Juana Ramos Rafael v. Merrick B. Garland ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0444n.06
Case No. 20-4003
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JUANA DOMINGA RAMOS RAFAEL, ) Sep 24, 2021
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE BOARD OF
MERRICK B. GARLAND, Attorney General, ) IMMIGRATION APPEALS
)
Respondent. )
)
Before: BATCHELDER, LARSEN, and READLER, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Juana Dominga Ramos Rafael applied for
asylum and withholding of removal. See 8 U.S.C. §§ 1158(a) & 1231(b)(3). The Immigration
Judge (IJ) denied her claims and she appealed to the Board of Immigration Appeals (BIA). The
BIA dismissed her appeal, and she petitions this court for review. We DENY the petition.
I.
Ramos Rafael is a native and citizen of Guatemala who applied for admission to the United
States on December 22, 2016. The Department of Homeland Security (DHS) served her with a
Notice to Appear at a place and time “to be determined.” In July 2017, the immigration court sent
her a Notice of Hearing, stating the time, date, and location for that hearing.
Ramos Rafael appeared pro se for that hearing. After she retained counsel, she applied for
asylum and withholding of removal on the basis that, if returned to Guatemala, she would suffer
violence because she is a woman. At the merits hearing, the IJ heard testimony, including
testimony from Ramos Rafael, which he found credible, and he considered the evidence, including
the 2018 State Department Report for Guatemala. The IJ found that Ramos Rafael had not shown
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and could not show that the Guatemalan government was unable or unwilling to protect women
from persecution (violence or kidnapping) by private individuals. Rather, the IJ found that the
Guatemalan government had taken measures to address the problem, including the establishment
of agencies to provide resources and assistance to women, the creation of specialized judicial
courts for violence against women, and the enactment of enhanced criminal penalties.
The IJ also determined that Ramos Rafael had not established a cognizable protected group,
proven a nexus to a protected ground, or shown either that she had suffered past persecution or
held an objectively reasonable fear of future persecution. The IJ denied Ramos Rafael’s
applications for relief and ordered her removed to Guatemala. She appealed to the BIA,
challenging the IJ’s denial of asylum or withholding and claiming that the removal proceedings
were invalid for lack of jurisdiction and violated her due-process rights because the initial Notice
to Appear did not state the time and place.
The BIA found that Ramos Rafael had not addressed the IJ’s critical determination—that
she had not shown “that the Guatemalan government is or was unable or unwilling to protect her
from the harm she suffered or fears in Guatemala,” as is necessary to establish eligibility for
asylum or withholding—and it “deem[ed] any further argument or evidence on this issue to be
waived.” The BIA also explained that jurisdiction will vest with the immigration court when the
time, date, and location are “subsequently provided,” and the record established that proper notice
was “subsequently provided” to Ramos Rafael. And as to Ramos Rafael’s due process argument,
the BIA similarly determined that she failed to show that the Notice to Appear “amounted to a due
process violation” or caused her to “suffer[] any prejudice” because proper notice was provided
subsequently. Consequently, the BIA dismissed her appeal. Ramos Rafael seeks appeal here.
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II.
A.
Ramos Rafael claims the IJ and BIA “erred in finding that she did not meet her burden of
proving that she possessed a well-founded fear of persecution on account of her membership in a
particular social group should she return to Guatemala.” But she does not even acknowledge the
BIA’s ruling that she waived any claim or argument that the Guatemalan government is or was
unable or unwilling to protect women from the persecution that she claimed to fear; namely,
violence or kidnapping by private individuals. Ramos Rafael has likewise waived any challenge
to that BIA ruling here. See Hih v. Lynch, 812 F.3d 551, 554, 556 (6th Cir. 2016) (holding that
the petitioner “waived any challenges” to a BIA decision “by failing to raise them in his opening
brief”).
But this claim would fail even if she had preserved it. “When an asylum claim focuses on
non-governmental conduct, the applicant must show that the alleged persecutor is either aligned
with the government or that the government is unwilling or unable to control him.” Juan Antonio
v. Barr, 959 F.3d 778, 793 (6th Cir. 2020) (citation omitted). “An applicant meets this burden
when she shows that she cannot reasonably expect the assistance of the government in controlling
her perpetrator’s actions.” Id. (quotation marks and citation omitted). The closest that Ramos
Rafael comes to addressing this issue in this appeal is a single, conclusory statement that
“corruption and impunity continues to be a widespread issue in Guatemala’s government;
therefore, [she] could not seek the assistance of the Guatemalan government and reasonably expect
assistance.” This is insufficient to meet her burden of proof.
B.
Ramos Rafael argues that her initial Notice to Appear did not state the time and place, so
Pereira v. Sessions, 138 S.Ct. 2105 (2018), renders her removal proceedings void for lack of
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jurisdiction. See also Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). The BIA rejected this claim
based on Matter of Bermudez Cota, 27 I.&N. Dec. 441, 447 (B.I.A. 2018), which held that the
jurisdictional requirements of 8 U.S.C. § 1229(a) are satisfied by a subsequent notice of the time
and place.
We must also reject Ramos Rafael’s claim. Simply put, Pereira and Niz-Chavez concern
only the stop-time rule, which is not implicated here. See Pereira, 138 S. Ct. at 2113 (stating “the
dispositive question” in Pereira as whether “a notice to appear that does not specify the time and
place at which the proceedings will be held . . . trigger[s] the stop time rule,” and describing that
question as “narrow” (internal quotation marks omitted)); Niz-Chavez, 141 S. Ct. at 1479 (noting
that the Court “agreed to hear this case to resolve the conflict” between courts of appeals as to
what “trigger[s] the stop-time rule”). For jurisdictional purposes, it is not necessary that the Notice
to Appear contain all the required information or that all the information be included in a single
document. See Santos-Santos v. Barr, 917 F.3d 486, 490 (6th Cir. 2019); see also United States
v. Calan-Montiel, 4 F.4th 496, 497 (7th Cir. 2021) (“[N]one of the courts of appeals treats
noncompliance with the one-document rule as a jurisdictional defect in a removal proceeding.”);
Rivera-Lopes v. Garland, 854 F. App’x 419, 420 (2d Cir. 2021); Navarrete-Lopez v. Garland, 853
F. App’x 1003, 1004 n.1 (5th Cir. 2021); Perez v. Garland, 853 F. App’x 189, 190 (9th Cir. 2021).
Because Ramos Rafael received a subsequent Notice of Hearing, which provided the required time
and date information that was missing from the Notice to Appear, Ramos Rafael received the
necessary notice and the IJ had jurisdiction.
C.
Ramos Rafael also argues that the omission of the time and place of her removal hearing
from the Notice to Appear violated her right to due process. “[P]roof of prejudice is necessary to
establish a due process violation in an immigration hearing.” Warner v. Ashcroft, 381 F.3d 5344
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(6th Cir. 2004). Ramos Rafael does not respond to the BIA’s determination that she did not suffer
any prejudice from the Notice to Appear, thus waiving the argument. See Hih, 812 F.3d at 554.
Even if she had preserved it, she has not argued that the absence of time and place in the
Notice to Appear “changed the outcome of the case.” That is, she has not alleged, much less
shown, actual prejudice and, therefore, she cannot establish a violation of her right to due process.
See Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007).
III.
For the foregoing reasons, we DENY the petition for review.
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