In re M-F-O-

• Decision Date: 04 November 2021
• Docket Number: 4031
• Citation: 28 I&N Dec. 408
• Parties: Matter of M-F-O-, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

28 I&N Dec. 408

Matter of M-F-O-, Respondent

No. 4031

Court of Appeals of U.S. Department of Justice Executive Office For Immigration Review Board of Immigration Appeals

November 4, 2021

A notice to appear that does not specify the time or place of a respondent's initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018), even if the respondent is later served with a notice of hearing specifying this information. Posos-Sanchez v. Garland, 3 F.4th 1176 (9th Cir. 2021), followed. Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021), overruled in part.

FOR RESPONDENT: Edgardo Quintanilla, Esquire, Sherman Oaks California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michelle Morton Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; CREPPY and LIEBOWITZ, Appellate Immigration Judges.

MALPHRUS, DEPUTY CHIEF APPELLATE IMMIGRATION JUDGE

In a decision dated May 16, 2018, an Immigration Judge denied the respondent's application for asylum and withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018), and for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOF.Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The Immigration Judge also denied the respondent's request for voluntary departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2018). The respondent has appealed from this decision and requested that we terminate his removal proceedings.^[1] We will deny his motion to terminate and dismiss his appeal with regard to the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. However, we will sustain his appeal with respect to the denial of voluntary departure. In this regard, we will overrule, in part, our precedential decision in Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021), and remand the record to the Immigration Judge for further consideration of the respondent's eligibility for voluntary departure.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who applied for admission to the United States without valid entry documents. He was placed in removal proceedings with the service of a notice to appear that failed to specify the time or place of his initial removal hearing. He was later served with notices of hearing specifying this information, and he appeared for all of his removal hearings.^[2] During proceedings, the respondent filed an application for asylum and related forms of relief and protection from removal and requested voluntary departure. In support of his application, he testified that criminal gang members attacked him on six occasions, beating him each time, robbing him during some of these incidents, and threatening him with a knife during the last incident. He further testified that the gang members approached him in an effort to recruit him because they were trying to recruit more young people. The gang members spoke to him in his indigenous dialect, demanding that he join their gang and only released him after he asked for more time to consider their demand or falsely promised to join them at a later date. The respondent claimed the gangs harmed him, and will target him in the future, because he is a member of a particular social group composed of indigenous Guatemalan youths who have abstained from joining the street gangs.

The Immigration Judge denied the respondent's application for asylum and withholding of removal after finding, among other things, that he had not demonstrated the requisite nexus between the past and feared harm and a valid social group.^[3] The Immigration Judge also concluded that the respondent was ineligible for protection under the Convention Against Torture. Finally, the Immigration Judge found that the notice to appear in this case precluded the respondent from accruing the requisite period of continuous physical presence for purposes of voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Act.

II. ANALYSIS

A. Asylum and Withholding of Removal

For purposes of this appeal, we will assume without deciding that the respondent has established the validity of his proposed social group of indigenous Guatemalan youths who have abstained from joining the street gangs and demonstrated his membership in it. However, we will affirm the Immigration Judge's finding that he has not demonstrated the requisite nexus between the past or feared harm and his membership in this group.^[4] See Matter of H-L-S-A-, 28 I&N Dec. 228, 234 n.5 (BIA 2021) (explaining that "an applicant must not only demonstrate that th[e] group is valid and he is a member of this group, but also the requisite nexus between group membership and any persecution"); see also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam). To establish the requisite nexus for purposes of asylum, the respondent must demonstrate that his membership in his proposed social group was or would be "one central reason" for the past or feared harm. Section 208(b)(1)(B)(i) of the Act. For purposes of withholding of removal, because this case arises within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, he must only demonstrate, pursuant to controlling precedent in this circuit, that his membership in his proposed social group was or would be "a reason" for the harm. Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021).^[5]

The Immigration Judge did not clearly err in finding that gang members targeted the respondent in Guatemala because they wanted him to join their ranks and that his membership in his proposed group was not, nor would it be, "one central reason" or "a reason" for the past or feared harm. See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) ("A persecutor's actual motive is a matter of fact to be determined by the Immigration Judge and reviewed by us for clear error."). The respondent does not claim that these gang members told him they were targeting him because he was an indigenous Guatemalan youth who refused to join their ranks. Rather, he believes that he was targeted on this basis because the gang members communicated with him in his indigenous dialect and indigenous individuals are a minority in Guatemala. However, as the Immigration Judge noted, a majority of those residing in the area where the respondent was harmed are indigenous. Even if the gang members were aware of the respondent's indigenous status based on the demographics of the area and their ability to communicate with him in an indigenous dialect, in light of the facts of this case, this evidence alone does not establish that his membership in his proposed social group was or would be "one central reason" or "a reason" for the past or feared harm. See Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009) (explaining that statements indicating that persecutors "were aware" of an applicant's ethnicity are insufficient to establish a nexus between his ethnicity and the alleged harm).

Moreover, this evidence is not inconsistent with the Immigration Judge's determination that the gang members simply wished to recruit him into their gang to expand their ranks, irrespective of his indigenous status. See Matter of L-E-A- ("L-E-A- I"), 27 I&N Dec. 40, 43-44 (BIA 2017) (providing that an applicant cannot demonstrate the requisite nexus if "the persecutor would have treated the applicant the same if the protected characteristic . . . did not exist").^[6] It is well established that Central American gangs direct harm "against anyone and everyone perceived to have interfered with, or who might present a threat to, their criminal enterprises and territorial power," including "those who refuse to join their ranks." Matter of S-E-G-, 24 I&N Dec. 579, 587 (BIA 2008). "[T]hese motivations do not constitute persecution on account" of any valid protected ground. Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (citation omitted), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

The respondent has not pointed to any convincing direct or circumstantial evidence that his membership in a particular social group of indigenous Guatemalan youths who have abstained from joining the street gangs was, or would be either "one central reason" or "a reason" for past or feared harm in Guatemala.^[7] The Immigration Judge was not required to accept the respondent's opinion that the gang members sought, or would seek, to harm him based on his membership in this group. See Macedo Templos v. Wilkinson, 987 F.3d 877, 883 (9th Cir. 2021) (concluding that an applicant had not shown the requisite nexus where he failed to present evidence that the criminals who harmed him were "driven by the same motive, beyond his opinion" (emphasis added)).^[8] "[T]he reason[] that generate[d] the dispute" in this case, as the Immigration Judge found, was the gang members' desire to expand their ranks. Matter of L-E-A- I, 27 I&N Dec. at 45; see also Matter of J-C-H-F-, 27 I&N Dec. 211, 217 (BIA 2018) (applying clear error standard of review). We will therefore affirm the Immigration Judge's decision to deny the respondent's application for asylum under section 208(...