Ruth Cardenas Palencia v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0558n.06
No. 18-4170
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RUTH CARDENAS PALENCIA, aka Ruth )
FILED
Nov 04, 2019
Cardenas de Zuniga, )
) DEBORAH S. HUNT, Clerk
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent. )
Before: COLE, Chief Judge; MERRITT and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Ruth Cardenas Palencia entered the United States unlawfully for
the third time in 2013. The Department of Homeland Security (DHS) sought to reinstate a prior
removal order entered against her. Palencia applied for withholding of removal under the
Immigration Nationality Act (INA) and for protection under the Convention Against Torture
(CAT). An Immigration Judge (IJ) denied Palencia relief and ordered her removed from the
country. The Board of Immigration Appeals (BIA) affirmed, and Palencia petitioned this court for
review. Because Palencia failed to properly present her claims to the BIA, we lack statutory
authority to hear her appeal and must dismiss her petition.
I.
Palencia is a native citizen of Honduras. In 1999, she entered the United States with the
assistance of a Honduran smuggler. Together, they crossed the Rio Grande on a raft near El Paso,
Texas. Border Patrol agents apprehended and detained Palencia in Texas. DHS initiated a removal
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action, and she was released pending those proceedings. Palencia provided DHS with an address
given to her by the smuggler.
After her release, Palencia traveled with the smuggler to Michigan, where the smuggler
kept her against her will for more than a year. Eventually, Palencia managed to escape. She
bought a bus ticket and traveled to Atlanta, Georgia. At that point, she lost contact with DHS.
Palencia never updated her address and, as a result, stopped receiving information regarding her
removal proceedings. In August of 2001, an IJ ordered Palencia removed in absentia. She
voluntarily returned to Honduras in 2002.
Palencia re-entered the United States in both 2003 and 2013. After crossing the border
with her son in 2013, Palencia was detained by Border Patrol agents in Texas’s Rio Grande Valley.
DHS notified her of its intent to reinstate her removal order. Palencia expressed fear that she and
her children would be persecuted if removed to Honduras, and she was referred to an asylum
officer. In her interview with the asylum officer, Palencia testified that she feared that a Honduran
gang, known as “Maya 18,” would kill or seriously harm her and her son because Palencia’s son
had previously refused to join the gang. She testified that her former neighbor was “killed and
burned” for a similar refusal to join the gang. The asylum officer found Palencia’s fear of
persecution credible and referred her to an IJ.
Palencia applied for withholding of removal under § 241(b)(3) of the INA and protection
under CAT. The IJ denied Palencia’s applications, finding her testimony inconsistent and
concluding that she failed to establish various criteria for relief under both the INA and CAT. The
IJ ordered Palencia removed. Palencia appealed to the BIA, and the BIA dismissed her appeal.
Relevant here, the BIA held that Palencia had failed to challenge dispositive portions of the IJ’s
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ruling with respect to her application for withholding of removal and failed to challenge altogether
the IJ’s denial of her application for CAT protection. This petition followed.
II.
Congress has, by statute, limited our authority to hear immigration appeals. See 8 U.S.C.
§ 1252(d). Under § 1252(d), we cannot review a final order of removal unless “the alien has
exhausted all administrative remedies.” Id. Thus, we may review “only claims properly presented
to the BIA and considered on their merits.” Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004);
accord Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005).1
Palencia did not properly present her claims to the BIA. First, she did not raise any
challenge to the IJ’s denial of her application for protection under CAT. The BIA therefore
determined that Palencia had abandoned any challenge to the IJ’s denial of her request for CAT
protection and did not address its merits. Palencia does not contest that determination before this
court.
Second, Palencia did not challenge a dispositive portion of the IJ’s denial of her application
for withholding of removal. Under the INA, an applicant for withholding of removal must show
a clear probability that she will suffer harm inflicted “by the government, or persons the
government is unwilling or unable to control.” Khalili v. Holder, 557 F.3d 429, 436 (6th Cir.
2009) (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004)). The IJ held that Palencia
had failed to satisfy this element, finding that there was no evidence that the police in Honduras
1
We have previously described § 1252(d)’s exhaustion requirement as jurisdictional. Hasan, 397
F.3d at 419–20. Last term, however, the Supreme Court held that a similar exhaustion requirement
in Title VII was a “claim-processing rule,” rather than a jurisdictional bar, and that any objections
based on that rule could be waived or forfeited by the parties. Fort Bend County v. Davis, 139 S.
Ct. 1843, 1849 (2019). We need not decide here whether § 1252(d)’s exhaustion requirement is
jurisdictional in the sense described by Fort Bend County because the government timely asserted
its exhaustion argument.
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would not protect Palencia and her family. Palencia’s appeal to the BIA did not contest this
dispositive finding. The BIA therefore determined that she had waived the issue for appeal; as a
result, the BIA held that Palencia “ha[d] not met her burden to establish eligibility for withholding
of removal.” Palencia does not contest that determination in this court. Accordingly, we have no
basis to question the BIA’s determination that Palencia did not properly present her claims to the
BIA, and we lack authority to review them here.2 See Mikolajczyk v. Holder, 355 F. App’x 915,
919 (6th Cir. 2009) (“The IJ ruled against [petitioners] on both [elements], but the [petitioners]
raised only [one] element before the BIA. We, therefore, may not review the other on appeal.”).
***
For the foregoing reasons, we DISMISS Palencia’s petition for review.
2
We note that Palencia’s opening brief before this court also omits any challenge to the IJ’s finding
that she had not established that the Honduran government was unable or unwilling to protect her
from violence. Thus, even if we could review Palencia’s petition, we would consider this issue
abandoned, which is dispositive of Palencia’s application for withholding of removal under the
INA.
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COLE, Chief Judge, concurring. Although I agree that the petitioner, Ruth Cardenas
Palencia, is not entitled to relief, I believe we have jurisdiction to review the two narrow issues
that Palencia raises on appeal. Palencia argues: 1) that the Immigration Judge (IJ) did not make
explicit adverse credibility findings under 8 U.S.C. § 1158(b)(1)(B)(iii), and 2) that the IJ did not
adequately consider that her “particular social group” under 8 U.S.C. § 1231(b)(3)(A) consisted of
her immediate family. Palencia raised both of these arguments to the Board of Immigration
Appeals (BIA), and the BIA, in turn, discussed the merits of both. For that reason, we have
jurisdiction to consider them. See Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)
(explaining that the Sixth Circuit has jurisdiction over claims “properly presented to the BIA and
considered on their merits”); see also Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (holding
that the Sixth Circuit has jurisdiction over claims that were not properly raised to the BIA, but
where the BIA nonetheless reached their merits).
Even so, as the majority explains, Palencia fails to challenge dispositive portions of the IJ’s
denial of her application for withholding of removal. This renders her present arguments, even if
meritorious, insufficient. See Ramaj v. Gonzales, 466 F.3d 520, 531 (6th Cir. 2006) (concluding
that any error in the IJ’s credibility determination was “harmless” where the court could affirm the
denial of relief on a separate basis); see also Mikolajczyk v. Holder, 355 F. App’x 915, 919 (6th
Cir. 2009) (denying a petition for review where petitioners failed to challenge the IJ’s finding
regarding the government’s inability or unwillingness to control the persecuting forces, which was
“fatal to their asylum claim”). Therefore, while I respectfully concur that the BIA’s decision
should not be disturbed, I would deny rather than dismiss Palencia’s petition.
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