Summary
The Fifth Circuit held that an immigration judge retains jurisdiction over removal proceedings even when the Notice to Appear (NTA) omits the time and date of the hearing, as *Pereira v. Sessions* applies only to the stop-time rule for cancellation of removal and any defect is cured by a later notice of hearing. The court also denied the petitioner's asylum and withholding of removal claims, finding that death threats and extortion without accompanying violence do not constitute past persecution, and that the petitioner failed to demonstrate a well-founded fear of future persecution, particularly where his brother remained unharmed in El Salvador. The court rejected the proposed particular social group "[m]en who are persecuted as a result of past experiences brought on by their kinship" and affirmed the BIA's decision under the substantial evidence standard.
Topics
Practice areas
Questions Presented
- Whether the immigration court had jurisdiction over removal proceedings when the initial Notice to Appear did not specify the time or date of the hearing, under Pereira v. Sessions.
- Whether the defective Notice to Appear stopped the accrual of time for purposes of post-conclusion voluntary departure.
- Whether the BIA erred in denying asylum and withholding of removal based on failure to establish past persecution or a well-founded fear of future persecution on account of membership in a particular social group.
Holdings
- An NTA that does not specify the time or date of removal proceedings does not deprive the immigration court of jurisdiction; the IJ had jurisdiction over Barrera's removal proceedings.
- Substantial evidence supports the BIA's and IJ's conclusion that Barrera did not establish past persecution or a well-founded fear of future persecution on account of a protected ground.
Key quotations
“Under this standard, reversal is improper unless we decide not only that the evidence supports a contrary conclusion, but also that the evidence compels it.” (at 8)
“Persecution is '[t]he infliction of suffering or harm' that 'need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.'” (at 9)
Factual background
Barrera, a native and citizen of El Salvador, entered the United States without documentation in January 2017. He was served with a Notice to Appear (NTA) that did not specify the time or date of his initial removal hearing, but later received a notice with the hearing details. He appeared pro se and then with counsel, seeking asylum, withholding of removal, and CAT protection. He testified that gang members at his high school threatened to kill him if he did not pay $30,000, due to a belief that his aunt was wealthy. When he reported the threats to a school police officer, the officer showed a gang tattoo and warned him not to report. Barrera received a death threat through a classmate. He fled to another city and then to the United States. His brother remained in El Salvador without incident. The IJ found Barrera credible but denied relief, and the BIA dismissed his appeal.
Procedural history
The immigration judge (IJ) denied Barrera's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) adopted the IJ's decision and dismissed Barrera's appeal. Barrera timely petitioned for review to the Fifth Circuit.