Martinez-Lopez v. Barr

• Decision Date: 04 December 2019
• Docket Number: No. 18-60393,18-60393
• Parties: Rosa Alba MARTINEZ-LOPEZ; Josafat Nahum Sierra-Martinez, Petitioners v. William P. BARR, U.S. Attorney General, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

943 F.3d 766

Rosa Alba MARTINEZ-LOPEZ; Josafat Nahum Sierra-Martinez, Petitioners
v.
William P. BARR, U.S. Attorney General, Respondent

No. 18-60393

United States Court of Appeals, Fifth Circuit.

FILED December 4, 2019

Robert Kenneth Hoffman, Rushton Law Firm, Bellaire, TX, for Petitioners ROSA ALBA MARTINEZ-LOPEZ, JOSAFAT NAHUM SIERRA-MARTINEZ.

Colin James Tucker, Esq., Trial Attorney, U.S. Department of Justice, Washington, DC, for Respondent.

Before JOLLY, SMITH, and COSTA, Circuit Judges.

PER CURIAM:

Rosa Alba Martinez-Lopez, on behalf of herself and her minor son Josafat Nahum Sierra-Martinez, seeks review of a Board of Immigration Appeals decision affirming the denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition.

I.

Martinez-Lopez and her son are from Honduras. They entered the United States without documentation in October 2015. Each received a notice to appear before an immigration judge (IJ), but the notices stated that the date and time of the appearance were "To Be Determined." A later notice provided a date and a time for a hearing in Houston. Martinez-Lopez and her son appeared at the prescribed time and place.

At a subsequent hearing before the IJ, Martinez-Lopez admitted through counsel that she and her son were inadmissible aliens. She applied for asylum, withholding of removal, and relief under the CAT.

943 F.3d 769

In support of her application, Martinez-Lopez related the following instances of violence and harassment against her and her family in Honduras. Her brother was murdered after dropping off his son at school. The police did not investigate his murder, even though Martinez-Lopez’s family filed a police report. A month later, several of Martinez-Lopez’s relatives were killed too. This time, police arrested a gang member. Martinez-Lopez also noted that her father was killed over twenty years ago, and the police never investigated his murder.

Martinez-Lopez testified that the harassment of her family continued after her brother’s murder. For example, men in a truck followed Martinez-Lopez, her mother, and her sisters. Even after Martinez-Lopez relocated to the United States, men followed her mother and sisters on at least one other occasion. They have not, however, encountered any problems in over a year. They now live in another part of Honduras.

Finally, Martinez-Lopez said that gang members harassed her at the cell phone store where she worked in Honduras. She testified that they came to the store five days a week and demanded that she and other employees hand over SIM cards. The gang members threatened to kill the store employees and their families if they did not cooperate. Again, the police took no action.

As a result of these events, Martinez-Lopez fears returning to Honduras because she believes the "people who killed [her] brother and the gang members who made [her] program the sim cards" would find and kill her.

The IJ denied Martinez-Lopez’s application. Although she found Martinez-Lopez to be credible, the judge determined that Martinez-Lopez’s testimony did not satisfy the requirements for asylum, withholding of removal, or protection under the CAT. The Board of Immigration Appeals affirmed the IJ’s decision without opinion. Martinez-Lopez timely petitioned this court for review.

II.

Because the Board affirmed the IJ’s decision without opinion, the IJ’s decision is the final agency determination subject to our review. See Soadjede v. Ashcroft , 324 F.3d 830, 832 (5th Cir. 2003) (per curiam). We review an IJ’s factual determinations for substantial evidence, overturning a finding only when the evidence compels a contrary result. Zhang v. Gonzales , 432 F.3d 339, 344 (5th Cir. 2005).

III.

As a threshold matter, Martinez-Lopez argues that, under Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), the IJ lacked jurisdiction over her case. Pereira held that "[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule." Id. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A) ). Martinez-Lopez asserts that the notices sent to her and her son were similarly defective as they too failed to specify a date and time. Consequently, she says, there was no jurisdiction because 8 C.F.R. § 1003.14(a) vests jurisdiction in an immigration court only after the Department of Homeland Security files a proper charging document.

We recently rejected Martinez-Lopez’s argument. See Pierre-Paul v. Barr , 930 F.3d 684, 689–90 (5th Cir. 2019). Pierre-Paul held that a notice to appear lacking a date and time is not defective for the purposes of establishing jurisdiction and that, even if it was, an immigration court

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could cure that defect by sending a subsequent hearing notice with the date and time. Id. at 689–91. Pereira , we explained, hinges on the stop-time rule’s statutory reference to 8 U.S.C. § 1229(a), which requires a notice to appear to include the time and place of the hearing. Id. at 689 ; see also 8 U.S.C. § 1229b(d)(1)(A). But 8 C.F.R. § 1003.14 does not mention section 1229(a). And for the purposes of a regulation or statute that is not "textually bonded to 8 U.S.C. § 1229(a)," a notice to appear does not need to include a date and time to be valid; it need only satisfy applicable regulations. See Pierre-Paul , 930 F.3d at 690.

The notices Martinez-Lopez and her son received satisfied the relevant regulations. See 8 C.F.R. §§ 1003.15, 1003.26 ; see also Santos-Santos v. Barr , 917 F.3d 486, 490 (6th Cir. 2019) (listing regulatory requirements for notices to appear). Although they did not specify a date and time for the appearance, the regulations require that information only "where practicable." 8 C.F.R. § 1003.18(b). Moreover, any defect was cured by the notices Martinez-Lopez and her son received just over a month later.¹ As a result, the notices vested the IJ with jurisdiction.

IV.

A.

Because the immigration court had jurisdiction, we turn to the merits of Martinez-Lopez’s petition. An applicant for asylum must demonstrate that she is a "refugee" under the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is a person outside her country of nationality who "is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1101(a)(42)(A). Persecution is extreme; it is more...