Paula Osorio Tino v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3508
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Paula Osorio Tino; Elias Daniel Juares-Osorio; Jenifer Angelica Juares-Osorio
lllllllllllllllllllllPetitioners
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: June 2, 2021
Filed: September 20, 2021
[Published]
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Guatemala native and citizen Paula Osorio Tino, individually and on behalf of
her minor children Elias Daniel Juares-Osorio and Jenifer Angelica Juares-Osorio,
petitions for review of an order of the Board of Immigration Appeals (BIA), which
dismissed her appeal from an immigration judge’s decision denying her request to
terminate the proceedings based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), and
denying her applications for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT).1
As a preliminary matter, this court’s precedent forecloses Osorio Tino’s
argument, based on Pereira, that the immigration court never acquired jurisdiction
over her proceedings because her Notice to Appear (NTA) was deficient. See Ali v.
Barr, 924 F.3d 983, 985-86 (8th Cir. 2019) (concluding that Pereira decided a
“narrow” issue relating to the stop-time rule for cancellation of removal and “had
nothing to say” about when an immigration judge obtains jurisdiction over removal
proceedings; jurisdiction vests when a charging document (such as a NTA) is filed
with the immigration court; and a NTA need only provide time, place, and date
information “where practicable” under 8 C.F.R. § 1003.18(b)); see also Rodriguez de
Henriquez v. Barr, 942 F.3d 444, 446 (8th Cir. 2019).2
1
Because the minor children’s asylum applications are derivative of their
mother’s application, all references are to Osorio Tino. See 8 U.S.C. § 1158(b)(3)(A)
(child may be granted asylum if accompanying principal noncitizen was granted
asylum). There are no derivative benefits for withholding of removal or CAT relief.
See Fuentes v. Barr, 969 F.3d 865, 868 n.1 (8th Cir. 2020) (per curiam).
2
In Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Court addressed an
issue left open in Pereira, namely, whether a notice that did not include the date and
time of the hearing coupled with a later notice of date and time could invoke the stop-
time rule. As a matter of statutory interpretation, the Court held separate documents
did not trigger the stop-time rule; all the information needed to be included in one
document. The Fifth Circuit recently held Niz-Chavez did not disturb existing circuit
precedent regarding jurisdictional requirements. See Maniar v. Garland, 998 F.3d
235, 242 n.2 (5th Cir. 2021). We agree with the Fifth Circuit and do not interpret
Niz-Chavez as disturbing our jurisdiction-related precedent. See also United States
v. Bastide-Hernandez, 3 F.4th 1193, 1196 (9th Cir. 2021); United States v. Vasquez
Florez, 2021 WL 3615366 at *2 n.3 (4th Cir. Aug. 16, 2021) (per curiam).
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Having reviewed the record, we conclude the agency properly denied Osorio
Tino’s asylum application. See 8 U.S.C. § 1158(b)(1) (asylum eligibility
requirements). Specifically, we agree that Osorio Tino’s proposed particular social
group of “family unaffiliated with any gangs who refuse to provide any support to
transnational criminal gangs in Guatemala” was not legally cognizable because it
lacked particularity and social distinction. See Malonga v. Mukasey, 546 F.3d 546,
553 (8th Cir. 2008) (standard of review); see also Mayorga-Rosa v. Sessions, 888
F.3d 379, 383-85 (8th Cir. 2018). Even assuming, as the BIA did, that her proposed
particular social group of her “nuclear family” was cognizable, we further conclude
substantial evidence supports the agency’s finding that she failed to demonstrate the
requisite nexus between any persecution or fear of persecution and her membership
in this group or her proposed particular social group of her “indigenous tribal group
of K’iche,” given her repeated testimony that the aggressors targeted her to extort
money. See 8 U.S.C. § 1158(b)(1)(B)(i) (applicant must demonstrate that claimed
protected ground “was or will be at least one central reason” for persecution);
Silvestre-Giron v. Barr, 949 F.3d 1114, 1119 & n.3 (8th Cir. 2020) (standard of
review); Garcia-Moctezuma v. Sessions, 879 F.3d 863, 868-69 (8th Cir. 2018). This
finding was dispositive on her asylum claim. See Baltti v. Sessions, 878 F.3d 240,
245 (8th Cir. 2017) (per curiam).
Because Osorio Tino failed to establish eligibility for asylum, she necessarily
cannot meet the more rigorous standard of proof for withholding of removal. See
Martin Martin v. Barr, 916 F.3d 1141, 1145 (8th Cir. 2019). Finally, we agree with
Respondent that Osorio Tino failed to exhaust her CAT claim and may not re-raise
it here. See 8 U.S.C. § 1252(d)(1) (this court may review final removal order only if
noncitizen has exhausted all available administrative remedies); Baltti v. Sessions,
878 F.3d at 244.
Accordingly, we deny the petition for review. See 8th Cir. R. 47B.
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