Rosalia Francisco v. William P. Barr ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2271
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Rosalia Juan Francisco, also known as Rosalia Juan-Francisco; Manuel Lisandro
Juan Francisco, also known as Manuel Lisandro Juan-Francisco
lllllllllllllllllllllPetitioners
v.
William P. Barr, Attorney General of United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 18, 2020
Filed: December 23, 2020
[Unpublished]
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Before GRUENDER, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
Guatemalan native and citizen Rosalia Francisco, individually and on behalf
of her minor son Manuel, petitions for review of an order of the Board of Immigration
Appeals (BIA), which dismissed her appeal from an immigration judge’s (IJ’s)
decision denying her asylum, withholding of removal, and protection under the
Convention Against Torture (CAT).1 Francisco challenges the denial of relief and
repeats her argument, rejected by the BIA, that the immigration court never acquired
jurisdiction over her proceedings because her Notice to Appear was deficient, citing
Pereira v. Sessions, 585 U.S. ---, 138 S. Ct. 2105 (2018). We do not consider new
arguments that Francisco failed to present to the agency. See Chak Yiu Lui v. Holder,
600 F.3d 980, 984 (8th Cir. 2010).
As a preliminary matter, we conclude that this court’s precedent, which we are
bound to follow, forecloses Francisco’s jurisdictional argument. 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 IJ obtains jurisdiction over removal proceedings; an immigration court
obtains jurisdiction over removal proceedings when a charging document (such as a
Notice to Appear) is filed with the immigration court; and a Notice to Appear needs
to provide the time, date, and place information only “where practicable,” based on
applicable regulations); see also United States v. Escobar, 970 F.3d 1022, 1026-27
(8th Cir. 2020) (reiterating that this court has repeatedly declined to overrule Ali).
Even assuming Francisco meaningfully challenged the agency’s denial of
asylum, see Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004)
(explaining that a claim not meaningfully argued in an opening brief is deemed
waived), we conclude that substantial evidence supports the agency’s decision, see
Fuentes-Erazo v. Sessions, 848 F.3d 847, 852 (8th Cir. 2017) (explaining that the
agency’s factual findings will not be disturbed unless a petitioner demonstrates the
evidence not only supports a contrary conclusion but compels it, in other words,
1
Because Manuel’s asylum application is derivative of his mother’s, all
references are to Francisco. See 8 U.S.C. § 1158(b)(3)(A) (stating that a child may
be granted asylum if the accompanying principal alien 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).
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unless any reasonable fact finder would be compelled to conclude to the contrary).
Specifically, even if her proposed particular social group of “Guatemalan women
unable to leave domestic relationships” is cognizable, a reasonable fact finder could
conclude, as the IJ and BIA did, that she failed to demonstrate membership in that
group because she left her abuser and remained unharmed in Guatemala for over four
years before departing for the United States. See id. at 852-53 (concluding that
substantial evidence supported the agency’s finding that the petitioner failed to
establish membership in her proposed particular social group of “Honduran women
in domestic relationships who are unable to leave their relationships” because “she
was, in fact, able to leave her relationship” and remained unharmed in her native
country for approximately five years). In addition, although Francisco referenced her
Q’anjob’al race, as the IJ found and the record demonstrated, she neither developed
that claim nor offered any explanation why she merited relief based on her indigenous
identity.
Finally, we conclude that substantial evidence supports the agency’s
conclusion that Francisco was not eligible for withholding of removal and protection
under the CAT. See id. at 853 (explaining that an applicant who fails to meet the
standard of proof for asylum necessarily fails to meet the higher standard of proof
required for withholding of removal); Ming Ming Wijono v. Gonzales, 439 F.3d 868,
874 (8th Cir. 2006) (concluding that the denial of asylum and withholding of removal
dictates the same outcome on a CAT claim when the claims are based on the same
underlying facts).
Accordingly, the petition for review is denied. See 8th Cir. R. 47B.
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