Darvin Daniel Perez-Sanchez v. U.S. Attorney General

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12578
________________________
Agency No. A206-459-138
DARVIN DANIEL PEREZ-SANCHEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 21, 2019)
Before MARTIN, ROSENBAUM, and BOGGS, * Circuit Judges.
MARTIN, Circuit Judge:
*
Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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Darvin Perez-Sanchez’s case sits at a familiar crossroad in immigration law,
where personal hardship intersects with technical administrative and statutory
requirements. Among other issues, his petition for review asks us to consider the
effect of the Supreme Court’s decision in Pereira v. Sessions, 585 U.S. __, 138 S.
Ct. 2105 (2018). Pereira interpreted 8 U.S.C. § 1229(a)(1), the provision of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)
defining a Notice to Appear (“NTA”). 138 S. Ct. at 2113–16. Mr. Perez-Sanchez
argues the immigration judge (“IJ”) never had jurisdiction over his removal case
because the Department of Homeland Security (“DHS”) issued him an NTA that
did not include either the time or date of his removal hearing. He relies on Pereira,
which held in a different context that § 1229(a)(1) requires this information. Id. at
2113–14. DHS insists in response that the agency properly exercised jurisdiction
since the jurisdictional rule in question was established by regulation, not by
statute, and Mr. Perez-Sanchez’s NTA complied with the regulations. See 8
C.F.R. § 1003.15(b)–(c).
Because Congress alone has the power to define the scope of an agency’s
authority, we join several of our sister circuits and hold today that the regulations
set forth a claim-processing rule as opposed to a jurisdictional one. We recognize
§ 1229(a)(1) as setting out a claim processing rule as well. We therefore deny Mr.
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Perez-Sanchez’s petition for review as to this claim because the deficient NTA did
not deprive the agency of jurisdiction over his removal proceedings.
We do not, however, accept the agency’s analysis of Mr. Perez-Sanchez’s
asylum and withholding claims. The Board of Immigration Appeals (“BIA”)
affirmed the IJ’s denial of both claims, saying that Mr. Perez-Sanchez’s
relationship to his father-in-law was not a central reason for his persecution at the
hands of the Gulf Cartel. This conclusion cannot be squared with the record
evidence. We therefore grant Mr. Perez-Sanchez’s petition for review and remand
his asylum and withholding of removal claims for further proceedings consistent
with this opinion.
I.
The Gulf Cartel is one of Mexico’s oldest and most dangerous cartels. On
December 21, 2013, five of its members broke into Mr. Perez-Sanchez’s house in
Tapachula, Mexico and held him at gunpoint. 1 They told him they were there to
collect on a debt the cartel believed he owed. Some years before, a man
nicknamed “El Banana” lost a shipment containing 500 kilograms of cocaine that
belonged to the cartel. The cartel never forgot the loss. When its members could
1
Our recitation of the factual background draws heavily from Mr. Perez-Sanchez’s
testimony before the IJ. Because the BIA neither adopted nor addressed the IJ’s credibility
determination, this Court must assume Mr. Perez-Sanchez was credible. See Sandie v. Att’y
Gen. of U.S., 562 F.3d 246, 252 (3d Cir. 2009) (“[W]e must assume Sandie’s testimony is
credible because we have no credibility determination to review from the BIA.”).
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not find El Banana, they tracked down his daughter and her partner for information
and, failing that, repayment. By the time the cartel broke into Mr. Perez-Sanchez’s
house, the members knew something he did not: namely, that El Banana was
Perez-Sanchez’s father-in-law, Elias Gamaliel Martinez-Carasco.
Determined to make their trip worthwhile, the cartel members demanded
Mr. Perez-Sanchez reveal his father-in-law’s whereabouts. But Mr. Perez-Sanchez
had no idea where Mr. Martinez-Carasco was. Because Mr. Martinez-Carasco
abandoned his daughter, Sandra Gabriela Martinez Reyes, at a young age, neither
she nor Mr. Perez-Sanchez knew much about the man, much less that he had been
involved in the Gulf Cartel’s drug trafficking operations. The cartel, however, was
unmoved by Mr. Perez-Sanchez’s pleas of ignorance. With each unsatisfactory
answer, the cartel members beat Mr. Perez-Sanchez, fracturing his collarbone and
at least one of his ribs. They also warned him that anyone caught stealing from or
snitching on them would “have their hands chopped off or blown off and . . . their
heads blown off.”
Eventually, one of the cartel members proposed that Mr. Perez-Sanchez use
his banking job to help the cartel set up fake accounts. The cartel knew that Mr.
Perez-Sanchez was a college graduate who was currently working for a bank
handling credit card payments. The cartel explained that because Mr. Perez-
Sanchez’s father-in-law owed them money, Perez-Sanchez did as well. Scared of
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losing the license he’d worked so hard to earn, Mr. Perez-Sanchez refused to help
the Gulf Cartel set up fake accounts. The cartel members then ransacked Mr.
Perez-Sanchez’s house, where they stumbled upon a box containing 46,000 pesos
in the bedroom. Again, the cartel directed Mr. Perez-Sanchez to assist them. And
again, Mr. Perez-Sanchez refused, telling them that he had “no reason to pay [the]
debt of another person.”
Fed up with his continued resistance, the most violent member of the group
grabbed Mr. Perez-Sanchez by the shirt, put a gun to his head, and told him to pray
because his time had come. Mr. Perez-Sanchez’s life was spared at the last second
only when another cartel member seized on the idea that Perez-Sanchez could
repay his father-in-law’s debts with money. This idea was born from the 46,000
pesos found in the Perez-Sanchez home.
The cartel then made Mr. Perez-Sanchez one final offer: in exchange for the
46,000 pesos (which the cartel would credit toward an interest payment on his
father-in-law’s debt) and a monthly payment of 26,000 pesos, the cartel would stay
its hand. This time, Mr. Perez-Sanchez accepted. The cartel members then left,
with one driving off in a Mexican police car. Some time later, Ms. Reyes arrived
home with a friend, where they discovered Mr. Perez-Sanchez on the ground,
bleeding and badly beaten. They immediately took him to the hospital for
treatment.
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True to his word, Mr. Perez-Sanchez paid the cartel 26,000 pesos every
month afterward by showing up at the designated park with a fanny pack full of
money. But the payments were taking their toll. Prior to the couple’s encounter
with the cartel, Mr. Perez-Sanchez and Ms. Reyes lived relatively comfortable
lives. Between their environmental consulting business and Mr. Perez-Sanchez’s
banking job, the couple did not want for money. The extortion payments changed
everything. Just four months into the payment plan, Mr. Perez-Sanchez ran out of
money. When the couple was not able to make their May 2014 payment, they fled
to the United States. They never finished paying off Mr. Martinez-Carasco’s debt.
Mr. Perez-Sanchez and Ms. Reyes arrived in the United States on May 27,
2014. DHS began removal proceedings against Mr. Perez-Sanchez on June 9,
2014 and served him with an NTA ordering him to appear before an IJ in Eloy,
Arizona at a date and time “to be set.” Proceedings were eventually transferred to
Florida, where Mr. Perez-Sanchez applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
Following two hearings, during which Mr. Perez-Sanchez and Ms. Reyes
testified about their experiences with the Gulf Cartel, the IJ denied Perez-Sanchez
all relief. The IJ found that although “[t]he cartel’s motive to increase its profits
and obtain repayment for the [father-in-law’s] debt was one central reason for its
actions against [Mr. Perez-Sanchez] and [Ms. Reyes],” any motive to harm Perez-
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Sanchez based on his relationship to Mr. Martinez-Carasco “was, at most,
incidental.” The IJ concluded that because Mr. Perez-Sanchez failed to show he
suffered persecution “on account of a protected ground,” he was ineligible for
asylum and withholding of removal. 2 The IJ then ordered Mr. Perez-Sanchez
removed to Mexico.
Mr. Perez-Sanchez appealed the IJ’s decision to the BIA, which dismissed
the appeal on May 21, 2018 without briefing by DHS. Although the BIA
acknowledged at the outset that “the issue of nexus [was] close,” because Mr.
Perez-Sanchez’s “relationship to his father-in-law [was] a reason for the harm and
extortion he experienced,” the BIA nonetheless agreed with the IJ that the family
relationship was not a central reason for Perez-Sanchez’s suffering. The BIA did
not consider the IJ’s twin findings that the Gulf Cartel targeted Mr. Perez-Sanchez
to “recuperate[] money owed by [his] father-in-law” and that “any motive to harm
[Perez-Sanchez] based on his family status was at most incidental” to be clearly
erroneous.
Mr. Perez-Sanchez timely petitioned this Court for review.
2
The IJ also denied Mr. Perez-Sanchez’s CAT claim for reasons unrelated to this petition
for review.
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II.
“We review questions of statutory interpretation and other issues of law de
novo,” De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir. 2006),
deferring to an agency’s interpretation of a statute it administers only if the
statute’s language is ambiguous and the agency’s interpretation is “based on a
permissible construction of the statute,” id. at 1279 (quoting Chevron U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 2782 (1984)).
We review factual determinations by the agency for substantial evidence. Chen v.
U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir. 2006) (per curiam). Under
substantial evidence review, reversal is warranted only if “the evidence compels a
reasonable fact finder to find otherwise.” Id. at 1231 (quotation marks omitted).
III.
We begin with Mr. Perez-Sanchez’s argument that DHS’s failure to include
the time and date of his removal hearing in his NTA means the agency did not
have jurisdiction over his removal proceedings. Under BIA regulations,
“[j]urisdiction vests, and proceedings before an Immigration Judge commence,
when a charging document is filed with the Immigration Court.” 8 C.F.R.
§ 1003.14(a). For proceedings initiated after April 1, 1997, an NTA is one type of
charging document. Id. § 1003.13. Mr. Perez-Sanchez argues that the “Notice to
Appear” mentioned in the regulations carries the same meaning as the “Notice to
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Appear” defined in the statute, 8 U.S.C. § 1229(a). In addition, he says the
Supreme Court’s decision in Pereira, which addressed 8 U.S.C. § 1229(a), held an
NTA must include the time, date, and location of the removal hearing. Putting
these two arguments together, Mr. Perez-Sanchez asserts that an NTA lacking the
time, date, or location of a removal hearing necessarily fails to vest the IJ with
jurisdiction over removal proceedings.
But this argument presupposes the jurisdictional nature of the regulation in
question, 8 C.F.R. § 1003.14(a). As we will explain, both the regulation and the
statute set forth only claim-processing rules with respect to the service or filing of
an NTA. For this reason, we conclude Mr. Perez-Sanchez is not entitled to a
remand on this claim.
A.
First, a word on jurisdiction and exhaustion. Because Pereira was issued one
month after the BIA dismissed his appeal, Mr. Perez-Sanchez never had the
opportunity to raise this claim before the agency. Ordinarily, a petitioner’s failure
to exhaust a claim before the BIA deprives our Court of jurisdiction over that
claim. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016). But we
are not deprived of jurisdiction here. We always “have jurisdiction to determine
our own jurisdiction.” Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir.
2003). And our jurisdiction to review removal proceedings extends only to final
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orders of removal. See 8 U.S.C. § 1252(a)(1), (b)(9). If, as Mr. Perez-Sanchez
argues, the agency never had jurisdiction over his removal proceedings to begin
with, the entire proceeding—including the final order of removal—would be
invalid, and we would have no jurisdiction to entertain his petition. We therefore
cannot remand this question for the BIA to address in the first instance. See
Hernandez-Perez v. Whitaker, 911 F.3d 305, 310–11 (6th Cir. 2018) (addressing
the petitioner’s abandoned Pereira claim because it pertained “to a possible
jurisdictional flaw”). We must determine for ourselves whether Mr. Perez-
Sanchez’s removal proceedings resulted in a valid final order of removal.
Having established our jurisdiction to review Mr. Perez-Sanchez’s Pereira
claim, we turn now to its substance.
B.
As with all matters of statutory and regulatory interpretation, our inquiry
into the scope of the agency’s jurisdiction begins with the statute itself. See
Chevron, 467 U.S. at 842–44, 104 S. Ct. at 2781–82. Here, the relevant statutory
provision, 8 U.S.C. § 1229, titled “[i]nitiation of removal proceedings,” states that
“[i]n removal proceedings under section 1229a . . . , written notice (in this section
referred to as a ‘notice to appear’) shall be given in person to the alien . . .
specifying the following: . . . [t]he time and place at which the proceedings will be
held.” 8 U.S.C. § 1229(a)(1). The statute thus clearly requires that an NTA
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include the time and place of a noncitizen’s removal proceedings. As the Supreme
Court explained in Pereira, section 1229(a) “speak[s] in definitional terms, at least
with respect to the time and place at which the proceedings will be held.” 138 S.
Ct. at 2116 (quotation marks omitted). For this reason, Mr. Perez-Sanchez’s NTA
was unquestionably deficient under the statute—although his NTA listed the
location, it left off both the time and date of the hearing.
The government nonetheless urges this Court to defer to the BIA’s
interpretation that an NTA under section 1229(a) is not deficient so long as a
subsequent notice of hearing is later sent and specifies the time and location of the
removal hearing. In re Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). But
the Supreme Court foreclosed this argument in Pereira. There, the Court held an
NTA that fails to specify the time and place of removal proceedings is defective.
Pereira, 138 S. Ct. at 2116. The omission of that information, as the Supreme
Court saw it, was not “some trivial, ministerial defect” that could be cured later.
Id. Rather, “[f]ail[ure] to specify integral information like the time and place of
removal proceedings unquestionably would deprive the notice to appear of its
essential character.” Id. at 2116–17 (alteration adopted, emphasis added, and
quotation marks omitted). And because Congress’s intent was clear from the face
of the statute, that was the end of the matter for the Court. Id. at 2113 (citing
Chevron, 467 U.S. at 842–43, 104 S. Ct. at 2781). Under Pereira, then, a notice of
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hearing sent later might be relevant to a harmlessness inquiry, but it does not
render the original NTA non-deficient. Cf. Ortiz-Santiago v. Barr, 924 F.3d 956,
962 (7th Cir. 2019) (declining to defer to Bermudez-Cota because the decision
“brushed too quickly over the Supreme Court’s rationale in Pereira”).
However, our conclusion that the NTA was deficient does not mean the
agency lacked jurisdiction over Mr. Perez-Sanchez’s case. We do not read section
1229’s time-and-place requirement to create a jurisdictional rule. See Henderson
v. United States, 517 U.S. 654, 656, 116 S. Ct. 1638, 1640 (1996) (“[T]he manner
and timing of serving process are generally nonjurisdictional matters of
‘procedure.’”). Notably, neither party argues otherwise.
The parties instead focus their attention on 8 C.F.R. § 1003.14, a regulation
that purportedly sets forth the agency’s jurisdiction over removal proceedings and
ties the commencement of those proceedings to the filing of an NTA “with the
Immigration Court” as opposed to the service of an NTA upon a noncitizen,
8 U.S.C. § 1229(a). The parties make two assumptions by focusing on the
regulation: first, that 8 U.S.C. § 1229(a) is ambiguous with respect to the point of
commencement for removal proceedings, such that the agency could promulgate a
regulation establishing the filing of an NTA as the point of commencement; and
second, that the agency was empowered to promulgate a regulation restricting its
jurisdiction over removal proceedings. We will address each assumption in turn.
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With respect to the first, Congress’s decision to nest “service” of an NTA
under “[i]nitiation of removal proceedings” suggests to us that Congress intended
for service of an NTA—not filing—to operate as the point of commencement for
removal proceedings. 3 If that were indeed the case, the agency was not free to
redefine the point of commencement and our inquiry should end with the statute.
Chevron, 467 U.S. at 842–43, 104 S. Ct. at 2781 (“If the intent of Congress is
clear, . . . the agency[] must give effect to the unambiguously expressed intent of
Congress.”). Nonetheless, even if we assume for purposes of this opinion that the
statute is ambiguous and the regulation should be given effect, the outcome
remains the same. This is because 8 C.F.R. § 1003.14, like 8 U.S.C. § 1229(a),
sets forth only a claim-processing rule. And this brings us to the parties’ second
assumption—namely, that 8 C.F.R. § 1003.14 established a jurisdictional rule.
We do not fault the parties for this assumption. After all, section 1003.14
specifically states “[j]urisdiction vests, and proceedings before an Immigration
3
We are aware that several of our sister circuits have deferred to the regulations when
assessing the date of commencement. See, e.g., DiPeppe v. Quarantillo, 337 F.3d 326, 334 (3d
Cir. 2003) (“Although DiPeppe was served with an [Order to Show Cause] and Notice of
Hearing in 1992, removal proceedings did not effectively commence for her until 2000, when the
NTA was filed with the Immigration Court.”); DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 814–
15 (5th Cir. 2001) (“We therefore hold that removal proceedings commence when the
[Immigration and Naturalization Service] files the appropriate charging document with the
immigration court.”); Costa v. I.N.S., 233 F.3d 31, 36–37 (1st Cir. 2000) (applying Chevron
deference to conclude that the “petitioner was not in deportation proceedings until the NTA was
filed with the Immigration Court”). But it does not appear that any of them considered whether
8 U.S.C. § 1229(a) was unambiguous with respect to the date of commencement.
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Judge commence, when a charging document is filed with the Immigration Court
by the Service.” A charging document, in turn, refers to “the written instrument
which initiates a proceeding before an Immigration Judge,” such as a “Notice to
Appear.” Id. § 1003.13. And in contrast to their statutory counterpart, the
regulations do not require that an NTA contain the time, date, and location of the
removal hearing. See id. §§ 1003.15, 1003.18.
Many of our sister circuits have accepted the proposition that 8 C.F.R.
§ 1003.14 sets forth a jurisdictional rule. See, e.g., Nkomo v. Att’y Gen. of U.S.,
930 F.3d 129, 133 (3d Cir. 2019) (referring to the regulation as “jurisdiction-
vesting”); Banegas Gomez v. Barr, 922 F.3d 101, 111 (2d Cir. 2019) (“The
Attorney General has promulgated regulations governing removal proceedings that
do address when jurisdiction vests in the Immigration Court.”); Ali v. Barr, 924
F.3d 983, 986 (8th Cir. 2019) (“As our sister circuits have explained, § 1229(a)
says nothing about how jurisdiction vests in an immigration court. For that we
must turn to the regulations.” (citation omitted)); Karingithi v. Whitaker, 913 F.3d
1158, 1160 (9th Cir. 2019) (“[T]he regulations, not § 1229(a), define when
jurisdiction vests.”); Hernandez-Perez, 911 F.3d at 313–14. We are not persuaded.
Principles of administrative law dictate that an agency cannot define its own
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authority to hear cases; only Congress can.4 We therefore agree with the Fourth,
Fifth, and Seventh Circuits that 8 C.F.R. § 1003.14, despite its language, sets forth
not a jurisdictional rule but a claim-processing one. See Pierre-Paul v. Barr, 930
F.3d 684, 691–93 (5th Cir. 2019); United States v. Cortez, 930 F.3d 350, 358–62
(4th Cir. 2019); Ortiz-Santiago, 924 F.3d at 963–64.
The problem with treating 8 C.F.R. § 1003.14 as a jurisdictional rule is this:
“Congress alone controls [an agency’s] jurisdiction.” Union Pac. R.R. Co. v. Bhd.
of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 71,
130 S. Ct. 584, 590 (2009); see also Charles H. Koch Jr. & Richard Murphy, 2
Admin. L. & Prac. § 5.18 (“[A]n agency may not limit its jurisdiction through its
procedural rules.”). Although jurisdiction may be a “word of many, too many,
meanings,” Arbaugh v. Y&H Corp., 546 U.S. 500, 510, 126 S. Ct. 1235, 1242
(2006) (quotation marks omitted), when it is used to refer to the agency’s authority
to decide a particular matter, jurisdiction means no less than the functional
equivalent of a federal court’s subject matter jurisdiction. See Cortez, 930 F.3d at
360; Ortiz-Santiago, 924 F.3d at 962–63. And the Supreme Court has made quite
4
We note, however, that in the event Congress’s statutory grant of jurisdiction is
ambiguous, an agency is entitled to adopt a reasonable construction of that provision. See City
of Arlington v. F.C.C., 569 U.S. 290, 301, 133 S. Ct. 1863, 1870–71 (2013). We are not
presented with such a situation here.
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clear that an agency’s power to act is “authoritatively prescribed by Congress.”
City of Arlington v. F.C.C., 569 U.S. 290, 297, 133 S. Ct. 1863, 1869 (2013).
For this reason, an agency cannot fashion a procedural rule to limit
jurisdiction bestowed upon it by Congress. The Supreme Court’s decision in
Union Pacific confirms as much. There, Congress vested the National Railroad
Adjustment Board (the “Board”) with “jurisdiction to adjudicate grievances of
railroad employees that remain unsettled after pursuit of internal procedures.”
Union Pacific, 558 U.S. at 71, 130 S. Ct. at 590. The Railway Labor Act
additionally required employees and carriers to exhaust grievance procedures
before resorting to arbitration. Id. at 73, 130 S. Ct. at 591. As part of this
exhaustion process, the Act “direct[ed] parties to attempt settlement in conference”
with one another. Id. (quotation marks omitted). It was undisputed in Union
Pacific that the industry and its employees conferenced before approaching the
Board. Id. at 76, 130 S. Ct. at 593. Nonetheless, the Board dismissed the
arbitration for lack of jurisdiction because neither party initially introduced
evidence that they had conferenced with one another. See id. at 77, 130 S. Ct. at
594.
The Supreme Court held that the conferencing requirement did not
“condition the adjudicatory authority of the Board.” Id. at 82, 130 S. Ct. at 597.
The Board’s jurisdiction, the Court explained, extended to “all disputes between
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carriers and their employees growing out of grievances . . . concerning rates of pay,
rules, or working conditions.” Id. (quotation marks omitted). That authority
existed independent of the conferencing requirement, which imposed a
requirement only “on carriers and grievants alike.” Id. The Court arrived at this
conclusion even though the Board’s procedural regulations provided that “[n]o
petition shall be considered by any division of the Board unless the subject matter
has been handled in accordance with [the grievance procedures],” precisely
because “Congress gave the Board no authority to adopt rules of jurisdictional
dimension.” Id. at 83–84, 130 S. Ct. at 597 (quotation marks omitted).
We see no reason to deviate from the principles set forth in Union Pacific.
Contrary to the position argued by the government, Congress did not stay silent on
the question of jurisdiction. Just as Congress empowered the Board in Union
Pacific to adjudicate labor disputes between railroad employers and employees, so,
too, did it empower IJs to “conduct proceedings for deciding the inadmissibility or
deportability of an alien.” 8 U.S.C. § 1229a(a)(1); see also Cortez, 930 F.3d at
360. This broad grant of authority is not limited in any way by the filing or service
of an NTA. As we have explained, section 1229(a), states, at most, that removal
proceedings are initiated upon the service of an NTA to a noncitizen. And service
requirements “are generally nonjurisdictional matters of procedure.” Henderson,
517 U.S. at 656, 116 S. Ct. at 1640 (quotation marks omitted).
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Congress has not authorized the Attorney General to promulgate regulations
of “jurisdictional dimension.” Union Pacific, 558 U.S. at 84, 130 S. Ct. at 597.
The Immigration and Nationality Act (“INA”) empowers the Attorney General to
“establish such regulations . . . as the Attorney General determines to be necessary
for carrying out this section.” 8 U.S.C. § 1103(g)(2). It does not allow the
Attorney General to override Congress’s grant of authority. Simply put, the
Attorney General can no more restrict the immigration courts’ jurisdiction over
removal proceedings than he (or she) can grant them jurisdiction over railway
labor disputes. See Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt
rules and processes to maintain order, it cannot define the scope of its power to
hear cases.”). Thus, even assuming Mr. Perez-Sanchez’s NTA was deficient under
the regulations, 5 the agency properly exercised jurisdiction over his removal
proceedings because 8 C.F.R. § 1003.14 could not have imposed jurisdictional
limitations.
We do not say that 8 C.F.R. § 1003.14 regulates nothing at all. We agree
with our sister circuits that the regulation sets forth a claim processing rule. See
Pierre-Paul, 930 F.3d at 691–92; Cortez, 930 F.3d at 360–62; Ortiz-Santiago, 924
5
Although we do not decide the issue today, we note the Seventh Circuit concluded that
the NTA in 8 C.F.R. §§ 1003.13–1003.15, 1003.18, and the NTA in 8 U.S.C. § 1229(a) are one
and the same. See Ortiz-Santiago, 924 F.3d at 961–62.
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F.3d at 963–64. As the Fourth Circuit recently observed, 8 C.F.R. § 1003.14
“lay[s] out the procedural steps that must be taken to docket a case before an
immigration judge.” Cortez, 930 F.3d at 361. The regulation thus “seek[s] to
promote the orderly progress of litigation by requiring that the parties take certain
procedural steps at certain specified times”—a quintessential claim-processing
function. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435, 131 S. Ct.
1197, 1203 (2011).
Beyond that, the regulation closely resembles Federal Rule of Civil
Procedure 3, which provides that “[a] civil action is commenced by filing a
complaint with the court.” Like Rule 3, 8 C.F.R. § 1003.14 requires that a
document—here, an NTA—be filed with the appropriate tribunal to commence
proceedings. And the Supreme Court has said that Rule 3 defects have no impact
on a court’s subject matter jurisdiction. See Schlesinger v. Councilman, 420 U.S.
738, 742 n.5, 95 S. Ct. 1300, 1305 n.5 (1975) (“[S]o long as the court’s subject-
matter jurisdiction actually existed and adequately appeared to exist . . . any defect
in the manner in which the action was instituted and processed is not itself
jurisdictional and does not prevent entry of a valid judgment.”).
Given this, Mr. Perez-Sanchez’s Pereira challenge must fail. Because
neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 speaks to jurisdiction, the IJ and
the BIA properly exercised jurisdiction over his removal hearing based on the
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authority conferred upon them by 8 U.S.C. § 1229a(a)(1). Those proceedings
resulted in a valid final order of removal, which we have jurisdiction to review
under 8 U.S.C § 1252(a)(1), (b)(9). We therefore deny his petition for review as to
his Pereira claim. To the extent Mr. Perez-Sanchez argues he is nonetheless
entitled to a remand because his NTA violated the agency’s claim-processing rules,
we dismiss this part of his petition for lack of jurisdiction because he failed to
exhaust the claim before the agency. See Jeune, 810 F.3d at 800; cf. Pierre-Paul,
2019 WL 3229150, at *6 (“Assuming arguendo that Pierre-Paul’s notice to appear
were defective, and the defect could not be cured, Pierre-Paul waited too long to
raise this issue.”).
IV.
Mr. Perez-Sanchez also argues that the BIA violated his due process rights
by dismissing his appeal in the absence of a government response. This argument
fails.
The members of the BIA must “exercise their independent judgment and
discretion in considering and determining the cases coming before the Board.”
8 C.F.R. § 1003.1(d)(1)(ii). That duty exists independent of any decision by the
government to file a brief in opposition to the noncitizen’s appeal. 6 The agency’s
6
DHS, like any party before the BIA, was permitted to file a brief, but it did not have to
do so. See 8 C.F.R. § 1003.38(f).
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decision to address the merits of Mr. Perez-Sanchez’s appeal absent DHS briefing
did not render his appeal fundamentally unfair. We discern no grounds for
concluding that the agency’s actions ran afoul of the Due Process Clause. Our
conclusion today adheres to past unpublished decisions in this Circuit, see, e.g.,
Cenolli v. U.S. Att’y Gen., 208 F. App’x 718, 722 (11th Cir. 2006) (per curiam)
(unpublished), and we deny Mr. Perez-Sanchez’s petition for review as to this
claim.
V.
Last, but certainly not least, we turn to Mr. Perez-Sanchez’s argument that
the BIA’s decision was unsupported by substantial evidence. To recap, the BIA
found that although the Gulf Cartel targeted Mr. Perez-Sanchez because of his
father-in-law’s debt, any motive to harm him “based on his family status was at
most incidental.” We agree with Mr. Perez-Sanchez that this finding is not
supported by any reasonable reading of the record.
To be eligible for asylum or withholding of removal, a noncitizen must
prove he suffered persecution “on account of” a protected basis.7 See Rodriguez
7
The BIA, citing Matter of L-E-A-, 27 I. & N. Dec. 40 (BIA 2017), agreed with the IJ
that Mr. Perez-Sanchez’s proposed PSG of “his father-in-law’s immediate family” was
cognizable under the INA. However, the Attorney General recently reversed in part the BIA’s
holding in Matter of L-E-A-. See Matter of L-E-A-, 27 I. & N. Dec. 581, 596–97 (AG 2019).
Because this part of Mr. Perez-Sanchez’s petition for review concerns only the nexus
requirement, and not the PSG requirement, we express no view on how, if at all, Matter of L-E-
A- impacts Mr. Perez-Sanchez’s proposed PSG or whether the Attorney General’s decision is
entitled to deference.
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Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (per curiam). This
is also known as the “nexus” requirement. See id. After the enactment of the
REAL ID Act in 2005, in order to satisfy the nexus requirement, an applicant must
establish his membership in a particular social group was or is “at least one central
reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also Perez-Zenteno v.
U.S. Att’y Gen., 913 F.3d 1301, 1307 (11th Cir. 2019) (“[T]o satisfy the ‘on
account of a statutorily protected ground’ requirement, the applicant must prove
that the protected ground ‘was or will be at least one central reason for persecuting
the applicant.’” (quoting 8 U.S.C. § 1158(b)(1)(B)(i))); Singh v. Holder, 764 F.3d
1153, 1162 (9th Cir. 2014) (“[U]nder the REAL ID Act’s standard, a persecutor
may be motivated by more than one central reason, and an asylum applicant need
not prove which reason was dominant.” (quotation marks omitted)).
In Mr. Perez-Sanchez’s case, it is impossible to disentangle his relationship
to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of
the same coin. The record is replete with evidence that the Gulf Cartel sought out
and continuously extorted Mr. Perez-Sanchez because of his father-in-law’s past
history with the cartel. Among other things, the Gulf Cartel held Mr. Perez-
Sanchez at gunpoint and told him that because Mr. Martinez-Carasco “owed them
money . . .[,] [Mr. Perez-Sanchez] owed them money” as well. Indeed, the Gulf
Cartel almost executed Mr. Perez-Sanchez because of Mr. Martinez-Carasco’s
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debt, sparing him only when they realized he had enough money to specifically
cover “the interest that [Martinez-Carasco] had accumulated and owed them” and
could, over time, pay off Martinez-Carasco’s debt.
A family debt wrongly inherited is still an inheritance. Absent the familial
relationship between Mr. Perez-Sanchez and Mr. Martinez-Carasco, the cartel
would never have hunted him and his partner down to begin with or continued
persecuting them for months. The evidence compels us to reject the BIA’s
conclusion that Mr. Perez-Sanchez’s relationship to his father-in-law played only
an “incidental” role in the cartel’s decision to persecute him. It is abundantly clear
to us that the family relationship was one central reason, if not the central reason,
for the harm visited upon Mr. Perez-Sanchez. We therefore grant his petition for
review and remand his asylum and withholding of removal claims to the BIA for
proceedings consistent with this opinion.
PETITION DENIED IN PART, DISMISSED IN PART, GRANTED IN
PART, AND REMANDED.
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