Perez-Sanchez v. U.S. Attorney Gen.

• Decision Date: 21 August 2019
• Docket Number: No. 18-12578,18-12578
• Citation: 935 F.3d 1148
• Parties: Darvin Daniel PEREZ-SANCHEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

935 F.3d 1148

Darvin Daniel PEREZ-SANCHEZ, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 18-12578

United States Court of Appeals, Eleventh Circuit.

August 21, 2019

Bradley Bruce Banias, Barnwell Whaley Patterson & Helms, LLC, Charleston, SC, for Petitioner.

OIL, Remi da Rocha-Afodu, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel's Office, Miami, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX9-138

Before MARTIN, ROSENBAUM, and BOGGS,^* Circuit Judges.

MARTIN, Circuit Judge:

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, 201 L.Ed.2d 433 (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. 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 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 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.

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-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.

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, 81 L.Ed.2d 694 (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...