Jovani Casas v. Merrick B. Garland ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1739
JOVANI CASAS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the U.S. Department of
Justice Executive Office for Immigration Review
Immigration Court.
No. A089-353-201
____________________
ARGUED APRIL 8, 2022 — DECIDED AUGUST 29, 2022
____________________
Before WOOD, HAMILTON, and JACKSON-AKIWUMI, Circuit
Judges.
JACKSON-AKIWUMI, Circuit Judge. After discovering that Jo-
vani Casas had reentered this country without authorization
after already being subject to a removal order, the Depart-
ment of Homeland Security reinstated her prior removal or-
der. Eight years and some procedural errors later, DHS finally
sought to remove Casas, but she claimed she feared returning
2 No. 20-1739
to Mexico. An asylum officer determined that Casas did not
have a reasonable fear of persecution or torture in returning
to Mexico, and the Immigration Judge (IJ) agreed. Casas then
petitioned us for review. But because Casas cannot show that
she suffered any prejudice as a result of DHS’s procedural er-
rors, and because the IJ’s reasonable-fear finding is supported
by substantial evidence, we must deny her petition.
I
In 2008, DHS removed Casas, a Mexican citizen, from the
United States pursuant to a valid removal order. Four years
later, DHS learned she had returned to this country after she
was arrested by local authorities for driving without a license.
So DHS sought to reinstate her 2008 removal order.
The relevant form by which DHS sought to reinstate
Casas’s 2008 removal order is Form I-871, titled Notice of In-
tent/Decision to Reinstate Prior Order. Despite its title, the
form actually has three separate sections to be filled out on
three separate occasions: (1) a large section providing notice
to the noncitizen of DHS’s intent to reinstate a removal order,
(2) a section for the noncitizen to acknowledge receipt of the
notice, and (3) a final section for DHS’s ultimate decision re-
instating a removal order.
According to the dates on the Form I-871 Casas received,
DHS made its decision to reinstate Casas’s removal order
first, and then gave Casas notice either one day or six months
late—an inversion of the procedure ordinarily requiring no-
tice to a noncitizen before a final decision is rendered. See 8
C.F.R. § 241.8. The large notice section at the top of the form
is dated a day after the decision to reinstate, so DHS purport-
edly provided Casas with the notice of its intent to reinstate
No. 20-1739 3
the order at that time. But the middle section of the form
shows that Casas acknowledged receipt of the notice six
months after the decision to reinstate the order was made—
suggesting that Casas may not have even seen the form until
then. Further, in her acknowledgment, Casas did not indicate
whether she wanted to make a statement contesting the de-
termination.
After reinstating the prior removal order, DHS released
Casas on supervision. For seven years, Casas remained on su-
pervision in the United States. Then in March 2020, when
Casas appeared at an Immigration and Customs Enforcement
office for a routine check-in, DHS detained her. After she was
detained, Casas requested a reasonable-fear interview.
At her interview with an asylum officer, Casas stated that
unknown individuals kidnapped her stepfather and uncle,
who were on duty police officers, for unknown reasons in
2013 or 2014. The police took a report of the kidnappings, and
the investigation is purportedly ongoing. Casas feared that
she would be the victim of “reprisal[s]” or an act of “venge-
ance” by the same people. Casas’s mother and sister still live
in Mexico, afraid of these unknown persons as well. At one
point, her sister went into hiding but has since emerged. Sep-
arately, Casas mentioned that her mother is a member of a
group that advocates for disappeared people, which led to
threats from someone unrelated to her stepfather and uncle’s
kidnappers.
The asylum officer determined that Casas had not shown
a reasonable fear of persecution or torture. Casas sought
4 No. 20-1739
review by an IJ who, after hearing Casas testify to the same
facts recounted above, affirmed the asylum officer’s decision. 1
II
Casas’s petition raises two arguments: (1) the reinstate-
ment of her removal order was facially deficient and did not
provide her a fair hearing under the Fifth Amendment; and
(2) the IJ erred in rejecting her reasonable fear assertion. We
take each argument in turn.
A
In immigration cases, we review constitutional and legal
issues de novo. Meraz-Saucedo v. Rosen, 986 F.3d 676, 684 (7th
Cir. 2021). Noncitizens have due process rights in reinstate-
ment proceedings under the Fifth Amendment. Zadvydas v.
Davis, 533 U.S. 678, 693 (2001). But when regulations provide
a structure for proceedings, we analyze the government’s ac-
tions for compliance with the regulations, rather than compli-
ance with constitutional due process (unless the petitioner
challenges the regulations themselves as deficient). Silais v.
Sessions, 855 F.3d 736, 745 & n.6 (7th Cir. 2017) (citated omit-
ted). In addition, the petitioner must show that any errors by
the government in complying with the regulations resulted in
prejudice. Id. at 745.
When someone reenters the United States without author-
ization after a prior removal, “the prior order of removal is
reinstated from its original date and is not subject to being re-
opened or reviewed.” 8 U.S.C. § 1231(a)(5). In order to
1 Because this was a negative decision from a reasonable-fear inter-
view, there was no further appeal to the Board of Immigration Appeals
available. 8 C.F.R. § 208.31(g)(1).
No. 20-1739 5
reinstate a removal order, the Government must: (1) deter-
mine the noncitizen “has been subject to a prior order of re-
moval” and obtain a copy of the order; (2) confirm the identity
of the noncitizen; and (3) determine whether the noncitizen
“unlawfully reentered the United States.” 8 C.F.R.
§ 241.8(a)(1)–(3). Once the Government has made its determi-
nation, it must provide written notice and give the noncitizen
an opportunity to provide “a written or oral statement con-
testing the determination.” 8 C.F.R. § 241.8(b). Only after the
noncitizen is given notice and an opportunity to respond may
DHS reinstate the removal order. 8 C.F.R. § 241.8(c); Johnson
v. Guzman Chavez, 141 S. Ct. 2271, 2282 (2021).
Casas argues that DHS’s decision to reinstate her prior re-
moval order was facially deficient because it predated the no-
tice to her by a full day at least, which shows that DHS de-
cided the removal order before it ever gave her notice or an
opportunity to respond. She also notes that her acknowledg-
ment was not dated until nearly six months later, which fur-
ther suggests that she was never given an opportunity to re-
spond before DHS decided to reinstate the removal order. Be-
cause of these deficiencies, Casas argues that she was not pro-
vided a fair hearing in violation of her due process rights un-
der the Fifth Amendment, and the government’s failure to fol-
low its own regulations is inherently prejudicial.
The government concedes the facial deficiencies on the
Form I-871 Casas received. But Casas cannot prevail because
she does not provide any evidence of prejudice. Although she
argues for a presumption of prejudice based on the deficient
Form I-871, our case law is clear that noncitizens must “pro-
duce some concrete evidence indicating that the violation of a
procedural protection actually had the potential for affecting
6 No. 20-1739
the outcome.” Silais, 855 F.3d at 745 (citation omitted). Casas
does not point to anything that would suggest that the out-
come of her reasonable-fear interview would have been dif-
ferent had the government complied with its regulations. As
far as we can tell, DHS’s failure to provide adequate notice
before reinstating the removal order had no effect on the out-
come of Casas’s case: she chose not to contest the findings of
the reinstatement, and she was able to request and participate
in a reasonable-fear interview, the outcome of which an IJ
later reviewed.
B
Casas’s second argument challenges the IJ’s decision that
she did not establish a reasonable fear of persecution or tor-
ture. We must first address the standard of review for this
type of claim, as our circuit has not established one.
Negative decisions from a reasonable-fear interview are
distinct from a denial of asylum or other immigration relief
on the merits, which courts review for substantial evidence.
Meraz-Saucedo, 986 F.3d at 684–85; see W.G.A. v. Sessions, 900
F.3d 957, 965 (7th Cir. 2018). Reasonable-fear interviews are
preliminary screening examinations conducted by an asylum
officer and reviewed by an IJ. 8 C.F.R. §§ 208.31(b)–(c), (g),
241.8(e). Only after an asylum officer determines that the in-
dividual has a reasonable fear of persecution or torture can
the individual pursue the merits of their claim before an IJ. 8
C.F.R. § 208.31(e).
The government suggests that the proper standard of re-
view for a negative decision out of a reasonable-fear interview
is the substantial evidence test. See Romero v. Att’y Gen., 972
F.3d 334, 340 (3d Cir. 2020) (applying substantial evidence
No. 20-1739 7
review to reasonable fear determination and rejecting the
government’s proposed “facially legitimate and bona fide
reason” standard); Andrade-Garcia v. Lynch, 828 F.3d 829, 833–
34 (9th Cir. 2016) (same). The substantial evidence test is a
“deferential” standard that requires “reversal only if the evi-
dence compels a different result.” Meraz-Saucedo, 986 F.3d at
684. Casas does not offer a competing view, so we assume
without deciding that substantial evidence is the proper
standard for negative decisions of reasonable-fear interviews.
To establish a “reasonable fear of persecution or torture,”
Casas needed to show a reasonable possibility that she would
be tortured or face persecution in Mexico on account of her
“race, religion, nationality, membership in a particular social
group or political opinion.” 8 C.F.R. § 208.31(c). Family mem-
bership can be grounds for a reasonable fear, but there must
still be “a causal link between family membership and the
persecution” beyond a family member’s experience of harm.
Meraz-Saucedo, 986 F.3d at 685; see W.G.A., 900 F.3d at 965.
The evidence before the asylum officer and the IJ was
threadbare on the nexus between her family membership and
a fear of persecution. Even before our court, Casas fails to ex-
plain the nexus. Casas could not identify the kidnappers, and
the record does not indicate if they targeted her stepfather
and uncle for a particular reason or no reason at all. And while
Casas stated that she feared that she would be the victim of
“reprisal[s]” or an act of “vengeance” by the kidnappers, she
does not provide any evidence that the kidnappers have ever
or would ever target her. At most, she noted that her sister
went into hiding at some point for some unclear reason, but
she no longer is. Without more information about who these
individuals were, why they targeted her family, and why she
8 No. 20-1739
feared they would also target her, the IJ’s finding that Casas
was unlikely to be persecuted on account of her family mem-
bership was based on substantial evidence.
III
Because we cannot locate any prejudice in procedure or
error in the IJ’s reasonable fear determination, we DENY
Casas’s petition for review.