by Appellate Irrnnigration Judge Cou~h ‘ COUCH, Appellate Immigration Judge The respondent, a native and citiz.en of India, has appealed from the Immigration Judge’s decision dated March 28, 2019, denying Im applications for asyhun, withhokling ofremovaL and protection under the regulations implerrenting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. I 0, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAI). The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Innnigration Judge under the “clearly erroneous” standard. 8 C.F.R § I 003. I(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under ade novo standard. 8 C.F.R § 1003.l(d)(3)(it). The Immigration Judge denied the respondent’s applications for relief and protection based on an adverse credibility finding, which is based on numerous material inconsistencies and omissions among his staterrents at the credible fear interview, in the asylum application, and his testimony at hearing (IJ at 6-8; Tr. at 24-40; Exhs. 2-3). The hrnnigration Judge also considered the docwnentary evidence submitted, and concluded that the evidence did not corroborate the respondent’s claims to carry his burden of proof (IJ at 9-1 O; Exh. 6). We adopt and affirm the lnnnigration Judge’s decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). On appeaL the respondent argues that he credibly and consistently testified that he fled India because he raced persecution, and that the Immigration Judge’s adverse credibility finding was not based on cogent reasons or logic from the evidence to conclusion (Notice of Appeal Exh. A). However, the Imnigration Judge’s decision provided a number of specific and cogent reasons for the adverse credibility finding (IJ at 6-8). The respondent’s 00000031362 A! (b)(6) arguments do not persuade us of a legal or clear factual error in the Innnigration Judge’s decision warranting a reversal. The respondent does not present specific arguments addressing the Innnigration Judge’s denial of his application for protection under CAT, thus we consider this matter waived. Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012). Based on the above, the respondent’s appeal will be dismissed. ORDER: The appeal is dismissed. 2 00Q0.l)0313~ NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATTER OF: …__ ____ (b __)(–6)____ _.IAl,_—–‘(–‘b )-‘-(6-‘-)__, Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Daniel R. Black, Esquire ON BEHALF OF DHS: Adam N. Greenway, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, West Valley City, UT Before: Couch, Appellate Immigration Judge Opinion by Appellate Irrnnigration Judge Couch COUCH, Appellate Irrnnigration Judge The respondent, a native and citi?.en of Mexico, appeals the Innnigration Judge’s decision dated April 12, 2019, denying his application for cancellation ofremoval for certain nonpennanent residents for lack of evidence his qualified relative would suffer exceptional and extremely unusual hardship should the respondent be removed to Mexico. The appeal will be dismissed. We review the findings of fact, including the detemrination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003. l(d)(3)(Q. We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R. § 1003. 1 ( d)(3 )(ii). We adopt and affirm the Innnigration Judge’s decision dated April 12, 2019, denying cancellation of removal for certain nonpermane nt residents on the bases of lack of exceptiona I and extremely unusual hardship to the respondent’s qualifying relatives. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We concur with the lrrnnigration Judge’s determination, for the reasons provided, that the respondent did not meet his burden to demonstrate his removal would result in exceptional and extremely unusual hardship to his qualifying relatives, namely his United States citizen children,’1 (b)(6) I who were 15 and 9 years old, respectively, at the time of the last hearing on April 12, 2019 (IJ at 2-4). 1 See section 240A(b )(1 )(D) of the Act To qualify 1 Although the respondent has a third United States citizen child, ~ who was 18 years old at the time of the hearing on April 12, 2019, he turned 21 years old on! (b)(6) I.Accordingly, he has “aged-out,” and is no longer a qualifyinr relale for pmposes of the respondent’s application for cancellation ofremovaL Moreover, (b)(6) is now eligible to file a visa petition on the respondent’s behalf. 00000031359 Aj (b)(6) for this relie~ the respondent must demonstrate his removal will result in hardship to at least one of his qualifying relatives that is “substantially beyond” the hardship ordinarily associated with a person’s ordered departure from the United States. See Matter of Monreal, 23 I&N Dec. 56, 60 (BIA 2001 ). By design, the hardship standard is a high threshold. See Matter of Andazola-Rivas, 23 l&N Dec. 319 (BIA” 2002 ). The respondent and has wife testified that (b)(6) and I (b)(6) I do not have mental or physical problem;, although the respondent also testified that (b)(6) gets depressed easily and does not want to leave the United States (JJat 2-3; Tr. at 37-39, 52-53). However, there is no medical evidence that I(b)(6) Ihas needed or received treatment, such as therapy or medication, for any diagnosed depressive disorder. The respondent and his wife both testified that if the respondent is removed to Mexico, his wife, who is the mother of his United States citizen children, and the children would accompany the respondent to Mexico (IJ at 3; Tr. at 40, 49). Accordingly, any separation of the irrnnediate fumily is not an issue in this case. On appea~ the respondent submitted new evidence consisting of additional articles regarding the general effects on United States citizen children caused by the deportation of a parent. However, this evidence is not specific to either of the respondent’s qualifying relatives and it would not change the outcome. Therefore, a remand is not necessary for the Innnigration Judge to review this additional evidence and re-evaluate the claim Accordingly, the following orders will be entered. ORDER: The appeal is dismissed. FURTIIER ORDER: Pursuant to the Innnigration Judge’s order and conditioned upon compliance with conditions set forth by the Irrnnigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department ofHomeland Security (DHS). See section 240B(b) ofthe Irmnigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R. § 1240.26(c), (f). In the event a respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Innnigration Judge’s order. NOTICE: If a respondent fuils to vokmtarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute, and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. WARNING: If a respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically tenninated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. § 1240.26(e)(l). 2 00000031359 ~,_______,(-‘b6-‘-)___. )..,_( WARNING: I~ prior to departing the United States, a respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of vohmtary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order ofremoval if the alien provides to the OHS such evidence of his or her departure that the lmnigration and Custoiffi Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i). 3 . NOT FOR J>UBLICATION 00000031467 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—–(b_)(_6) _____ ~lA] (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Callan Garcia, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Mullane, Appellate lrnmigration Judge Opinion by Appellate lrrnnigration Judge Mullane MULLANE, Appellate Immigration Judge The respondent has filed an appeal from the Immigration Judge’s decision dated April 2, 2019. The Immigration Judge denied the respondent’s applications for asylum, withholding of removal, and protection under the regulations implementing the Convention Against Torture and Other Cruel, lnlun:nan or Degrading Treatment or Punishment, Dec. I 0, 1984, S. Treaty Doc. No. 10020, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). See sections 208 and 241(b)(3) of the Irrnnigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R §§ 1208.16-1208.18. The appeal will be dismissed. We review the Immigration Judge’s findings offuct for clear error. 8 C.F.R. § 1003.l(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R § 1003.l(d)(3)(ii). The Irrnnigration Judge fotmd the respondent credible and there is no clear error in that finding (IJ at 12). There is also no clear error in the Irrnnigration Judge’s finding that the gang or gangs that extorted and threatened the respondent in the past and whom he fears would harm him in the future were not and would not be motivated by the respondent’s political opinion or membership in any of his identified particular social groups (IJ at 14-15, 17-19). See Matter ofE-R-M:.F-& A-S-M-, 25 l&N Dec. 580, 587 (BIA 2011) (explaining that motivation of the persectn:or is a finding reviewed for clear error). On appeai the respondent has not identified evidence that was overlooked in this regard. As explained by the Immigration Judge, the gangs targeted the respondent because he was making money and they wanted to profit from him (IJ at 14-15). It was a matter of pure criminal extortion (IJ at 15). Because the respondent did not establish the required nexus to a protected trait under the Act, he has not met his burden of proof for asylwn or withholding of removal See Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 214 (BIA 2007) (providing that an asylum applicant must prove that a ~ (b)(6) 0000Q031467 protected grm.md under the Act was or will be at least “one central reason” for the claimed persecution); Matter ofC-T-L-, 25 l&N Dec. 341, 346-48 (BIA 2010) (providing that the “at least one central reason” requirement applies to withholding of removal claims). The respondent has not raised any meaningful argmnent concerning his CAT application and so that issue is waived. See Matter ofG-G-S-, 26 I&N Dec. 339, 340 n2 (BIA 2014) (noting that issues not sufficiently addressed on appeal will be deemed abandoned and not considered). Insofar as the respondent may seek hwnanitarian relief from removal based on his wife’s medical condition or other concerns, the Board has no authority to grant this type of relief The respondent’s appeal will be dismissed. ORDER: The appeal is dismissed. 2 00000031356 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ._______ ____ J\I (b)(6) ….:.,.(b..:..;)(‘–‘-6) ____,I Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Carolyn Marie Corrado, Esquire IN REMOVAL PROCEEDINGS On Appec!l from a Decision of the Immigration Cowt, New York, NY Before: Owen, Appellate Inmigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge The respondent, a native and citizen of El Salvador, has appealed from the Innnigration Judge’s decision dated April 8, 2019, that denied his clam fur asylum, withholding of removaL and protection under the Convention Against Torture. The appeal will be dismissed. The Board reviews an Immigration Judge’s findings of fact, including findings as to the credibility of testimony, W1der a clearly erroneous standard. See 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment, and all other issues raised in an Inmigration Judge’s decision de novo. See 8 C.F.R. § 1003.l(d)(3)(il). As sunnnariz.ed in the Immigration Judge’s decision, the respondent applied fur relief based on encollllters with the members of a criminal gang who attempted to recruit the respondent (IJ at 3; Tr. at 45-82; Exh. 2A). The respondent premised his clam on persecution as a member of various particular social groups: 1) Salvadoran male youth; 2) male Salvadoran youth who have lived in the United States and lack parental protection in El Salvador; 3) individuals who oppose MS-13 gangs; 4) yollllg Salvadoran men; and 5) yollllg Salvadoran students. The respondent also clam that he was persecuted based on his political opinion because he opposed the gangs. On appeaL while claiming membership in several social groups, the respondent argues in particular that the Innnigration Judge erred in detennining that his proposed social group consisting of Salvadoran male youth is not cognizable for asyhnn purposes (Respondent’s Notice of AppeaL Addendwn at 2-4). The respondent also argues that the record should be remanded for the Inmigration Judge to conduct a more rigorous analysis of his claim of political persecution (Addendwn at 4-6). He asserts that given the power of criminal gangs in El Salvador, his opposition to their will constitutes an expression of his political opinion Finally, the respondent argues the governmental efforts to combat gang crime that are reflected in the colllltry conditions evidence are insufficient to show that Salvadoran authorities are able and willing to protect him (Addendum at 6). The respondent asserts that given widespread official corruption in El Salvador, 00000031356 it was tnmecessary for him to seek protection from authorities because doing so would have been futile and dangerous (Addendum at 6-7). We will affirm the Immigration Judge’s denial of a~yhnn on the ground that the respondent did not establish past persecution or a well-founded rear of future persecution on accowit of one ofthe protected growds enwnerated in section 101(a)(42)(A) ofthe Immigration and Nationality Act, 8 U.S.C. §1101(a)(42)(A) (JJ at 3-7). See Matter of J-B-N-& S-M-, 24 I&N Dec. 208, 21114 (BIA 2007). As an initial matter, we will uphold the Immigration Judge’s determination that the respondent’s proposed social groups are not cognizable for asyhnn purposes (IJ at 3-4). We agree that the respondent’s proposed groups lack particularity because the defining tenm employed by the respondent, such as ”youth” and ”young,” or “oppose,” are ambiguous and may encompass a wide range of ages and circwmtances such that the exact parameters of the groups cannot be readily discerned. See Matter of M-E-V-G-, 26 I&N Dec.226, 239 (BIA 2014) (“A particular social group must not be amorphous, overbroad, diffuse, or subjective, and not every ‘imnrutab le characteristic’ is sufficiently precise to define a particular social group.’). We also agree that the respondent failed to show a nexus between his attempted recruitment and a protected ground (5-7). There appears to be nothing in the record to indicate that the respondent’s youth and male gender were characteristics which the gang sought to punish or overcome, rather than simply being desirable qualities which they sought to exploit. Furthermore, threats of harm for resisting recruitment are insufficient in themselves to show persecution See Matter ofS-E-G-, 24 I&N Dec. 579, 589 (BIA 2008) (holding that neither Salvadoran youth who refused recruitment into the MS-13 criminal gang nor their family members constitute a particular social group), and Matter of E-A-G-, 24 I&N Dec. 591, 596 (BIA 2008) (holding that refusal to join a criminal gang, without more, does not constitute a “political opinion,” and any harm resuhing from such refusal would not normally be fmmd to be motivated by a political opinion). 1 It does not appear that the respondent related any commentary or actions by gang members to suggest that they attnbuted his opposition to a political opinion, or indeed that they even had any interest in his reasons for resisting them We will also uphold the Irrunigration Judge’s determination that the respondent failed to show that Salvadoran authorities are unable or tmwilling to protect him (IJ at 5-6). See Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (”Private acts can … constitute persecution if the gove~nt is unable or unwilling to control such actions.’). The respondent’s argument that the efforts of Salvadoran authorities to combat gan~ are insufficient to establish that they would be able and willing to protect him is misplaced, as it is the respondent’s burden to show that authorities would not or could not protect him The respondent’s mere assertion of widespread official corruption is insufficient to show it would have been futile for him to seek protection in his individual 1 Our subsequent decisions in Matter of W-G-R-, 26 I&N Dec.208 (BIA 2014), and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), clarified that the particular social group elements outlined in Matter of S-E-G-and Matter of E-A-G-do not require literal or on-sight visibility for a social group to be cognizable for asylum purposes. 2 00000031356 circmmtance. In the absence of any attempt to secure protection, and considering the country conditions evidence of governmental efforts to combat gangs, we agree with the Irrmigration Judge that the respondent did not establish the authorities would be unable or unwilling to protect rum Having railed to meet the lower burden of proof for asylwn, the respondent cannot establish eligibility for withholding of retmval See section 24l(b)(3){A) of the Act; 8 U.S.C. § 1231(b)(3)(A); Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir. 2004). The respondent has not specifically contested the lnnnigration Judge’s detennination that he railed to show that he would be subjected to torture that would be inflicted by or with the acquiescence, to include willful blindness, of a public official or another person acting in an official capacity (IJ at 8). See 8 C.F.R §§ 1208.l6(c){2) and 1208.l8(a)(l); Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004). Therefore, hi<; opportunity to appeal the denial of hi<; claim for protection under the Convention Against Torture on that basis is deemed waived. See Matter of R-A-M-, 25 I&N Dec. 657,658 n.2 (BlA 2012) (stating that when an alien rails to substantively appeal an issue addressed in an Immigration Judge decision, that issue is waived). Accordingly, the following order will be entered. 0 RDER: The appeal is dismissed. 3 00000031350 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: 6 ~___ (_b)_(_)___ ~lAj (h)(6’\ Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Michael J. Selph, Esquire ON BEHALF OF DHS: Nancy Defrank, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the lrmnigration Court, Los Angeles, CA Before: Gonzale~ Temporary Appellate ln:nnigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Terq,orary Appellate Immigration Judge The Department of Homeland Security (DHS) bas appealed the April 3, 2019, decision of the Irmnigration Judge granting the respondent’s applications for asyhun under section 208 of the Irmnigration and Nationality Act, 8 U.S.C. § 1158, withholding ofremoval under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and her request for protection under the regulations implementing the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force fur United States Nov. 20, 1994) (CAT). The respondent has submitted a brief in opposition to the DHS’s appeal We will dismiss the appeal Considering our standard of review, we are tmable to find that the Immigration Judge’s credibility determination and findings of fact were “clearly erroneous.” See 8 C.F.R. § 1003.l(d)(3)(i). Moreover, on de novo review, we find insufficient grounds to reverse the lnnnigration Judge’s determination that the respondent established her eligibility for relief. See also MatterofA-B-, 28 I&N Dec. 307 (A.G. 2021). Finally, upon denovo review, we conclude that the respondent merits asyhun in an exercise of discretion. ORDER: The appeal is dismissed. FURTIIER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opporttmity to complete or update identity, law enforcement, or security investigations or 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031350 Al~__ (h_’\_(6_’\_~ examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R § 1003.47(h). 2 00000031347 ,NOT FOR PUBUCATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATIER OF: ~—~(b~)(~6) ____ ~l Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Joseph G. Hitrec, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Diego, CA Before: Owen, Appellate lmnigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge 1be respondent, a native and citiz.en of Guatemala, appeals an Immigration Judge’s decision dated April 8, 2019, which denied his applications fur asyhnn and withholding of rerooval under sections 208{b)(l)(A) and 24l{b)(3)(A) of the hmnigration and Nationality Act, 8 U.S.C. §§ 1 l 58(b )(1 )(A) and 1231 (b )(3)(A), and for protection under the regulations implementing the Convention Against Torture and Other Cruei Inhmnan or Degrading Treatment or Punishment, Dec. JO,1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). The Department of Homeland Security has not filed a response brief The appeal will be dismissed. We review findings of fact determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(0. We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R § 1003.l(d)(3)(ii). We affirm the Irnmigration Judge’s denial of the respondent’s applications for asylum, withholding ofreroovai and protection tmder the CAT based upon an adverse credibility finding (lJ at 8-9). The Immigration Judge’s adverse credibility finding is not clearly erroneous (U at 4-8). See sections 208(b)(l)(B){iii), 241(b){3)(C) of the Act; 8 C.F.R § l003.l{d){3){0; Matter of J-Y-C-, 24 I&N Dec. 260,263 {BIA 2007). In making this determination, the Immigration Judge cited to discrepancies between the respondent’s testimony and asylum application, as well as implausible testimony. The respondent indicated in his testimony that the gang members broke a bone in his back, but did not make such an assertion in his asyhnn application (U at 4; Compare Tr. at 43-44, 82 with Exh. 3). The respondent also denied going to a doctor after the gang members hurt him because his family was indigent, but indicated that he went to a ”healer” who gave him massage therapy 00000031347 ten times and that after 30 days his condition was healed (U at 5; Compare Tr. at 45, 79 with Tr. at 42-44). Also, he indicated that his mother rermined in her house and did not go outside, but the mother’s letter indicated that she was in hiding with the respondent’s brother (IJ at 7-8; Compare Tr. at 67, 77 with Exh. 4 at 4). We are not persuaded by the respondent’s explanation that his mother probably chose not to accurately disclose her location out of concern for the respondent (Respondent’s Br. at 9). Further, the respondent did not mention in his testimony that the gang members offered him little red pills as he had indicated in his asyhnn application, until he was prompted about the pills by his attorney (IJ at 5-6; Compare Tr. at 39-41 with Exh. 3). The respondent also could not convincingly explain how he could have endured a car trip of between 45 minutes and an hour with a broken back (IJ at 5; Tr. at 73-74). Also, the respondent testified that he was beaten in June 2013, but in his application he presented to the USCIS indicated it was June 2014 (IJ at 6; Compare Tr. at 53 with Exh. 3A). He also testified that he left Guatemala in April 2014, but indicated in his asylum application that he left in December 2014 (IJ at 7; Compare Tr. at 56 with Exhs. 3A, 3). The Immigration Judge is pennitted to make reasonable inferences among the plausible possibilities and explanations for discrepancies in the record, and he did so. Matter of D-R-, 25 I&N Dec. 445,454 (BIA 2011) (drawing inferences from direct and circwnstantial evidence is a routine and necessary task of any met finder, and in the immigration context, the Immigration Judge is the met finder). ‘1A]n Immigration Judge is not required to accept a respondent’s assertions, even if plausible, where there are other pe~sible views of the evidence based on the record. Matter of D-R-, 25 I&N Dec. at 455. We have considered all of the respondent’s explanations on appeal and we do not find them to be persuasive or adequately reconcile the inconsistencies or explain the implausible testimony (Respondent’s Br. at 7-9). We are not persuaded that the respondent’s low level of education or lack of the legal process explains his inconsistent and implausible testimony (Respondent’s Br. at 8-9). Nor are we persuaded the respondent’s young age of being 15 years old when he was injured explains the discrepancy regarding the broken back (Respondent’s Br. at 8). In view of the foregoing reasons presented by the Immigration Judge in his decision, the inconsistencies and implausible testimony cited by the Immigration Judge are significant, are present in the record, and are an adequate basis for the Immigration Judge’s adverse credibility finding under the totality of the circwnstances. See section 208(b)(l)(B)(iii) of the Act; Matter of J-Y-C-, 24 I&N Dec. at263. In the absence of credible testimony or sufficient corroborating evidence, the respondent has not satisfied his burden of proving eligibility for asylum and witbholding ofremoval (IJ at 8). 8 C.F.R §§ 1208.13(a), 1208.16(b); Matter of M-S-, 21 l&N Dec. 125, 129 (BIA 1995) (a persecution claim that lacks veracity cannot satisfy the burdens of proof necessary to establish eligibility fur asylum and withholding ofremovaQ. We also agree with the Inmigration Judge that the respondent has not established his eligibility for protection under the CAT (IJ at 8-9). The respondent contends that the Innnigration Judge 2 00000031347 erred in finding that the police had not turned a blind eye towards him when he tried to make a police report (IJ at 8; Respondent’s Br. at 10). However, the fuct remains that the respondent’s claim under the CAT is based on the same testimony the Innnigration Judge fuund not credible, and the respondent points to no other objective evidence to support his claim 8 C.F .R §§ 1208.16(c), 1208.18(a); Farah v. Ashcroft, 348 F.3d 1151, 1156-57 (9th Cir. 2003). Thus, he has not established eligibility for protection mder the CAT. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000031344 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board ofhnmigration Appeals MATIER OF: .__ ___ 6″”‘-) ___,Jl (h V 6) _,_(b=).,_,(___ Al Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Cassidy, Appellate Innnigration Judge Opinion by Appellate hnmigration Judge Cassidy CASSIDY, Appellate lnnnigration Judge The respondent, a native and citizen of El Salvador, appealed the Innnigration Judge’s decision, dated April 24, 2019, which pretermitted her applications fur asyh.nn, withholding of remova~ and protection tmder the regulations implementing the Convention Against Torture and Other Cruel, Inhwnan or Degrading Treatment orPtmisbment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). See sections 208, 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, l231(b)(3); 8 C.F.R §§ 1208.16, 18. The appeal will be dismissed. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge llll.der the “clearly erroneous” standard. See 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, tmder a de novo standard. See 8 C.F.R § 1003.l(d)(3)(n). The respondent argues the Immigration Judge lacked jurisdiction to hear her case, because the Notice to Appear (NTA) railed to specify the date, time and place of her removal hearing, and therefore was defective. See Pereira v. Sessions, 138 S. Ct. 2105, 2113-14 (2018); see also NizChavezv. Garland, 141 S. Ct. 1474 (2021). The Department of Homeland Security (DHS) issued a NTA and personally served the respondent on August 13, 2014 (Exh. 1). The NTA did not designate the date and time of the initial removal proceeding, but listed the Immigration Court’s address (Exh. 1 ). On JW1e 18, 2015, the Immigration Court provided a Notice of Hearing to the respondent, at the address provided to the DHS, which designated the date, time, and location of the removal procee~. 00000031344 AJ (b)(6) After the OHS issued the NTA, the respondent, upon receiving the hearing notices, attended removal hearings either prose or with counsel on several occasions, specifically, January 15, 2016, April 26, 2016, October 11, 2016, November 7, 2017, and April 24, 2019 (Tr. at 1-27). She was aware of the hearings, because the Immigration Court mailed the hearing notices to either her or her attorney, and she was present at each of the hearings. Further, the respondent did not timely object before the Immigration Judge, at any of those hearings, to receiving the NTA and the hearing notices separately. Further, there does not appear to be any indication in the record she was prejudiced in any way. In light of the foregoing, we disagree with the respondent’s argwnent that the Immigration Judge lacked jurisdiction over her removal proceedings. See, e.g., Matter of Arambula-Bravo, 28 I&N 388, 389-92 (BIA 2021). On appeat the respondent argues the lmmigra tion Judge erred in pretennitting her applications for asylum, withholding of removat and protection under the CAT, for failing to have her fingerprints taken and otherwise to complete the biometric requirements. See 8 C.F.R § 1003.47(a)-(d). She claims the Immigration Judge did not provide the appropriate warnings, deadlines, or properly· advise her of the consequences of the failure to comply with these requirements. • An Immigration Judge may deny applications for asylurn, withholding of removat protection under the CAT, and other applications, as abandoned for failure to have fingerprints taken and otherwise complete the biometrics requirement. See 8 C.F.R §§ 1003.47(a)-(d). Here, the Irrnnigration Judge correctly set forth the procedural history of the case with respect to the procedural requirements issue of abandonment of an application for relief for failure to comply with the biometrics requirements. The Immigration Judge noted the DHS provided the respondent with biometrics instructions fonm, the Immigration Judge informed the respondent ofthe deadline for completion of biometrics, and also informed her, on the record, of the consequences of noncompliance (IJ at 2-3; Tr. at 16, 18,23). See Matter of D-M-C-P-, 26 I&N Dec. 644, 649 (BIA 2015). The Jmmigration Judge correctlv determined that the respondent fuiled to show good cause for failing to timely comply with the biometrics requirements, where she appeared at her final hearing without her biometrics completed, and counsel informed the Court that the respondent had also failed to cooperate in preparing her case (IJ at 2-3; Tr. at 16, 18, 21-25). See Matter of Sibrun, 18 I&N Dec. 354, 356-60(BIA 1983). The respondent explained to the Immigration Judge that she was experiencing financ ia 1 difficulties, which is why she did not comply with the biometric requirements (IJ at 3; Tr. at 2325). While we recognize the respondent’s claim of financial difficulties, the Immigration Judge provided the respondent with approxirrately 17 months to complete biometric requirements (Tr. at 16-26). Further, the respondent did not present evidence that it was impossible or impractical for her to appear at the fingerprinting appointment. We agree with the hnmigration Judge that the respondent has not provided good cause concernmg why she did not provide the biometric requirements. As noted in the Immigration Judge’s decision, the respondent did not exercise due 2 00000031344 Al (b)(6) diligence in pursuing her clam to relie( because she neither cooperated with cmmse~ nor made any si,gnificant effort to attend a biometrics appoin~nt in a timely manner over nearly a year and five month period (IJ at 2-3; Tr. at 16, 18, 21-25). The respondent has also not established “good cause” on appeal to the Board, for example by demonstrating that she ~diately took action to comply with the biometrics requirement following the Inunigration Judge’s entry of a decision in this matter. Id. We agree with the lnnnigration Judge’s determination that the respondent did not show good cause for her failure to timely comply with the biometrics requirements, and properly deemed any applications to be abandoned. The respondent argues the Immigration Judge did not extend the opportunity to seek vohmtary departure. See 8 C.F.R § 1240.26(c)(3)(i) (requiring a minimum ~ond amount to be posed within five business days of the order granting vohmtary departure). The respondent, however, was represented by counsel at the scheduled merits hearing. The respondent’s counsel did not request vohmtary departure. Further, the respondent testified that she was unable to afford to pay for the biometric testing to move forward with her asyhnn hearing (IJ at 3; Tr. at 25-26). See 8 C.F.R. § 1240.23(c)(3)(i) (requiring a minimum ~(b)(6lbond amount to be posted within five business days of the order granting vohmtary departure). She has not indicated on appeal how she would have been able to provide the minimum $!rhv!vohmtary departure bond amount within five business days after the immigration hearing, which is required for a grant of vohmtary departure. Accordingly, we see no basis to remand the record for further hearing.5 regarding vohmtary departure. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 NOT FOR PUPo!n!~~JlON U.S. Department of Justice Executive Office for hrunigration Review Board of Immigration Appeals MATIER OF: .__ __ ___ Al (b )( 6) ___._,_(h..,,.)(…..,6).,__ , Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Matthew B. Hanson, Esquire ON BEHALF OF DHS: John K. West, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal :from a Decision of the Innnigration Court, West Valley, UT Before: Cassidy, Appellate Irrnnigration Judge Opinion by Appellate Innnigration Judge Cassidy CASSIDY, Appellate Immigration Judge The respondent has appealed the Immigration Judge’s April 11, 2019, decision that denied the respondent’s application for asylum and withhokling ofremoval under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), as well as his request for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punislunent, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT), see 8 C.F.R. § 1208.18. The appeal will be dismissed. We review the findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3Xi). We review all other issues, including issues of law, discretion, or judgment, wlder a de novo standard. 8 C.F .R. § 1003 .1 ( d)(3 )(it). With regard to the application for asyhnn, we adopt and affirm the Immigration Judge’s determination that the respondent is ineligible for asylum because he did not file his application within 1 year of entry and did not establish that hefulls within one of the exceptions to the I-year filing requirement, including filing within a reasonable period after any alleged changed circwnstance (IJ at 4-5). See Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994); see also sections 208(a)(2)(B) and (D) of the Act; 8 C.F.R. § 1208.4(a)(2); Matter of T-M-H-& S-W-C-, 25 I&N Dec. 193 (BIA 2010). Because we adopt and affirm the Immigration Judge’s determination that the respondent’s asylum application was lllltimely, we need not address the Immigration Judge’s other reason for denying asyhnn See Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) (declining to reach ahernative issues on appeal regarding ineligibility for relief where an applicant is otherwise statutorily ineligible for such relief). Al~_(_b)_(6_) ~ 00000031464 With regard to the application for withholding of removal tmder the Act and the request for protection pmsuant to the CAT, the respondent does not meaningfully contest the Irnmigra t ion Judge’s decision on these claims, therefore they are waived. See Matter of D-G-C-, 28 J&N Dec. 297,297 n.l (BIA 2021) (noting that issued not raised on appeal are deemed waived). Accordingly, the following order shall be entered. ORDER: The appeal is dismissed. 2 I NOT FOR PUBLICATION 00000031341 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) AJ (b)(6) FILED Jan 27, 2022 Respondent ON BEHALF OF RESPONDENT: Skyler K. Anderson, Esquire ON BEHALF OF DHS: Adam N. Greenway, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, West Valley, UT Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Innnigration Jtrlge ‘ The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge’s April 17,2019, decision denying his motion for a continuance and application for cancellation of removai but granting his application for voluntary departure. While this appeal was pending before the Board, the Department of Home1and Sectrity and the respondent filed a joint motion to administratively close the proceedings pursuant to Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021) (restoring the authority of the Board and Immigration Judges to administratively close proceedings); Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) (setting forth the standards for administrative closure). The joint motion will be granted, and the proceedings will be administratively closed. If either party to this case wishes to reinstate the proceedings, a written request to reinstate the proceedings may be made to the Board. The Board will take no further action in this case unless a request is received from one of the parties. The request must be submitted directly to the Clerk’s Office, without fee, but with certification of service on the opposing party. Accordingly, the following order will be entered. ORDER: The proceedings before the Board in this case are administratively closed. 00000031338 I NOJ’ FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: :=========::::(h~){~t,)::::=======~l Al (h ‘\(f;’\ L—~–(‘-‘-‘h’-“-V’-‘-1,’\..__ ___ __,.1Al (b )( 6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: Wael M. Ahmad, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Louisville, KY Befure: Cassidy, Appellate lmnigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge The respondents, natives and citizens of Guatemala, appealed the Immigration Judge’s decision, dated April 10, 2019, which denied their applications fur asylum and withholding of removal 1 See sections 208, 24l{b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231 (b )(3 ). The appeal will be dismissed. We review the findings of :fact, inchlding the dletermination of credibility, made by the Imrnigration Judge under the “clearly erroneous” standard. See 8 C.F.R § 1003.l(d)(3)(0. We review all other issues, including issues of law, discretion, or judgment, 1IDder a de novo standard. See 8 C.F.R § 1003.l(d)(3)(it). The Immigration Judge folllld the respondent credibly testified that, at 12 years old, she suffered sexual abuse in Guatemala by her tmcle (IJ at 5-6). At the time of her removal hearing, the respondent was 27 years old (IJ at 1). The Immigration Judge fotmd the respondent did not establish she was banned based on a particuJar social group (U at 6). The Immigration Judge fotmd the respondent was a victim of a crime, and the motivation of those who harmed her was purely criminal in nature (IJ at 6-7, 11-12). See Skripkov v. Barr, 966 F.3d 480, 489-90 (6th Cir. 2020) (finding that proof of harm is insufficient to establish eliglbility for asyhun relief, because the respondent must demonstrate a nexus to a protected groW1d). 1 The respondents in this case include the lead respondent, Al (hV61 lwho is the principal applicant for asylum, and her child, Al rhV6) lwho is a derivative on that application. Unless otherwise indicated, the singular “respondent” shall refer to the lead respondent. 00000031338 Al (b )( 6) let al On appea~ the respondent argues the Innnigration Judge erred in finding she did not establish past persecution based on a cognizable particular social group (Respondent’s Br. at 4). She avers she belongs to a particular social group, defined as “Guatemalan women who were victi~ of rape and subject to persecution upon return to Guatemala” (Respondent’s Br. at 4). The respondent clam her particular social group meets the requirements of Matter of M-E-V-G-, 26 I&N Dec. 277,237 (BIA 2014), because the group is defined with particularity and exists independent of the harm asserted (Respondent’s Br. at 4). She requests the Board reconsider the particular social group in light of Juan Antonio v. Barr, 959 F.3d 778, 790-91 (6th Cir. 2020) (hokiing a married indigenous woman in Guatemala, who is unable to leave her relationship, can form a cognizable particular social group, to include even those women who physically left the relationship, but who remain culturally bolllld to the imrriage) (Respondent’s Br. at 4). We adopt and affirm the decision ofthe Immigration Judge. SeeMatterofBurbano, 20I&N Dec. 872, 874 (BIA 1994). The respondent argued before the Immigration Judge she suffered past persecution in Guatemala, and had a well-founded fear of future persecution, on account of her membership in a particular social group, defined as “Guatemalan women, vie~ ofrape subject to persecution” (IJ at 6; Tr. at 48). The respondent bears the burden to establish eligibility for relief from removal See section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R § 1240.8(d). We agree with the Immigration Judge’s conclusion the respondent did not prove her eligibility for asyhun or withholding ofremova~ because she did not establish the requisite nexus to a protected grm.md (IJ at 6). See MatterofC-T-L-, 25 I&N Dec. 341,343 (BIA 2010); Matter of J-B-N-& S-M-, 24 I&N Dec. 208 (BIA 2007). 1n the absence of past persecution on accotu1t of an emnnerated ground, it is the respondent’s burden to show relocation to another part of Guatemala is unreasonable. See 8 C.F.R §§ 1208.13(b)(3)(i), 1208.16(b)(l)(B). The Immigration Judge correctly fulllld the respondent could reasonably internally relocate withll) Guatemala (IJ at 8-9). The Immigration Judge found the respondent did not establish her fear is countrywide in Guatemala (IJ at 8-9). See Matter of C-A-L-, 21 I&N Dec. 754, 757-58 (BIA 1996). The respondent did not establish how her uncles or mother-in-law, from whom she fears hann, would be aware of her location or how they would obtain this information (IJ at 9). Hence, we agree with the Immigration Judge’s detennination that the respondent did not establish relocation to another area of Guateimla would be unreasonable. Based on the foregoing, we conch.Ide the respondent did not establish eligibility for asyhml or withholding ofremoval Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 ;_. 00000031461 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ,…._____ )’-‘”(____ Al _.(~b6_.) ____.I (h Vhi Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Margaret W. Wong, Esquire ON BEHALF OF DHS: Jean L. Celestin, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Philadelphia, PA Before: Gonzalez,, Temporary Appellate lnnnigration Judge1 Opinion by Temporary Appellate Innnigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The Department of Homeland Security (DHS) has appealed the April 5, 2019, decision of the Innnigration Judge granting the respondent’s applications for asylum under section 208 of the Innnigration and Nationality Act, 8 U.S.C. § 1158, and withholding of removal under section 241 (b X3) of the Act, 8 U.S.C. § 1231 (b )(3). The respondent has submitted a brief in opposition to the DHS’s appeal We will dismiss the appeal Considering our standard of review, we are unable to find that the Irrmigration Judge’s credibility detennination and findings of fuct were “clearly erroneous.” See 8 C.F.R. § 1003.l(d)(3)(i). Moreover, on de novo review, we find insufficient grounds to reverse the Immigration Judge’s detennination that the respondent established her eligibility for relief. See also MatterofA-B-, 28 I&N Dec. 307 (A.G. 2021). Finally, upon denovo review, we conclude that the respondent merits asylum in an exercise of discretion. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Innnigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h). 1 Temporary Appellate Irrmigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 0000003 2064 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: Respondents (b)(6) (b)(6) (b)(6) (b)(6) FILED Jan 25, 2022 ON BEHALF OF RESPONDENTS: Ivan Yacub, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision oftbe Innnigration Court, New Orleans, LA Before: Wetmore, Chief Appellate Innnigration Judge Opinion by Chief Appellate Immigration Judge Wetmore WETMORE, Chief Appellate lrmnigration Judge ORDER: The appeal is sumnarily dismissed under the provisions of8 C.F.R §§ 1003.l(d)(2)(D(F), (H). On January 4, 2018, the Innnigration Judge issued a decision ordering the respondents removed after the respondents failed to appear at a schedu1ed hearing. 1be respondents seek to challenge the Immigration Judge’s decision,1 but have done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Immigration Judge in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circl.llmtances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 l&N Dec. 722 (BIA 1999); 8 C.F.R § 1240.15. Accordingly, the record is retwned to the Immigration Court without further Board action 1 1be Irrn:nigration Judge also denied the respondents’ motion to change venue and motion for a continuance which was filed on January 3, 2018, the day before the hearing. While the appeal only seeks to challenge the hnmigration Judge’s denial of the motions, the Board is without jurisdiction to consider these argwnents given that the respondents failed to appear and were ordered removed in absentia on the same date. NOT FOR PTTRLI<‘ATION ~00000~1458 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ._ __ __ _,lAl (h)( 6) ___.;..(b..;_)(‘-‘6);…._ Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Thomas Patrick Haine, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, San Diego, CA Before: Owen, Appellate Immigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge’s decision dated April 18, 2019, denying his applications for asylum and withhokling of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231 (b )(3), and protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAn. The appeal will be dismissed. We review the :findings of :fact, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgrrent, llllder a de novo standard. 8 C.F.R. § 1003. l(d)(3)(i.t). On appeal, the respondent argues that he experienced past persecution in Mexico and has a well-founded fear of persecution on accollllt of his membership in a particular social group composed of witnesses to criminal .activity (JJ at 8, 10; Tr. at 49). We need not address whether the respondent testified credibly and sufficiently corroborated his testimony, inasmuch as he did not establish membership in a cognizable particuJar social group. An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: ( 1) membership in a group, which is composed of members who share a commm immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for the feared persecution See Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014 ). 00000031458 The proposed particular social group composed of witnesses to criminal actMty carmot be defined with particularity because the terms, witness and crimes, have wide-ranging meaning. See Aguilar-Osorio v. Garland, 991 F .3d 997 (9th Cir. 2021) (stating that witnesses who could testify against gang members based upon what they witnessed was not a discrete class with definable botmdaries); Reyes v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016) (stating that a particular social group must have botmdaries that are not amorphous); Matter of M-E-V-G-, 26 I&N Dec. at 239 (stating that a particular social group must be discrete and have definable boundaries which are not amorphous, overbroad, diffuse, or subjective). Further, the respondent has not established that members of that proposed particular social group are a socially distinct segment of Mexican society. See Reyes, 842 F.3d at 1133-37 (holding that a particular social group has social distinction if there is evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group); Matter of M-E-V-G-, 26 I&N Dec. at 240 (stating that to be socially distinct, a group need not be seen by society; rather, it must be perceived as a group by society). We further note Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). Therein, the Ninth Circuit held that Salvadoran citizens who testify in criminal proceedings against members of criminal gangs was a highly visible group rendering it particular! y vulnerable to gang retaliation. See Henriquez-Rivas, 707 F .3d at 1092. The Ninth Circuit thus held that informants who testify in court met the social visibility, now social distinction, requirement for a cognizable particular social group. Id. Further, in Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020), the Ninth Circuit determined that persons who report the criminal activity of gang.5 to the police were not perceived or recognized as a group by society in Guatemala. In reaching that determination, the Ninth Circuit noted Department of State Human Rights Reports and a Congressional Research Service report, which detailed gang violence in Guatemala. Id. The Ninth Circuit further noted that the reports did not discuss the reporting of gang violence to the police, the risks or barriers associated with doing so, and if Guatemalan society recognizes those who report gang violence as a distinct group. Id. Hence, the Ninth Circuit determined that the putative group did not constitute a cognizable particular social group. Id. at 1243-44. Moreover, in Matter of H-L-S-A-, 28 I&N Dec. 228, 231-37 (BIA 2021), the Board held that individuals who cooperate with law enforcement may constitute a valid particular social group under the Act if the cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation. In addition, as previously noted, in Aguilar-Osorio, the Ninth Circuit held that witnesses who could testify against criminal gang members based upon what they witnessed was not a discrete class with definable boundaries. See also Diaz-Torres v. Barr, 963 F.3d 976, 980-81 (9th Cir. 2020) (comparing and distinguishing Henriquez-Rivas and Conde Quevedo). Here, based on the record before us, the respondent’s proposed putative particular social group composed of witnesses to criminal activity is not cognizable. The respondent, like the applicant 2 Al,__-‘–(b-‘-‘)(–‘6)_ _. 00000031458 in Conde Quevedo, did not testify in. a criminal proceeding against gang members. There is also no evidence that the respondent’s witnessing ofcriminal activity was public in nature and Mexican society recognizes and provides protection for such witnessing. Further, the record does not contain persuasive evidence establishing that Mexican society recognizes witnesses to crimina I activity as a distinct group. In light of the foregoing, the respondent has not established that he is a member of a cognizable particular social group. The respondent thus has not carried his burden to demonstrate the requisite a nexus between his past hann and future rear of persecution in Mexico and his membership in a cognizable particular social group, which renders him ineligible for asylwn and withholding of removal See Barajas-Romero v. Lynch, 846 F.3d 351, 359 (9th Cir. 2017) (recognizing that a protected ground must be “a reason” for claimed persecution for withholding of removal). In addition, the respondent argues that it is more likely than not that he will be tortured in Mexico for purposes of the CAT. See Soto-Soto v. Garland, 1 F .4th 655 (9th Cir. 2021) (stating that predictive finding.5 are factual). The respondent testified that in 2013, members of a criminal organization held him for ransom and physically mistreated him (IJ at 2; Tr. at 28). The respondent further testified that in 2014, members of a criminal organization attempted to coercively recruit him (IJ at 2-3; Tr. at 29-30). In addition, the respondent testified that he was in hiding in Mexico from 20 I 4 until 20 I 7, and was a potential witness for American authorities against alien smugglers, but he did not actually testify against the smugglers (IJ at 3; Tr. at 31-34). While the respondent’s experiences are regrettable and preswning that credibility and corroboration is not an issue, there is no clear error in the lrrnnigration Judge’s determination that the respondent did not establish that it is more hl<ely than not that he will be tortured in Mexico (IJ at 15-16). We affirm this aspect of the Innnigration Judge’s decision and his finding that the respondent did not establish that a Mexican public official acting in an official capacity will more likely than tum a blind eye to the respondent’s torture. The respondent has therefore met his burden of proof for purposes of protection under the CAT. 8 C.F.R §§ 208.16(c), 1208.18(a). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000031455 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~__ ____ (b)(6) (b~1~(6_1 1Al Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Rahan Zaki Atia, Esquire ON BEHALF OF OHS: James Edward Manning, Assistant Chief Collffiel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrmigration Court, Houston, TX Before: Owen, Appellate Irrnnigration Judge Opinion by Appellate hmnigration Judge Owen OWEN, Appellate Irrnnigration Judge ORDER: The Board affirms, without opinion, the resuhs of the decision below. The decision below is, therefore, the final agency detennination. See 8 C.F.R § 1003.l(e)(4). 00000032061 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) (b)(6) (b)(6) (b)(6) FILED Jan 25, 2022 Respondents ON BEHALF OF RESPONDENTS: Ivan Yacub, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision oftbe Innnigration Court, New Orleans, LA Before: Wetmore, Chief Appellate Innnigration Judge Opinion by Chief Appellate Immigration Judge Wetmore WETMORE, Chief Appellate lrmnigration Judge ORDER: The appeal is sumnarily dismissed under the provisions of8 C.F.R §§ 1003.l(d)(2)(D(F), (H). On January 4, 2018, the Innnigration Judge issued a decision ordering the respondents removed after the respondents failed to appear at a schedu1ed hearing. The respondents seek to challenge the Immigration Judge’s decision,1 but have done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Immigration Judge in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circl.llmtances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 l&N Dec. 722 (BIA 1999); 8 C.F.R § 1240.15. Accordingly, the record is retwned to the Immigration Court without further Board action 1 The Irrn:nigration Judge also denied the respondents’ motion to change venue and motion for a continuance which was filed on January 3, 2018, the day before the hearing. While the appeal only seeks to challenge the hnmigration Judge’s denial of the motions, the Board is without jurisdiction to consider these argwnents given that the respondents failed to appear and were ordered removed in absentia on the same date. 00000031335 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: I (b)(6) i~–~<-b)~(6)~–~I l J\! (b)(6) Aj (b)(6) Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: David M. Hagllight Esquire ON BEHALF OF OHS: Jillian L. Woods, Senior Attorney IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Gonzalez, Tell1)orary Appellate Immigration Judge1 Opinion by Temporary Appellate Innnigration Judge Gonzalez GONZALEZ, Temporary Appellate lnnnigration Judge The Department of Homeland Security (DHS) has appealed the May 10, 2019, decision of the Innnigration Judge granting the respondents’ applications for asylum under section 208 of the Innnigration and Nationality Act, 8 U.S.C. § 1158, withholding ofremoval wder section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and their requests for protection under the regulations inl)lernenting the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or P’lIDishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). The respondents have submitted a brief in opposition to the DHS’s appeal We will dismiss the appeal Considering our standard of review, we are unable to find that the Immigration Judge’s credibility determination and findings of ract were “clearly erroneous.” See 8 C.F.R § 1003.l(d)(3)(0. Moreover, on de novo review, we find insufficient grounds to reverse the Innnigration Judge’s determination that the respondents established their eligibility for relief. See also Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). Finally, upon de novo review, we conclude that the respondents merit a grant of asylum in an exercise of discretion. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Innnigration Judge for the pwpose of allowing the Department of Homeland Security the 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.J(a)(l), (4). 00000031335 Al rh v 61 Iet al opportunity to co~lete or update identity, law enforcement, or security investigations or examinationc;, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R § 1003.47(h). 2 00000031332 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) l AJ (b)(6) ~–~(b~)~(6~) (b)(6) —~I AJ I Respondents FILED Jan 27, 2022 ON BEHALF OF RESPONDENTS: David M. Hagllight Esquire ON BEHALF OF OHS: Jillian L. Woods, Senior Attorney IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Gonzalez, Tell1)orary Appellate Immigration Judge1 Opinion by Temporary Appellate Innnigration Judge Gonzalez GONZALEZ, Temporary Appellate lnnnigration Judge The Department of Homeland Security (DHS) has appealed the May 10, 2019, decision of the Innnigration Judge granting the respondents’ applications for asylum under section 208 of the Innnigration and Nationality Act, 8 U.S.C. § 1158, withholding ofremoval wder section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and their requests for protection under the regulations inl)lernenting the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or P’lIDishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). The respondents have submitted a brief in opposition to the DHS’s appeal We will dismiss the appeal Considering our standard of review, we are unable to find that the Immigration Judge’s credibility determination and findings of ract were “clearly erroneous.” See 8 C.F.R § 1003.l(d)(3)(0. Moreover, on de novo review, we find insufficient grounds to reverse the Innnigration Judge’s determination that the respondents established their eligibility for relief. See also Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021). Finally, upon de novo review, we conclude that the respondents merit a grant of asylum in an exercise of discretion. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Innnigration Judge for the pwpose of allowing the Department of Homeland Security the 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.J(a)(l), (4). 00000031332 A! (b )( 6) let al opportunity to co~lete or update identity, law enforcement, or security investigations or examinationc;, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R § 1003.47(h). 2 00000031329 • NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: FILED Jan 27, 2022 I (b )( 6) I Al._——‘(‘-‘-b )-‘-( 6)’—__, Respondent ON BEHALF OF RESPONDENT: Thomas E. Moseley, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Newark, NJ Before: Mahtabfur, Appellate Irrnnigration Judge Opinion by Appellate Immigration Judge Mahtabfar MAHTABF AR, Appellate Immigration Judge ORDER: On May 6, 2019, the Immigration Judge issued a decision ordering the respondent removed after the respondent failed to appear at a scheduled hearing. The respondent seeks to challenge the Immigration Judge’s decision, but has done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Immigration Judge in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circwmtances, the record would ordinarily be retwned to the Immigration Court without further Board action as we are precluded by the Act from considering such an appeal See Matter of Guzman, 22 I&N Dec. 722 (BIA 1999). However, in reviewing the record, we note that there is no copy of any cover letter transmitting the Immigration Judge’s order, and it is often that letter which contains instructions for filing a motion with the Immigration Court in a case where an in absentia hearing took place. In light of these facts and that the respondent has mentioned a reason for fuiling to appear at the scheduled hearing, we find that the appeal in the instant case should be construed as a time 1 y filed motion to reopen pursuant to section 240(b)(5)(C) of the Act. Accordingly, the record will be returned to the Immigration Court fur further action as appropriate. \ .. . \ 00000031452 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATTER OF: ,__ __ ___ ___;_(h”‘-‘):….:.:(6..:…) _.lAl~_(_b )_( 6_) ____, Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Thomas J. Tarigo, Esquire ON BEHALF OF OHS: Shelly Yoo, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate lnnnigration Judge 1be final administrative order in this matter was entered on December 3, 2003. 1 A motion to reconsider that decision was denied on March 15, 2004. On August 7, 2019, the respondent filed a motion to reopen. The Department of Homeland Secw-ity (OHS) has filed an opposition to the motion. The motion will be denied. With certain exceptions, “an alien may file one motion to reopen proceedings,” provided that the motion is filed not later than 90 days after the final administrative order. See section 240(c)(7) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(7); 8 C.F.R § 1003.2(c)(2). The respondent’s motion was filed many years after the final administrative order was entered and is W1timely. The respondent states that she sought to have the DHS join in her motion and that her attempt was unsuccessful. See 8 C.F.R § 1003.2(c)(3)(ii0 (providing an exception to the time and mnnber limitations for joint motions). ‘The respondent seeks, therefore, to have the Board reopen proceedings pw-suant to its sua sponte authority at 8 C.F.R § 1003.2(a). The respondent states that she is now the beneficiary of an approved Form 1-130 visa petition, which was filed on her behalf by her United States citizen spouse. She seeks a new hearing in which to apply for adjustment of status. She states in her motion that, although it was conceded in prior proceedings that she was in the United States without admission or parole, she was actually waived through a port of entry on I (b )( 6) Iwhen she was a child and travelling with her fu.mil y. The respondent was originally in proceedings with three family members who are not parties to this motion. 00000031452 Al (b)(6) We agree with the DHS that the respondent’s motion should be denied for two reasons. First, she bas not established pritna fa.cie eligibility for adjustment of status. She has submitted no evidence to show that she made a procedurally valid admission into the United States. She has not even submitted a personal statement regarding her anival in the country. 2 Given that she and her family members were previously represented by an attorney who conceded that they were present without admission or parole (Tr. at 14; Exh. 1), the respondent has not demonstrated that she meets the requirements for adjustment of status under section 245(a) of the Immigration and Nationality Act. See Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986) (“‘Absent egregious circun’l’itances, a distinct and fonnal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission’). Separate and apart from the eligibility issue, the respondent has not established that there is an exceptional situation that warrants the use of our limited authority to reopen proceedings sua sponte. We recognize that the respondent was a minor child when she was in removal proceedings with her family merrbers. She was also a minor child when she did not comply with the voluntary departure order originally granted by the jgratiln Judge and then reinstated by the Board in 2003. 3 However, the respondent was born in (b)(6) and bas been, for many years, an adult who is subject to an order of removal Insofar as she clam to be eligible for adjustment of status, her claim is based on equities acquired long after she and her family were issued a final administrative order in their proceedings. It is oot unconnnon for noncitizens to become eligible fur adjustment long after their proceedings have been co~leted. In this regard, the respondent’s motion does not present an exceptional situation Nor bas the respondent presented any other facts that constitute an exceptional situation Accordingly, the respondent’s untimely motion to reopen will be denied. ORDER: The respondent’s motion is denied. 2 Statements by counsel in filings are not evidence. See Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980). 3 1be motion to reconsider filed by the respondent and her family members claimed that they received ineffective assistance of counsel and that they did not intend to apply for voluntary departure. 2 NOT FOR PlJl!°-d!~f1.J1ON U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: (b )( 6) Al (h)(6) FILED Jan 27, 2022 Respondent ON BEHALF OF RESPONDENT: Jesse Evans-Schroeder, Esquire ON BEHALF OF DHS: Megan McLean, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: Owen, Appellate hnmigration Judge Opinion by Appellate Innnigration Judge Owen OWEN, Appellate Immigration Judge This rratter was last before us on November 29, 2019, when we granted the request by the Department of Homeland Security (”DHS”) to reinstate this appeal I This case was administratively closed on September 16, 2015, following the respondent’s appeal from the Innnigration Judge’s April 29, 2015, decision After reinstatement of the respondent’s appeal, the respondent requested rerrand of proceedings to the Irrnnigration Judge. The OHS has not filed any opposition to the motion The appeal will be dismissed, in part, and the record will be remanded. In his Notice of Appeal, the respondent challenged the Innnigration Judge’s denial of his applications for asyltnn or withholding of removal under sections 208 and 241(b)(3) of the Innnigration and Nationality Act (“Act’), 8 U.S.C. §§ 1158 and 1231(b)(3), and request for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT’). However, these arguments are waived as grounds for appeal, because they were not renewed or developed by the 1 The DHS requested reinstatement of this appeal based on Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) (Castro-Tum II), which concluded that the irmnigration courts’ use of administrative closure was not authorized. We note that, during the pendency of this appeal, the Attorney General vacated Castro-Tum II in its entirety. See Matter of Valdez-Cruz, 28 I&N Dec. 326 (A.G. 2021) (while rulemaking proceeds, and except when a court of appeals has held otherwise, Innnigration Judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)). 00000031449 Al~__(b_)(_6)_~ respondent. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en bane), cert. denied, 560 U.S. 903 (2010); Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189, 190 n2 (BIA 2018). Consequently, we find those argwnents abandoned. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n. 2 (BIA 2012) (when a respondent fails to substantively appeal an issue addressed in an Immigration Judge’s decision, that issue is waived). In his motion to remand, the respondent argues that, in light of the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct 1474 (2021), he is now eligible for cancellation of removal under section 240A(b) of the Innnigration and Nationality Act, 8 U.S.C. § 1229b(b). He asserts that, because his Notice to Appear did not specify the time and place of his initial removal hearing, his continuous physical presence did not end when he received a Notice of Hearing providing the missing information. The respondent has submitted his application for cancellation of removal (Form EOIR-42B) and supporting doctnnentation, including the birth certificates of his three United States citizen children. Given the DHS’s lack of opposition to the respondent’s motion and the respondent’s recent •eligibility to apply for cancellation of removal, we will grant the motion to remand the record for consideration of the application See 8 C.F.R. §§ 1003.2(c)(4), (g)(3) (a non-response to a motion may be treated as non-opposition to motion). We express no opinion as to the outcome of the case on remand. Accordingly, the following orders will be entered. ORDER: The respondent’s appeal from the denial of his applications for asylum, withholding, and protection under the Convention Against Torture is dismissed. FURTHER ORDER: The motion to remand is granted and the record is remanded to the Innnigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision 2 NOT FOR pujfi~XTION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: ~_____ ____ ~1 Aj (b)(6) (_b)_(6_) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Hector R Ortega, Esquire ON BEHALF OF OHS: Nicole Kodjayan, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Couch, Appellate Immigration Judge Opinion by Appellate lmnigration Judge Couch COUCH, Appellate Immigration Judge The respondent’s appeal of Immigration Judge’s September 16, 2019, decision is pending befure the Board. On December 2, 2021, the respondent filed a document entitled ”Unopposed Motion to Remand and Dismiss Proceedings Without Prejudice,” along with a copy of an approval notice for the respondent’s Form 1-360, and correspondence from the OHS indicating that it agrees to the dismissal of these proceedings without prejudice. See 8 C.F.R §§ 239.2(a)(7), 1239.2(c); see also Matter of S-O-G-& F-D-B-, 27 I&N Dec. 462, 467 (A.G. 2018). Accordingly, we will dismiss the respondent’s proceedings without prejudice. In view of the foregoing, the following order will be entered. ORDER: The motion is granted and the respondent’s proceedings are dismissed without prejudice. 00000031326 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflrnmigration Appeals MATTER OF: ~—(~b)~(6~) —~l Aj (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Katherine Byrne Mahoney, Esquire ON BEHALF OF OHS: Larissa T. Wilson, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, San Francisco, CA Before: Mahtabfur, Appellate bnmigration Judge Opinion by Appellate Immigration Judge Mahtabfur MAHTABFAR, Appellate Immigration Judge ORDER The Department of Homeland Security’s (”DHS”) appeal of the Immigration Judge’s September 25, 2019, decision is pending before the Board. On September 29, 2021, the DHS filed a motion to withdraw its appeal See 8 C.F.R § 1003.4. The DHS’ motion is granted. Because there is nothing now pending before the Board, the record is returned to the Immigration Court without further action. 00000031518 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board ofhnmigration Appeals MATIER OF: ~–(b_)(_6)_~1 Al (b)(6) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Hasanuzzaman Malik, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the lrrmigration Court, New York, NY Before: Mahtabfar, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mahtabfar MAHTABF AR, Appellate Immigration Judge ORDER: The appeal is summarily dismissed under the provisions of 8 C.F.R. § 1003.l(d)(2)(0(F), (H). On November 1, 2019, the Immigration Judge issued a decision ordering the respondent removed after the respondent failed to appear at a scheduled hearing. The respondent seeks to challenge the Immigration Judge’s decision, but has done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Immigration Judge in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C). Under these circl.111l5tances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 I&N Dec. 722 (BIA 1999); 8 C.F.R. § 1240.15. Accordingly, the record is returned to the hrrnigration Court without further Board actiort NOT FOR PTTRT.IC’ATION -<166’60031323 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ._ __ )___( 6.._) _.IAl ____,(_.b ___ (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Aleksandar Cuic, Esquire ON BEHALF OF DHS: Elanie Cintron, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Denver, CO MAHT ABF AR, Before: Mahtabfu, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mahtabfu Appellate lrrnnigratio n Judge ORDER: This Board has been advised that the Department of Homeland Security’s (”OHS”) appeal has been withdrawn. See 8 C.F.R § 1003.4. Since there is nothing now pending before the Board, the record is returned to the Immigration Court without finther action. 00000031320 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Iimnigration Review Board oflmmigration Appeals MATIER OF: .__ ___ __ __,IAl {h\{ :..,:.(h:..:.aV..:.:.6).;…._ 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: SHAWN BEAM, Esquire ON BEHALF OF DHS: Diana De Leon, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irrnnigration Court, Los Angeles, CA Before: Wetmore, Chief Appellate Irrnnigration Judge Opinion by Chief Appellate Immigration Judge Wetmore WETMORE, Chief Appellate Irrnnigration Judge The respondent’s appeal of the Immigration Judge’s November 8, 2019, decision in thi5 case is currently pending before the Board. On October 12, 2021, the Department of Homeland Security and the respondent filed a joint motion to administratively close these proceedings. We will grant the joint motion and administratively close these proceedings. If either party to thi5case wishes to reinstate the proceedings, a written request to reinstate the proceedings may be made to the Board. 1he Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk’s Office, without fee, but with certification of service on the opposing party. Accordingly, the following order will be entered. ORDER: The joint rootion is granted and these proceedin~ are administratively closed. NOT FOR P~~!f;~JION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ‘—-~~-(,_b)..,.(6….._) _____ Al.__(….,.h V6____’\ _ ___..,l ___ _. Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Emma J. Mahern, Esquire ON BEHALF OF DHS: Justin Bmrows, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Chicago, IL Before: O’Connor, Appellate Immigration Judge Opinion by Appellate Immigration Judge O’Connor O’CONNOR, Appellate Immigration Judge The Deparbnent of Homeland Security (DHS) has filed an appeal from the Immigration Judge’s decision dated November 18, 2019, tenninating proceedings without prejudice. The appeal will be dismissed. We review the Immigration Judge’s findings of.tact for clear error. 8 C.F.R § 1003.I(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R. § 1003 .1 ( d)(3 )(ii). The respondent was placed into removal proceedings with the filing of a Notice to Appear (NTA) on January 3, 2019, which did not include the date and time ofremoval proceedings. The respondent appeared at a Master Calendar on January 10 and May 15, 2019. At both hearings, proceedings were continued to allow the respondent to seek counseL and the respondent did not plea to the charges in the NTA nor discuss any other substantive issues. On September 25, 2019, the respondent appeared with counsel and made an oral motion to terminate proceedings based on the service of a defective Notice to Appear. The respondent then filed a written motion to tenninate, and the DHS filed an opposition and cross-motion The DHS opposed the respondent’s motion, arguing that it was untimely. The Immigration Judge found the motion to be tirrely because it was made at the first hearing in which counsel had appeared and before pleadings had been taken The DHS also requested to file a new, compliant NTA. The lrrn:nigration Judge noted that the DHS had not yet filed such an NTA, and terminated proceedings without prejudice. In Ortiz-Santiago v. Barr, 924 F.3d 956, 962-64 (7th Cir. 2019), the Seventh Circuit held that the statutory requirement that aNotice to Appear for a removal hearing include the time, date, and Al.__—–‘(‘-‘-b6’–)___, 00000031515 )-‘–( place of the hearing was not jurisdictional in nan.n-e. See section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a). The Seventh Circuit held that section 239(a) of the Act is a claims-processing rule, as opposed to a jurisdictional one. Ortiz-Santiago v. Barr, 924 F.3d at 962-63, 966. The court fi.nther detennined that omitting the specific infonnation in the Notice to Appear was not unimportant or could be ignored, but that it could be forfeited if not timely challenged. Id. at 963, 966. Failing to raise the issue until the case was on appeal to the Board was considered a forfeiture. Id. at 964-966. The court determined, however, that the Irrnnigration Judge could and should quash a defective Notice to Appear where there is a prompt objection and that a new Notice to Appear may be issued. Id. at 965. Thereafter, the Seventh Circuit held that receipt of a defective Notice to Appear followed by a prompt objection entitles a respondent to have the removal proceed~ dismissed, and fi.nther that he need not show prejudice to obtain a dismissal. See De La Rosa v. Garland, 2 F .4th 685, 68688 (7th Cir. 2021 ). We reject the DHS’s argument that the respondent’s motion was untimely. The respondent filed his motion prior to plead~ being taken See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir. 2006) (holding that objection to the NTA was lllltimely where the petitioner had conceded the charge of removability and pled to the charge in the NT A before claiming defective service of the NTA). Because the respondent received a defective Notice to Appear and raised a timely objection, dismissal of proceed~ was appropriate.1 For that reason, we will dismiss the appeal ofthe DHS. 0 RDER: The appeal is dismissed. 1 The DHS also argues that we should remand for the OHS to “cure” the NTA by amending it (OHS Br. at 11-15). That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective Notice to Appear. See De La Rosa v. Garland, 2 F.4th at 686-88; Ortiz-Santiago v. Barr, 924 F.3d at 965. However, because the lrrnnigration Judge tenninated proceedings without prejudice, the OHS may issue a new NTA at any titre. See Ortiz-Santiago v. Barr, 924 F.3d at 965 (“A new, compliant Notice could have issued .. .’); see also, e.g., Matter of W-Y-U-, 27I&N Dec. 17, 19(BIA 2017) (the DHS’s decision to institute proceed~ is a matter of prosecutorial discretion within the OHS ‘s jurisdiction). 2 NOT FOR PUBLICATION 00000031446 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ,….____ __ Al (;…;b)…;.(6..;..) ___,I (b)(6) Beneficiary ,__ __ (_b)_( 6_) _ ____.!Petitioner FILED JAN 2 7 2022 ON BEHALF OF PETITIONER: Raluca L. Hanea, Esquire ON BEHALF OF DHS: Lina T. Jeffries, Associate Counsel IN VISA REVOCATION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Baird, Appellate Immigration Judge Opinion by Appellate Immigration Judge Baird BAIRD, Appellate Immigration Judge The petitioner appealed an August 24, 2018, decision of the California Service Center Director (“Director”), revoking the previously approved visa petition filed on behalf of the beneficiary as the spouse of a United States citizen. See section 201 (b )(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § l 15l(b)(2)(A)(i) (2018). The Department of Homeland Security, U.S. Citizenship and Immigration Services (“USCIS”) opposes the appeal. The appeal will be dismissed. 1 We review all questions arising in appeals from decisions of USCIS officers de novo. See 8 C.F.R. § 1003.l(d)(J)(iii) (2021). Under section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155, the approval of a visa petition may be revoked for “good and sufficient cause.” Matter of Ho, 19 I&N Dec. 582 (BIA 1988). Good and sufficient cause to revoke an approved visa petition exists ifthe evidence in the record at the time of the decision, including explanatory and rebuttal evidence, warrants a denial based on the petitioner’s failure to sustain his or her burden of proof. See Matter of Es time, 19 I&N Dec. 450 (BIA 1987). 1 The petitioner’s motion to expedite is denied as moot. ~.__(_b)_(6_)~ 00000031446 In a case in which the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that it was not entered into for the primary purpose of evading the immigration laws. See Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). Evidence to establish a bona fide marriage includes proof of joint ownership of property, proof of joint tenancy of a common residence, proof of commingling of financial resources, birth certificates of children born to the petitioner and the beneficiary, and affidavits of others having knowledge of the bona fide nature of the marriage. See 8 C.F.R. § 204.2(a)(l)(iii)(B). However, the failure to produce affirmative evidence of a bona fide marriage, by itself, is not sufficient to establish that the marriage is a sham marriage. Compare 8 C.F.R. § 204.2(a)(l)(iii)(B), {D) with 8 C.F.R. § 204.2(a)(l)(ii). We have reviewed the record of proceedings, including the decision of the Director, the Notice of Intent to Revoke (NOIR), and the petitioner’s response to the NOIR. Based on our review, we affirm the revocation of the petition because the petitioner did not provide sufficient evidence to establish a bona fide marriage. See 8 C.F.R. § 1003.l(d)(3)(iii). The Director concluded that the petitioner’s approved visa petition should be revoked on the basis of information gleaned from an interview of the beneficiary with a consular officer, who determined that the relationship was entered into solely for the purpose of obtaining an immigrant visa. Notably, the beneficiary was not able to provide basic details about the petitioner, and the beneficiary misrepresented his marital status to pursue a fiance visa through another petitioner in 2011. Additionally, the petitioner submitted altered photographs of herself and the beneficiary to USCIS in support of the petition; her tax returns did not list the beneficiary and did not reflect that she was married; and the affidavits and documents she provided were insufficient to establish the bona fides of her marriage to the beneficiary. Upon our de novo review, we agree that there was good and sufficient cause to revoke the previous approval of the visa petition as the petitioner did not meet his burden of establishing a bona fide marital relationship. See Matter of Es time, supra. considering the totality of the record, we agree with the Director that there is insufficient evidence to overcome the grounds for revocation. Furthermore, we reject the petitioner’s appellate assertion that she merely created the altered photographs for her own benefit and mistakenly submitted them to USCIS. See generally Matter of D-R-, 25 l&N Dec. 445, 454-55 (BIA 2011) (holding that an adjudicator is not required to interpret the evidence in the manner advocated by a party), clarified on other grounds by Matter of D-R-, 27 l&N Dec. 105 (BIA 2017). • We note that the petitioner has submitted additional evidence on appeal. However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the Board will not accept evidence offered for the first time on appeal. See Maller of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (noting that a petitioner may be put on notice of evidentiary requirements by various means, including through requirements in the regulations or an oral statement at an interview); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). The petitioner may file a new visa petition on the beneficiary’s _ behalf that is supported by evidence establishing the beneficiary’s eligibility for the benefit sought under the immigration laws. 2 . .. 00000031446 Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 NOT FOR PUBLICATION 00000031512 …–U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATIER OF: .________ ____ (b)(6) ..;._(b.a..;.)(6…:..) ___,~ A! Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: Jill J. Bhalakia, Assistant Chief CotmSel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Chicago, IL Before: O’Connor, Appellate Immigration Judge Opinion by Appellate Immigration Judge O’Connor O’CONNOR Appellate Immigration Judge The Department of Homeland Security (DHS) has filed an appeal from the Immigration Judge’s decision dated December 20, 2019, terminating proceedings without prejudice. The appeal will be dismissed. We review the Immigration Judge’s findings of:fact for clear error. 8 C.F.R. § 1003.l(d)(3)(i). Questions of law, discretion, and judgment, and all other issues are reviewed de novo. 8 C.F.R. § 1003.l(d)(3)(i1). The respondent, who was 12 years old at the time, was placed into removal proceedings by a Notice to Appear (NTA) that was served on March 1, 2017, and which did not include the date and time of removal proceedings. Prior to the first hearing, the respondent moved to terminate proceedings based on the service of a defective NTA. The lrrnnigration Judge granted the motion as timely because it was made before pleadings were taken, and terminated proceedings without prejudice. In Ortiz-Santiago v. Barr, 924 F .3d 956, 962-64 (7th Cir. 2019), the Seventh Circuit held that the statutory requirement that a Notice to Appear for a removal hearing include the time, date, and place of the hearing was not jurisdictional in nature. See section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a). The Seventh Circuit held that section 239(a) of the Act is a claims-processing ruJe, as opposed to a jurisdictional one. Ortiz-Santiago v. Barr, 924 F.3d at 962-63, 966. The court further determined that omitting the specific information in the Notice to Appear was not unimportant or could be ignored, but that an objection could be forfeited if not timely raised. Id. at 963, 966. The court determined, however, that the Immigration Judge could and should quash a defective Notice to Appear where there is a prompt objection and that a new Notice to Appear may be issued. Id. at 965. Al,…._””-(b-‘-‘-)(–‘6)_ _, 00000031512 Subsequently, based on Seventh Circuit authority, receipt of a defective Notice to Appear followed by a timely objection entitles a respondent to have the rerooval proceedings terminated, and in such instances, the respondent need not show prejudice. See De La Rosa v. Garland, 2 F.4th 685, 686-88 (7th Cir. 2021) (reversing and remanding Board’s affirmance oflmmigration Judge’s denial of motion to tenninate). We reject the DHS’s arguments in support of appeal The Seventh Circuit has indicated that an objection made after the respondent conceded reroovability would be W1timely. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir. 2006) (concession by counsel of removability as charged ”waives any objection to the [lrrnnigration Judge]’s finding of reroovability, including the argument that the [Immigration Judge] lacked jurisdiction to find him removable.’). The respondent here filed the rootion prior to pleading.5 being taken As such, the lmnigration Judge reasonably found the objection to be timely. Cf Meraz-Saucedo v. Rosen, 986 F.3d 676,683 (7th Cir. 2021) (“(l]he relevant inquiry is whether [the respondent] raised his objection during the proceedings before the [Immigration Judge] after receiving the defective NTA.”). Because the respondent received a defective Notice to Appear and raised a timely objection, tennination of proceedings was appropriate.1 For that reason, we will dismiss the appeal of the DHS. 0 RDER: The appeal is dismissed. 1 The OHS a1so argues that we should remand fur the OHS to “cure” the NTA by amending it (OHS Br. at 12-18). That position is not consistent with Seventh Circuit precedent regarding a timely objection to a defective Notice to Appear. See De La Rosa v. Garland, 2 F.4th at 686-88; Ortiz-Santiago v. Barr, 924 F.3d at 965. However, because the Immigration Judge tenninated proceedings without prejudice, the DHS may issue a new NTA at any time. See Ortiz-Santiago v. Barr, 924 F .3d at 965 (“A new, compliant Notice could have issued … ”); see also, e.g., Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017) (the DHS’s decision to institute proceedings is a matter ofprosecutorial discretion within the DHS’s jurisdiction). 2 00000031443 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b)(6) l AJ (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: John E. Willshire, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge On March 6, 2007, this Board dismissed the respondent’s appeal from the Irnmigratio n Judge’s decision denying her applications for asyh.un, withholding of remova~ and protection under the regulations implementing the Convention Against Torture and Other CrueL Inhumanor Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). On August 1, 2007, the Board denied the respondent’s i:ootion to reopen. On December 11, 2007, the Board denied the respondent’s motion to reconsider the Board’s August 1, 2007, decision. On February 13, 2020, the respondent filed another motion to reopen. The Department of Homeland Security has not responded,to the motion The motion will be denied. The respondent’s motion to reopen is untimely and mnnber-barred. Section 240(c)(7)(A), (C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(cX7XA), (C)(i); 8 C.F.R § 1003.2(c)(2). In the motion, the respondent argues that her proceed~ should be reopened to allow her to apply for adjustment of status, based on an approved Form I-130 visa petition filed by her United States citizen spouse, whom she married in 2013. In support of the motion, the respondent submitted a large nmnber of documents, including an application for adjustment of status, supporting letters or affidavits from herself; her spouse, and a nmnber of family members and friends, and documents regarding the respondent’s and her spouse’s personal and family circumstances. The respondent’s motion does not full within any exception to the motion to reopen time limitations enumerated in section 240(c)(7)(C) of the Act and 8 C.F.R § 1003.2(c)(3). The respondent urges us to sua sponte reopen her proceedings under 8 C.F.R § 1003.2(a), based on her good moral character, fumily and comrn.mity ties, period of residence in the United States, lack of criminal record, statutory eligibility for adjustment of status, and other factors (Motion at 6-8). • 00000031443 The respondent argues that the Board has “comistently” reopened cases sua sponte based on the respondents’ eligibility for adjustrrent of status, and relies on a nurmer of unpublished Board decisiom (Motion at 8-11 and Addendmn at 1-56). Unpublished Board decisiom are not binding precedents. See Matter of Echeverria, 25 I&N Dec. 512,519 (BlA 2011). The unpublished Board decisiom identified and relied on in the motion rest upon specific factual scenarios pertinent to the individual respondent, not all of which are available for review. Furtherrrx:>re, the unpublished Board decisiom relied on by the respondent do not show that the Board has “comistently” reopened cases llllder the sua sponte authority. The Board’s power to reopen proceedings sua sponte is not meant to be used as a general cure for untimely motiom or to otherwise circwnvent the regu]atiom, where enforcing them might result in hardship; rather, it is limited to exceptional situatiom. In this case, the respondent seeks to reopen her proceedings based on equities that were acquired while she remained illegally in the United States after being ordered removed. Equities established in this manner generally do not comtitute such truly exceptional circumstances as to warrant discretionary reopening. See Matter of H-Y-Z-, 28 I&N Dec. 156, 161 (BIA 2020) (citing Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997)). Whether the Board should sua sponte reopen proceedings tmder 8 C.F.R § 1003.2(a) is a discretionary determination to be made based on the facts and circumstances of each case. Based on the totality of circumstances, the respondent did not show that her case presents an exceptional situation that would warrant the Board’s exercise of its discretion to reopen sua sponte. 1 Accordingly, the respondent’s lllltimely and nmnber-barred motion to reopen will be denied. ORDER: The respondent’s rmtion is denied. The respondent argues that her initial asylum claim was meritorious and should have been granted (Motion at 3-6). However, the respondent’s clam for asylum and related fonm of relief and protection were addressed in the Board’s prior decisiom, and the United States Court of Appeals for the Fourth Circuit denied the respondent’s petition for review of the Board’s July 7, 2005, decision. I (b)(6) ~ Thus, we decline to revisit this matter. 2 ✓ 00000031509 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: .____ )-“-(6”-)__ __.!,Al (b )( 6) _____.(-‘-b Beneficiary ~–(b_)_(6_) -~I Petitioner FILED JAN 2 62022 ON BEHALF OF PETITIONER: Kristen M. Sisko, Esquire ON BEHALF OF DHS: Elizabeth S. Bowman, Associate Counsel IN VISA PETITION REVOCATION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Nebraska Service Center Before: Creppy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Creppy CREPPY, Appellate Immigration Judge This matter was last before the Board on July 28, 2017, when we remanded the record for further proceedings. On January 16, 2019, the Nebraska Service Center Director (Director) issued a decision revoking the previously approved Petition for Alien Relative (Form 1-130) filed on behalf of the beneficiary as the spouse of a United States citizen. The petitioner appeals that decision.1 The U.S. Citizenship and Immigration Services (USCIS) opposes the appeal. The appeal wi11 be dismissed. We review all questions arising in appeals from decisions of USCIS officers de novo. See 8 C.F.R. § 1003. l(d)(3)(iii). Revocation of an approved visa petition requires a showing of “good and sufficient cause.” See section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155; Matter of Estime, 19 l&N Dec. 450 (BIA 1987). In proceedings to revoke the approval of a visa petition, the burden remains with the petitioner to establish eligibility for the visa. See Matter of Cheung, 12 I&N Dec. 715 (BIA 1968). In Matter of Estime, 19 l&N Dec. at 452, we explained that “the notice of intention to revoke must include a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence (e.g., the investigative report).” Prior to our remand, the Director had issued a decision on April 11, 2016, revoking the petitioner’s 1-130, which USCIS had approved on February 27, 2014. In revoking the approved visa petition, the Director relied upon a statement given by the petitioner during the adjudication 1 The petitioner’s request for oral argument is denied. 8 C.F.R. § 1003.l(e)(7). .. ” •• \ 00000031509 Al.__.;..;;(b..:.;.)(-‘-‘6)’—-‘ of a prior visa petition that the petitioner had filed on behalf of the beneficiary. According to the Director, in that statement the petitioner conceded that he married the beneficiary so she could immigrate to the United States and, in exchange, the beneficiary’s cousin promised to pay the petitioner $1(b)(6) I The Director found that the instant petition was the fourth petition that the petitioner had filed on behalf of the beneficiary, and the previous three petitions were “returned for revocation from the consulate” (Apr. 11, 2016, Director’s Dec.) (unpaginated). In addition, the Director noted inconsistencies between the Petition for Alien Fiancee (Form I-129F) and statements made by the beneficiary during a I (b )( 6) b interview at theI (b)(6) I The Director also noted inconsistencies between responses given by the petitioner and beneficiary during the interview. The Director thus concluded that the petitioner and beneficiary had engaged in marriage fraud. However, as the record did not contain the petitioner’s written confession, we remanded in order for the Director to add the confession statement to the record (July 28, 2017, BIA at 1-2). On remand, the Director issued a Notice of Intent to Revoke (NOIR), which again stated that the petitioner had filed three prior petitions on behalf of the beneficiary, and discussed record evidence of marria e fraud as described in the consular memorandum that was issued after the petitioner’s (b)(6) interview (June 15, 2018, NOIR) (unpaginated). For example, the 2018 NOIR described inconsistencies between the fiancee petition the petitioner filed on behalf of the beneficiary and statements made by the beneficiary, as well as inconsistencies between interview statements made by the petitioner and beneficiary (June 15, 2018, NOIR) (unpaginated). The NOIR also discussed the petitioner’s signed “Confession and Withdrawal Statement.” In his response to the June 15, 2018, NOIR, the petitioner denied having signed the Confession and Withdrawal Statement, claiming that he was coerced into signing a blank piece of paper at the Consulate, and argued that the record evidence established the bona fides of his marriage to the beneficiary (Response to June 15, 2018, NOIR at 1-6).2 The petitioner did not address the inconsistent interview statements that the Director identified in the June 15, 2018, NOIR. The Director’s January 16, 2019, decision acknowledged USCIS’s receipt of the petitioner’s response to the June 15, 20 I 8, NOIR, and concluded that the “grounds of revocation ha[ d] not been overcome.” In revoking the petitioner’s approved I-130, the Director relied upon the Confession and Withdrawal Statement. The record now contains copies of the Confession and Withdrawal Statement and the redacted consular memorandum. On appeal, the petitioner maintains that he was coerced into signing a blank document at the Consulate, and that his signature was then fraudulently added to the Confession and Withdrawal 2 The petitioner also stated that the NOIR did not include copies of the Confession and Withdrawal Statement or the redacted consular memorandum (Response to June 15, 2018, NOIR at 2 n.6, 3). However, the plain language of 8 C.F.R. § 103.2(b)(16)(i) only requires that the Director “advise[]” the petitioner whose claim is about to be denied of the derogatory information and “offer[] an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered …. ” 8 C.F.R. § 103.2(b)(16)(i). The Director satisfied these requirements in the 2018 NOIR. 2 ..\ 00000031509 Al.__—-‘-“(b-“-, (-=-6”—‘ Statement, the contents of which he claims are false (Petitioner’s Feb. 20, 2020, Br. (unpaginated)).3 There is a presumption of regularity, applicable to consular officers, which presumes that public officers, in the absence of clear evidence to the contrary, have properly discharged their duties, including placing information on forms. United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (providing that “the presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their duties”); see also Matter of Rodriguez, 13 I&N Dec. 746, 748 (BIA 1971) (discussing the presumption of official regularity, which attached to the consular officer’s issuance of the visa in question). In addition, there is generally a presumption of reliability with respect to government documents. See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (stating that “information on an authenticated immigration form is presumed to be reliable in the absence of evidence to the contrary presented by the alien”). Moreover, “[c]ourts have held in various contexts, including immigration cases, that one’s signature on a form or contract establishes a strong presumption that the signer knows its contents and has assented to them, absent evidence of fraud or other wrongful acts by another person.” Matter of Valdez & Valdez, 27 I&N Dec. 496, 499 (BIA 2018) (citations and internal quotation marks omitted). Here, the petitioner does not dispute that the Confession and Withdrawal Statement contains his signature. Furthermore, although the petitioner submitted news articles from 2002 and 2013 regarding two United States Foreign Services Officers who engaged in visa corruption while posted at the United States Consulate in Georgetown, Guyana, he has not provided evidence that these officers were involved in his visa petitions (Response to June 15, 2018, NOIR at 163-69). Upon our de novo review of the record evidence, including the updated phone logs and wire transfer statements the petitioner submitted on appeal, and considering the petitioner’s appellate arguments, we are not persuaded that the petitioner has presented clear and convincing evidence of fraud or wrongful acts by the government; nor has he rebutted the presumption ofreliability of the government documents upon which the Director relied in revoking the petition approval. Therefore, we uphold the Director’s revocation of the petitioner’s approved visa petition. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 We have considered the entirety of the petitioner’s arguments on appeal. However, as the petitioner has not paginated his appeal brief, we are unable to provide citations to the specific pages of his brief in this decision. See BIA Practice Manual, Chapter 4.6(b) (Dec. 22, 2020) (“Briefs should always be paginated.”) ( emphasis in original). 3 NOT FOR Pvffi°i~XfioN U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~–~<~b)~(6~) –~’ Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Mackenzie W. Mackins, Esquire IN DEPORTATION PROCEEDINGS On Appeal from a Decision of the Immigration Cowt, Los Angeles, CA Before: Couch, Appellate lrrnnigration Judge Opinion by Appellate lrrnnigration Judge Couch COUCH, Appellate Irrnnigration Judge The respondent, a native and citizen of Mexico, 1 has appealed from an hnmigra tion Judge’s February 25, 2020, decision denying his motion to rescind the in absentia order entered against him and his request for sua sponte reopening. The record does not contain a response from the Department of Homeland Security. The respondent’s appeal will be dismissed. We review the lnnnigration Judge’s findings of fact for clear error. 8 C.F.R. § 1003. l(d)(3)(i). We review questions of law, discretion and judgment, and all other issues in appeals, de novo. 8 C.F.R. § 1003.l(d)(3)(it). On appeal, the respondent argues that the lrrnnigration Judge erred in denying his motion to rescind the in absentia order entered against him. In particular, the respondent clairm that the Irrnnigra tio n Judge did not address bis claim that he did not receive oral notice of the infonna t ion contained in the Order to Show Cause (Respondent’s Br) (unpaginated).2 The respondent maintains that, according to Matter of M-S-, 22 I&N Dec. 349 (BIA 1998), he is entitled to 1 The respondent’s affirmative asylum application and the Order to Show Cause indicate that the respondent is a native and citiz.en of Guatemala (IJ at 1, n.1; Exh I A). In his motion to rescind, however, the respondent provided a diflerent name and a birth certificate showing that he is a native and citizen of Mexico (IJ at 1, n.1; Respondent’s Mot, Tab A). This evidence suggests that the respondent’s asylum application included fulse infonnation. The respondent has not explained the discrepant information (IJ at 1, n. l ). 2 Because the respondent’s brief is not paginated, we are unable to provide citations to specific pages in the brief See BIA Practice Manual, § 4.6(b) (Feb. 20, 2020) (”Briefs should always be paginated.’). • 00000031440 Al.__-‘-‘{h”-‘1-‘-‘{6″-‘-1 _. _ rescission of the in absentia order if he did not receive oral warnings of the consequences of failing to appear for his hearing and if he is prima facie eligible for relief (Respondent’s Br)(unpaginated). The respondent has misconstrued our holding in Matter ofM-S-. 1n that case, we found that a noncitizen does not need to obtain rescission of an in absentia order to obtain reopening to pursue relief from removal if the noncitizen meets certain requirements. Matter of M-S-, 22 l&N Dec. at 354-55. We did not hold that a noncitiz.en may obtain rescission ofan in absentia order by showing that he or she did not receive oral warnings of the consequences of failing to appear at his or her deportation hearing. To obtain rescission of an in absentia order entered under fonner section 242B(c)(l) of the Immigration and·Nationality Act, 8 U.S.C. § 1252b(c)(l) (1995), a noncitiz.en must show either that the failure to appear was because of exceptional circUirntances or that he or she did not receive proper notice of the proceedings. Section 242B(c)(3) of the Act (I 995). Proper notice further means proper written notice as descnbed in section 242B(a)(2) of the Act. See section 242B(c)(3)(B) of the Act. There is no statutory or regulatory requirement. that an Order to Show Cause be read in its entirety to the respondent. Matter of S-M-, 21 l&N Dec. 49, 51 n.1 (BIA 1998). Accordingly, the Immigration Judge did not err when she did not rescind the in absentia order entered against the respondent based on his claim of lack of oral warnings. In addition, the Immigration Judge did not err by not reopening the respondent’s proceedings pursuant to Matter of M-S-. As we noted above, a noncitiz.en may obtain reopening of his or her proceedings without obtaining rescission of an in absentia order if the noncitizen meets certain requirements. Those requirements, however, include meeting the filing deadline for a motion to reopen Matter of M-S-, 22 I&N Dec. at 357. The respondent’s motion does not meet this requirement. See 8 C.F.R § 1003.2(c)(2) (stating that a motion to reopen ”rrrust be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceedings sought to be reopened”). The respondent filed his motion more than 23 years after the Immigration Judge entered the final order of deportation in his case.3 Accordingly, we affirm the Immigration Judge’s denial of the respond_ent’s motion to rescind the in absentia order entered 3 The respondent claims in his appellate brief that the filing deadline for his motion should be equitably tolled (Respondent’s Br) (unpaginated), but he did not raise this argument before the Immigration Judge. Because we cannot engage in fact-finding on appea~ we generally cannot address arguments first raised on appeal See, e.g., Matter of Jimenez-Santillano, 21 I&N Dec. 567, 570 n.2 (BIA 1996). Further, given the factual findings the lrrnnigration Judge has made thus fur, it does not appear that the respondent can meet the requirements for equitable tolling. Even if he was the victim of notario fraud, he must show that he acted with due diligence in discovering this fraud. See, e.g., lturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003). The Irrnnigration Judge, however, has correctly noted that the respondent was personally served with an Order to Show Cause written in English and in his native language of Spanish in 1996 and that the Order to Show Cause contained a different name and a different nationality (IJ at 1-3). These discrepancies could have alerted the respondent to a problem, but the respondent did not take any action in his deportation proceedings until January 2020 when he filed his current motion. He also has not claimed that he demonstrated diligence in other ways. 2 00000031440 A! (b)(6) against him (IJ at 2-3), and we find no error in the fact that the Irrmigration Judge did not reopen the respondent’s proceedings pursuant to Matter of M-S-, despite the respondent’s claims. We also affirm the Irrmigration Judge’s denial of the respondent’s request for sua sponte reopening (IJ at 3). See Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (indicating that our discretion to reopen sua sponte is limited to cases where exceptional circumstances are denxmstrated). TI1e respondent asserts that he was the victim of fraud perpetrated by a notario, but the respondent had the opportunity to discover this fraud in 1996 when he appeared for an asylum interview and was personally served with an Order to Show Cause containing a different name and a different nationality. As the Irrunigration Judge noted, the respondent has not explained the discrepancies in his name and date of birth (IJ at l, n.1). He also has not adequately explained why the discrepancies and the in.formation in the Order to Show Cause did not cause him to question the assistance the notario was providing or to explore his immigration status before he filed his motion in January 2020. Moreover, the respondent has not shown that he is statutorily eligible for relief that is within the jurisdiction of the Immigration Judge to grant. The Irrmigration Judge correctly concluded that the respondent is not eligible for cancellation ofremoval under section 240A(b )( 1) of the Act, 8 U.S.C. § I 229b(b )(I), because he is in deportation proceedings (IJ at 3). The respondent claims on appeal that he meant to claim eligibility for suspension of deportation in his motion rather than cancellation of remova~ but he also is not eligible for suspension of deportation. Toe service of the Order to Show Cause in his case ended his period of continuous physical presence before he accrued the necessary 7 years. SeeMatterofMendoza-Sandino, 22 I&N Dec. 1236, 1243-44 (BIA 2000; see also former section 244(a) of the Act, 8 U.S.C. § l 254(a) (1995). Based on the foregoing, we affirm the Immigration Judge’s denial of the respondent’s motion to rescind and his motion to reopen, and we dismiss the respondent’s appeal ORDER: The respondent’s appeal is dismissed. 3 00000031437 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~–~(b~)(~6) ___ ~1Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondent’s appeal from an Immigration Judge’s July 24, 2015, decision will, again, be dismissed. We assume the parties’ familiarity with the procedural history of this case and will address it only to the extent necessary to explain this decision. On May 31, 2016, the Board dismissed the respondent’s appeal from an Immigration Judge’s July 24, 2015, decision denying her withhokling of removal under section 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 123 l(b)(3), but reinstating a period of voluntary departure that had been granted under section 240B(b) of the Act, 8 U.S.C. § l 229c(b ). 1 In an order dated November 3, 20 l 6, the United States Court of Appeals for the Eight Circuit granted the Government’s unopposed motion to remand this case for administrative closure. On December 8, 2016, the Board ordered the proceedings administratively closed. Several years later, in an interim order dated February 9, 2021, the Board granted the DHS’s motion to reinstate the proceedings. We then set a briefing schedule to afford the parties an opportunity to update the record and file a brief. Neither party has done so. The Immigration Judge found, and the respondent did not dispute, that her application for asylum under section 208 of the Act, 8 U.S.C. § 1158, was time-barred because it was not filed within l year of her arrival in the United States (IJ at 9). Moreover, the respondent did not seek protection under the regulations implementing the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 V.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAl). When she attempted to raise eligibility for such relief for the first time on appeal we deemed the issue waived (Bd. May 31, 2016, at 3). ‘ J 00000031437 In our May 31, 2016, decision, we upheld the Immigration Judge’s determination that the respondent failed to show past persecution or a likelihood of future persecution based on her membership in a particular social group comprised of “married women in Guatemala unable to leave domestic relationships” (Bd. May 31, 2016, at 1-2). While we acknowledged that our decision in Malter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014), recognized that such a group could be cognizable based on the individual fucts of the case, we concluded that the respondent had not established group membership here because she had not shown she was unable to leave her domestic relationship (Id. at 2). Similarly, we affirmed the Immigration Judge’s finding that there was insufficient evidence to show a likelihood of future persecution based on the respondent’s membership in that group in coajunction with her husband’s continued abuse of her in the United States (Bd. May 31, 2016, at 2-3). We reasoned that the respondent’s fear of future harm in that regard was speculative, and that the respondent had not shown that she would become a member of the proposed particular social group in Guatemala (Id.). Consistent with our May 31, 2016, order, we will again disrniss the appeal. We have reviewed our prior decision in its entirety and discern no basis to disturb it. We therefore adopt and incorporate our prior decision herein. We write separately only to clarify the impact, if any, of recent developments in the law concerning domestic violence-based claims on our decision. The Attorney General’s recent decision in Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021 ), which held that we are bound to follow Matter of A-R-C-G-pending rulemaking on domestic-violence based claims, does not affect the validity of our prior decision. Moreover, our decision is bolstered by intervening circuit court precedent addressing similar domestic violence-based claims. See Godinez v. Barr, 929 F.3d 598, 602 (8th Cir. 2019) (upholding the Board’s finding that asylum applicant was not a member of a group comprised of ”women who are in abusive relationships in Mexico that they can’t leave[,]” where, among other things, the applicant left her abuser for a period of several years during which he did not attempt to contact her); Fuentes-Erazo v. Sessions, 848 F.3d 847, 852-53 (8th Cir. 2017) (concluding that substantial evidence supported the agency’s finding that an asylum applicant railed establish membership in her proposed particular social group of ”Honduran women in domestic relationships who are unable to leave their relationships” because “she was, in fuct, able to leave her relationship” and remained unhanned in her native country for approximately five years). Consistent with the foregoing, we will again dismiss the respondent’s appeaL for the reasons provided in our May 31, 2016, and in this decision. We will also reinstate the grant of voluntary departure. The following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge’s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is 2 … 00000031437 Al-__ (h_)_(f,~)-~ (are) permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (OHS). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R. § 1240.26(c), (f). In the event a respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge’s order. NOTICE: If a respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the staMe, and shaU be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. W ARNJNG: If a respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatica I ly terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. § 1240.26(e)(l). W ARNJN G: If, prior to departing the United States, a respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediate 1 y take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if he or she provides to the OHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence OHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to a respondent who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i). 3 NOT FOR pufirf~i’.TION U.S. Department of Justice Executive Office for ltmnigration Review Board of Immigration Appeals MATIER OF: ,____C_b )_(6)_ Al.__Cb_)(_6) _____.I ___, Respondent FILED Jan 18, 2022 ON BEHALF OF RESPONDENT: Cornel Potra, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Atlanta, GA Before: Gonzalez, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Irrnnigration Judge The respondent, a native and citizen of El Salvador, has appealed from the Immigration Judge’s decision dated April 27, 2018, denying his application for cancellation ofremoval under section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l), and his application for special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat. 2193, 2196 (NACARA), amended by Pub. L. No. 105-139, 111 Stat. 2644. The Department ofHomeland Sectrrity (DHS) has not filed any opposition to the respondent’s appeal The record will be remanded to the Immigration Judge fur further proceedings. We review an Immigration Judge’s :findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, denovo. 8 C.F.R §§ 1003.l(d)(3)(i), (ii). The record reflects that the respondent is the beneficiary of an approved visa petition with a 2013 priority dated filed by his father. Furthermore, the respondent’s appellate brief states that his father is now a United States citizen. Thus, it appears that the visa is now current. In light of the foregoing, we will remand proceedings fur consideration of the respondent’s eligibility for adjustment of status in conjtmction with a Fonn 1-601 waiver. See also Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021); EOIR Director’s Memorandum 22-03 (Administrative Closure). 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000032161 Al~_(_b)_(6_)~ Accordingly, the following order will be entered. 2 ORDER: The record is remanded to the Irrnnigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 Pursuant to the then-Acting EOIR Director’s Policy Memorandum 21-25, the DHS, on remand, should indicate whether the respondent is an enforcement priority and whether the DHS would exercise some form of prosecutorial discretion, such as stipulating to eligibility for relie~ agreemg to administrative closure, or requesting termination or dismissal of the proceedings. 2 ( ( NOT FOR PUBLl~liION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: FILED JAN 2 7 2022 Respondent ON BEHALF OF RESPONDENT: Allison J. Heimes, Esquire ON BEHALF OF DHS: Kathleen M. Zapata, Associate Legal Advisor tN REMOVAL PROCEEDINGS . On Appeal from a Decision of the Immigration Court; Omaha, NE •Before: ~O’Coimor··ana Baird; Appellate Immigrations, de Cardona, Temporary Appellate hnmigration Judge. Opinion by O’Connor, Appellate Immigration Judge. O’Connor, Appellate Immigration Judge: In a decision dated July 9, 2020, an Immigration Judge determined that the respondent’s convictions for theft in the first degree under Iowa law and aggravated robbery in the second degree under Minnesota law rendered him removable as charged and denied his applications for relief from removal. The respondent has appealed from the Immigration Judge’s determination regarding his removability. Because we conclude that the respondent’s Iowa theft offense i_s an aggravated felony, his appeal will be dismissed. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native of Ethiopia and citizen of South Sudan who is a lawful permanent resident of the United States. In I (h)(6) I he was convicted of aggravated robbery in the second degree UI1der Minnesota law, and, in~ (b)(6) Ihe was convicted of theft in the first degree in violation of sections 714.1 and 714.2(1) of the Iowa Code. For the latter offense, he was sentenced to a term of imprisonment not to exceed ~years. . Based on these convictions, the respondent was placed in removal proceedings and charged with-removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as a respondent convicted of an aggravated felony theft offense for which the term of imprisonment is at least 1 year as defined in section 1 0l(a)( 43)(G) of the Act, 8 U.S.C. §’ I 10l(a)(43)(G) (2018). 1 He was also charged with removability under section 1 The respondent had been previously placed in removal proceedings based on different convictions. He was found to be removable based on these convictions but was granted relief from removal: ( ( Al (b)(6) • 00000031491 237(a)(2)(A)(ii) of the Act, asa respondent convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The Immigration Judge sustained both charges, finding that the -respondent’s conviction for theft in the first degree under Iowa law is a conviction for an aggravated felony theft offense and that this offense and his Minnesota aggravated robbery are crimes involving moral turpitude. The Immigration Judge further found both convictions barred the respondent from applying for relief from removal and denied his applications. • On appeal, the respondent contends the Immigration Judge erred in finding that his conviction for theft in the first degree under Iowa law is a conviction for an aggravated felony theft offense and a crime involving moral turpitude.2 The Department of Homeland Security (“DHS”) has submitted a brief in opposition to the appeal.3 For the following reasons, we conclude, upon our de novo review, that-the respondent’s.conviction for theft in the first degree under sections 714.1 and 714.2(1) of the Iowa Code is a conviction for an aggravated felony theft offense that renders him removable as charged under. section 237(a)(2)(A)(iii) of the Act. See 8 C.F.R. § 1003 .1 ( d)(3 )(ii) (2021 ). Becallse this conclusion is dispositive of the respondent’s _removability, we need not address whether he was convicted of two· or more· crimes involving rporal turpitude under section 237(a)(2)(A)(ii) of the Act. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per _curiam) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). II. DISCUSS1ON A. Categorical Approach To determine whether the respondent’s crime is an aggravated felony theft offense, we employ the categorical approach by comparing the elements of his Iowa statute of conviction to the generic definition of aggravated felony theft at section· 10l(a)(43)(G). See Matter of Delgado, 27 I&N Dec. 100, 100-01 (BIA 2017). If the elements of the statute of conviction plainly reach conduct outside the generic definition, or if there is a realistic probability the statute would be used to prosecute such conduct, the statute is overbroad and does not categorically match the generic definition. See Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013). 2 The respondent does not challenge the Immigration Judge’s determination that his Minnesota aggravated robbery offense is a crime involving moral turpitude, nor does he challenge the Immigration Judge’s grounds for denying his applications for relief. We deem any arguments in this regard to be waived. See, e.g., Matter ofY-1-M-, 27 I&N Dec. 724, 730 n.2 (BIA 2019). 3 We requested supplemental. briefing from the parties and amici curiae on whether State case law establishes that section 714.1 of the Iowa Code is divisible with regard to the type of theft involved in a violation of the statute. We acknowledge and appreciate the briefs submitted by the parties and amici. 2 ( ( 00000031491 If the respondent’s statute of conviction is overbroad, we must consider:. whether it is divisible-that is, whether it “sets out one or more elements of the offense in the alternative.” Descamps v. United States, 570 U.S. 254, 257 (2013). If it is divisible, we ·may examine the . relevant conviction records-· including the criminal complaint and plea agreement-under a modified categorical approach to identify under which statutory alternative the respondent was convicted. See id; see also Shepard v. United States, 544 U.S. 13, 26 (2005). For purposes of the categorical approach, the Supreme Court provided a specific definition for the tenn “elements,” stating that they “are the ‘constituent parts’ of a crime’s legal definition,” which the “prosecution must prove to sustain a conviction” and “the jury must find beyond a reasonable doubt to convict the defendant.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (citation omitted). In contrast to “elements,” the Court stated that alternative “meap.s” in a statute merely describe diverse ways “of satisfying a single element,” or “spell □ out various factual ways of committing … the offense.” Id. at 2249. In other words, “means” “are ‘circumstance[s]’ or ‘event(s]’ having no ‘legal effect [or] consequence”‘ that need not “be found by a jury.” Id at 2248 (alterations in original) (citation omitted). If the respondent’s statute of conviction lists alternative “means,” rather than “elements,” then we do not apply the modified categorical appr-oach, and his convictipn cannot ·serve as a predicate for his removal. See id. at 2251: The courts have specified “authoritative sources of state law” we may look to in detennining whether, for purposes of divisibility, a statute sets forth alternative “elements/’ rather than “means”: (1) the statutory language; (2) State court decisions; (3) relevant jury instructions; and (4) if State “law fails to provide clear answers,” the record of conviction. Id at 2249, 2256-57; see also Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018). B. Aggravated Felony Theft Generic theft under section 101(a)(43)(G) of the Act is defined as “the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Matter of Garcia-Madruga, 24 I&N Dec. 436, 440-41 (BIA 2008) (footnote omitted). This definition does not encompass crimes committed by fraud or deceit because such an offense • “ordinarily involves the taking or acquisition of property with consent that has been fraudulently obtained.” Id at 440. Section 714.1 of the Iowa Code sets forth a number of alternative definitions of “theft”-some of which involve generic theft, while others involve theft by fraud or deceit. Compare Iowa Code Ann. § 714.1(1) (West 2019) (criminalizing theft by taking without consent), with Iowa Code § 714.1(3) (theft by deception), and Iowa Code§ 714.1(6) (theft by check).4 Accordingly, section At the time of the respondent’s offense, section 714.1 of the Iowa Code provided, in pertinent part, that an individual commits theft when the person does any of the following: 3 ( ( 00000031491 ~ (b)(6) 1. Takes possession or control of the property of another, or property in the possession of another, with the intent’to deprive the other thereof. 2. Misappropriates property which the person has in trust, or property of another which the person has in the person’s possession or control, whether such possession or control is lawful or unlawful, by using or disposing of it in a manner which is inconsistent with or a denial of the trust or of the owner’s rights in such property, or conceals found property, or appropriates such property to the person’s own use, when the owner of such property is known to the person. 3. Obtains the labor or services of another, or a transfer of possession, control, or ownership of the property of another, or the beneficial_ use of property of another, by deception…. • 4. Exercises control over stolen property, knowing such property to have been stolen, or having reasonable cause to believe that such property has been stolen, unless the person’s purpose is to promptly restore it to the owner or to deliver it to an appropriate . public officer.” ….. • • 5. Takes, destroys, conceals or disposes of property in which someone else has a security interest, with intent to defraud the se_cured party. .. 6. Makes, utters, draws, delivers, or gives any check, share draft, draft, or written order on any bank, credit union, person, or corporation, and obtains property, the use of property, including rental property, or service in exchange for such instrument, if the person knows that such check, share draft, draft, or written order will not be paid when presented. 7. Obtains gas, electricity or water from a public utility or obtains cable television or telephone service from an unauthorized connection to the supply or service line or by intentionally altering, adjusting, removing or tampering with the metering or service device so as to cause inaccurate readings. 8. Knowingly and without authorization accesses or causes to be accessed a computer, computer system, or computer network, or any part thereof, for the purpose of obtaining computer services, infonnation, or property or knowingly and without authorization and with the intent to permanently deprive the owner of possession, takes, transfers, conceals, or retains possession of a computer, computer system, or computer network or any computer software or computer program, or computer data contained in a computer, computer system, or computer network. 9. a. Obtains the temporary use of video rental property or equipment rental property with the intent to deprive the owner of the use and possession of the video rental property or equipment rental properly without the consent of the owner. 10. Any act that is declared to be theft by any provision of the Code. Section 714 .2( 1) of the Iowa Code, in turn, provided, in relevant part, that the “theft of property exceeding ten thousand dollars i11 value, or the theft of property from the person of another … is theft in the first degree.” 4 ( ( • 00000031491 AJ._—-‘(‘”””b6’-) ___, )..;_( •714. l i$ overbroad relative to the definition of aggravated felony theft under section 1 0l(a)(43)(G). See Moncrieffe, 569 U.S. at 190-91. We must therefore determine whether the alternative definitions of theft under section 714.1 of the Iowa Code are alternative elements of the statute, rendering it divisible with respect to whether a violation of the statute involved theft by taking without consent or theft by deception or • fraud.5 See Descamps, 570 U.S. at 257. Based on the Iowa Supreme Court’s decision in State v. Nall, 894 N.W.2d 514 (Iowa 2017), the Immigration Judge found, and the DHS argues on appeal, that the respondent’s statute of conviction is divisible. In that case, the Iowa Supi:eme Court held that to be convicted of theft by taking under section 714.1(1), “a perso·n must acquire property without the consent or authority of another.” Id. at 524 (emphasis added). The defendant in Nall was convicted of theft by taking under section 714.1(1) after she used counterfeit checks and “a phoriy money order” to make bank withdrawals and pay for services. Id at 515-16, 525. Because the defendant had obtained the consent of her victims· . ‘ ‘ through fraud and deceit, the court concluded that her conduct could not support a charge for theft by taking under section 714.1 (1) and reversed her conviction. Id. at 524-25. Significantly, the court then said that this very same conduct may support a “charge under section 714.1(6) (theft by check).” Id at 525. This statement suggests that the alternative definitions of theft listed at sections 714.1(1) and (6) are alternative elements of the statute, which the State must prove to sustain a conviction. If these definitions are merely means of committing theft, and the individual definition under which a defendant is charged and convicted has no “legal effect [or] consequence,” then the court in Nall would have upheld the defendant’s conviction. Mathis, 136 S. Ct. at 2248 (alteration in original) ( citation omitted). It is likewise significant that in a separate case the court reversed a conviction for theft by check under section 714.1(6), while opining that the· defendant’s conduct could support aconviction for theft by deception under section 714.1(3). State v. Schiebout, 944 N.W.2d 666, 671-72 (Iowa 2020). ln doing so, the court recognized that sections 714 .1 (3) and ( 6) “overlap” but emphasized that the overlap is not complete and that each provision covers some conduct not covered by the other provision. Id at 672 (quoting State v. Hogrefe, 557 N.W.2d 871, 878 (Iowa 1996) (noting that sections 714.1 (3) and (6) are “complementary rather than redundant”)). Again, We recognize that in Matter of Reyes, 28 I&N Dec. 52, 52-54 (A.G. 2020), the Attorney General concluded that a respondent had been convicted of an aggravated felony under a State theft statute where all the elements in each alternative statutory definition of theft, and thus all the means of committing theft under the statute, corresponded to either an.aggravated felony theft or an aggravated felony involving fraud or deceit in which the loss to the victim exceeds $1(b)(6) I under section 1 0l(a)(43)(M)(i) qfthe Act. However, Matter of Reyes does not apply here becat,Jse, at the time of the respondent’s offense, not all thefts by fraud under section 714.l involved a loss of more thari ~ (b)(6) l as required by section 101(a)(43)(M)(i). See, e.g., Iowa Code Ann. § 714.2(2) (West 2019) (grading· “theft of property exceeding one thousand five hundred dollars but not exceeding0ten thousand dollars” as theft in the second degree (emphasis added)). 5 ( ( AJ (b)(6) 00000031491 • if it is legally irrelevant under which subsection of 714.1 a defendant is convicfed, we do not see why the Iowa Supreme Court would have reversed the convictions in Nall and Schiebout if the conduct at issue could support a conviction for theft under at least one of those subsections.6 • The legislativ~ history of section 714.1, which the court addressed at length in Nall, lends additional support to our conclusion that theft by talcing under section 714.1(1) and theft by fraud or deceit under sections 714.1(3) and (6) are alternative crimes with discrete elements. In 1978, the Iowa Legislature collected a number of “definitions of theft” under section 714.1 “that had been previously scattered” throughout the Iowa Code, including theft by taking and theft by fraud and deception. Nall, 894 N.W.2d at 519. However, the Iowa Supreme Court noted in Nall that this restructuring “does not necessarily mean that the legislature intended (theft by taking under] Iowa Code section 714:1(1) to subsume the other subsections of newly enacted section 714.1.” Id Significantly, the court stated: If section 714.1(1) applied whenever the defendant tricked the victim into voluntarily ·transferring property, there would be no need for section 714.1(3) covering [theft by de~eption]. Similarly, if passing a knowingly bad check or money order to obtain services · • • ·or-property·violated section 7i4.1(1);· then section 714.1(6) would·seetn unnecessary. Id. at 519-20 ( citations omitted). The court observed that “the Nebraska Supreme Court upheld [a] defendant’s conviction for theft by taking even though the defendant had been charged only with theft bydeception.” Id at 521 (citing State v. Jonusas, 694 N.W.2d 651, 655 (Neb. 2005)). “As in Iowa, the two theft alternatives are separately defined …. ” Id. However, unlike Iowa law, Nebraska law contains a consolidation provision, stating that “all variants of theft constitute a single offense.” Id; see also id. at 521-22 (noting that “the Iowa legislature chose not to adopt [a similar] consolidation provision … when it enacted” section 714.1). The court in Nall found it ·significant that most jurisdictions that lack such a consolidation provision “recognize[] and enforce[] distinctions among … various theft offenses.” Id. at 523 (collecting cases). Accordingly, the court concluded that the Iowa Legislature intended to distinguish between different modes of theft when it enacted section 714.1. It only intended section 714.1(1) to reach theft involving a taking without consent, not theft by fraud or deceit, and any other interpretation would render sections 714.1(3) and (6) superfluous. Id. at 524. • We additionally note that the court stated that each definition of theft in a prior version of section 714.1 requires proof of a different “degree[] of intent: 714.1 (1) requires intent to deprive; 714.1(3) requires deception; 714.1(4) requires knowledge; 714.1(5) requires intent to defraud; and 714.1(6) requires knowledge.” Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 198’1); see also Matter of Chairez, 26 I&N Dec. 819, 824 (BIA 2016) (stating that a statute is divisible into separate offenses with distinct mental states if the State is required to prove thc1t these offenses were committed with a particular mental state). 6 ( ( Al._______;_(b”‘–‘)(….;.6)__. 00000031491 _ ‘ ‘ ‘ The relevant Iowa jury instructions also support our view that theft by taking tinder section 714.1(1) and theft by fraud or deceit under sections 714.1(3) and (6) are separate crimes with discrete·elements. See Martinez, 893 F.3!’.i at 1071. Iowa provides separate instructions for theft by taking, deception, and check under sections· 714.1(1), (3), and (6), respectively, and each of these instructions sets forth distinct elements that the State must prove and a-jury must find.7 Because the State must prove that a defendant committed one of these specific forms of theft, we conclude that these definitions of theft under section 714.1 are alternative elements, not alternative means of committing a theft offense. CJ State v. Duncan, 312 N.W.2d 519, 523 (Iowa 198-I) (stating that if “alternative method[s] of committing” an offense are consistent with and “not repugnant to each other” the State need not prove that the defendant committed one specific alternative (citation omitted)). Finally, even if the above sources do not clearly resolve the ·means versus elements inquiry, we may “peek” at the respondent’s record of conviction “for ‘the sole and limited purpose of• determining whether. [the definltions under section 714.1 are alternative] element[s] ·of the The-instruction for.theft by. taking, at Iowa Crim. Jury Instr. § 1400.1-(Iowa Bar Assoc. 2018), provides that the State must prove the following elements: 1. On or about the ___ • day of _ __, 19_, the defendant took possession or control of (property). 2. The defendant did so with the intent to deprive (victim) of the (property). 3. The property, at the time of the taking, [belonged to] [was in the possession of] (victim). The instruction for theft by deception, at Iowa Crim. Jury Instr. § 1400.10, provides that the State must prove these elements: 1. On or about the ___ day of-~ 20_·, the defendant did (set forth acts of deception-words, conduct, or representation) to (victim). 2. The defendant knowingly deceived (victim) in one or more of the following ways: (add the appropriate subsections of 702.9 of the Code). 3. The defendant obtained [labor or services] [transfer of possession] [control or ownership] [the benefic_ial use of property] from (victim) by the deception. Finally, the instruction for theft by check, at Iowa Crim. Jury Instr. § 1400.17, provides that the State must prove the following elements: 1. On or about the ___ day of __ 20_, the defendant did [make] (utter] [draw] [deliver] [give] to (victim) a [check] [draft] [written order] in the amount of$ __ _ 2. The [check] [draft] [written order] was drawn on (e.g., bank). 3. The defendant received [property] [services] [money] in exchange for the (check] [draft] [ written order]. . • 4. The· defendant knew at the time [he) [she] gave the [check] [draft) [written order] to (victim) it would not be paid by the [bank] [other institution] because (state facts shown by ev.idence, e.g., insufficient funds, closed account, no account). 7 ( ( 00000031491 offense.”‘ Mathis, 136 S. Ct. at 2256-57 (second alteration in original) (citation omitted). The criminal complaint and plea agreement in the record reveal that the respondent was charged with and convicted of one count of theft in the first degree under section 714.l .. This count alleged that he “did take property from the person of another with intent to deprive the person thereof.” The conviction record’s “referenc[e] [to] one alternative” form of theft-specifically, theft by taking under section 714.1(1)-“to the exclusion of’ theft by deception or by check supports our view that these alternative definitions of theft are separate offenses with distinct elements. Id. at 225 7. In light of our review of the above “authoritative sourc.es of state law,” we conclude that theft by taking und_er section 714.1(1) and theft by deception and check under sections 714.1(3) and (6), . respectively, are alternative crimes with ·discrete elements,· rendering the statute divisible with respect to whether a violation of section 714.l involved aggravated felony theft, or theft by fraud or deceit. Id. at 2256. • • • Citing State v. Williams, 328 N.W.2d 504 (Iowa 1983), and State v. Conger, 434 N.W.2d 4°06 (Iowa Ct. App. 1988), the respondent argues that the definitions of theft at section 714.1 are alternative means, rather than elements. we· are not persuaded that these cases, whic;h predate -Mathis and its progeny by several-decades, support the·respondent’s argument. These·State tolirt decisions may, at first blush, appear to conclude that the definitions of theft at section 714.1 are alternative means of comtnitting theft, rather than alternative elements. However, we recently •emphasized that it is important to read such cases carefully, paying close attention to the context in which a State court used terms like “elements” and “means” and the specific questions addressed. See Matter of Laguerre, 28 I&N Dec. 437,441 (BIA 2022). In Conger, 434 N.W.2d at 409, a defendant was convicted of a single count of theft after a jury was given instructions for both theft by taking under section 714.1(1) and exercising control over stolen property under section 714.1(4). The defendant argued that the trial court erred in allowing the jury to convict him of theft without being unanimous as to the type of theft committed. The fowa court of appeals upheld the conviction, noting that a “person cannot commit theft by taking without also exercising control over the property, so the two …. alternatives are not inconsistent or repugnant in that they represent different points of time within one crime.” Id. at 409-10. This language appears to suggest that theft by taking and exercising control over stolen property are alternative means of committing theft, not elements. However, the court noted it could only reach this result because these statutory alternatives are “consistent with and not repugnant to each other.” Id. at 409. As we explained above, theft by taking under section 714.1(1) and theft by fraud or deceit under sections 714.1(3) and (6) are clearly inconsistent with, and thus repugnant to, each other because the former section requires a taking without consent, while the latter do not. Accordingly, we believe Conger is consistent with our conclusion that theft by taking and theft by fraud or deceit are alternative crimes with distinct elements under section 714.1, rather than means of violating the statute. In Williams, 328 N.W.2d at 505-06, the Iowa Supreme Court concluded that the State’s decision to amend the form of theft charged-from theft by taking under section 714. I (1) to theft by exercising control of stolen property under section 714.l ( 4 )-after the defense had rested was 8 ( ( Al (b)(6) 00000031491 reversible error. The court noted that a charge may be amended “only if ( 1) substantial rights of the defendant are not prejudiced thereby, and (2) a wholly new or different offense is not charged.” Id. at 505 (citation omitted). The court’s decision rested solely on its finding that the “first prong, no prejudice to substantial rights of defendant, [was] not satisfied in the … case.” Id. It then noted that an “amendment without prejudice … might have been made … , alleging the alternate theory of theft by exercising control over stolen property” because the State “would not have been alleging a ‘wholly new and different offense’ but merely an alternative means of committing the same offense.” Id. at 50q & n.3 ( emphasis added). Because thi_s latter statement was not necessary to the court’s holding, which rested solely on the finding of prejudice, we consider it dicta. See Passmore v. Astrue, 533 F.3d 658, 661 (8th Cir. 2008) _(defining “dicta”. as a statement that “is • unnecessary to the decision in the case” (citation omitted)). More importaqtly, Williams did not discuss the issue we address today, namely, whether Iowa’s theft statute is divisible with respect to whether a violation involved theft by taking under section 714.1(1) or theft by fraud or deceit under sections 714.1(3) and (6). As noted, our review of State law reflects they are discrete crimes with distinct elements. Williams also did not accord the term “alternative means” the specific meaning and significance the Supreme Court did in Mathis. Nor could it have: Williams was issued years before the Supreme Court first articulated the categorical approach in Taylor v. United States, 495 U.S. 575 (1990), and decades before the Court articulated the distinction between “means” and “elements” ih Mathis. We doubt the court in Williams intended to describe each subsection of section 714.1 as mere facts, “extraneous to the crime’s legal requirements.” Mathis, 1_36 S. Ct. at 2248. We therefore hold that section 714.1 of the Iowa Code is divisible with respect to whether a violation of the statute involved theft by talcing or theft by fraud or deceit. It was therefore pennissible for the Immigration Judge to review the respondent’s conviction record, including his plea agreement and criminal complaint, to determine whether his violation involved generic theft. See Shepard, 544 U.S. at 26. As noted, this record establishes that he was specifically convicted of theft by taking under section 714.1(1) of the Iowa Code, the elements of which match the generic definition of aggravated felony theft under section 101(a)(43)(G). See Nall, 894 N.W.2d at 524. There is no dispute that the respondent’s theft offense is one for which the term of imprisonment is at least one year, as required by section 10l(a)(43)(G) of the Act. We will therefore affirm the Immigration Judge’s conclusion that the respondent’s conviction for theft in the first degree under sections 714.1(1) and 714.2(1) of the Iowa Code is one for an aggravated felony theft offense that renders him removable as charged under section 237(a)(2)(A)(iii) of the Act. Accordingly, the appeal is dismissed. ORDER: The respondent’s appeal is dismissed. 9 00000031506 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: ~—(b_)(_6) ___ ~l Al (b)(6) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Chad Michael Brandt, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the hmnigration Court, Orlando, FL Before: Couch, Appellate Irnnigration Judge Opinion by Appellate Irrrnigration Judge Couch COUCH, Appellate hmnigration Judge The respondent appeals the August 20, 2020, hnmigration Judge’s decision denying the motion to reopen her removal proceedings after the issuance of an in absentia order of removal on March 22, 2019. The Department of Homeland Security (”OHS”) did not respond to the appeal The appeal will be dismissed. Pursuant to section 240(b)(S)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C), an in absentia removal order may be rescinded upon a motion to reopen filed (i) within 180 days after the date of the removal order if the alien demonstrates that the fuilure to appear was because of exceptional circwmtances, or (it) at any time if the alien demonstrates that he or she did not receive notice of the hearing in accordance with sections 239(a)(l) or (2) of the Act, or that the alien was in Federal or State custody and did not appear through no fuult of the alien. Sections 240(b)(5)(C)(~ and (it) of the Act; see also Matter of Guzman, 22 I&N Dec. 722, 722-23 (BIA 1999). The Notice to Appear (“NTA”) issued to the respondent on February 28, 2018, was served on her in person on March 6, 2018, as evidenced by her signature (Exh. 1). The NTA provided that the initial hearing would take place in Orlando, Florida at a date and time to be determined. The NTA shows that the respondent was informed in Spanish of the consequence of failureto appear and her obligation to inform the Immigration Court of any change in her address. On April 13, 2018, the Imnigration Court mailed a Notice of Hearing (”NOH”) for January 9, 2019, to the respondent. The hmnigration Court mailed the NOH tol (b)(6) lI (b )( 6) lwhich is the address of record provided by the respondent on the NT A and her asyhnn application (Exhs. 1-2). However, due to a government shutdown, the Irnnigration Court was closed on that date. On February 2, 2019, the hnmigration Court mailed a NOH to the respondent at the address of record to reschedule the hearing for March 22, 2019. The respondent did not appear at the hearing and the Immigration Judge ordered her removed iriabsentia. 00000031506 Al (b)(6) On appeaL the respondent argues that she did not receive proper notice of the hearing held on March 22, 2019, at which she was ordered removed in absentia (Respondent Br. at 5-7). Toe respondent also argues that she did not receive the notice, and clam that she resided at the address of record at the time the NOH hearing was mailed to her (Id. at 7-9). The respondent asserts that her rootion to reopen should be equitably tolled and that she established exceptional circumstances for rescission of the in absentia rerooval order (Id. at 9-10). The respondent contends that her rootion to reopen and rescind warrants sua sponte reopening (Id. at 11-12). Under section 240(a)(5){A) of the Act, any respondent who, after written notice required under paragraphs (1) or (2) of section 239(a) has been provided, does not attend a proceeding llllder this section, shall be ordered rerooved in absentia if she is shown to be rermvable by clear and convincing evidence. Here, the respondent’s address of record was provided under section 239(a)(l)(F) of the Act and was properly used to notify her of the hearing held on March 22, 2019. Matter ofG-Y-R-, 23 I&N Dec. 181, 192 (BIA 2001); Matter of M-R-A-, 24 l&N Dec. 665, 674 (BIA 2008). Toe respondent’s motion to reopen admits that she resided at the address of record, j (b)(6) I (b)(6) lwhen the Immigration Court mailed her the NOH for the hearing on March 22, 2019 (Motion at 2-3). The respondent states that she received the NOH for her hearing on January 9, 2019, which was mailed to her address of record. The respondent clam that she did not receive the NOH mailed by the Immigration Court on February 2, 2019, which set her rescheduled hearing for March 22, 2019. The respondent admits that the lrrnnigration Court used the correct mailing address for her at the time. The respondent asserts that she did not received the NOH for the March 22, 2019 hearing and did not know why she did not receive it (Motion Tab A). Toe affidavits of respondent’s daughter, nephew, and son-in-law all state that they can confirm that the respondent did not receive the NOH for her hearing on March 22, 2019 (Motion Tabs E-G). However, the statements of the respondent and her family members are not sufficient to rebut the preswnption of delivery of a notice sent by regular mail where prior notices sent to the same address were received. The respondent received a prior NOH sent by the Immigration Court to her address ofrecord (Motion, Tab A (Respondent’s Declaration)). Additionally, the NOH and the in absentia order of rerooval were sent to the address of record were not returned to the Irrnnigration Court. Thus, the NOH was mailed to an address that qualifies as an address provided W1der section 239(a){l){F) of the Act. Toe Board has provided a framework for evaluating motions to reopen following an in absentia order where the NOH was sent by regular mail Matter of M-R-A-, 24 I&N Dec. at 674 (holding that there is a slight preswnption of delivery where notice is sent by regular mail and setting forth factors which should be considered when evaluating a claim that a NOH was not received). Applying this framework, we affirm the Immigration Judge’s determination that the respondent did not show a lack of written notice of his hearing (IJ at 2-4). Matter of Anyelo, 25 I&N Dec. 337, 338-39 (BIA 2010); see also Dominguez v. U.S. Att’y Gen., 284 F.3d 1258, 1260 2 00000031506 Al-__ (b_)(_6)_~ (11th Cir. 2002) (“[N]otice [mailed] to the alien at the most recent address provided by the alien is sufficient notice” for in absentia removal). We affirm the Immigration Judge’s determination that the respondent did not establish that equitable tolling ofthe 180-daymotion deadline is warranted in this case (IJ at4). Ruiz-Turcios v. U.S. Att’yGen., 717 F.3d 847,851 (11th Cir. 2013) (stating that equitable tolling generally requires an alien to show that he has been pursuing his rights diligently and that some extraordinary circumstance stood in his way). Nor did the respondent demonstrate exceptional circumstances warranting reopening. The respondent knew that she was in removal proceedings and that her initial hearing in January 2019 was cancelled. However, the respondent did not contact the lrmnigration Court to determine whether the court had rescheduled her hearing. The respondent learned that an Irmnigratio n Judge ordered her removed when her employment authorization application was denied in March 2020 because of the order of removal See Ruiz-Turcios v. U.S. Att ‘y Gen., 717 F.3d at 851 Perez-Pablo v. U.S. Att ‘y Gen., 684 F. App’x 877, 879 (11th Cir. 2017) (aliens did not show requisite diligence for equitable tolling where they avoided contacting the Immigration Court or alternative cotmSel due to their fear of removaQ. The respondent provided a lease agreement for the address ofrecord covering a year ending on August 23, 2018. (Motion Tab B). The respondent submitted affidavits from her daughter, nephew, and son-in-law which state that the respondent lived at the address of record until August 2020. However, the respondent did not provide a lease indicating that she resided at the address ofrecord on or about February 2, 2019, when the NOH for her hearing on March 22, 2019, was mailed to her, or proof of rent payments, utilities, or insurance at the address during that time (IJ at 3 n. l ). As the motion to reopen is time-barred, we decline to address these argwnents finther. We also affirm the Immigration Judge’s conclusion that the respondent did not show that her case warranted an intervention of the lrrnnigration Judge’s authority to reopen her removal proceedings sua sponte (IJ at 4). The respondent was personally notified that she was in removal proceedings (Exh. 1 ). The respondent concedes that she had notice of her hearing in January 2019 that was cancelled. However, she did not exercise due diligence by failing to check the status of her removal proceedings after her hearing was cancelled, and waiting until her employment authorization was denied to learn that she was ordered removed. Matter ofNivelo Cardenas, 28 I&N Dec. 68, 71 (BIA 2020). We conchxle that the respondent did not establish that an exceptional situation exists which would warrant sua sponte reopening. See 8 C.F.R § 1003.23(b); Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999); Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000031317 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—-(b_)(_6) ____ ~1Al (h’\(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Zaida Kovacsik, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of lnnnigration Appeals Before: Saenz, Appellate Immigration Judge Opinion by Appellate Irrnnigration Judge Saenz SAENZ, Appellate Immigration Judge This case was last before us on August 10, 2020, when we dismissed the respondent’s appeal from the Innnigration Judge’s February 20, 2020, decision. 1be respondent, a native and citizen of Cuba, has now filed a motion to reconsider. The Department of Homeland Security has not filed a response to the motion. The motion will be denied. We review findings of fuct determined by an Immigration Judge, including credibility findings, Wlder a “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(0-We review questions of law, discretion, and judgment and all other issues in appeals from decisions of Innnigration Judges de novo. 8 C.F.R § 1003.l(d)(3)(ii). On February 20, 2020, the Immigration Judge denied the respondent’s applications for asylum, withholding ofremoval, and protection under the Convention Against Tortw-e, based on, inter alia, her adverse credibility detennination and that the respondent railed to independently corroborate his claim On August 10, 2020, we affirmed the Irmnigration Judge’s decision and dismissed the respondent’s appeal On September 10, 2020, the respondent filed the instant motion to reconsider arguing, inter alia, that the Board erred in affirming the Immigration Judge’s adverse credibility and insufficient corroboration findings. We disagree. A motion to reconsider is “a request that the Board reexamine its previous decision in light of additional arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (internal citations omitted). A motion to reconsider challenges the Board’s original decision and alleges that it is defective in some regard, but it is not a vehicle for advancing supplementa 1 legal argwnents that could have been raised on appeal Matter of O-S-G-, 24 I&N Dec. at 57. 00000031317 pJ~_(b_)(6_)~ Despite the respondent’s various assertions to the contrary, we considered, in our prior decision, the totality of the record in light of the respondent’s appellate arguments, and we applied the appropriate legal standards when we detennined .that the respondent had not established his eligibility for relief or protection from removal (BIA at 2-3). With respect to the hnnigration Judge’s adverse credibility finding, while not relying on every aspect of the Innnigration Judge’s adverse credibility finding, we found no clear error in several of her findings, which, under the totality of the circwnstances, support the adverse credibility finding (BIA at 2). See section 208(b )(1 )(B)(iii) of the Act. First, we affirmed the Immigration Judge’s findings that the respondent’s testimony regarding the reasons he attempted to travel to his aunt’s house on the day of his second arrest were materially inconsistent with his statements to an asyhnn officer and his written statement. In our decision, we noted that the respondent did not challenge this finding on appeal We also affirmed the Immigration Judge’s finding that the respondent provided inconsistent testimony about the reasons he did not seek medical treatment after his detentions and beatings, first stating it was because the doctors would report him to the authorities, then later conceding that he did not seek medical treatment after his detentions because his injuries did not require professional medical attention (BIA at 2). The respondent in his motion contends that the Board erred in finding that he did not challenge this finding on appeal (Mot. at 8). However, the respondent’s statement on appeaL reiterated in his motion, that his 21 years in Cuba gives him a better knowledge of Cuban custotn5 than someone who has never been in Cuba -does not exp lain the inconsistencies in his testimony related to why he did not seek medical attention after his detentions. We further affirmed the Immigration Judge’s adverse credibility finding based on the omission between the respondent’s testimony that his rnother told him in June 2019 that the sector chief had visited his home asking for the respondent, and that none of the letters from his mother mentioned this visit. We fin1her agreed with the Immigration Judge that the respondent did not persuasively explain this omission. In his motion, the respondent attempts to explain this omission (Mot. at 13 ). However, the respondent could have raised this argument in his initial appellate brie~ but did not do so. A motion to reconsider “based on a legal argument that could have been raised earlier in the proceedings will be denied.” Matter of O-S-G-, 24 l&N Dec. at 58. Similarly, the respondent’s challenges to the ~gration Judge’s and the Board’s corroboration findings were either raised on appeal and rejected, or could have been raised below (compare Mot. at 12-15 with Respondent’s Br. at 16-17). As there is no error of fact or law in our prior order to warrant reconsideration, the motion will be denied. ORDER: The motion is denied. 2 .. 00000031314 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ,…._______ ______ __.IAl _,_(b–‘).._(6_,_) (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Eric Avazian, Esquire ON BEHALF OF OHS: Nicole Aronson, Assistant Chief CoW1Sel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Mahtabfur, Appellate lmmigration Judge Opinion by Appellate Immigration Judge Mahtabfur MAHTABFAR, Appellate Immigration Judge ORDER: This Board has been advised that the Department of Homeland Security’s (DHS) appeal has been withdrawn. See 8 C.F.R § 1003.4. Since there is nothing now pending before the Board, the record is returned to the Immigration Court without further action. 00000031503 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ,_ ____ ___ (b)(6) (_b)_(6_) _.lAJ Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Marvin Espana, Esquire ON BEHALF OF OHS: Priwn Singh, Assistant Chief Counsel IN BOND PROCEEDINGS On Appeal from a Decision of the Immigration Court, New York, NY Before: Couch, Appellate Immigration Judge Opinion by Appellate Irrmigration Judge Couch COUCH, Appellate Immigration Judge ORDER: The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4). 00000031311 I NOJ’ FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: (b )( 6) (b)(6) FILED Jan 27, 2022 (b)(6) (b)(6) Respondents ON BEHALF OF RESPONDENTS: Wael M. Ahmad, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Innnigration Court, Louisville, KY Befure: Cassidy, Appellate lmnigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge The respondents, natives and citizens of Guatemala, appealed the Immigration Judge’s decision, dated April 10, 2019, which denied their applications fur asylum and withholding of removal 1 See sections 208, 24l{b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231 (b )(3 ). The appeal will be dismissed. We review the findings of :fact, inchlding the dletermination of credibility, made by the Imrnigration Judge under the “clearly erroneous” standard. See 8 C.F.R § 1003.l(d)(3)(0. We review all other issues, including issues of law, discretion, or judgment, 1IDder a de novo standard. See 8 C.F.R § 1003.l(d)(3)(it). The Immigration Judge folllld the respondent credibly testified that, at 12 years old, she suffered sexual abuse in Guatemala by her tmcle (IJ at 5-6). At the time of her removal hearing, the respondent was 27 years old (IJ at 1). The Immigration Judge fotmd the respondent did not establish she was banned based on a particuJar social group (U at 6). The Immigration Judge fotmd the respondent was a victim of a crime, and the motivation of those who harmed her was purely criminal in nature (IJ at 6-7, 11-12). See Skripkov v. Barr, 966 F.3d 480, 489-90 (6th Cir. 2020) (finding that proof of harm is insufficient to establish eliglbility for asyhun relief, because the respondent must demonstrate a nexus to a protected groW1d). 1 The respondents in this case include the lead respondent, /lJ (hV6) Iwho is the principal applicant for asylum, and her child, Al (b)(6) I.who is a derivative on that application. Unless otherwise indicated, the singular “respondent” shall refer to the lead respondent. 00000031311 (b)(6) ~t al On appea~ the respondent argues the Innnigration Judge erred in finding she did not establish past persecution based on a cognizable particular social group (Respondent’s Br. at 4). She avers she belongs to a particular social group, defined as “Guatemalan women who were victi~ of rape and subject to persecution upon return to Guatemala” (Respondent’s Br. at 4). The respondent clam her particular social group meets the requirements of Matter of M-E-V-G-, 26 I&N Dec. 277,237 (BIA 2014), because the group is defined with particularity and exists independent of the harm asserted (Respondent’s Br. at 4). She requests the Board reconsider the particular social group in light of Juan Antonio v. Barr, 959 F.3d 778, 790-91 (6th Cir. 2020) (hokiing a married indigenous woman in Guatemala, who is unable to leave her relationship, can form a cognizable particular social group, to include even those women who physically left the relationship, but who remain culturally bolllld to the imrriage) (Respondent’s Br. at 4). We adopt and affirm the decision ofthe Immigration Judge. SeeMatterofBurbano, 201&N Dec. 872, 874 (BIA 1994). The respondent argued before the Immigration Judge she suffered past persecution in Guatemala, and had a well-founded fear of future persecution, on account of her membership in a particular social group, defined as “Guatemalan women, vie~ ofrape subject to persecution” (IJ at 6; Tr. at 48). The respondent bears the burden to establish eligibility for relief from removal See section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R § 1240.8(d). We agree with the Immigration Judge’s conclusion the respondent did not prove her eligibility for asyhun or withholding ofremova~ because she did not establish the requisite nexus to a protected grm.md (IJ at 6). See MatterofC-T-L-, 25 I&N Dec. 341,343 (BIA 2010); Matter of J-B-N-& S-M-, 24 I&N Dec. 208 (BIA 2007). 1n the absence of past persecution on accotu1t of an emnnerated ground, it is the respondent’s burden to show relocation to another part of Guatemala is unreasonable. See 8 C.F.R §§ 1208.13(b)(3)(i), 1208.16(b)(l)(B). The Immigration Judge correctly fulllld the respondent could reasonably internally relocate withll) Guatemala (IJ at 8-9). The Immigration Judge found the respondent did not establish her fear is countrywide in Guatemala (IJ at 8-9). See Matter of C-A-L-, 21 I&N Dec. 754, 757-58 (BIA 1996). The respondent did not establish how her uncles or mother-in-law, from whom she fears harm, would be aware of her location or how they would obtain this information (IJ at 9). Hence, we agree with the Immigration Judge’s detennination that the respondent did not establish relocation to another area of Guateimla would be unreasonable. Based on the foregoing, we conch.Ide the respondent did not establish eligibility for asyhml or withholding ofremoval Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 00000031434 NOT FOR PUBLICATION U.S. Department of Justice J Executive Office for Immigration Review Board of hnmigration Appeals MATIER OF: ~___ ____ (b)(6) (_b)_(6_) l Al Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Lachezar lvaoov Vanchev, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflnnnigration Appeals Before: Couch, Appellate lrrnnigration Judge Opinion by Appellate Innnigration Judge Couch COUCH, Appellate Innnigration Judge 1bis case was last before us on December 31, 2020, when we swnmarily affirmed the Innnigration Judge’s November 1, 2018, decision to deny her applications for relief from removal. The respondent has now filed a timely motion to reconsider our prior decision on February 1, 2021. The Department of Homeland Security has not responded to the motion, which will be denied. The respondent’s motion fails to indicate any error in law or fact, or argument that was overlooked, in our prior decision See generally Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006); Matter of Cerna, 20 l&N Dec. 399 (BIA 1991 ). In her motion, the respondent continues to argue her eligibility for withholding of removal under section 241(b)(3) of the hmnigration and Nationality Act, 8 U.S.C. § 123l(b)(3), and for protection under the Convention Against Torture and Other Cruei Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CAT). In so arguing, the respondent reiterates that while she was not banned in Honduras, she fears returning as a mermer of the particular social group identified as “residents of Alias Navas Colony Number 7” (Respondent’s Motion at 4-5). In our December 31, 2020, decision, we smnmarily affirmed the Innnigration Judge’s decision to deny the respondent’s requests for relief In so doing, we agreed with the Immigration Judge’s assessment of the respondent’s clam, including her arguments regarding whether she feared persecution on account of her merrnership in a viable particular social group (IJ at 3-5). 1 We :find We note that in analyzing whether the respondent’s particular social groups are cognizable, the lrrn:nigration Judge discussed Matter of A-B-, 21 I&N Dec. 316 (A.G. 2018) (Matter of A-B-I) which has since been vacated in its entirety by Matter of A-B-, 28 I&N Dec. 307, 308 (AG. 2021) (Matter of A-B-Ill). Despite the Immigration Judge’s reference to Matter of A-B-1, we conclude the ultimate resuh in the respondent’s case does not change, as the Immigration Judge’s analysis 00000031434 Aj (b)(6) no irror in our previous decision, and the respondent’s disagreement with our conch.Jsion is not a basis for reconsideration. As such, we find no reason to disturb om prior decision, and the following order will be entered. ORDER: The rootion is denied. also relies on precedent decisions Wldistmbed by the vacating of Matter of A-BI (IJ at 3-4). We have not considered Matter of A-B-I in reviewing the respondent’s rootion to reconsider. 2 00000031431 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATIER OF: ._____ Cb_)(6_)__ _,l Al (b )( 6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Andrea N. Cnnnrine, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Baird, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Baird BAIRD, Appellate Inmigration Judge This case was last before us on February 22, 2021, when we dismissed the respondent’s appeal from an Innnigration Judge’s August 27, 2020, decision denying the respondent’s application for deferral of removal llllder the regulations implementing the Convention Against Torture and Other Cruei Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 10020, 1465 U.N.T.S. 85 (entered into force fur United States Nov. 20, 1994)(CAn. The respondent, a native and citu.en of Jamaica, timely rroves the Board pursuant to 8 C.F .R. § 1003.2 to reconsider Olll’ decision The motion will be denied. A motion to reconsider shall specify the errors of fact or law in the prior Board decision and shall be supported by pertinent authority. See 8 C.F.R § 1003.2(b)(l). The respondent has not identified an error of fact or law in our prior decision that would warrant its reconsideration. See section 240(c)(6)(B) of the Act, 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R § 1003.2(b)(2); Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006). In so concluding, we note that nearly all of the arguments raised in the instant motion are the same as arguments that were previously raised in the respondent’s original brief on appeal -in many cases, verbatim -concerning alleged deficiencies and errors in the Immigration Judge’s decision. We specifically considered those arguments, but futmd them unpersuasive, when viewed within the record as a whole, prior to dismissing the respondent’s appeal (BIA at 3-5). See Matter of O-S-G-, 24 I&N Dec. at 58 (stating that “a motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal .. .’). The sole exception is his assertion that the Board did not properly employ the “de novo” review standard in reviewing the Innnigration Judge’s findings that the respondent had not shown past torture or a likelihood of future torture (Respondent’s Mot. at 13-16, 18-19). We discern no merit to this assertion In our prior decision, we indicated that we reviewed questions of law in Immigration Judge’s decisions de novo, and stated that we agreed with the Immigration Judge’s determinations that the respondent was not tortured in the past and had not established a likelihood 00000031431 of torture (BIA at 3-4). This “agreement” denxmstrates de novo review, rather than a review for fuctual error, which we review for “clear error” only. Accordingly, the following order will be entered. ORDER: The motion is denied. 2 000000].1428 NOT FOR PUBUl.:ATION U.S. Department of Justice Executive Office for Immigration Review Board of hnmigration Appeals MATIER OF: FILED Jan 27, 2022 Respondent ON BEHALF OF RESPONDENT: Mark D. Cooper, F.squire IN DEPORTATION PROCEEDINGS On Motion from a Decision of the Board of Imnigration Appeals Before: Hunsucker, Appellate Immigration Judge; Liebowitz, Appellate Immigration Judge; Petty, Appellate Inmigration Judge Opinion by Appellate Inmigration Judge Hunsucker HUNSUCKER, Appellate Immigration Judge This case was previously before the Board on March 3, 2021, when we denied the respondent’s motion to remand and d~sed his appeal from the Immigration Judge’s decision dated February 12, 2020, denying his application fur adjustment of status under section 245(a) of the Imnigration and Nationality Act, 8 U.S.C. § 1255(a), in the exercise of discretion. On May 5, 2021, the respondent filed a motion to reopen and requested a stay of removal I On July 28, 2021, the respondent filed a motion to amend motion to reopen, in which he asserts that bis removal proceedings should be reopened for a hearing on his application fur cancellation of removal because Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) controls in his case. On October 4, 2021, the respondent filed additional evidence in support of his motion, including evidence that his 1997 conviction for Operating Under the Influence has been vacated and dismissed, and that his 2016 conviction was not properly docketed on direct appeal and is in the process of being re-docketed. We will deny the respondent’s motion because the motion and supporting doclllrents do not establish that the respondent warrants adjustment of status as a matter of discretion. Section 240(cX7)(B) of the Act, 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R § 1003.2(c); Matter of Coelho, 20 I&N Dec. 464,472 (BIA 1992) (“where the uhirnate relief is discretionary, the Board may conclude that we would not grant the relief in the exercise of discretion”) citing INSv.Doherty, 502 U.S. 314,323 (1992). In his motion, the respondent contends that he warrants discretionary relief because his negative factors are outweighed by his equities, which include, but are not limited to, “his lengthy On July 30, 2021, we denied the respondent’s request for a stay of removal 00000031428 Al~_(b_)(_6)~ residence in this coW1try, his close family ties, … his steady employment history, … [his] payment of income taxes, … [and] a concrete rehabilitation plan” (Respondent’s Motion at 4). He also argues that his plan to vohmtarily enroll in an inpatient sober house program upon his release from custody affects the overall discretionary detennination (Respondent’s Motion at 3). This Board last considered the respondent’s equities in our decision dated March 3, 2021. While we have considered the fact that the respondent’s 1997 conviction for Operating Under the Influence has been vacated and dismissed and that his 2016 conviction was not properly docketed on direct appeal and is in the process of being re-docketed, as well as his plan to enroll in an inpatient sober house program upon his release from custody, the remainder of the evidence of record does not persuade . us that the respondent warrants adjustment of status as a matter of discretion Section 240(c)(4)(A) of the Act; 8 C.F.R § 1003.l(d)(3)(ii); Matter of Blas, 15 I&N Dec. 626, 628-30 (BIA 1974; A.G. 1976) (a noncitizen seeking discretionary relief bears the burden of showing why administrative discretion should be favorably exercised); Matter of H-A-, 22 I&N Dec. 728, 735 (BIA I999) (“adjustment is a form of relief from deportation or rernovai the grant or denial of which remains within the exercise of this Board’s discretionary authority”); see also Matter of Arai, 13 l&N Dec. 494 (BIA 1970). In our decision dated March 3, 2021, we balanced the various factors relevant to a discretionary analysis -including the respondent’s favorable equities, such as his family and lengthy residence in this cowitry, employment history, and his rehabilitation efforts (BIA at 2-3). We detennined that “the respondent’s criminal history is a serious negative discretionary factor that demonstrates his continuous disregard for the laws of this country and the safety of others” (BIA at 3). We also noted that “the cause of the Immigration Judge’s concern with the respondent’s driving W1der the influence is not just the nwnber of convictions, but the nwnber of arrests, the circurmtances of those arrests, the respondent’s level of intoxication during the incidents, the incidents of driving under the influence that did not result in arrest, and that the arrests spanned 2 decades” (BIA at 2, n2). See Matter of Teixeira, 21 l&N Dec. 316, 321 (BIA 1996) (evidence of criminal activity should be considered in discretionary determinations); Matter of Sotelo, 23 I&N Dec. 201, 205 (BIA 200 I). Again weighing the respondent’s equities, as discussed in our prior decision and as asserted in the respondent’s motion (Respondent’s Motion at 3-4), including the fact that his 1997 conviction was vacated and dismissed, his 2016 conviction is being re-docketed on appea~ and his plan to enroll in an inpatient sober house program upon his release from custody, we reach the same conclusion Id; Matter of Castillo-Perez, 27 l&N Dec. 664, 673 (A.G. 2019); Birchfield v. North Dakota, 136 S. Ct. 2160, 2166 (2016). Thus, for the reasons more fully discussed in our prior decision, the respondent has not established that a favorable exercise of discretion would be warranted in this case. 8 C.F.R. §§ 1003.l(d)(3)(il), 1240.8(d); Matter of Blas, 15 I&N Dec. at 628-30; Matter of Arai, 13 I&N Dec. at 495; Matter ofH-A-, 22 I&N Dec. at 735. Therefore, the respondent’s motion will be denied. Matter of Coelho, 20 l&N Dec. at 472; see also Eide-Kahayon v. INS, 86 F.3d 147, 150 (9th Cir. 1996) (‘ll]n cases in which the ultimate grant of relief is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation), the BIA may leap ahead … and simply determine that even if 2 ‘ • 00000031428 ~… _( b ) …….. _, ____( 6.._) they were met, the movant would not be entitled to the discretionary grant of relief) (citing INS v. Abudu, 485 U.S. 94, I 05 (1988)). Additionally, the respondent argues that because the Order to Show Cause (”OSC’) served upon himdid not contain the date or place of his scheduled deportation hearing, it did not interrupt the requisite continuous physical presence, such that he is eligible for cancellation of removal W1.dersection 240A(b)(l) of the Act, 8 U.S.C. § 1229b(b)(l) (Respondent’s Motion 5-7). We conclude that the respondent’s arguments relying on Niz-Chavez are inapplicable. First, the respondent is not eligible for the relief he seeks, cancellation ofremova~ as he was placed in deportation rather than removal proceedings. Second, unlike the noncitiz.en in Niz-Chavez, the respondent was not issued an NTA in removal proceedings W1.der section 239(a)(l) of the Act; rather, the respondent is in deportation proceedings and was issued an OSC tmder funner section 242Ba(a)(2)(A) of the Act, 8 U.S.C. § 1252b(a)(2)(A). See Niz-Chavez, 141 S. Ct. at 1484 (before the Illegal Immigration Reform and Inunigrant Responsibility Act of 1996, the law expressly authorized the government to specify the place and time for a noncitizen’s hearing “in the order to show cause or otherwise”). The issue of whether the stop-time rule applies to a suspension of deportation case is controlled by Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999). In this case, the respondent did not accrue sufficient continuous physical presence before the OSC was served on him Accordingly, the following order will be entered. ORDER: The motion to reopen is denied. 3 NOT FOR P~Jitl~~JION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: .____Cb_)( 6_) _ __.IAjL-_(b_)( 6_)___, Respondent FILED Jan 18, 2022 ON BEHALF OF RESPONDENT: Thomas J. Tarigo, Esquire IN REMOVAL PROCEEDINGS On Appeal :from a Decision of the Immigration Court, Los Angeles, CA Before: Baird, Appellate Irmnigration Judge; Goodwin, Appellate Immigration Judge; Wilson, Appellate Immigration Judge Opinion by Appellate Immigration Judge Goodwin GOODWIN, Appellate Immigration Judge The respondent, a native and citiz.en of China, appeals from the Immigration Judge’s May 10, 2018, decision denying his applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and for protection under regulations implementing the Convention Against Torture and Other cruei Inhtnnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 10020, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994)(CAT). The Department of Homeland Security has not filed a response to the respondent’s appeal. The appeal will be dismissed. We review an Immigration Judge’s :factual determinations, inchxling credibility determinations, for clear error. 8 C.F.R § 1003.l(d)(i). The Board reviews de oovo questions of law, discretion, judgment, and all other issues in appeals from decisions of Immigration Judges. 8 C.F.R § 1003.l(d)(ii). This case was last before us on August 12, 2013, when we remanded the respondent’s case to the Immigration Judge because the record lacked a full transcript and decision for our review. Upon remand, the Immigration Judge conducted a new hearing to al.low the parties to complete direct and cross-examination and to present evidence. The Immigration Judge denied the respondent’s application for asylum for :failure to provide sufficient corroborating evidence to meet his burden of proof and, alternatively, in the exercise of discretion because the respondent was convicted while in proceedings for the offense of felony solicitation in violation of A.RS. § 132002 (IJ at 3-6). The Immigration Judge also found that the respondent did not meet his burden of proof to show he filed for asylum within 1 year of his arrival in the United States (IJ at 4). 00000032158 ~—(b_)( 6_)_. We affirm the Irrnnigration Judge’s denial of asylwn because the respondent failed to show he merits a favorable exercise of discretion (IJ at 5). The respondent raises no argwnent on appeal to challenge the determination that his 2009 conviction in Arizona (while he was in proceedings) for solicitation to take the identity of another is a serious negative factor that is not offset by COW1tervailing positive equities (IJ at 5). We therefore consider any further claim to this form of relief to have been waived. See Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir. 2009) (argmnents not raised by a party in its opening brief on appeal are deemed waived). As such, we need not address the Immigration Judge’s finding that the respondent did not show his asylwn application was timely (IJ at 4). We further affirm the Immigration Judge’s denial of withholding of removal and protection W1der the CAT based on his failure to produce a witness from his church to corroborate his claim that he has been regularly attending church and practicing Christianity in the United States. As the lrrnnigration Judge foWld, the respondent’s testimony that he regularly attends church and currently is a practicing Christian is central to his claims that he will be persecuted on accoW1t of his religion and will be tortured upon his return to China (IJ at 4). The respondent is required to submit reasonably obtainable evidence to corroborate his testimony upon the Immigration Judge’s request. See section 208(b )(1 )(B)(ii) of the Act. The Immigration Judge notified the respondent that his proffered conoborating evidence was insufficient and provided him with an opportunity to produce additional evidence and ordered him to corroborate his current religious affiliation and his continued church attendance by bringing his pastor to testify at the next hearing (Tr. at 38-40, 47-50). 1 The Immigration Judge complied with the decision in Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir. 2011) (holding that when an lnnnigration Judge determines an applicant should provide evidence to corroborate testimony, the applicant must be given notice of the corroboration required and an opportunity to either provide that corroboration or explain why he cannot do so). In this case, after the Immigration Judge notified him of the need for a corroborating witness the respondent filed a letter indicating that a witness narred I O rhv,;) , I I (b)(6) I would testify. However, on the day of the hearing his attorney decided not to present that witness (Tr. at 52). Instead, the respondent filed a letter from a Sunday school teacher at a Lutheran church stating he ”has attended SW1day worship and the Bible Study” and a letter from a pastor, not from his church, for whom the respondent did some home improvement repairs (Exh. 2U). The respondent indicated he provided all available evidence, and he argues on appeal that the evidence provided, combined with his credible testimony, carries his burden that he is entitled to relief See Tr. at 53-55; Respondent’s Br. at 7. Notably, the respondent did not produce a witness, as requested by the Immigration Judge, to testify in support of his claim, including the specific contention that he was a regular attendee at two different churches in California (Tr. at 52-54). In the absence of the corroborative evidence requested by the 1 The transcript references in our decision refer to the transcript of the hearings in 2017, after we remanded the case to the Immigration Judge for a complete record. Ahhough we have considered the entire transcript, for clarity we cite here to the relevant portions of the new transcript that postdates our 2013 remand. The creation of the new transcript has had no substantive effect on the completeness of the record or our adjudication of this appeal 2 0000003 2158 ~’—(b_)( 6_)—–‘ Immigration Judge, the respondent did not meet his burden of proof and ~ unable to establish his eligibility for withholding of removal W1der section 241(b)(3) of the Act See Aden v. Holder, 589 F.3d 1040, 1045 (9th Cir. 2009) (stating that an asylum application “can be turned down for failing to provide corroboration where he does have it or could reasonably obtain it”). Further, given the lack of objective corroborative evidence tmderlying the respondent’s claim, we affirm the finding that the record lacks adequate evidence from which we could conclude that he faces a probability of torture in China (IJ at 4). 2 Accordingly, based on the foregoing, we will dismiss the appeal on the entry of the following order. 0 RDER: The appeal is dismissed. 2 We base our decision on the respondent’s lack of corroboration of his church attendance in the United States, and we do not reach the lmmigration Judge’s finding.5 that the respondent did not adequately corroborate his detention, interrogation, and beating.5 in China or his travel history from China to the United States OJat 4). 3 00000031308 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~–~(~b)~(6~) –~l Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Juliette E. Gomez, Esquire ONBEHALF OF OHS: Daniella D. Lees, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Third Circuit Before: Mann, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mann MANN, Appellate Innnigration Judge This matter is before ‘the Board pursuant to a May 19, 2021, order of the United States Court of Appeals for the Third Circuit. The Third Circuit granted the parties’ stipulated rmtion to remand for further consideration of this case in light of the United States Supre:rre Court’s recent decision in Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021). Presently pending before the Board is the· respondent’s and the Department of Homeland Security’s joint motion to reopen and remand for consideration in the first instance of the respondent’s application of cancellation of rermval for certain nonpermanent residents m1der section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229(b). The joint rmtion to reopen will be granted, and the record will be remanded for further proceedings on the application for cancellation of rermval The following order is entered. ORDER: The joint rmtion is granted, and the record is remanded for further proceedings consistent with this order and for the entry of a new decision. ;, 00000031500 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ._ __ )_( 6′”-) _,lAj (b )( 6) (….;.b __ Beneficiary ,__ ___ __ __,lPetitioner (b_)(_6) FILED JAN 2 6 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Michael Ammerman, Associate Counsel IN VISA PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner has appealed from the November 22, 2019, decision of the U.S. Citizenship and hnmigration Services (CIS) Director, denying the visa petition which was submitted on behalf of the beneficiary, as the child of a lawful permanent resident. We review all questions arising in appeals from decisions of CIS officers de novo. See 8 C.F .R. § 1003 .1 ( d)(3 )(iii). The appeal will be dismissed. The Director instructed the petitioner to submit additional evidence in support of the visa petition, detailing the forms of evidence that might be acceptable. Specifically, the Director’s April 30, 2019, Request for Evidence (RFE) requested secondary evidence to support the beneficiary’s birth certificate, which reflected a delayed registration date. The Director indicated the types of secondary evidence that might be acceptable. The Director also informed the petitioner of the option of pursuing DNA testing to prove the claimed relationship. We agree with the Director for the reasons stated in the decision that the evidence submitted in response to the RFE did not establish the claimed relationship between the petitioner and the beneficiary. The petitioner has proffered additional evidence on appeal; however, we note that where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, this Board will not accept evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 l&N Dec. 533 (BIA 1988). Moreover, no DNA test results have been submitted to date, which may have warranted a remand. The petitioner may file a new visa petition on the beneficiary’s 00000031500 Al~_(_b)_(6)_~ behalf that is supported by competent evidence, including DNA evidence, that the beneficiary is entitled to the status sought under the immigration laws. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUBLICATION 00000031425 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: .__ ___ ..>..:(b”‘-‘-)(.::….,6)’——‘lAl (b )( 6) Beneficiary .__ _____ ____ __.lPetitioner (b_)_(6_) FILED JAN 2 7 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF OHS: David Hyer, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Irving, Texas Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge In a decision dated June 4, 2020, the Field Office Director denied the Petition for Alien Relative (Form I-130) submitted on behalf of the beneficiary. An appeal from the decision of an officer of the Department of Homeland Security (“DHS”) must be filed within 30 days of the service of the decision. See 8 C.F.R. § I 003.3(a)(2). The appeal was due on July 6, 2020. However, the Notice of Appeal was not filed until July 8, 2020. Therefore, the appeal will be dismissed as untimely. 1 ORDER: The appeal is dismissed as untimely. 1 The petitioner acknowledges untimely filing in her Notice of Appeal. Even if timely filed, a memorandum of the United States Citizenship and Immigration Service present in the record correctly notes that the visa petition cannot be approved without submission of DNA test results, or without first interviewing the petitioner in the absence of DNA testing, neither of which occurred in this case. See Policy Memorandum PM-602-0064. U.S. Department of Justice Executive Office for Immigration Review Board ofhnmigration Appeals MATTER OF: ..__(b_)( 6_)_ _,lAl (b )( 6) Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Nazmul Islam, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Baird, Appellate lmrnigration Judge Opinion by Appellate Imrnigration Judge Baird BAIRD, Appellate Immigration Judge This matter was last before us on May 7, 2021, when we dismissed the respondent’s appeal from the Immigration Judge’s decision denying the respondent’s applications for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and request for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. I 0, 1984, S. Treaty Doc. No. 100-20, 1465 U.N .T.S. 85 ( entered into force for United States Nov. 20, 1994)(“CAT”), 8 C.F.R §§ 1208.16-1208.18. We will deny the motion. In a December 9, 2020, decision, an Immigration Judge denied the respondent’s applications for asylum, withholding of removal, and protection mder CAT for :failure to meet his burdens of proof due to the respondent’s lack of credibility and insufficient and unreliable corroboration. We upheld the Immigration Judge in our May 7, 2021, decision. The respondent timely moved to reopen proceedings on Jtme 7, 2021, seeking reopening and remand “due to the covid-19 [sic] pandemic and violence in Bangladesh” (Respondent’s Mot. at 1 ). The respondent generally asserts without detail, argument, or documentary support that he will be a target of violence because he is not in the majority party and that he was arrested under :false pretenses (id.). The respondent baldly asserts that all flights to Bangladesh are canceled, that he is a member of a ”susceptible class,” and that political violence continues in Bangladesh (id.). The respondent asserts that he is ‘obtaining documents” from Bangladesh, but requires extra time because of the pandemic (id.). He also asks that we remand the record sohe can provide additional evidence to the Immigration Court (id. at 2). The respondent has not met his burden to demonstrate that the reopening of proceedings for finther consideration of his applications for asyhnn, withholding ofremoval, and protection under CAT is warranted. See 8 C.F.R § 1003.2(c); Matter of Coelho, 20 I&N Dec. 464,473 (BIA 1992). Al (h’\(6) 00000031497 “A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R § 1003.2(c)(l). Here, the respondent only provides the vague and unsubstantiated contention that he will be a target of political violence in his native Bangladesh (Respondent’s Mot at I). While he alleges that he is in the process of obtaining documents from Bangladesh, he does not state what documents he is trying to obtain, why the documents were previously unavailable, or how the purported evidence likely would change the outcome of the case (see id. at 1-2). See 8 C.F.R. § 1003.2(c)(l); Matter of Coelho, 20 I&N Dec. at 473. Furthermore, the respondent does not address how the documents would affect his negative credibility determination (see id. at 1-2). See generally Matter of F-S-N-, 28 I&N Dec. 1, 3 (BIA 2020) (a motion to reopen based on changed country conditions where the respondent’s relief was denied due to an adverse credibility determination must either overcome that negative credibility determination or show that the new claim is independent of it). Accordingly, we will issue the following order. ORDER: 1he respondent’s motion to reopen is denied. 2 NOT FOR PUQ~iION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ,__ __ 6_) __,I.,A._I-‘-‘-(h’-“)(-‘-‘-6)””——–1 Cb_)_(__ Beneficiary ,__ __ (_b)_(6_)_~l Petitioner FILED JAN 2 8 2022 ON BEHALF OF: Cristen Ann Mercer, Esquire ON BEHALF OF DHS: Daniel B. Gilbert, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Royal Palm Beach, FL Before: Couch, Appellate Immigration Judge Opinion by AppelJate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner appeals from the January 31, 2020, decision of the Field Office Director (Director) that denied the visa petition filed on behalf of the beneficiary as the spouse of a United States citizen. The appeal will be dismissed. We review the record de novo. See 8 C.F.R. § 1003.1 (d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). As summarized at pages 2-3 of the Director’s decision, the petitioner and beneficiary gave inconsistent responses to questions about basic details of their household and daily lives when interviewed. The beneficiary was unable to spell the names of the beneficiary’s children. Moreover, neither the beneficiary nor the petitioner could provide the date of birth for the other’s children even though two of the beneficiary’s children and one of the petitioner’s children shared the same birth month and had birthdays within five days of one another. When the petitioner and the beneficiary were asked to sketch the floor plan of their home, the drawings did not match. The beneficiary and petitioner also testified inconsistently about when and what they ate for dinner the night before the interview. The beneficiary was also unable to provide the petitioner’s work schedule for the week before the interview. Finally, when it was established that the petitioner had gone to a medical appointment for herself during the previous week, the beneficiary testified that the appointment had been for one of their children. The beneficiary and petitioner were unable to explain the discrepancies when confronted. 00000030963 Al~_(_b)_(6_) ~ In addition to the foregoing, a field investigation at the claimed common residence failed to show that the couple resided together. The petitioner admitted to investigators that the beneficiary did not live at that address, and she stated that she was only trying to help a friend. The petitioner volunteered that she and beneficiary met at her house on the day of the marital interview so they could drive there together. The Director concluded that the record failed to establish a bona fide marriage. Therefore, the visa petition was denied. On appeal, the petitioner, through her counsel, reviews and attempts to explain, minimize, or deny the existence of the discrepancies noted in the Director’s decision (Petitioner’s Br. at 3-6). Counsel repeatedly asserts that the discrepancies noted in the Director’s decision do not constitute sufficient evidence to prove that the petitioner and the beneficiary were not in a valid marriage. It is claimed that the field investigation occurred during a brief period when the couple lived apart due to a marital dispute, froml (b)(6) I However, the petitioner does not explain why she told investigators why she was simply helping a friend, and then volunteered that the couple were living apart months before the site visit, when they met at the petitioner’s home to drive to the marital interview together. The petitioner argues that the beneficiary did not know how to spell the names of her children due to his lack of familiarity with the English language, and asserts that it should not be held against him. Similarly, the petitioner asserts that the ignorance of the birthdates of their respective stepchildren should not be held against the couple because they freely admitted to a lack of such knowledge, and the beneficiary was able to correctly state the ages of his stepchildren. However, the petitioner does not explain why they would not know the birthdates of the children whose birthdates occur relatively close together, in the same month. The petitioner attempts to minimize the remaining discrepancies involving the drawings of the home floorplan, their dinner before the marital interview, and the inconsistent testimony regarding the petitioner’s work schedule and medical appointment. Counsel asserts that the drawings are actually very similar, although he indicates that he has not actually seen them. Counsel speculates that the testimony regarding the dinner is inconsistent because the beneficiary and petitioner ate different items at the same meal, or they remembered the time of the meal differently. It is argued that the beneficiary’s ignorance of the petitioner’s precise work schedule during the previous week does not undercut the validity of the marriage because the beneficiary was able to correctly state the petitioner’s usual work schedule. Similarly, counsel notes that while the beneficiary was mistaken about whether the medical appointment was for his wife or the children, he should be given credit for knowing that there was a medical appointment of some sort. Finally, counsel emphasizes that the beneficiary and petitioner were able to provide consistent answers to questions about a number of other details about their marriage. Upon our de novo review, we concur with the Director’s analysis and conclusions. The petitioner’s brief on appeal appears to reflect a fundamental misunderstanding of the burden of proof in this matter. The Director is not required to disprove the validity of the petitioner’s 2 00000030963 Al~_(_b )_(6_) ____. marriage. Rather, where the validity of a marriage is called into question, it is the petitioner’s responsibility to resolve any ambiguities in the record with independent, objective evidence and establish that the marriage was not entered into for the primary purpose of evading the immigration laws. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1989); Matter of Phillis, 15 I&N Dec. 385, 386 (BIA 1975). Here, there were inconsistent answers provided during the marital interview and site investigation. More.over, the petitioner’s admission to investigators that she and the beneficiary did not live together even at the time of the marital interview contradicts the claim on appeal that the couple lived apart only temporarily, and strongly suggests a sham marriage for immigration purposes. These factors cast serious doubt on the bona fides of the petitioner’s marriage. We agree that the petitioner failed to adequately explain the inconsistencies or submit evidence sufficient to overcome that doubt. Therefore, we will uphold the denial of the visa petition. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 00000030833 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ,….._____ ___ AJ~-~(h=’\(~6)_~(b_)_(6_) __,,l Beneficiary .__—-“(b”‘””)_( 6″-) __ __,lPetitioner FILED JAN 2·g 2022 ON BEHALF OF PETITIONER: Osamah A. Odeh, Esquire ON BEHALF OF OHS: Nicole Flores, Associate Counsel . IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Chicago, IL Before: Couch, Appellate Immigration Judge .Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge In a decision dated May 20, 2019, the Field Office Director (Director) denied the Petition for Alien Relative (Form 1-130) submitted on behalf of the beneficiary. An appeal from the decision of an officer of the Department of Homeland Security must be filed within 30 days of the service of the decision. 8 C.F.R. § 1003.3(a)(2). The appeal was due on Wednesday June 19,2019. The record reflects the Notice of Appeal (NOA) was filed on June 25, 2019, 36 days after the denial was issued, and payment was not submitted until July 3, 2019, 44 days after the denial was issued. Thus, we summarily dismiss the appeal as untimely. 8 C.F.R. § 1003.l(d)(2)(i)(G). Accordingly, the following order will be entered. ORDER: The petitioner’s appeal is summarily dismissed. NOT FOR PUBilll~TION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—~(~b)~(6~) —~l Al (b)(6) Beneficiary ~—(b_)(_6) __ ~1Petitioner FILED JAN14 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF OHS: Mitsie Smith, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Potomac Service Center Before: Cassidy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge ORDER: The petitioner has filed an appeal from the Director’s April 29, 2020, decision denying the visa petition filed on behalf of the beneficiary as the parent of a United States citizen. On appeal, counsel for the U.S. Citizenship and Immigration Services requests that the record be remanded for further proceedings. The petitioner does not indicate any opposition to remand. Accordingly, the record is remanded for further proceedings and the entry of a new decision. 00000031422 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~–(b_)(_6)_~1 AJ (b)(6) Beneficiary .__ __ (b_)(_6) _,I__ Petitioner FILED JAN2 7 2022 ON BEHALF OF PETITIONER: Matthew S. Kriezelman, Esquire ON BEHALF OF OHS: Debra G. Gordon, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Chicago, IL Before: Couch, Appellant Immigration Judge Opinion By: Appellant Immigration Judge Couch COUCH, Appellant Immigration Judge The appeal is amenable to summary dismissal because the Notice of Appeal to the Board of Immigration Appeals from a decision of a Department of Homeland Security Officer (Form EOIR 29) does not contain statements that meaningfully apprise the Board of specific reasons underlying the challenge to the Director’s decision. See 8 C.F.R. § 1003.l(d)(2)(i)(A); Matter of Lodge, 19 I&N Dec. 500 (BIA 1987); Matter of Valencia, 19 I&N Dec. 354 (BIA 1986); see also 8 C.F.R. § 1003.3(b) (“The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified.”). Additionally, the petitioner, through counsel, indicated on the form EOIR-29 that he intended to file a separate written brief or statement after filing his Notice of Appeal (NOA). However, there is no indication in the record that the petitioner filed a separate brief or statement after filing his NOA. Accordingly, the petitioner’s appeal is also amenable to summary dismissal under the provisions of 8 C.F.R. § 1003. l(d)(2)(i)(E). Accordingly, the following order will be entered. ORDER: The petitioner’s appeal is summarily dismissed. U.s:Department of Justice Executive. Office for Immigration Review Board of Immigration Appeals \ -.———-‘——-~ ATTEROF: ! _. (b)(6) LAl (b)(6) FILED \ B~ficiary JAN 27 2022 \ \ (b)(6) lPetitioner ON BEHALF OF PETITIONER: Olusegun Asekun, Esquire ON BEHALF OF DHS: David Hyer, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Irving, TX Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner appeals from the Director’s July 10, 2020, decision denying the visa petition submitted on behalf of the beneficiary as the spouse of a United States citizen. See section 20 I (b) of the Immigration and Nationality Act, 8 U.S.C. § 115 l(b). The Department of Homeland Security opposes the appeal. The appeal will be dismissed. We review all questions arising in appeals from decisions of United States Citizenship and Immigration Services officers de novo. See 8 C.F.R § 1003.1 (d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Mauer of Pazandeh, 19 I&N Dec. 884, 887 (BIA 1989). Where the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that it was not entered into for the primary pw·pose of evading the immigration laws. 8 C.F.R. § 204.2( a)(l )(iii)(B) ( evidence to establish the bona tides of a marriage includes proof of joint ownership of property, proof of joint tenancy of a common residence, proof of commingling of financial resources, birth certificates of children born of the petitioner and the beneficiary, and affidavits of others having knowledge of the bona fides of the marital relationship). We adopt and affirm the Director’s decision denying the petitioner’s visa petition for the reasons stated in the decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). r / 00000031158 Specifically, we affirm the Director’s determination that the petitioner did not submit sufficient evidence to establish a bona fide relationship with the beneficiary. We note that the petitioner has not contested the Director’s specific inconsistency findings or the findings regarding shortcomings in the evidence. Rather, the petitioner generally argues that the Director denied his due process rights. We are unpersuaded by this argument, and the record reflects that the Director fully considered and took into account all relevant evidence in regards to the petitioner’s visa petition. Overall, the petitioner has not shown to have suffered prejudice as a result of any claimed due process violations. See Matter of D-, 20 l&N Dec. 827, 831 (BIA 1994) (finding that a party has been denied a fair hearing only if he has been prejudiced by some deficiency so as to deprive him of due process). Inasmuch as the respondent has not persuasively addressed inconsistent testimony and the documentary evidence submitted is insufficient to establish the existence of a bona fide marital relationship, we will dismiss the appeal. The petitioner is free to file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is entitled to the status sought under the immigration laws. ORDER: The appeal is dismissed. 2 ‘J NOT FOR PUgffelA’fION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: Beneficiary .__ __ __ (_b_)(6_) __,~ Petitioner FILED JAN 27 2022 ON BEHALF OF PETITIONER: Danny C. Campbell, Esquire ON BEHALF OF DHS: David Hyer, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Irving, TX Before: Cassidy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge The petitioner has appealed from the September 19, 2019, Director’s decision denying the immigrant visa petition (Fonn I-130) submitted on behalf of the beneficiary as the spouse of a United States citizen. The record will be remanded. We review questions of law, discretion, judgment, and fact arising in appeals from decisions of U.S. Citizenship and Immigration Services (USCIS) officers de novo. See 8 C.F.R. § 1003.1 (d)(3)(iii). The United States citizen petitioner applied for immediate relative status for the beneficiary as her spouse pursuant to section 20l(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151 (b )(2)(A)(i). The Director denied the petition after concluding that the petitioner had not met her burden of proving that her marriage to the beneficiary is bona fide. See Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter of Phillis, 15 l&N Dec. 385 (BIA 1975); Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). In denying the petition, the Director relied upon certain findings stemming from USCIS interviews of the petitioner and the beneficiary on May 17, 2013, and July 17, 2013. However, the record does not contain any evidence relating to the content of the interviews. The petitioner and beneficiary have challenged the Director’s findings as to the interviews. It also appears that the record may not contain all of the evidence submitted by the petitioner with’her May 20, 2019, response to USCIS’s April 18, 2019, Notice oflntent to Deny. For example, the petitioner states J ) I 00000031155 ~,__(_b )_(6_)___J in her cover letter that she is submitting family photos, and she mentions photos of the dog whose color is in dispute, but no photographs are included in the record with the petitioner’s response. Finally, the record does not contain the petitioner’s employment records from which USCIS drew conclusions regarding her insurance coverage and emergency contacts. Given that the record does not contain all of the evidence, including the critical evidence relating to the petitioner’s and beneficiary’s USCIS interviews, we will remand the matter to the Director to include in the record all missing evidence and then to return the record to us for our review. ORDER: The record is remanded for further proceedings. 2 NOT FOR PUBl!IJ~{l2ION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (_b)_(6_) (b)(6) ,…______ ___ ___,lAJ Beneficiary ._ __ 6….) ____ lPetitioner_,_(b”””)”””‘( FILED JAN27 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF OHS: Michael Ammerman, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Owen, Appellate Immigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge The petitioner has appealed the September 18, 2019, Director’s decision denying the immigrant visa petition (Form 1-130) filed on behalf of the beneficiary as the daughter of a United States lawful permanent resident. The record will be remanded. We review all questions arising in appeals from decisions of U.S. Citizenship and Immigration Services (USCIS) officers de novo. See 8 C.F.R. § 1003.l(d)(3)(iii). In a Notice of Intent to Deny (NOID) sent to the petitioner on May 3, 2019, USCIS instructed the petitioner to submit additional evidence in support of the visa petition, specifically secondary evidence to establish that the beneficiary is the petitioner’s daughter, in light of the fact that the petitioner had omitted to claim the beneficiary as his child on a prior USCIS filing. The NOID invited the petitioner to submit “additional evidence,” but it did not describe the types of documentary evidence that the petitioner could submit to prove the relationship. Nor did the NOJD inform the petitioner that he had the option of pursuing DNA testing if he did not have sufficient documentary evidence to prove that the beneficiary is his daughter. See 8 C.F.R. § 204.2(d)(2)(i)( vi). 00000031152 Al1-_.:….;.(b..:..:.)(..;..:6) _ _. We therlfore find it appropriate to remand the record. On remand the Director should alert the petitioner to the types of evidence that he can submit to prove his relationship with the beneficiary, including DNA evidence. Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings. 2 NOT FOR Purii’.’.fc’NfION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~—~(b~)(6 __)___ ~l Aj (b)(6) Beneficiary ____ (b_)(_6) -IPetitioner FILED JAN.272021 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF OHS: Michael Ammerman, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Owen, AppelJate Immigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Immigration Judge The petitioner has appealed the March 10, 2020, Director’s decision denying the immigrant visa petition (Form 1-130) submitted on behalf of the beneficiary as the child of a lawful permanent resident. We review all questions arising in appeals from decisions of U.S. Citizenship and Immigration Services (USCIS) officers de novo. 8 C.F.R. § 1003.1 (d)(3)(iii). The appeal will be dismissed. In a Request for Evidence (RFE) sent to the petitioner on October 23, 2019, USCIS instructed petitioner to submit additional evidence in support of the visa petition filed on behalf of the beneficiary, specifically evidence to establish that the petitioner is the beneficiary’s mother, in light of the fact that the beneficiary’s birth certificate reflects a birth registration approximately 18 years after his birth. In the absence of a birth certificate issued soon after the beneficiary’s birth, secondary evidence of the relationship is acceptable but is most persuasive if it dates from childhood. Evidence may include government, medical, religious, or school records that identify the petitioner as a parent of the beneficiary. Sworn affidavits of those having personal knowledge of the fact may also be accepted (e.g., health care workers, clergy, relatives, and close friends with personal knowledge of the birth). 8 C.F.R. §§ I 03.2(b), 204.2(d)(v). DNA test results may also be submitted. 8 C.F.R. § 204.2(d)(vi). The RFE issued to the petitioner explained these options. When a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, ; 00000031149 Al (b)(6) as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence. Matter of Rehman, 27 I&N Dec. 124 (BIA 20 I7). We have considered all of the evidence submitted by the petitioner, including the delayedregistered birth certificate submitted for the beneficiary; the petitioner’s own personal statement; the statements by the beneficiary’s father, brother, and a family friend; 1 photographs of the beneficiary; the beneficiary’s Primary School Leaving Certificate; the beneficiary’s baptismal certificate;2 and the letter from a lecturer atl (b)(6) ~ We have considered the claim that registration of births was not common in the area of the beneficiary’s birth at that time. For the reasons stated in the Director’s decision, we affirm the determination that the petitioner has not met her burden of showing by a preponderance of evidence that the beneficiary is her child. However, the petitioner may file a new visa petition on the beneficiary’s behalf that is supported by the evidence necessary to establish eligibility under the immigration laws. See 8 C.F.R. § 204.2(d). 3 ORDER: The appeal is dismissed. 1 We do not agree with the Director’s description of the three statements as “boilerplate.” Although the statements appear to have been printed on the same computer, the statements contain individualized assertions. 2 We do not agree with the Director’s assumption as to the lack of safeguards to protect the records maintained at the church that issued the beneficiary’s baptismal certificate. However, the certificate does not make clear that the original church records from 1999, the year of the baptism, listed the petitioner as the beneficiary’s mother. 3 If the petitioner wishes to file another immigrant visa petition on behalf of the beneficiary, she and the beneficiary may wish to undergo DNA testing. The instructions for undergoing such tests and having the results sent to USCIS were included in the RFE sent to the petitioner. The RFE instructed the petitioner to consult http://www.aabb.org to locate accredited laboratories that can arrange for testing in the United States and abroad. Although the petitioner submitted evidence on appeal that she had initiated DNA testing, no DNA test results have been submitted. A remand will not be granted for the purpose of allowing the petitioner and the beneficiary to undergo DNA testing, because this option was explained in the RFE. 2 NOT FOR PtmL~~TION ‘ U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ,…_____ (_b)_( 6_) ___ _,lAl (b )( 6) Beneficiary (b)(6) IPetitioner FILED JAN 27 2n12 ON BEHALF OF PETITIONER: Ishrat Sarni, Esquire ON BEHALF OF OHS: Michael Ammerman, Associate Counsel IN VISA PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge ORDER: This Board has been advised that the petitioner’s appeal has been withdrawn. See 8 C.F .R. § 1003.4. Since there is nothing now pending before the Board, the record is returned to the Director without further action. NOT FOR PtmM(:;-t\iTION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~__ (_b)_(6_)-~l Al (b)(6) Beneficiary ~_(_b)_(6_)~l Petitioner FILED JAN27 2022 ON BEHALF OF PETITIONER: Ishrat Sarni, Esquire ON BEHALF OF OHS: Michael Ammennan, Associate Counsel IN VISA PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge, Couch COUCH, Appellate Immigration Judge ORDER: This Board has been advised that the petitioner’s appeal has been withdrawn. See 8 C.F.R. § 1003.4. Since there is nothing now pending before the Board, the record is returned to the Director without further action. 00000032058 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: FILED Jan 25, 2022 ~—-(_b)_(6_) ____ ___.I~.__(b_)(_6)____. Respondent ON BEHALF OF RESPONDENT: James D. Brousseau, :Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, New York, NY Before: Wilson, Appellate Immigration Judge Opinion by Appellate Immigration Judge Wilson WILSON, Appellate Immigration Judge The respondent is a native and citiz.en of El Salvador. She appeals from an Irrnnigration Judge’s Jtm.e 5, 2018, decision denying the respondent’s application for witbhokling of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), as well as her request for protection pursuant to the regulations implementing the Convention Against Torture and Other Cruel, Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). The appeal will be dismissed. We review an Immigration Judge’s findings of fuct, including findings regarding witness credibility and what is likely to happen to the respondent, under a:”clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all o~er issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F.R § 1003.l(d)(3)(n). We adopt and affirm the Immigration Judge’s decision Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). The lnnnigration Judge’s adverse credibility finding is not clearly erroneous under the totality of the circumstances. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Matter of J-Y-C-, 24 I&N Dec. 260, 265 (BIA 2007). First, the respondent’s testimony was internally inconsistent, and inconsistent with her asyhun application and supporting documentation regarding the age at which the second alleged incident of rape 1 occWTed by her distant cousin (at 15 years of age or at 19 years of age) (U at 3, 6-7; Tr. at 36, 37, 42-43; Exh. 3, Respondent’s Affidavit at 1), and for how long after that second rape did her cousin continue to sexually abuse her (1 year or multiple years) (IJ at 3, 4, 7; Tr. at 36, 42, 43, 51). The respondent’s 1 The respondent testified that she was first raped at 14 years of age by a man in her neighborhood (U at 2; Tr. at 29-30). 0000003 2058 statement that she was raped a second titre in El Salvador on September 28, 2014, also conflicts with record evidence that the respondent left fur the United States on September 10, 2014 (IJ at 4, 7; Tr. at 27, 41, 42; Exh. 3, Respondent’s Affidavit at 1). Her dismissal of these inconsistencies as nothing more than a mistake and a misunderstanding is W1availing and does not sufficiently explain the inconsistencies (Respondent’s Br. at l 0). 2 See Matter of A-S-, 21 I&N Dec. 1106, l l 09 (BIA 1998). Second, the Immigration Judge fuund that the respondent testified in a hahing and sometimes vague manner, and had diflicuhy remembering dates and answering questions concerning the claimed sexual abuse (IJ at 6). We defer to the Immigration Judge’s demeanor assessment here because of her unique observational advantage in deciding whether the respondent’s testimony had the ring of truth about it. Anderson v. City of Bessemer City, NC., 470 U.S. 564, 575 (1985) (holding that credibility :findin~ are entitled to great deference because “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s llllderstanding of and belief in what is said.’); see also Matter of J-Y-C-, 24 l&N Dec. at 265 (affirming an adverse credibility finding based in part on the Immigration Judge’s assessment of the witness’s demeanor). The adverse credibility finding is a dispositive issue on appeal because the respondent’s withholding ofremoval clam under section 24l(b)(3) of the Act and the CAT are based on the same set of facts (IJ at 9). The respondent’s argument to the contrary is not persuasive (Respondent’s Br. at 13-14). Having affirmed the adverse credibility finding, we need not address the issues of whether the Immigration Judge erred in oot requiring the respondent to articulate her particular social group (Respondent’s Br. at 14-15), or her assertion that she should be eligible for asylwn under section 208 of the Act because she is a member of the class certified in Mendez-Rojas v. Johnson, No. Cl6-1024, 2017 WL 1397749 (W.D. Wash. Jan. 10, 2017) (Respondent’s ”Notice of Mendez-Rojas Class Mermership” filed February 25, 2020). See INSv. Bagamasbad, 429 U.S. 24, 25-26 (1976) (per curiam) (“As a general rule, courts and agencies are not required to make find in~ on issues the decision of which is tmnecessary to the resuhs they reach.”). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 To the extent that the respondent contends that her prior counsel was ineffective in not addressing the inconsistencies during the hearing (Respondent’s Br. at 10, 11), the respondent has not complied with the procedural requirements of Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988), which governs a claim of ineffective assistance of counsel 2 NOT FOR PUBLICATION 00000030960 U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: ._ __ __ Al._—–‘(‘-‘-b6′-) _, (b_)(_6) _,l )..:…( Beneficiary .__ __ _ Petitioner (b_)(_6) ____.I FILED JAN 2 8 2022 ON BEHALF OF PETITIONER: James C. Tai, Esquire ON BEHALF OF DHS: Robert A. Brown, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland, Oakland Park, FL Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge ORDER: The petitioner appeals from the Director’s decision dated September 1, 2020, denying the immigrant visa petition that he filed on behalf of the beneficiary as the spouse of a United States citizen. On appeal, counsel for the United States Citizenship and Immigration Services has requested that the matter be remanded to the Director for further processing of the petition. The petitioner has not indicated any opposition to the request for remand. Accordingly, the decision of the Director denying the visa petition is vacated, and the record is remanded to the Director for further proceedings, and for entry of a new decision. NOT FOR PUIIBW1’.4f1ON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (_b)_(6) (b)(6) ~___ ___ ~1Al Beneficiary ~-(b_)_(6_) -~~ Petitioner FILED JAN 27 2022 ON BEHALF OF PETITIONER: Prose ON BEHALF OF DHS: Peter N. Schmalz, Deputy Chief Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Vermont Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner has appealed from the decision of the Service Center Director dated June 25, 2020, denying the visa petition filed on behalf of the beneficiary to accord him benefits under the Immigration and Nationality Act (“Act”) as the unmarried son of a lawful permanent resident of the United States. The appeal will be dismissed. We review the record de nova. See 8 C.F.R. § 1003.l(d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Moraga, 23 I&N Dec. 195, 197 (BIA 2001); Matter of Brantigan, 11 l&N Dec. 493, 495 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter o_fMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997). A petition must be accompanied by all required documents. See 8 C.F.R. § 103.2(b). A parent filing a visa petition for a child must submit a timely-registered birth certificate for the child. See 8 C.F.R. § 103.2(b). A properly certified complete and accurate English translation must also be submitted along with the original non-English language document. See 8 C.F.R. § 103.2(b)(3). On November 25, 2019, the Director advised the petitioner that the English translation of the beneficiary’s birth certificate did not include all information on the foreign language original. The Director asked the petitioner to submit a complete and accurate English translation of the beneficiary’s birth certificate. In response, the petitioner submitted another English translation that did not include all information on the foreign language original. The Director denied the visa petition because the submitted English translation was not a complete and accurate English translation of the foreign language original. r. 00000031140 On appeal, the petitioner submitted another English translation of the beneficiary’s birth certificate. However, it is incomplete like the other submitted translations. Consequently, the petitioner has not submitted all needed documentation for approval of the visa petition. The petitioner may file a new visa petition on the beneficiary’s behalf with this evidence and any additional needed evidence needed to establish eligibility under the immigration laws. See 8 C.F.R. § 204.1 (f). Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUBLICATION 00000030942 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: Beneficiary .._ ___ ___ (‘-b~)(–‘6) _,!Petitioner FILED JAN 27 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Charlotte Wilder, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Montante, Appellate Immigration Judge Opinion by Appellate Immigration Judge Montante MONT ANTE, Appellate Immigration Judge The petitioner has appealed from the decision of the Service Center Director dated February 27, 2020, denying the visa petition filed on behalf of the beneficiary to accord him benefits under the Immigration and Nationality Act (“Act”) as the unmarried son of a United States citizen. The appeal will be dismissed. We review the record de novo. See 8 C.F.R. § 1003. l(d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Moraga, 23 I&N Dec. 195, 197 (BIA 2001); Malfer of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Martinez, 21 l&N Dec. 1035, 1036 (BIA 1997). A petition must be accompanied by all required documents. See 8 C.F.R. § 103.2(b). In order for a father to confer immigration benefits on a child, in addition to showing the fatherchild biological relationship, the petitioner must show(]) that he married the beneficiary’s mother while the beneficiary was under age 18; or (2) that the beneficiary was legitimated under the law of the petitioner’s residence or under the law of the beneficiary’s residence while the beneficiary was under age 18; or (3) that a bona fide parent-child relationship was established while the beneficiary was still unmarried and under age 21. See 8 C.F.R. § 204.2(d)(iii); Matter of Pineda, 20 l&N Dec. 70, 71 (BIA 1989) (to confer immigration benefits on a child, a petitioner must establish that his child was legitimated prior to the child reaching age 18); Matter of Vizcaino, 19 I&N Dec. 644, 646 (BIA 1988) (in all cases where immigration benefits are sought by virtue of the relationship of an illegitimate son or daughter to his or her natural father, it must be shown Al.__(..ab…,.)(-‘-‘6)__. 00000030942 that a “bona fide parent-child relationship” was established when the son or daughter was unmarried and under 21 years ofage). 1 On December 5, 2019, the Director asked the petitioner to submit additional evidence of his biological relationship to the beneficiary. In addition, the Director requested evidence of the beneficiary’s legitimacy, legitimation, or bona fide relationship with the petitioner. In order to establish legitimacy or legitimation, the petitioner was asked to submit his original foreign language marriage certificate, a I (b)(6) I and English translations of the foreign language documents. In response, the petitioner submitted DNA evidence establishing that he is the biological father of the beneficiary. The Director denied the visa petition because the petitioner did not submit the other requested documents, and therefore did not establish the beneficiary’s legitimacy or legitimation. The Director also found insufficient evidence that he had a bona fide relationship with the petitioner while the beneficiary was under age 21. On appeal, the petitioner submits the foreign language man·iage certificate and its English translation. However, he did not submit the I (b)(6) las requested. Lacking that, the petitioner has not established that the beneficiary was born in wedlock or was legitimated according to law while the beneficiary was under age 18. In addition, we conclude that the petitioner has not provided sufficient evidence to establish that a bona fide relationship existed between the petitioner and the beneficiary while the beneficiary was under age 21. The petitioner may file a new visa petition on the beneficiary’s behalf that is supp01ted by the evidence necessary to establish eligibility under the immigration laws. See 8 C.F.R. § 204.1 (f). 1 Evidence of a bona fide parent-child relationship should establish emotional and/or financial ties or a genuine concern and interest by the father for the child’s support, instruction, and general welfare. There should be evidence that the father and child actually lived together or that the father held the child out as being his own, that he provided for some or all of the child’s needs, or that, in general, the father’s behavior evidenced a genuine concern for the child. See 8 C.F.R. § 204.2(d)(iii); Matter of Pineda, 20 T&N Dec. at 73; Maller o_fVizcaino, 19 l&N Dec. at 648-49. The most persuasive evidence for establishing a bona fide parent-child relationship is documentary evidence made contemporaneous to the events. These could include: money order receipts or canceled checks showing the father’s financial support of the beneficiary; the father’s income tax returns, medical records, or insurance records showing the beneficiary as a dependent; school records for the beneficiary identifying the father; correspondence between the petitioner and the beneficiary; and detailed notarized affidavits of the natural mother, close relatives, family friends, neighbors, school officials, or others knowledgeable about the relationship. See 8 C.F.R. § 204.2(d)(iii); Matter o.fPineda, 20 I&N Dec. at 74-75. 2 Al.______;(….;;..b)-‘-(6′-)____. 00000030942 Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 3 I (, f NOT FOR PuntfEX’noN U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appea]s MATTER OF: .___ ____ (;_;.b)….;_(6.;_) __,I (b)(6) ____ Al Beneficiary FILED JAN2 7 2022 ~___ (_b)_( 6_) ___ __.IPetitioner ON BEHALF OF PETITIONER: William F. Bortz, Esquire ON BEHALF OF OHS: Maria P. Luna, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Gonzalez, Temporary Appellate Immigration Judge1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The petitioner has appealed from the decision of the Service Center Director dated February l 0, 2020, denying the visa petition filed on behalf of the beneficiary to accord him benefits under the Immigration and Nationality Act as the child of a United States citizen. We review the record de novo. See 8 C.F.R. § 1003.1 (d)(3)(iii). The record will be remanded. Where a petitioner does not list the beneficiary as his or her child on previously-submitted immigration documents, the petitioner must submit clear and convincing evidence that the beneficiary is the petitioner’s biological child. See Matter of Ma, 20 l&N Dec. 394, 398 (BIA 1991 ). In such as case, in addition to submitting the child’s birth certificate, the petitioner must submit additional evidence (e.g., medical, religious, or school records) that reflects the child’s birth date and the parents’ identity. If that evidence is unavailable, sworn affidavits of those having personal knowledge of the birth (e.g., parents, health care workers, clergy, other older relatives, and older family friends), attesting to the child’s birth date and the parents’ identity may also be accepted. See 8 C.F.R. §§ l 03.2(b)(2), 204.2(d)(2)(v). DNA test results may also be submitted to prove the biological relationship. See 8 C.F.R. § 204.2(d)(2)(vi). A Notice of Intent to Deny (”NOID”) was sent to the petitioner on December 18, 2019, advising her that, in light of the omission of the beneficiary from previously-submitted immigration documents, she was required to submit additional evidence of her biological 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General. See 8 C.F.R. § 1003.l(a)(4). 00000031137 ~~_(_b)_(6_) ~ relationship to the beneficiary. In response, the petitioner submitted documentation, including DNA test results that reflect that the petitioner is 99.9999 percent likely to be the beneficiary’s mother. However, the Director declined to give the submitted DNA evidence any weight, and denied the visa petition, because the DNA evidence was not submitted directly from the laboratory to the Director, as required. See 8 C.F.R. § 204.2(d)(2)(vi). In the decision, the Director indicated that the NOID advised the petitioner to submit any DNA evidence directly from the laboratory to the USCIS. However, a review of the NOID reveals that the petitioner was not advised of this requirement in the NOID. On appeal, the petitioner explains why the beneficiary was not identified in the previouslysubmitted immigration documents and submits additional evidence. The petitioner also indicates that she will have the laboratory submit the DNA evidence directly to the Director. Under the circumstances of this case, we will remand the record to the Director to consider the evidence proffered on appeal, to provide the petitioner an opportunity to have the DNA results sent directly from the lab, and to reevaluate the underlying visa petition thereafter. Accordingly, the following order will be entered. ORDER: The record is remanded to the Service Center Director for further proceedings consistent with the foregoing opinion and for the entry of a new decision. 2 00000032155 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATTER OF: ~–(b_)(6_)_~1 (b)(6) Al Respondent FILED Jan 18, 2022 ON BEHALF OF RESPONDENT: Brian E. Mezger, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the hnmigration Court, Boston, MA Before: Grant, Appellate hnmigration Judge Opinion by Appellate bnmigration Judge Grant GRANT, Appellate Immigration Judge The respondent, a native and citizen of Guinea, appeals from the decision ofthe hnmigration Judge, issued July 9, 2018, denying his application for asylwn and withholding ofreJlK)val under the Act, as well as protection under the regulations implementing the Convention Against Torture and Other CrueL Inhtlll1an or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1). See sections 208(b)(l)(A) and 24l(b)(3)(A) of the Invnigration and Nationality Act, 8 U.S.C. §§ I 158(b)(l)(A) and 123 l(b)(3)(A); 8 C.F.R §§ 1208.16 and 1208.18. The respondent has also filed a JlK)tion to remand so that the hnmigration Judge may consider his application for adjustment of status based on an approved 1-130 visa petition and his marriage to a United States citizen. The Department of Homeland Security has not filed an opposition. The trntion to remand will be granted. The respondent entered the United States on or about May 22, 2002, as a nonimmigrant visitor. He overstayed his visa, filed an· application for asylum and related relie~ and was placed in proceeding.5. On January 11, 2013, the lnvnigration Judge issued a comprehensive, 37-page decision denying asylwn and related relie~ as well as voluntary departure. The respondent filed a timely Notice of AppeaL as well as a 33-page appellate brief On October 29, 2014, the Board issued a decision that remanded proceeding.5 for the Immigration Judge to clarify the adverse credibility detennination. On remand, the parties had no further evidence to submit (Tr. at 1-2, Dec. 1, 2015). In 2016, the respondent and his first wire divorced and he married a United States citizen in 2017. On July 9, 2018, the hnmigration Judge issued a second decision clarifying the adverse credibility determination. The respondent filed a timely Notice of Appeal On Decermer 3, 2019, during the pendency of this appeaL the respondent filed a trntion to remand based on his clUTent marriage to a United States citizen and an approved Form 1-130 visa 00000032155 Al….._(b_)( 6_) ____, petition In support of his motion, he has attached an approved Form 1-130 visa petition, an application for adjustment of status (Form 1-485), his passport and visa, and birth certificate. The OHS has not filed an opposition to the motion to rermnd. Since the respondent has demonstrated prima facie eligibility for relief, we will grant the motion to remand for consideration of the respondent’s application for adjustment of status. See Matter of Kagumbas, 28 I&N Dec. 400, 404-05 (BIA 2021) (holding that an approved 1-130 visa petition is some evidence of the validity of the marriage but is not dispositive ). 1 The following order will be entered. ORDER: The motion to remand is granted. FURTI-IER ORDER: The record is remanded for further proceedings in accordance with this decision 1 We note that the respondent’s second appellate brief was cursory in nature and did not incorporate any of the issues raised in the first appellate brie( except for a challenge to the lnnnigration Judge’s adverse credibility detennination It is therefore llllClear whether the respondent intended to waive all the issues raised in the first brief except for a challenge to the adverse credibility determination or whether he was implicitly relying on the first brie( which raised myriad issues regarding the Immigration Judge’s first decision Thus, if the respondent’s application for adjustment of status is denied, and the respondent again appeals, we request that he provide a clearer explanation of the issues on appeai as well as the specific aspects of the Immigration Judge’s decisions that he is challenging. 2 NOT FOR PUBLl’°:AiJ;ION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ,…..____ 6_,_) …..,L _ ____,_(b”””-)”‘-‘-(____ Al,.__-‘-(b-‘-‘)(–‘-6)__, Beneficiary .__ ____ ___ __,IPetitioner (b_)(_6) FILED JAN 14 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Kane Leonard, Associate Counsel TN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Wetmore, Chief Appellate Judge Opinion by Chief Appellate Immigration Judge Wetmore WETMORE, Chief Appellate Immigration Judge The petitioner has appealed from the Director’s June 20, 2019, decision denying the visa petition that was submitted on behalf of the beneficiary, as the spouse of a lawful permanent resident. Counsel for the United States Citizenship and Immigration Services (”USCIS”) opposes the appeal. The petitioner’s appeal will be dismissed. We review all questions arising in appeals from decisions of USCIS officers de novo. See 8 C.F.R. § l 003.1 (d)(3)(iii). Where a petitioner obtains lawful permanent resident status by marriage to a United States citizen or lawful permanent resident and, within 5 years of obtaining that status, marries another spouse, and then attempts to confer immigration benefits on that spouse, the petitioner must show by clear and convincing evidence the marriage through which he gained his lawful permanent resident status was not entered into for the purposes of evading the immigration laws. See 8 C.F .R. §§ 204.2(a)(l)(i)(A)(l), (C). Evidence to establish the bona fides of a marriage includes proof of ownership of property, proof of joint tenancy of a common residence, proof of commingling of financial resources, birth certificates of children born of the marriage, and affidavits of others having knowledge of the bona fides of the marital relationship. See 8 C.F.R. § 204.2(a)(l)(iii)(B). We adopt and affirm the decision of the Director. See Matter o.fBurbano, 20 I&N Dec. 872, 874 (BIA 1994). We have reviewed the record of proceedings, including the decision of the Director and the petitioner’s contentions on appeal We have considered the evidence de novo and 00000030521 affirm the Director’s determination that the petitioner did not establish by clear and convincing evidence that his prior marriage, through which he obtained lawful permanent resident status, was not entered into for the purpose of evading the immigration laws (Decision at 2). Although the Director provided the petitioner with a Request for Evidence dated January 20, 2019, the petitioner did not submit evidence that his prior marriage was legitimate. He submitted evidence of the bona tides of his current marriage but did not submit evidence regarding the legitimacy of his prior marriage. Although he contends that he had a child with his prior spouse and that he provides her with child support, he did not submit this evidence in response to the Request for Evidence (Brief at 3). The petitioner submitted additional evidence on appeal. However, where, as here, the petitioner was put on notice of a deficiency in the evidence and was granted the opportunity to respond, this Board will not accept evidence offered for the first time on appeal.1 See Matter of Soriano, 19 I&N Dec. 764, 766-67 (BIA 1988); see also Matter of Obaigbena, 19 l&N Dec. 533, 536-37 (BIA 1988). The petitioner may file a new visa petition on the beneficiary’s behalf, with the requested evidence that the beneficiary qualifies for the immigration benefit sought. Accordingly, the following order will be entered. ORDER: The petitioner’s appeal is dismissed. 1 We note that, although the petitioner submitted a birth certificate purporting to show that the petitioner and his former spouse had a child before they married, no father is listed on the birth certificate. The divorce certificate also states that the spouses did not rocreate any children. Additionally, the New York Acknowledge of Paternity signed (b)(6) does not show evidence of registration. 2 NOT FOR PUBf.°lei\.TION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .___ __ Cb_)_(6_) —–‘~ Al (b )( 6) Beneficiary ~—(b_)(_6) __ ~1Petitioner FILED JAN 2 8 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Maria P. Luna, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner has appealed the January 23, 2020, decision of the Service Center Director (Director) that denied the visa petition, Petition for Alien Relative (Form I-130), filed on behalf of the beneficiary as the spouse of a lawful permanent resident of the United States. The appeal will be dismissed. We review all questions arising in appeals from decisions of United States Citizenship and Immigration Services officers de novo. See 8 C.F .R. § 1 003 .1 ( d)(3 )(iii). We adopt and affirm the decision of the Director. Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). As the decision details, the petitioner has not met her burden to establish that her marriage to the beneficiary is valid for immigration purposes such that the beneficiary may be considered to be her spouse. Matter of Rehman, 27 I&N Dec. 124, 125 (BIA 2017) (stating that “[i]n visa petition proceedings, the petitioner bears the burden of establishing the claimed relationship by a preponderance of the evidence”). Moreover, the petitioner has not raised any argument on appeal that would cause us to disturb the Director’s decision. The petitioner has submitted evidence on appeal. However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given the opportunity to respond to that deficiency, this Board will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 00000030957 A] (b)(6) 533 (BIA 1988). The petitioner may file a new visa petition on behalf of the beneficiary with evidence that the beneficiary qualifies for the benefit sought. Accordingly, the following order shall be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUtyJ~~ION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~__ __ ~~ Al (_b)_(6) (b)(6) Beneficiary ,__ ___ Cb_)_(6_) _.~ __ Petitioner FILED JAN 2 7 7.0n ON BEHALF OF PETITIONER: Bryce E. Downer, Esquire ON BEHALF OF OHS: Maria P. Luna, Associate Counsel IN VISA PETITION REVOCATION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner appeals the January 31, 2020, decision of the Director, revoking a previously approved visa petition filed on behalf of the beneficiary as the spouse of a lawful permanent resident. We review all questions arising in appeals from decisions of U.S. Citizenship and Immigration Services (USCIS) officers de novo. See 8 C.F.R. § 1003. l(d)(3)(iii). The appeal will be dismissed. Revocation of an approved visa petition requires a showing of “good and sufficient cause.” See section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155; see also Matter of Estime, 19 l&N Dec. 450 (BIA 1987). In proceedings to revoke the approval of a visa petition, the burden remains with the petitioner to establish eligibility for the visa. See Matter o.fCheung, 12 I&N Dec. 715 (BIA 1968). Where the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that it was not entered into for the primary purpose of evading the immigration laws. See Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). We have considered the decision of the Director, the Notice oflntent to Revoke (NOIR) dated December 2, 2019, the response to the NOIR, and the parties’ arguments on appeal. Based on our de novo review of the evidence of record, we adopt and affirm the revocation of the visa petition for the reasons stated in the Director’s decision and in the NOIR, as we agree there was good and sufficient cause to revoke the approval of the visa petition filed by the petitioner on behalf of her husband. See Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). ‘ Al._—–‘(‘-‘-b)-‘–(6) 00000031134 _____, Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 NOT FOR PUBffe’A9fION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~–(b_)(_6) ___ lAl.__-‘–(b”‘-‘)(….;..6)_ _. Beneficiary ~—–(~b~)(~6) _____ ~lPetitioner FILED JAN2 8 2022 ON BEHALF OF PETITIONER: Eric 0. Darko, Esquire ON BEHALF OF DHS: Suzanne McGregor, Chief, Northeast Law Division IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the District Director, New York, NY Before: Cassidy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Immigration Judge The petitioner appeals the decision of the District Director dated January 26, 2018, denying the Petition for Alien Relative, Form 1-130 (visa petition), filed on behalf of the beneficiary as the spouse of a United States citizen pursuant to section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i). The appeal will be dismissed. The petitioner bears the burden of proof. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). Where the petitioner has provided contradictory or inconsistent information, it is the petitioner’s burden to resolve any inconsistencies in the record through independent, objective evidence. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). The petitioner and beneficiary were married on I (b)(6) lin New York. The petitioner filed a visa petition (Form 1-13) on behalf of the beneficiary on May 18, 2015. An initialinterview of the petitioner and the beneficiary was held on I (h\(6) 1-It was determined that the petitioner had not established a bona fide marital relationship with the beneficiary and another interview of the petitioner and the beneficiary was conducted on l (b)(6) lpursuant to Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. Nov. IO, 1976). The record reveals several inconsistent answers provided by the petitioner and the beneficiary at their Stokes interview, which support the Director’s conclusion that the petitioner did not meet her burden to establish a bona fide marriage with the beneficiary. The parties were inconsistent 00000030951 A!,_____;,(“”””‘b6.:…) ).:…( _, about details related to their first date. The beneficiary claimed he dropped off the petitioner at the end of their date; the petitioner claimed he stayed on the bus and did not get off when she reached her stop. During the rebuttal opportunity at the interview, the petitioner restated she exited the bus at her bus stop and the beneficiary stayed on the bus, without any explanation for the beneficiary’s discrepant answer. There were other inconsistencies regarding the details of the beneficiary’s marriage proposal to the petitioner. The beneficiary claimed he proposed to the petitioner after they had been dating for 3 months. She claims he proposed to her after they had been dating for 6 months. The beneficiary stated he proposed to the petitioner in November 2014. She stated he proposed to her in January 2015. The beneficiary stated that when he proposed to the petitioner, only the two of them were present. However, the petitioner stated that the beneficiary’s aunt was also present when the beneficiary proposed to her. During rebuttal, the petitioner claimed the beneficiary’s aunt was in another room, but did not provide an explanation for her revised answer. Further, the petitioner and the beneficiary provided inconsistent answers when they were asked when they began living together. The beneficiary stated that the petitioner moved in with him on I (b)(6) I the day they married. The petitioner stated she did not move in with the beneficiary until 2 months after they had married. During rebuttal, the petitioner explained that she had moved in gradually. However, she had not noted this in her initial answer. The petitioner and the beneficiary also provided inconsistent answers regarding the beneficiary’s work hours. He claimed he worked from 6-3 am at (b)(6) l(b)(61and from 4-11 pm at the (b)(6) However, the petitioner claimed he worked from 12-6 am at the (b)(6) During rebuttal, the beneficiary changed his answer and stated that he some 1mes s e wor at (b)(6) at 12 am, but mostly worked from 4-11 pm at that gas station. Additionally, the petitioner and the beneficiary provide inconsistent details about the business they claimed they owned together. The petitioner and the beneficiary also provided inconsistent answers about her tattoos and body piercings. The beneficiary claimed she had 2 tattoos and one was on her leg. He did not mention that she had any body piercings. The petitioner stated that she had several tattoos, all located on her upper body, and that she had a piercing on her chest. During rebuttal, the beneficiary could not explain why he thought she had a tattoo on her leg and why he did not mention her body p1ercmg. Additionally, the petitioner and the beneficiary gave inconsistent answers as to the color of the window treatment in the kitchen of their claimed marital home. The beneficiary stated that the window treatment was blue; the petitioner stated that it was red or burgundy. On rebuttal, there was no explanation for this discrepancy. The discrepancies revealed at the Stokes interview raise concerns about the bona tides of their marriage. Moreover, we agree with the Director that the documentary evidence submitted does not overcome the discrepancies revealed at the Stokes interview. The documentary evidence submitted includes a Verizon bill for February 2016 in both names of the petitioner and the beneficiary, a bill from Optimum for July 2016 to November 2016 in the beneficiary’s name only, 2 00000030951 Al,___(‘–‘-b)..;…(_. 6;….) a life insurance policy statement for the petitioner, an employee benefits statement for the beneficiary regarding his employment with I (b)(6) ~ a business certificate for l (b)(6) I I (b )( 6) !and numerous Pay Pal account statements for that business, joint bank and credit card statements for the petitioner and the beneficiary, and copies of several photographs. However, the photographs are not annotated with the date, location, event, or persons pictured. Accordingly, they are of limited probative weight. The joint bills and evidence that the petitioner and the beneficiary apparently are co-owners of a business are insufficient to demonstrate a bona fide marital relationship, especially in light of the inconsistent answers elicited at the Stokes interview regarding that business. Although the petitioner’s life insurance statement lists the beneficiary as the beneficiary of that policy, this record indicates the policy was only issued on January 5, 2016, which was just 2 days before the initial interview of the petitioner and the beneficiary regarding whether they had a bona fide marital relationship. The beneficiary’s employee benefits statement indicates that the petitioner is the sole beneficiary. However, that document is dated May 29, 2016, which is after the initial interview and before the Stokes interview of the petitioner and the beneficiary. Therefore, this evidence has limited probative value. The documentary evidence of record is insufficient to overcome the unexplained, inconsistent answers elicited from the petitioner and the beneficiary at their Stokes interview. Accordingly, the petitioner has not submitted sufficient evidence to meet her burden of proving the bona fides of her marriage to the beneficiary, and the following order will be entered. ORDER: The appeal is _dismissed. 3 I. NOT FOR PUBER:JffION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~–(~b )~(~6) ~1.AJ __ (h )( 61 Beneficiary ,__ _ ___,;_(b.;…)(‘””‘6)__.! __ Petitioner FILED JAN 2 7 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Kane Leonard, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The petitioner has appealed from the Director’s September 5, 2019, decision denying the visa petition that was submitted on behalf of the beneficiary, as the spouse of a lawful permanent resident Counsel for the United States Citizenship and Immigration Services (USCIS) opposes the appeal. The petitioner’s appeal will be dismissed. We review all questions arising in appeals from decisions of USCIS officers de novo. See 8 C.F.R. § 1003.l(d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Maller of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 l&N Dec. 884 (BIA 1989). A petition must be accompanied by all the required documents. See 8 C.F.R. § 103 .2(b ). Proof of the marriage between the petitioner and the beneficiary and proof of legal termination of all previous marriages of both the petitioner and the beneficiary is required. See section I 01(a)(35) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(35); 8 C.F.R. § 204.2(a)(2); Matter of Hosseinian, 19 l&N Dec. 453 (BIA 1987); Matter of Luna, 18 I&N Dec. 385 (BIA 1983); Matter of P-, 4 l&N Dec. 610 (BIA 1952). We adopt and affirm the decision of the Director. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We have reviewed the record of proceedings, including the decision of the Director and the petitioner’s contentions on appeal. We have considered the evidence de novo and affirm the Director’s determination that the petitioner did not meet his burden of proving the bona tides of his marriage to the beneficiary by a preponderance of the evidence. In particular, the 00000031131 -Al.__(_b)_(6_)~ petitioner did not respond to the May 1, 2019, Request For Evidence (“RFE”) advising him to submit a photocopy of his original marriage certificate, as well a passport-style photo of the beneficiary. The petitioner submitted additional evidence on appeal. Specifically, he submitted an extract of his marriage certificate. However, where, as here, the petitioner was put on notice of a deficiency in the evidence and was granted the opportunity to respond, this Board will not accept evidence offered for the first time on appeal. See Matter of Soriano, l 9 l&N Dec. 764, 766-67 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 536-37 (BIA 1988). Under the circumstances, we need not comment on the sufficiency of the evidence offered on appeal. Furthermore, he still not submit a passport photo of the beneficiary as requested. The petitioner may file a new visa petition on. the beneficiary’s behalf, with the requested evidence that the beneficiary qualifies for the immigration benefit sought. Accordingly, the following order will be entered. ORDER: The petitioner’s appeal is dismissed. 2 NOT FOR Pq~i!dJ:i~ TJON U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~-(b_)( 6_)~l ~.__(_b )_( 6) _ _. Beneficiary (b)(6) IPetitioner FILED JAN2 7 2022 ON BEHALF OF PETITIONER: Amanda Brooke Shaffer, Esquire ON BEHALF OF DHS: Jason E. Raphael, Associate Counsel IN VISA PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, New York, NY Before: Mahtabfar, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mahtabfar MAHTABFAR, Appellate Immigration Judge ORDER: The petitioner appeals from the Director’s denial of the visa petition filed on behalf of the beneficiary. In response to the appeal, counsel for the Department of Homeland Security has requested that the matter be remanded to the Director for further consideration. The petitioner has not filed an opposition to that request. Accordingly, this matter is remanded to the Director for further consideration and for the entry of a new decision. ‘….. 0000003 2152 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~—-(b_)(_6) ___ ~~ ~…. _(_b)_(6_) ___, Respondent FILED Jan 18, 2022 ON BEHALF OF RESPONDENT: Marc A. Karlin, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Los Angeles, CA Before: Mullane, Appellate Immigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge The appeal is swnmarily dismissed W1der the provisions of 8 C.F.R. § 1003.l(d)(2}(i)(F}, (H). On August 8, 2018, the Immigration Judge issued a decision ordering the respondent removed because the respondent railed to appear at a scheduled hearing. The respondent seeks to challenge the Immigration Judge’s decision, but has done so by filing an appeal with the Board, rather than by filing a motion to reopen with the Immigration Judg!(: in accordance with section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b}(5)(C). Under these circwmtances, the Board lacks jurisdiction over this appeal See Matter of Guzman, 22 l&N Dec. 722 (BIA 1999); 8 C.F.R. § 1240.15. ORDER: The appeal is summarily dismissed. J NOT FOR PUBLICATION 00000030563 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: (b)(6) IAl (b)(6) .___ ___;_….;…;…”‘—–‘ I Beneficiary .__ __ ~(b~)~(6~)__ ~l Petitioner FILED JAN13 2022 ON BEHALF OF PETITIONER: Prose ON BEHALF OF DHS: Mitsie Smith, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, Potomac Service Center Before: Gonzalez, Temporary Appellate Immigration Judge 1 Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The petitioner appeals from the Director’s March 18, 2020, decision denying the visa petition that she filed seeking to classify the beneficiary as the parent of a United States citizen. The record will be remanded for further proceedings. We review all questions arising in appeals from decisions of U.S. Citizenship and Immigration Services (USCIS) officers de novo. See 8 C.F.R. § 1003.l(d)(3)(iii). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Kodwo, 24 l&N Dec. 479, 482 (BIA 2008). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA 1989). In a Request for Evidence (RFE) dated August 14, 2019, the Director erroneously requested the petitioner submit the oldest available evidence to establish that she is the mother of the beneficiary. However, the petitioner has filed a visa petition seeking to classify the beneficiary as her father and not her child. The RFE also advised the petitioner that she could choose to undergo voluntary DNA testing. Once again, however, the RFE erroneously indicated that the petitioner was the claimed parent and the beneficiary was the claimed child. 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General. See 8 C.F.R. § 1003.l(a)(4). Al~_(_b)_(6_) ~ 00000030563 The RFE also failed to advise the petitioner that she would be required to show that she was legitimated by the beneficiary before her 18th birthday, or that she and the beneficiary had a bona fide parent-child relationship while the petitioner was unmarried and under 21. See 8 C.F.R. § 204.2(d). Finally, subsequent to the Director’s decision, a letter was received from the Director of Intelligenetics DNA Laboratory dated j (b)(6) I The letter stated that an original report, along with DNA test results and chain of custody documents, was sent to the USCIS in March 2020. The letter also provides a FedEx tracking number. Based on an irregularity in the bar codes on the original case letter and the RFE, the laboratory issued a new report as an amendment to the 2020 report. That report confirms a biological relationship between the petitioner and the beneficiary. Based on the foregoing, we find that a remand is warranted to allow the Director to consider the DNA evidence and to provide the petitioner with an opportunity to submit evidence of the bona fide parent-child relationship with the beneficiary. Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings and a new decision. 2 NOT FOR PQ~~~TION .:: U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~-(b_)(6_)_~l AJ (b)(6) Beneficiary (b)(6) lPetitioner FILED JAN! 7 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Kane Leonard, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Gonzalez, Temporary Appellate Immigration Judge Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge The petitioner appeals the decision of the Director, dated November 15, 2019, denying the immigrant visa petition that she filed on behalf of the beneficiary as the spouse of a United States citizen. Counsel for the United States Citizenship and Immigration Services (USCIS) opposes the appeal. The appeal will be dismissed. We review all questions arising in appeals from decisions of USCIS officers de novo. See 8 C.F.R. § 1003. l(d)(3)(iii). We adopt and affirm the decision of the Director. See Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994 ). The Director properly determined that the petitioner had failed to adequately respond to the request for evidence and had consequently failed to establish the claimed relationship between herself and the beneficiary. In particular, the petitioner did not submit proof of the legal termination of the beneficiary’s prior marriage. Consequently, we agree with the Director’s decision to deny the instant visa petition as the petitioner did not establish that the beneficiary was legally free to marry her at the time of their marriage. The petitioner may file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is eligible for the status sought under the immigration laws. In view of the foregoing, the following order is entered. ORDER: The appeal is dismissed. 000000J.13QL NOT FOR PUBLit.:AnON U.S. Department of Justice Executive Office for hnmigration Review Board oflmmigration Appeals MATIER OF: ….._ ____ ….;(‘-‘b )_._( 6.,_) Pl,__(‘-‘,b )-‘–( 6’-) ___. ____ ___,I Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Rory Delaney Rohan, Esquire ON BEHALF OF DHS: Rebecca Patricia McGee, Assistant Chief CollllSel IN BOND PROCEEDINGS On Appeal from a Decision of the Inmigration Court, New York, NY Before: Manuei Temporary Appellate Irrnnigration Judge1 Opinion by Temporary Appellate Immigration Judge Manuel MANUEL, Temporary Appellate Irrnnigration Judge The respondent appeals from the Immigration Judge’s bond order dated July 29, 2021, ‘denying his request for a change in custody status. On August 5, 2021, the Immigration Judge issued a bond memorandum setting forth the reasons for the denial The respondent’s appeal will be dismissed. We review findings offuct determined by an Innnigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R § 1003.l(d)(3)(il). The respondent was afforded a bond hearing pursuant to an order dated July 21, 2021, from the United States District Cotnt for the Southern District of New York, in which the Department of Homeland Security (the ”OHS”) bore the burden of establishing by clear and convincing evidence that the respondent should remain in custody because he is a danger to the co1TDI1Upity or a flight risk (IJ Bond Memo, at 2; Exh. Bl). The Irrnnigration Judge denied the respondent’s request for a change in custody status after conchJding that the OHS met its burden of establishing that the respondent poses a danger to the community and that no akemative conditions to release would ameliorate the danger (U Bond Memo at 3-8). On appeai the respondent argues that the Immigration Judge erred in denying a change in custody status (Respondent’s Br. at 9-24). 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 00000031305 Al.__(‘-‘b )….,_( _____. 6-‘–) We have considered the respondents’ appellate arguments and the entirety of the record. We agree with the Innnigration Judge’s reasoning, and we adopt and affirm the Immigration Judge’s decision. Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994). The Immigration Judge properly considered the respondent’s criminal history and did not clearly err in finding that the respondent’s “gang membership, a history of engaging in gang recruitment by means of intimidation and threats, and connection to death threats issued by an MS13 leader is direct evidence of the respondent’s past violence and inclination towards future violence” (IJ Bond Memo, at 5). 8 C.F.R § 1003.l(d)(3)(i); Matter of D-R-, 25 J&N Dec 445,454 (BIA 2011) (finding that an Innnigra.tion Judge is not required to interpret. the evidence in the manner advocated by the applicant); see also Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). We are not persuaded by the respondent’s argument that the Immigration Judge erred in weighing the evidence or engaged in speculation (Respondent’s Br. at 9-17). An Immigration Judge has broad discretion to consider any matter he or she deems relevant when determining whether a lawfully detained person’s release on bond is permissible or advisable, and therefore a custody redetermination that has a “reasonable fotmdation” will not be disturbed on appeal Matter of Guerra, 24 I&N Dec. 37, 39-40 (BIA 2006); Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009). The Immigration Judge properly relied on the evidence of record, including the District Attorney’s Trial Order of Dismissal Brie( which the Immigration Judge properly found sufficiently reliable and persuasive to the extent that it contained direct citations to the trial hearing transcript (IJ Bond Memo, at 4-5; Exh. B3). Id. We conclude that the Immigration Judge permissibly considered the dismissal brief in assessing the respondent’s bond eligibility pursuant to his broad authority to admit documents and assign them appropriate weight. See Matter of Fatahi, 26 I&N Dec. 791, 795 (BIA 2016) (an Immigration Judge should consider both direct and circt11mtantial evidence of dangerousness in determining eligibility for bond); Matter of Guerra, 24l&N Dec. at40-4l;MatterofD-R-, 25 l&N Dec. at454-55. Further, the record establishes that the Innnigration Judge considered the respondent’s rebuttal evidence, and did not err in concluding that it was insufficient to overcome the DHS’s clear and convincing evidence that the respondent is a danger (IJ Bond Memo, at 5). Finally, we are not persuaded by the respondent’s argument that the Innnigration Judge erred by fulling to consider ahematives to detention (Respondent’s Br. at 20-23). In fuct, the Immigration Judge specifically found that no payment of bond or “considerations of ahernatives to detention would ameliorate the specific dangers presented here -gang recruitment efforts in the area the respondent would likely return to upon release” (IJ Bond Memo, at 8). Given the evidence of record, we agree that the DHS carried its burden of proof and that no bond or alternatives to detention are appropriate here. See Matter of Siniauskas, 27 I&N Dec. 207, 210 (BIA 2018); Matter of Urena, 25 l&N Dec. at 141 (”Dangerous aliens are properly detained without bond’). Thus, the lnnnigration Judge properly ordered that the respondent remain in DHS custody without bond. Accordingly, the following order is entered. 2 00000031305 Al,__-‘-‘r1,”‘”‘,””‘”r “‘””‘”‘ -_, ORDER: The respondent’s appeal i.5dismissed. 3 NOT FOR P~M~tJ\pON U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ~—–(_b)_(6_) —–~I ~~_(_b)_(6_) ~ Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Peggy Bernardy, Esquire IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Ninth Circuit Before: O’Connor, Appellate· Irrnnigration Judge Opinion by Appellate Immigration Judge O’Connor O’CONNOR, Appellate Immigration Judge ORDER: This matter is before the Board pursuant to an order of the United States Court of Appeals for the Ninth Circuit dated July 21, 2021, which granted the Government’s unopposed motion to remand. In its motion to remand, the Government requested that proceeding.5 be remanded to the Immigration Judge for anew hearing on the respondent’s applications for asylum and withholding of removal under sections 208 and 241 (b )(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l(b)(3), as well as protection tD1der the regulations implementing the Convention Against Torture and Other Crue~ Inhwnan or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). The respondent should be allowed to present her :fullclaim before the Immigration Judge de oovo. Accordingly, in light of the foregoing, we vacate our prior decision dated October 6, 2020, and remand the record to the Immigration Judge for further proceeding.5 consistent with the Ninth Circuit’s order and the entry of a new decision 00000030743 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: .__ ___ ___ (_b)_(6_) _,.lAl (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Juliette Gome~ &quire IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals fur the Third Circuit Before: Wetmore, Chief Appellate Immigration Judge Opinion by Chief Appellate Immigration Judge Wetmore WEIMORE, Chief Appellate Irrnnigration Judge ORDER: On Jme 2, 2021, the United States Court of Appeals for the Third Circuit remanded tlm matter to the Board to consider the effect of Supreme Court of the United States’ decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Following the Third Circuit’s remand to the Board, the respondent filed a motion to remand these proceedings to the Immigration Judge for consideration of the respondent’s application for cancellation of rerooval under section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l). We will grant the respondent’s motion. The record is therefore remanded to the Immigration Court for consideration of the respondent’s application for cancellation of removaL and for the entry of a new decision. We express no opinion as to the ultimate outcome of these proceedings. 000000304 76 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATTER OF: ~—–(b_)(6_) ____ ~1AJ (b)(6) Respondent FILED Jan 14, 2022 ON BEHALF OF RESPONDENT: Af.atou Diallo, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Elizabeth, NJ Before: Wilson, Appellate Irrnnigration Judge Opinion by Appellate Immigration Judge Wilson WILSON, Appellate Immigration Judge This matter was last before the Board on May 18, 2021, when we remanded these proceedings for the Immigration Judge to further consider the respondent’s request for deferral of removal under the regulations implementing the Convention Against Torture and Other Cruei Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT). 8 C.F.R. §§ 1208.16(c), 1208.18. On June 10, 2021, the Immigration Judge denied the respondent’s request for deferral ofremoval under the CAT. On June 28, 2021, the respondent filed a timely motion to reconsider, which the Innnigration Judge denied on July 7, 2021. The respondent, a native and citiz.en of the Dominican Republic, timely appealed the Immigration Judge’s denial of his motion to reconsider. The appeal will be dismissed. 1 We review the findings of fuct, including the determination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including questions of law, discretion, or judgment, under the de novo standard. 8C.F.R. § 1003.l(d)(3)(iI). A motion to reconsider must state the errors of fuct or law in the prior decision, and must be supported by pertinent authority. 8 C.F.R. § 1003.23(b)(2); Matter of Cerna, 20 l&N Dec. 399, 402 (BIA 1991) (‘The very nature of a motion to reconsider is that the original decision was defective in some regard”). 1 We note that we are simultaneously issuing a decision which dismisses the respondent’s appeal from the Immigration Judge’s June 10, 2021, decision denying the respondent’s request for deferral of removal 000000304 76 ~ (b)(6) On June 10, 2021, the Immigration Judge denied the respondent’s request for deferral of removal under the CAT without holding a supplemental hearing. The respondent filed a motion to reconsider and argued that the lack of a supplemental hearing violated lIB due process rights because it deprived the respondent of an opportunity to provide further testimony and evidence regarding lIB fear of harm in the Dominican Republic based upon his sexual orientation and gender identity (Respondent’s Br. at 4-8). The Irrnnigration Judge denied the motion to reconsider because she determined that she complied with her duty to build a full record and provided the respondent with a full and fair hearing (IJ3 at 3).2 The respondent’ challenges this finding on appeal To prevail on a due process claim based on a lack of opportunity to present his or her claim, an applicant must show that he or she was prevented from reasonably presenting his or her case for relief Serrano-Alberto v. U.S. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017). Further, the applicant must establish that the alleged violation had the potential to irq:,act the outcome of his or her proceeding.5. Id. However, no such showing has been made here. At the outset, we note that our May J8, 2021, decision, which remanded these proceeding.5 to the lrrnnigration Judge, did not require that the lrrnnigration Judge hold another hearing (BIA Dec. at 4, May, 18, 2020). See Matter of Patel, 16 J&N Dec. 600, 60 I (BIA I 978) (explaining that when the Board remands a case to an Irrnnigration Judge, the remand is effective for the stated purpose and for consideration of other appropriate matters unless the Board qualifies or limits the remand for a specific purpose). Additionally, the respondent was given an opportunity at his August 20, 2020, hearing to testify about his fear of harm upon his return to the Dominican Republic based upon his sexual orientation and gender identity. Specifically, the respondent was given an opportunity to testify about: (I) whether he was previously harmed in the Dominican Republic, (2) why he fears harm in his home CO\mtry, and (3) who he fears will harm him (IJl at 2-4, 7; IJ3 at 3; Tr. at 49-50, 57, 65-66). Moreover, the Immigration Judge’s June 10, 2021, decision reflects that she considered the respondent’s affidavit, letters in support of the respondent’s claim, psychological evaluation, and col.llltry conditions reports in evaluating the respondent’s request for deferral of removal based upon his sexual orientation and gender identity (IJ2 at 6-7; Respondent’s Motion to Remand at Tabs A-F; Respondent’s Supplemental Evidence Submission, Mar. 19, 2021). Furthermore, the respondent has not provided any specific examples on appeal regarding what testimony he would have provided at another hearing that may have affected the outcome of these proceeding.5 (Respondent’s Br. at 4-8). Thus, the respondent has not demonstrated that the Imnigration Judge violated his due process rights, nor has he established that any alleged violation may have inlpacted the outcome of these proceedirig.5. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 2 l11e Irrnnigration Judge’s August 20, 2020, decision will be referred to as ”IJI ,” her June 10, 2021, decision will be referred to as “IJ2,” and her July 7, 2021, decision will be referred to as “IJ3.” 2 ( \ 00000030560 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: 1—–….;….;.(b (b )( 6) …..)(–6)—-“‘-,l I,Al’7==(b=)(=6)==-,I Al….._(_b)_(6_)___.I FILED Jan 13, 2022 Respondents ON BEHALF OF RESPONDENTS: Prose IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals fur the Ninth Circuit Before: O’Connor, Appellate Immigration Judge Opinion by Appellate Immigration Judge O’Connor O’CONNOR, Appellate Immigration Judge ORDER: This matter is before the Board pursuant to an order of the United States Court of Appeals for the Ninth Circuit dated July 28, 2021, which granted the Government’s unopposed motion to remand. In its rmtion to remand, the Govermrent requested that proceedings be remanded to the Immigration Judge fur anew hearing on the respondents’ applications fur asyhlm and withholding ofremoval under sections 208 and 241 (b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l{b)(3), as well as protection under the regulations implerrenting the Convention Against Torture and Other Crue~ Inhwnan or Degrading Treatment or Punishment, Dec. 10,1984, ~-Tr~<!_tyQ.Qf! No . .100-20, 1465 U.N.T.S. 85 (entered into furce for United States Nov. 20,1994). The respondents should be allowed to present their full cJairm before the Immigration Judge de novo. Accordingly, in light of the foregoing, we vacate our prior decision dated October 28, 2020, and remand the record to the Irmnigration Judge for further proceedings consistent with the Ninth Circuit’s order and the entry of a new decision ( \ 00000030557 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnmigration Review Board of hnmigration Appeals MATIER OF: (b)(6) ,!:::::::=====(h:::::)(::::::6)====::::::!..,L l JiAl (b)(6) (b)(6) I! FILED Jan 13, 2022 Respondents ON BEHALF OF RESPONDENTS: Prose IN REMOVAL PROCEEDINGS On Remand from a Decision of the United States Court of Appeals for the Ninth Circuit Before: O’Connor, Appellate Immigration Judge Opinion by Appellate Immigration Judge O’Connor O’CONNOR. Appellate Immigration Judge ORDER: This matter is before the Board pursuant to an order of the United States Court of Appeals for the Ninth Circuit dated July 28, 2021, which granted the Government’s unopposed motion to remand. In its rmtion to remand, the Govermrent requested that proceedings be remanded to the Immigration Judge for anew hearing on the respondents’ applications fur asyhlm and withholding ofremoval under sections 208 and 241 (b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l{b)(3), as well as protection under the regulations implerrenting the Convention Against Torture and Other Crue~ Inhwnan or Degrading Treatment or Punishment, Dec. 10,1984, ~-Tr~<!_tyQ.Qf! No . .100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20,1994). The respondents should be allowed to present their full cJairm before the Immigration Judge de novo. Accordingly, in light of the foregoing, we vacate our prior decision dated October 28, 2020, and remand the record to the Irmnigration Judge for further proceedings consistent with the Ninth Circuit’s order and the entry of a new decision NOT FOR PUB°t°iEXhoN U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATIER OF: ,.._____ __ A! (b)(6) (_b)_(6_) ___,I Respondent FILED Jan 18, 2022 ON BEHALF OF RESPONDENT: Kris Keegan, Esquire ON BEHALF OF OHS: Daniel C. Burkhart, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Seattle, WA Before: Montante, Appellate Immigration Judge; Owen, Appellate Immigration Judge; Gonzalez, Temporary Appellate Immigration Judge12 Opinion by Appellate Immigration Judge Owen Temporary Appellate Irrnnigration Judge Gonzalez, see dissenting opinion Temporary Appellate Irrnnigration Judge Gonz.alez, see dissenting opinion OWEN, Appellate Immigration Judge The Department of Homeland Security (OHS) appeals from the decision of the lmmigra tio n Judge, dated October 5, 2018, granting the respondent’s request for asylum under section 208(b )(1 )(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b )(1 )(A). 3 Both parties filed briefs on appeal The appeal will be sustained. 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R. § 1003.l(a)(l), (4). 3 The respondent did not appeal the Immigration Judge denial of the respondent’s application for withholding of rerooval under section 24l(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(A), and his request for protection under the regulations implementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994), so these issues are waived. Matter of R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012). 00000032149 ~….._Cb_)(_6)_, We review findings of fact determined by an Immigration Judge, including credibility findings, under a “clearly erroneous” standard. 8 C.F.R § 1003.l{d){3)(i). We review questions of law, discretion, and judgment, and all other issues de novo. 8 C.F.R § 1003.l(d){3)(il). The Immigration Judge determined the respondent had established that he suffered past persecution and has a well-founded fear of persecution on accomt of a protected ground (JJ at 1012). Consequently, the Irrnnigration Judge found the respondent eligible for asyhnn (IJ at 10-13). On appeaL the DHS argues that the Immigration Judge erred in granting the respondent’s application for asyhnn (DHS ‘s Br. at 9-20). The DHS argues on appeal that the Jnnnigration Judge erred in determining that the respondent suffered harm that rose to the level of persecution (DHS Br. at 12-13 ). After a review of the record, we disagree with the Irrn:nigration Judge’s detennination that the respondent established that the harm he suffered rises to the level of persecution (IJ at 10-12). As noted by the DHS on appeaL the respondent was attacked on one occasion and was verbally harassed over the course of his life (DHS Br. at 12). Moreover, as noted by the DHS, the respondent was a successful business owner in Bulgaria, owning at least two businesses in his hometown (DHS Br. at 12). Ahhough serious, these incidents do not rise to the level required for persecution. See Wakka,y v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (persecution is an extreme concept that does not include every sort of treatment our society regards as offensive). We conclude that the Immigration Judge’s factual findings do not support the conclusion that the respondent has demonstrated the requisite nexus between his fear of harm and a protected ground (IJ at 10-12). See Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021) (explaining that an asylum applicant bears the burden to establish that he was harmed “on accmm.t of one or more protected grounds”) ( citation omitted). The Immigration Judge determined that the respondent was harmed on account of a protected ground based on his factual findings that his attackers used derogatory teml’) for his Macedonian heritage (IJ at 11). We conclude that these factual findings do not support the Innnigration Judge’s determination that the individuals who harmed the respondent were motivated based on the respondent’s nationality, political opinion or membership in a particular social group. See Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009) (“the term ‘on account of in § 1101(a)(42)(A) requires an asyhnn applicant to prove that she was persecuted ‘because of a protected ground”) quoting INS v. Elias-Zacarias, 502 U.S. 478,483 (1992). As noted by the OHS on appeaL the respondent filed a lawsuit against the owner of a construction company over a matter of land ownership (DHS Br. at 9-12). A review of the record indicates his attackers had other motives, specifically that the respondent was a victim of crimes perpetuated by the construction company owner to intimidate the respondent into dropping his legal a~tions. Accordingly, we conclude that the Irnmigra tio n Judge’s determination regarding the motive of the individuals who harmed the respondent is clearly erroneous. See Matter of N-M-, 25 I&N Dec. 526,532 (BIA 2011) (“A persecutor’s actual motive is a question of fact to be determined by the Immigration Judge and reviewed by us fur clear error.”); see also Guerra v. Barr, 974 F.3d 909, 912 (9th Cir. 2020) (explaining that the Board may find an Immigration Judge’s “factual finding to be clearly erroneous only if it is illogical or implausible, or without support in inferences that may be drawn from the .facts in the record”) ( citations and internal quotations • omitted). 2 00000032149 ~–(b)_(6)_ The DHS further argues that the respondent has not demonstrated that the past harm he suffered or future harm he fears in Bulgaria was or would be inflicted by the Bulgarian government or by individuals or groups that the government is tmable onmwilling to control See Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005) (explaining that asyhnn and withholding of removal require proof … , .. of persecution by a “government official or persons the government is tmable or wiwilling to control’). After reviewing the record, we conclude that the government conduct does not support a finding of official inability or unwillingness to address the harm the respondent suffered or future harm he fears. As noted by the OHS on appeal, the respondent filed a lawsuit to reacquire land that was stolen from his grandfather by the funner Comrrnmist government. The lawsuit was denied and the respondent retained attorneys to relitiga te the case, and the respondent clairred his attorneys were confident of success with the new lawsuit (OHS Br. at 9-10). See Ochoa v. Gonzales, 406 F.3d at 1170. See Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009) (to qualify as persecution for purposes of refugee relie~ an act must be inflicted either by the government or· persons or organizations the government is tmable or wiwilling to control); see also Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (burden is on the respondent to show that government is wiable or lIDwilling to control a non-governmental persecutor). Furthermore, we agree with the OHS’ argwnents on appeal that the OHS met its bwden to establish that the respondent could relocate within Bulgaria (OHS Br. at 15-20). As noted by the OHS on appeal, a review of the record indicates that the respondent can relocate within Bulgaria. Specifically, the respoJ?,dent lived in Plovdiv for approximately seven years without significant incident. Moreover, prior to that, he lived in Tvurdica for about seven years without incident. The respondent alleges he is tmable to relocate within Bulgaria as he would have to register his new address with the police station and his attacker would be able to track him down. However, as noted by OHS, the respondent did not submit any documents to support this allegation (OHS Br. at 15-16). In addition, the respondent’s wife and son have relocated to Sofia, and have lived there for several years without incident (OHS Br. at 16). Accordingly, the respondent is not elig1ble for asyhnn and the appeal will be sustained. ORDER: Toe appeal is sustained. FUR.TIIER ORDER: The respondent is ordered removed to Bulgaria. 3 00000032149 ~.___Cb_)(_6) ____. GONZALEZ, Temporary Appellate Immigration Judge, dissenting opinion I respectfully dissent. I would not disturb the Immigration Judge’s detenninations with regard to whether the past harm was persecution and whether it was on account of a protected ground. In light of the passage of time since the Immigration Judges decision, I would remand for further evaluation of whether the DHS could meet its burden of demonstrating that the respondent could safely relocate within Bulgaria, based on current cotmtry conditions. 4 NOT FOR pufft°iE?fioN U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATTER OF: ~_(_b )_( 6_) ~l A! (b )( 6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Eric Y. Zheng, Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Before: Couch, Appellate lnnnigration Judge Opinion by Appellate Innnigration Judge Couch COUCH, Appellate Innnigration Judge ORDER: The last decision entered by the Board was on March 29, 2018, in which it dismissed the respondent’s appeal The respondent, a native and citizen of Indonesia, has now filed a motion to reopen and seeks to terminate these proceedings based on his acquisition of asylee status under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. The motion will be denied. With certain exceptions, a motion to reopen in any case previously the subject of a final administrative decision by the Board must be filed no later than 90 days after the date of that decision See Section 240(c)(7)(C)(D of the Innnigration and Nationality Act, 8 U.S.C. § 1229a(c)(7)(C)(0, and 8 C.F.R. § 1003.2(c)(2). Here, the respondent’s instant motion to reopen was filed over three years after the date of the Board’s final administrative order of removal The respondent makes no claim that this motion fulls within any exception to the time requirements for filing. Section 240(c)(7)(C) of the Act; 8 C.F.R. § I 003.2(c)(3). Nor has the respondent shown that an “exceptional situation” exists that would warrant the Board’s exercise of its discretion to reopen these proceedings sua sponte. Matter of J-J-, 21 I&N Dec. 976 (BIA 1997); Matter of GD-, 22 I&N Dec. 1132 (BIA 1999). Thus fur, this motion does not full within any of the statutory or regulatory exceptions to time limits for motions to reopen Therefore, we decline to reopen these proceedin~ sua sponte. Further, the respondent seeks to terminate these proceedings based on his asylee status. Because the respondent has not identified, and we are not aware of, any regulatory authority permitting termination under these circumstances, we decline to terminate the proceedings. See 00000030827 Al._—–‘(–‘-b)-‘-(6’–)____. MatterofS-O-G-& F-D-B-, 27 I&N Dec. 462,468 and n.3 (A.G. 2018). Accordingly, the motion to reopen is denied. 1 1 The record before us does not reflect that the Department of Homeland Secwity has joined in this motion. Nothing in this order prorubits a motion from being jointly filed by the parties. If such should become the case, the motion can be refiled. See 8 C.F.R § 1003.2(c)(3)(iii). _ 2 00000030554 NOT FOR PUBLICATION … U.S. Department of Justice Executive Office for hnmigration Review Board of Immigration Appeals MATIER OF: ~—-(b_)(6_) _____ lAl (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Pro se 1 ON BEHALF OF DHS: Margarita Cimadevilla, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Court, Miami, FL Before: Cassidy, Appellate Immigration Judge Opinion by Appellate Immigration Judge Cassidy CASSIDY, Appellate Irmnigration Judge The respondent, a native and citu.en ofJamaica, appeals from the decision of the Inmigra t ion Judge, dated July 28, 2021, denying his applications for asyhnn and withholding of removal pursuant to sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), and for protection under the regulations irq)lementing the Convention Against Torture and Other CrueL Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (”CAT). See 8 C.F.R §§ 1208.16-.18. The respondent’s appeal will be disnmsed. We review the findings of fact made by the Immigration Judge, including the determination of credibility, for clear error. 8 C.F.R § 1003.l(d)(3)(i); see also MatterofZ-Z-O-, 26 I&N Dec. 586 {BIA 2015). We review all other issues, including questions of judgment, discretion, and law, de novo. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent’s removability is undisputed (IJ at 2; Tr. at 12-13). Therefore, the issue on appeal is whether the Innnigration Judge properly denied his applications for asylum, withholding of remova~ and protection under the CAT. The respondent claims to have experienced harm in thepast in Jamaica on account of in relation to being bisexuai and that ifhe returns to that country he will experience additional harm on that basis. 1 An attorney initially entered an appearance in these proceedings and filed a brie~ but subsequently withdrew as attorney of record. We have considered the arguments presented in the brief in adjudicating this appeal 00000030554 \\ Af (b)(6) We affirm the lmmigration Judge’s detennination that the respondent is ineligible for asylum because he did not file his application for that relief within 1 year of arriving in the United States (IJ at 3-4). See sections 208(a)(2)(B), (D) of the Act. On appea~ the respondent has not specifically challenged this aspect of the lnnnigration Judge’s decision and we therefore consider the issue waived. See Matter of R-A-M-, 25 l&N Dec. 657, 658 n2 (BIA 2012) (when a respondent fails to substantively appeal an issue addressed in an Immigration Judge decision, that issue is waived before the Board); Matter of Edwards, 20 I&N Dec. 191, 196-197 n.4 (BIA 1990) (noting that issues not addressed on appeal are deemed waived). We also affirm the lmmigration Judge’s ahernative determination that the respondent did not meet his burden of proof to establish eligibility for asyhun because he did not adequately corroborate his claim with reasonably available evidence (IJ at 6-11). The respondent’s testimony may be sufficient to sustain his burden of proof without corroboration, but only if he satisfies the Immigration Judge that his testimony is persuasive, and refers to specific facts sufficient to derronstrate that he is a refugee. Section 208(b)(l)(B)(iI) of the Act; Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1276-77 (11th Cir. 2009). However, ‘1w]here the [Immigration Judge] determines that the [respondent] should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the [respondent] does not have the evidence and cannot reasonably obtain the evidence.” Section 208(b)(l)(B)(i0 of the Act; see also Yang v. U.S.Att’yGen., 418F.3d 1198, 1201 (11th Cir. 2005) (indicating, “[t]be weaker an applicant’s testimony, however, the greater the need for corroborative evidence.’). Here, the Immigration Judge concluded that with respect to the respondent’s claim that he is bisexua~ he should have submitted police reports and medical records regarding the three occasions, in 1998, 2000, and 2004, on which he claii:m to have suffered gunshot wounds in relation to his sexual orientation (IJ at 7-8). The Immigration Judge further noted that there is insufficient corroboration for his claim that he has sexual relationships with men (IJ at 8-9). The respondent’s testimony regarding his male partners is vague, and is not corroborated by a statement from any male partner. Moreover, we find no clear error of fact or error of law in the Immigration Judge’s assessment of the two vague, conclusory statements submitted in support of his claim by his sister and brother in-law are not entitled to significant evidentiary weight (IJ at 4-5). The respondent has not meaningfully or specifically challenged the precise bases of the Immigration Judge’s corroboration analysis. In swn, we agree with the Immigration Judge that the respondent has access to additional corroborative evidence that is reasonably available to him, and that because he did not present this evidence, he did not meet his burden of proof to establish eligibility for asyhun in relation to his sexuality. We also affirm the Immigration Judge’s determination that the respondents did not rreet the higher burden of proof required for withholding of removal (IJ at 12). See Huang v. U.S. Att’yGen., 429 F.3d 1002, 1011 (11th Cir. 2005); 8 C.F.R § 1208.16(b). 2 ti 00000030554 ftA (b)(6) On appeaL the respondent has not specifically challenged the Immigration Judge’s denial of protection under the CAT and we therefore concluded that this application for relief is waived. See Matter of R-A-M-, 25 I&N at 658 n; Matter of Edwards, 20 I&N Dec. at 196-197 n4. Accordingly, the following order will be entered. ORDER: The respondent’s appeal is dismissed. 3 00000031494 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: ~——(h_V_6_) (h)(6) —–~I AJ Respondent FILED Jan 26, 2022 ON BEHALF OF RESPONDENT: Rachel Chauvin, Esquire IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Irmnigration Cowt, Oakdale, LA Before: Couch, Appellate Immigration Judge Opinion by Appellate Immigration Judge Couch COUCH, Appellate Immigration Judge The respondent, a native and citi7.en of Nicaragua, appealed the Immigration Judge’s decision, dated August 25, 2021. In that decision, the lnnnigration Judge found the respondent removable as charged, found he did not appear to be eligible for any form ofrelief or protection from removal, and ordered him removed from the United States to Nicaragua. The respondent filed a motion to remand the record to the Immigration Judge for further proceedings. The appeal will be dismissed, and the motion to remand will be denied. We review the findings of fact, including the detennination of credibility, made by the Immigration Judge under the “clearly erroneous” standard. See 8 C.F.R § 1003.l(d)(3)(i). We review all other issues, including issues of law, discretion, or judgment, under a de novo standard. See 8 C.F .R § I 003 .1 ( d)(3)(iJ). On appeal, the respondent claims his due process rights were violated when the Irrmigration Judge prevented him from filing an asylmn application. He requested a remand to allow him to file for relief from removal (Respondent’s Br. at 3-4). The respondent moved to remand removal proceedings, and argues he was deprived the ability to file an application for asyhnn (Form 1-589) (Respondent’s Br. at 3-4). The record reflects that, during the hearing on August 25, 2021, the Immigration Judge provided instructions to the respondent concerning his ability to continue his case in order to consult with legal col.Imel, which was highly recorrnnended (Tr. at 3). The Immigration Judge also told the respondent about the specific requirements if he decided to proceed prose (Tr. at 3). The Immigration Judge also stated, ”If you are interested in deportation or vohmtary departure today you do not need an attorney, 00000031494 and I will discuss that with you momentarily” (Tr. at 3). The lrrnnigration Judge explained that if ”you fear being banned if returned to your home cotmtry you may request asyhnn while you are in the United States, generally within your first year of anival” (Tr. at 4). When asked by the Innnigration Judge whether he wanted time to secure counsel or go forward by representing hirmelf, the respondent indicated a desire to represent hirmelf at the hearing on August 25, 2021 (Tr. at 5). The respondent confirmed that he tmderstood the relevant instructions regarding an application for relief from removal (Tr. at 5). During the hearing on August 25, 2021, the Immigration Judge confirmed the validity of the Notice to Appear (NTA) and the information included therein (Tr. at 5-6). The respondent admitted to the allegations on the NTA and conceded removability as charged (Tr. at 5-6). After finding the respondent removable, the lrrnnigration Judge questioned him concerning his fear of returning to Nicaragua (Tr. at 6-8). The respondent indicated he feared the “political position that the government has” (Tr. at 8). He stated that he feared the government would beat or kidnap him (Tr. at 8). The Immigration Judge asked if the government ever beat or kidnapped him in the past (Tr. at 8). The respondent replied in the negative (Tr. at 8). The respondent admitted he was never detained or jailed in the past in Nicaragua (Tr. at 8). The Immigration Judge also explained to the respondent that he cou1d apply for vohmtary departure, but he declined (Tr. at 10). Upon review, we find the lrrnnigration Judge conducted the respondent’s hearing in accordance with due process standards of fundamental fairness. See Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir. 2012) (quoting O/abanii v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992)). Due process requires that respondents in immigration proceedings must be given an “opportunity to be heard at a meaningful time and in a meaningful manner.” See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). To prove a due process violation, however, an alien must demonstrate substantial prejudice. See Matter ofR-C-R-, 28 I&N Dec.74, 81 (BIA 2020). Here, the Innnigration Judge fully questioned the respondent regarding his fear ofretuming to Nicaragua (Tr. at 8-10). The respondent testified that he was never hurt, injured. or detained by the government of Nicaragua (Tr. at 8-10). The respondent did not provide the Immigration Judge with facts that would indicate he would be harmed in the future. Hence, agree with the Immigration Judge’s detennination the respondent was ineligible for asyhnn or similar relief or protection from removal from the United States to Nicaragua. The respondent, represented by counsel on appeai did not submit a completed application for relief from removal along with his motion to remand as required by 8 C.F.R § 1208.4(b)(4). Nor has he alleged fucts on appeal that would constitute a prilna facie claim for any form of relief from removal. As the respondent did not submit an application for relief from remova~ he did not establish a remand is appropriate. See Matter of R-C-R-, 28 I&N Dec. at 79. Accordingly, the following order will be entered. .. ORDER: The appeal is dismissed. FURTIIER ORDER: The motion to remand is denied. 2 00000030518 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflmmigration Appeals MATfER OF: ~__ -~l (b)(6) (b_)_(6_) J\I Respondent FILED Jan 14, 2022 ON BEHALF OF RESPONDENT: Pro se1 IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals, Richwood, LA Before: Gorman, Appellate Immigration Judge; Wilson, Appellate Irrmigration Judge; Liebrmnn, Temporary Appellate Immigration Judge2 Opinion by Appellate Immigration Judge Wilson WILSON, Appellate lrrmigration Judge This case was last before us on August 5, 2021, when we denied the respondent’s IIDtion to reopen and reconsider our July 9, 2020, decision dismissing his appeal of the Inmigration Judge’s denial of his applications for asyhnn, withholding ofremovaL and his request for protection mder the regulations implementing the Convention Against Torture, and Other CrueL Inhuman or Degrading Treatment or Pl.lllishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (CA1), see sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), and his IIDtion to reopen based on ineffective assistance of cotmSel On September 7, 2021, the respondent, a native and citizen of Cameroon, filed the instant rootion to reconsider our denial of his motion to reopen. The Department of Homeland Security (“DHS”) has not responded to the IIDtion. Toe 1rntion will be denied. A 1rntion to reconsider rrust identify an error of met or law in the Board’s prior decision, and be supported by pertinent authority. See section 240(c)(6)(C) of the Act, 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R § 1003.2(b)(l); Mattero/0-S-G-, 24 I&N Dec. 56 (BIA 2006); Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991) (explaining that the “very nature of a motion to reconsider is that the original decision was defective in some regard’). In the present motion to An attorney, on behalf of the respondent, signed the respondent’s motion but no EOIR-27 was filed entering that attorney’s appearance before the Board. 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General See generally 8 C.F.R § 1003.l(a)(l), (4). 00000030518 reconsider, the respondent argues that the Board erred in the prior decision by engaging in impermissible :fact-finding and mischaracterization (Respondent’s Mot.) (unpaginated). 3 For the following reasons, we will deny the respondent’s motion to reconsider. First, the respondent argues that the Board mischaracterized his motion to reopen as being filed ”well-beyond” the 90-day deadline, when it was actually delayed by ”less than one month” (Respondent’s Mot.) (unpaginated). We disagree. Irrespective of whether the respondent filed his motion to reopen less than 1 month late or years late, the motion was filed past the 90-day deadline.4 We remind the respondent that “(a] filing deadline cannot be complied with, substantially or otherwise, by filing late –even by one day.” United States v. Locke, 471 U.S. 84, 101 ( 1985) ( emphasis added). Second, the respondent argues that the Board mischaracterized his second asyhnn application as an “updated” application because ”(ijt was not merely an updated application It was an application that included details of a completely different person” (Respondent’s Mot.) (unpaginated). This assertion merely urges a different interpretation of the evidence, and does not establish a clear error in the Board’s decision See Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017) (explaining that for a finding to be “clearly erroneous,” the reviewing court on the entire evidence must be ”left with the definite and firm conviction that a mistake has been committed” (quoting Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573-74 (1985))). Third, the respondent argues that the Board incorrectly found that he did not comply with the requirements of Matter of Lozada, 19 l&N Dec. 637 (BIA 1988) (Respondent’s Mot.) (unpaginated). In our prior decision, we found that the respondent’s affidavit does not sufficiently set forth in detail the attorney-client agreement (BIA at 2). See Hernandez-Ortez v. Holder, 741 F.3d 644, 647-48 (5th Cir. 2014); Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir. 2012) (court requires strict LozadacoIT4Jliance). The respondent argues that his affidavit sufficiently set forth the attorney-client agreetrent because it stated that: (1) his cousin was the one communicating with his fonner counse~ (2) the agreement was verbat (3) he “always held up [his] end of the bargain,” paying fees and producing requested evidence on time; and (4) he expected his former counsel would provide the most basic guidance and competency (Respondent’s Mot.) (unpaginated). These statements, however, do not sufficiently set forth in detail the agreement that was entered into with his former counsel with respect to the actions to be taken and what representation his funner counsel did or did not make to the respondent in this regard. Matter of Lozada, 19 I&N Dec. at 639. Thus, the Board did not err in finding that the 3 The respondent’s motion is not paginated and not ·in conformance with the Board’s Practice Manual See BIA Prac. Man. Ch. 3.3(c)(iii) (”Briefs and other submissions should always be paginated.”) (January 8, 2021 ). 4 The respondent’s prior motion was treated as both a motion to reopen and a motion for reconsideration, so the time requirement is different as to each. Tolling was only requested as to the motion to reopen, not to the motion to reconsider. We found that even if tolling applied, the motion to reopen fuiled on the merits (BIA at 1-3). 2 00000030518 Al (b)(6) respondent did not meet the United States Court of Appeals for the Fifih Circuit’s strict Lozada compliance requirement. Fourth, the respondent argues that the Board incorrectly stated that the Immigration Judge reviewed and considered the updated asyhnn application, and that he railed to persuasively explain how the alleged errors of his former counsel’s ineffective assistance affected the outcome of his case (Respondent’s Mot.) (unpaginated). He also argues that the Board did not treat his testimony as credible, took “every opportunity to make negative inferences and statements,” and did not address his fraud argument (Id.). These general arguments, which are not supported by pertinent authority, at best, indicate his disagreement with the Board’s prior decision Further, his prejudice-based arguments mirror those previously presented in his motion to reopen, which we considered and found insufficient to establish the requisite prejudice (Compare Respondent’s Mot. (unpaginated) with Respondent’s Mot. (unpaginated), Nov. 2, 2020). Thus, he has not sufficiently demonstrated that the Board improperly evaluated or disregarded the facts and evidence presented or committed legal error. See Matter of O-S-G-, 24 J&N Dec. at 58. Lastly, we find no merit in the respondent’s contention that the Board was biased or acted other than impartially in deciding his motion to reopen (Respondent’s Mot.) (unpaginated). An adjudicator’s high denial rate in asyhnn cases in the past “cannot of itself show bias in a particular case.” Singh v. Garland, No. 19-60937, 2021 WL 5984797, at *3 (5th Cir. Dec. 17, 2021); see also Liteky v United States, 510 U.S. 540, 555-56 (1994) (holding that “opinions formed by the judge on the basis of mets introduced or events occurring in the course of the cWTent proceedings, or of prior proceeding5, do not constitute a basis for a bias or partiality motion unless they display a deep seated fuvoritism or antagonism that would make fuir judgment impossible”). Accordingly, the following order will be entered. ORDER: The respondent’s motion is denied. 3 00000031419 NOT FOR PUBUCATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: I (b)(6) lAJ (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Bingxin Huang, Esquire ON BEHALF OF DRS: Justin Leigh Tolbert, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflmmigration Appeals Before: Mahtabfar, Appellate lnnnigration Judge Opiruon by Appellate Immigration Judge Mahtabfar MAHTABFAR, Appellate Irrnnigration Judge ORDER: The respondent has filed a motion to reopen these removal proceedings based on the respondent’s acquisition ofasylee status under section 208 ofthe Immigration and Nationality Act, 8 U.S.C. § 1158. The Department of Homeland Security (DHS) has indicated that it does not oppose the motion to reopen and dismiss proceeding. Considering the respondent’s present status as an asylee in this country and the circum;tances presented, the motion is granted, and the proceedings are reopened and dismissed. 00000031416 NOT FOR PUBLICATION U.S. Department 9f Justice Executive Office for Immigration Review Board oflmmigration Appeals MATTER OF: (b)(6) !Al (b)(6) Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Troy N. Moslemi, Esquire ON BEHALF OF DHS: Aubrey Proctor, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflnnnigration Appeals Before: Owen, Appellate Immigration Judge Opinion by Appellate Immigration Judge Owen OWEN, Appellate Irmnigration Judge 1be respondent filed a motion to reopen and terminate in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). The Department of Homeland Security has opposed the motion The motion will be denied. The respondent’s motion to reopen is lllltimely, as it was not filed within 90 days of the Board’s final administrative decision. Section 240(c)(7)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(7)(C)(D; 8 C.F.R. § 1003.2(c)(2). 1 In the motion, the respondent argues that the proceedings should be reopened and tenninated under the United States Supreme Court’s decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474. The respondent argues that, because the Notice to Appear (NTA) issued in the case did not contain the date and time of the initial removal hearing, the Irrnnigration Court and the Board lacked jurisdiction over the removal proceedings, warranting a termination of proceedings. The respondent argues that Matter of Bermudez-Cota, 27 l&N Dec. 441 (BIA 2018), holding to the contrary, has been overruled by Niz-Chavez. As we noted in Matter of Bermudez-Cota, the Supreme Court’s decision in Pereira concerns the application of the stop-time rule set forth in section 240A(d)(l) of the Act, 8 U.S.C. § 1229b(d)(l), not the Innnigration Court’s jurisdiction Mattero_f Bermudez-Cota, 27 I&N Dec. The respondent argues that the motion fulls within the exception to the motion time and m.nnber limitations based on a material change in law (Motion at 2). As Niz-Chavez does not warrant a termination of the respondent’s proceedings, it does not constitute a material change in law requiring a durerent outcome, as applied in the respondent’s motion to terminate. See also Matter of Coelho, 20 l&N Dec. 464 (BIA 1992). 00000031416 Al.__._(b-)(_,6)_ _. at 442-44; see also Banegas Gomez v. Barr, 922 F.3d l 0 l (2d Cir. 2019). Subsequent to Niz-Chavez, in Matter of Arambula-Bravo, 28 l&N Dec. 388 (BIA 2021 ), we confirmed that an NTA that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Irrnnigration Judge of jurisdiction over the respondent’s removal proceedings, and explained that Niz-Chavez does not change this analysis. Matter of Arambula-Bravo, 28 I&N Dec. at 389-92;see also Chery v. Garland, 16 F.4th 980, 986-87 (2d Cir. 2021). For the reasons set forth in the above decisions, we reject the respondent’s jurisdictional argument for a tennination of the respondent’s proceedings. Based on the above, the motion will be denied. ORDER: The respondent’s motion is denied. 2 00000030824 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ,____Cb_)_(6_)_ _.IAl (h )( 6) Respondent FILED Jan 28, 2022 ON BEHALF OF RESPONDENT: Pro se IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Immigration Cotnt, Atlanta, GA Before: Goodwin, Appellate Immigration Judge Opinion by Appellate Immigration Judge Goodwin GOODWIN, Appellate Innnigration Judge ORDER: The Board affums, without opinion, the resuh of the decision below. The decision below is, therefore, the fmal agency determination. See 8 C.F.R § 1003. 1(e)(4). L_ 00000030515 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for hnrnigration Review Board of hnrnigration Appeals MATTER OF: .______ ____ AC (h V hl ___,_(b_._)(‘–‘6).__ __,l Respondent FILED Jan 14, 2022 ON BEHALF OF RESPONDENT: Andrew K. Nietor, Esquire ON BEHALF OF OHS: David Aronlee, Assistant Chief Counsel IN REMOVAL PROCEEDINGS On Appeal from a Decision of the Inunigration Court, Otay Mesa, CA Before: Saenz., Appellate Inunigration Judge Opinion by Appellate lrrnnigration Judge Saenz SAENZ, Appellate Immigration Judge The respondent, a native and citil.en of Mexico, and a lawful permanent resident of the United States, appeals the lrrnnigration Judge’s JuJy 19, 2021, interim decision, and August 23, 2021, decision, finding him removable under section 237(a)(2)(A)(iii) of the Innnigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony Wlder section 10l(a)(43)(A) of the Act, 8 U.S.C. § 110l(a)(43)(A). The Department of Homeland Security (OHS) opposes the appeal The appeal will be dismissed. The request for remand will be denied and the appeal will be dismissed. We review findin~ of fact determined by an Inunigration Judge, including credibility findings under a “clearly erroneous” standard. 8 C.F.R § 1003. l (d)(3)(i). We review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Irrnnigration Judges de novo. 8 C.F.R § 1003.l(d)(3)(i). The respondent was admitted to the United States as a legal permanent resident in 1989 (IJ, July 19, 2021, at l-2;Exh. I). In 1998, the respondent was convicted of murder in the second degree in violation of section 187(a) of the California Penal Code (IJ, JuJy 19, 2021, at 1, 6; Exh. 2). In accordance with a recent case from the Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, the parties agreed, and the Immigration Judge found, that section 187(a) of the California Penal Code is overbroad and divisible (IJ, JuJy 19, 2021, at 4). See Gomez Fernandez v. Ba”, 969 F.3d 1077 (9th Cir. 2020). The Innnigration Judge then found that based on the documents submitted by the DHS, the respondent’s conviction aligns with the federal definition of murder tmder section 101(a)(43)(A) of the Act, making him removable as charged (IJ, July 19, 2021, at 5). 00000030515 Al.___(b_)(_6) ____. As section I 87(a) of the California Penal Code is divisible as between offenses involving the unlawful killing of a fetus and the unlawful killing of a human being, the record of conviction must be examined to determine if the admissible portions of the record established tD1der the modified categorical approach that he was convicted of unlawfully killing a human being. See Shepard v. United States, 544 U.S. 13 (2005); United States v. Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017) (listing the documents in the record of conviction as including “the terms of the charging document, the terms of the plea agreement or transcript of colloquy between judge and defendant in which the factual bas~ for the plea was confinned by the defendant or to some comparable judicial record of this information’) (internal quotations and citation omitted). On appeal the respondent argues that the documents relied upon by the Immigration Judge were not part of his record of conviction, and therefore, the DHS did not meet their burden to establish that he is removable (Respondent’s Br. at 3-5). Specifically, the respondent argues that the information1 , abstract of judgment, and appellate decision are not record of conviction documents (Respondent’s Br. at 4). Before the Innnigration Judge, after the respondent had raised these objections, the DHS filed additional documents relating to this conviction, including the felony complaint and verdict funns (Exh. 2). We adopt and affirm the Irnnigration Judge’s finding that the DHS has met their burden of proof to establish that the respondent conviction is consistent with the definition of murder as contemplated in section I0I(a)(43)(A) of the Act (IJ, July 19, 2021, at 5-6). In particular, both the felony corq>laint and information are charging documents reviewable tD1derShepard, and both charge the respondent with the killing of a human being, l(b)(6)I I (b)(6) I The verdict forms then show the respondent’s conviction for murder in the second degree under count I of the information (Exh. 2 at 15). On appeal the respondent does not challenge the Irnnigration Judge’s review of the felony complaint or verdict forms, and the verdict forms resolve the respondent’s argument that it is not clear if he was prosecuted under this information. As a resuh, we affirm the Innnigration Judge’s finding that the respondent is removable under section 237(a)(2XA)(iii) of the Act. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. 1 1he respondent refers to this document as the “information summary” (Respondent’s Br. at 4). This appears to be an information, a type of charging document, which on the next line states ”Summary” and then states the single count against the respondent. It does not appear to be a summary of another document not in the record. Similarly, the felony complaint in the record has the word ”Summary” under the word “Complaint” followed by the single count against the respondent (fuh. 2 at 10), but it is the original corq>laint, not a smmnary of another docmnent. 2 OT FOR poof..fEXfioN U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATIER OF: ~–~(b~)~(6~) ____ l Al (b)(6) Respondent FILED Jan 13, 2022 ON BEHALF OF RESPONDENT: Wael M. Ahmad, Esquire ON BEHALF OF DHS: Andrew P. Ray, Assistant Chief CollllSel IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board oflnnnigration Appeals Before: Grant, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Grant GRANT, Appellate Immigration Judge The Board dismissed the respondent’s appeal and denied the motion to remand on December 31, 2012. Subsequent to this decision, the Board denied a motion to-reopen and deemed the stay of removal request as moot on February 13, 2013. Now, the Department of Homeland Secwity (DHS) and the respondent have jointly filed a motion to reopen and request that proceedings be dismissed without prejudice based on the DHS ‘s determination that this case is no longer in the best interest of the government to continue· as circurrntances have changed extensively since the issuance of the notice to appear. See 8 C.F.R § 239.2(a)(7). Therefore, considering the circurrntances presented, the following order shall be entered. ORDER: The Board’s December 31, 2012 and February 13, 2013, decisions are vacated. FURTHER ORDER These proceedings are dismissed without prejudice and the record is returned to the Immigration Court without further action. . , I I 00000030954 ) . ! ( ( NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals MATTER OF: .__ ___ (b_)(_6)__ ~~ AJ (b )( 6) Beneficiary L…-__ (_b)_( 6_) _ __.IPetitioner FILED JAN 2 8 2022 ON BEHALF OF PETITIONER: Pro se ON BEHALF OF DHS: Lina T. Jeffries, Associate Counsel IN VISA PETITION PROCEEDINGS On Appeal from a Decision of the Department of Homeland Security, California Service Center Before: Gonzalez, Temporary Appellate Immigration Judge’ Opinion by Temporary Appellate Immigration Judge Gonzalez GONZALEZ, Temporary Appellate Immigration Judge AMENDED DECISION 2 The petitioner has appealed from the decision of the Service Center Director dated March 15, 2019, denying a Petition for Alien Relative (Form I-130) filed on behalf of the beneficiary, as the spouse of a lawful permanent resident. The Board reviews de novo all questions arising in appeals from decisions issued by Directors. 8 C.F .R. § 1003 .1 ( d)(3 )(iii). The appeal will be dismissed. We adopt and affirm the decision of the Director, for the reasons set forth therein, with the following notations. See generally Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989). Where the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that it was not entered into for the primary 1 Temporary Appellate Immigration Judges sit pursuant to appointment by the Attorney General. See 8 C.F.R. § 1003.l(a)(4). 2 The instant amended decision is issued only to add the Appellate Immigration Judge information to the “Opinion by” caption. I ‘ ( 00000030954 ( purpose of evading the immigration laws. See Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). Evidence to establish the bona tides of a marriage includes proof of joint ownership of property, proof of joint tenancy of a common residence, proof of commingling of financial resources, birth certificates of children born of the petitioner and the beneficiary, and affidavits of others having knowledge of the bona fides of the marital relationship. See 8 C.F.R. § 204.2(a)(l )(iii)(B). We have reviewed the record of proceedings, including the decision of the Director, and the documentary evidence. We conclude that the petitioner did not meet her burden of establishing, by a preponderance of the evidence, that her marriage to the beneficiary was bona fide and not entered for the purpose of evading the immigration laws. The petitioner has provided little objective evidence that she and the beneficiary have a bona fide marriage. Based on the totality of the record, we concur that the petitioner has failed to prove, by a preponderance of the evidence, a bona fide marital relationship. See Matter of Branfigan, 11 l&N Dec. 493 (BIA 1966); Matter of Parandeh, 19 I&N Dec. 884, 887 (BIA 1989). In addition, we do not consider the evidence first provided on appeal. See Matier of Soriano, 19 I&N Dec. 764 (BIA 1988). See also Matter of Obaigbena, 19 l&N Dec. 533 (BIA 1988). The petitioner may file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is entitled to the status sought under the immigration laws. Accordingly, the following orders will be entered. ORDER: The Board decision dated September 9, 2021, is vacated. FURTHER ORDER: The appeal is dismissed. 2 00000031122 NOT FOR PUBLICATION U.S. Department of Justice Executive Office for Immigration Review Board oflrnmigration Appeals MATTER OF: .__ __ ___ (b )( 6) ____,_(b-‘-‘-)(–‘-6) __.IAj Respondent FILED Jan 27, 2022 ON BEHALF OF RESPONDENT: Sarah Vanessa Perez Esquire IN REMOVAL PROCEEDINGS On Motion from a Decision of the Board of Immigration Appeals Befure: Mullane, Appellate Innnigration Judge Opinion by Appellate Immigration Judge Mullane MULLANE, Appellate Immigration Judge The respondent, a native and citiz.en of Mexico, has filed a motion to reopen our Apnl 1, 2021, decision dismissing the appeal and requests a remand to finther consider the respondent’s application fur cancellation of removal In support of the motion, which is captioned “Joint Motion to Reopen Pwsuant to 8 C.F.R § 1003.2(c)(3)(iii)”, the respondent attached an email from the Department ofHomeJand Security (DHS), which states that DHS agrees to a joint motion to reopen as an exercise of prosecutorial discretion based on a state criminal court’s vacature of a crimina 1 conviction (Motion, Exh. Eat 83, Dec. 9, 2021). The DHS finther states that its agreement does not constitute a final agreement or judgment on any issues, including eligi>ility for relief (Jd.). 1 The fullowing orders will be entered. ORDER: The motion to reopen is granted. 1 Since we are granting the motion to reopen filed December 9, 2021, the respondent’s prior motion, which was filed September 30, 2021, is denied as moot. 00000031122 ~~_(_b)_(6_) ~ FURTIIER ORDER: The record is remandedto the Immigration Judge for fintber proceedings in accordance with this decision 2