Chavez-Chilel v. Attorney Gen. U.S.

• Decision Date: 09 December 2021
• Docket Number: No. 21-1180,21-1180
• Citation: 20 F.4th 138
• Parties: Martha Elena CHAVEZ-CHILEL, Petitioner v. ATTORNEY GENERAL UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

20 F.4th 138

Martha Elena CHAVEZ-CHILEL, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America

No. 21-1180

United States Court of Appeals, Third Circuit.

Filed: December 9, 2021

Theodore J. Murphy, Murphy Law Firm, 320 North High Street, West Chester, PA 19380, Counsel for Petitioner

Brian Boynton, Acting Assistant Attorney General, Sheri R. Glaser, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge

Martha Elena Chavez-Chilel petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the order of the Immigration Judge ("IJ") denying her applications for asylum and withholding of removal. Because (1) the Department of Homeland Security's ("DHS") failure to include the date and time of her hearing in its Notice to Appear ("NTA") does not require termination of her immigration proceedings, and (2) substantial evidence supported the BIA's conclusion that "Guatemalan women" is not a particular social group ("PSG") for asylum or withholding purposes, we will deny the petition.

I

Chavez-Chilel, a native and citizen of Guatemala, entered the United States without admission or parole. DHS issued her an NTA before an IJ, "on a date to be set at a time to be set," charging her with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). A.R. 444–45. She was subsequently served a Notice of Hearing that specified the date and time to appear.

Before the IJ, Chavez-Chilel admitted the factual allegations in the NTA and conceded removability as charged. She then filed applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). With respect to her claims for asylum and withholding of removal, she asserted that she would be subject to persecution because she is a member of a PSG: "Guatemalan women." A.R. 202.

Chavez-Chilel moved to terminate her removal proceedings, arguing that the NTA was defective under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 2114–15, 201 L.Ed.2d 433 (2018). The IJ denied the motion, reasoning that (1) Pereira concerned only cancellation of removal and its stop-time rule,¹ not asylum or withholding of removal, (2) Chavez-Chilel suffered no prejudice from any deficiency in the NTA, and (3) a deficient NTA does not divest the IJ of jurisdiction.

At her merits hearing, Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. She explained that she feared she would be sexually assaulted or killed if she was removed to Guatemala. The IJ denied Chavez-Chilel's applications for asylum and withholding of removal,² finding that, while she was credible and that her rape qualified as past persecution, her proposed PSG, "Guatemalan women," did not constitute a PSG for asylum or withholding of removal purposes. The IJ concluded that this PSG was not "sufficiently particular" because there was no evidence that Guatemalan women share a "unifying characteristic" or present a "unified target" for persecution. A.R. 98. Chavez-Chilel appealed to the BIA.

The BIA dismissed the appeal and affirmed, reasoning that: (1) the NTA and subsequent Notice of Hearing vested the IJ with jurisdiction, so terminating and re-initiating the removal proceedings was not warranted, and (2) Chavez-Chilel's proposed PSG was "too broad to be cognizable." A.R. 4.

Chavez-Chilel petitions for review.

II³

A

The BIA and IJ properly denied Chavez-Chilel's motion to terminate removal proceedings even though her NTA lacked a specific date and time to appear. Title 8 U.S.C. § 1229(a) requires that an NTA include, among other things, the "time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). Chavez-Chilel argues that DHS's failure to comply with § 1229(a) constitutes a statutory violation, which itself requires terminating the proceedings. This argument fails for several reasons.

First, while § 1229(a) sets forth the type of notice that must be given to a noncitizen and requires an NTA to include a date and time to appear, the absence of that information does not impact the IJ's authority to act. See Nkomo v. Att'y Gen., 930 F.3d 129, 133 (3d Cir. 2019) ; see also United States v. Cortez, 930 F.3d 350, 364 (4th Cir. 2019) (observing that the information that must be provided to a noncitizen under § 1229 differs from what must be provided to an IJ for it to act). An IJ can act when a charging document, such as an NTA, is filed. See 8 C.F.R. § 1003.14 ("Jurisdiction vests, and proceedings before an [IJ] commence, when a charging document is filed with the Immigration Court by [DHS]."). Thus, noncompliance with the language of § 1229 alone does not require an IJ to terminate the proceedings.

Second, even if Chavez-Chilel's NTA did not comport with the "letter" of § 1229, that statute is akin to a claims-processing rule. Perez-Sanchez v. Att'y Gen., 935 F.3d 1148, 1153–57 (11th Cir. 2019). Claims-processing rules "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). They differ from jurisdictional rules, which "govern[ ] a court's adjudicatory capacity," namely "its subject-matter or personal jurisdiction." Id. Said differently, jurisdictional rules typically act as "external constraints" on an entity, whereas claims-processing rules are "internal rules" that help to maintain order but do not "define the scope of [the entity's] power." Cortez, 930 F.3d at 360–61 (citations omitted).⁴ Section 1229 is a claims-processing rule because it seeks to ensure that noncitizens appear for proceedings by requiring that the noncitizen be informed of the time and place of the hearing. By providing that information, the agency can set a schedule for moving the case forward. When there is a violation of a claims processing rule, as compared with a jurisdictional rule, the adjudicator has the authority to determine how to address the noncompliance. Cf. Gutierrez v. Johnson & Johnson, 523 F.3d 187, 197 (3d Cir. 2008) ("The import of th[e] distinction between jurisdictional and [claims-processing] rules ... is that courts cannot create equitable exceptions to jurisdictional [rules]."). Thus, because there can be equitable reasons to excuse noncompliance with a claims-processing rule, see id. at 197–98 (explaining that where there is a violation of a "claims-processing rule ... a court can exercise its discretion and hear an untimely appeal"), there is no automatic requirement that a violation of a claims-processing rule results in the termination of a proceeding.⁵

Third, even if the NTA's omission of a date and place did not comply with the statute, the omission was harmless. "[H]armless error analysis ... appl[ies] in immigration cases," and an error is harmless "when it is highly probable that [it] did not affect the outcome of the case." Li Hua Yuan v. Att'y Gen., 642 F.3d 420, 427 (3d Cir. 2011) ; see also Guadalupe v. Att'y Gen., 951 F.3d 161, 167 (3d Cir. 2020) (concluding error in petitioner's NTA was not harmless); see also Matter of Rosales Vargas, 27 I. & N. Dec. 745, 753 (B.I.A. 2020) ("While the respondents in this case timely challenged the deficiencies in their [NTAs], there is no apparent prejudice."). The purpose of an NTA is to notify a noncitizen that she is removable and provide the basis for that allegation. The NTA here provided such notice, and the subsequent Notice of Hearing provided the date and time of the hearing. The lack of a date and time for a hearing on the NTA did not impede Chavez-Chilel's opportunity to contest the charge against her, present evidence, and receive CAT relief. Accordingly, DHS's failure to include the date and time for her hearing on the NTA itself was harmless error, and thus a remand to direct the termination of the proceeding, or to re-initiate it, is unwarranted.⁶

For all of these reasons, the violation of § 1229 did not require the IJ to terminate the proceedings.⁷

The BIA also correctly concluded that Chavez-Chilel is not entitled to asylum or withholding of removal. A removable noncitizen may be eligible for asylum if she demonstrates that she is "unable or unwilling to return to, and is unable or unwilling to avail [herself] ... of the protection of, [the country to which she would be removed] because of persecution or a well-founded fear of persecution on account of ... membership in a [PSG]." 8 U.S.C. § 1101(a)(42)(A) ; see also id. § 1158(b)(1)(B)(i).

Whether a petitioner's proffered PSG is cognizable "presents a mixed question of law and fact, since the ultimate legal question of cognizability depends on underlying factual questions concerning the group and the society of which it is a part." S.E.R.L. v. Att'y Gen., 894 F.3d 535, 543 (3d Cir. 2018). Accordingly, we "review de novo the ultimate legal conclusion as to the existence of a [PSG]" but "review the underlying factual findings for substantial evidence." Id. (quotation marks and citation omitted).

Substantial evidence supports the BIA's and IJ's finding that "Guatemalan women" is not a cognizable PSG. A PSG must be: "(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." S.E.R.L., 894 F.3d at 540 (quotation marks and citation omitted). Particularity "addresses the outer limits of a group's boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct." Id. (quotation marks omitted). To satisfy the...