Ramirez v. Sessions, 17-1414

• Decision Date: 29 August 2018
• Docket Number: No. 17-1414, No. 17-2662,17-1414
• Citation: 902 F.3d 764
• Parties: Lidia RAMIREZ, Petitioner v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent Lidia Ramirez, Petitioner v. Jefferson B. Sessions, III, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

902 F.3d 764

Lidia RAMIREZ, Petitioner

v.Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent

Lidia Ramirez, Petitioner

v.Jefferson B. Sessions, III, Attorney General of the United States, Respondent

No. 17-1414

No. 17-2662

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2018

Filed: August 29, 2018

Matthew Lorn Hoppock, HOPPOCK LAW FIRM, LLC, Overland Park, KS, for Petitioner.

Jesse David Lorenz, Trial Attorney, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC, Carl H. McIntyre, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before BENTON, MELLOY, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

Lidia Ramirez, a native and citizen of Guatemala, seeks review of a final order of removal issued by the Board of Immigration Appeals ("Board"). The Board affirmed an immigration judge’s ("IJ’s") denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Ramirez also seeks review of a separate order of the Board denying her motion to reconsider or reopen. For the reasons set forth below, we deny both of Ramirez’s petitions for review.

I. BACKGROUND

The Department of Homeland Security ("DHS") detained Ramirez in July 2014 after she illegally entered the United States. When Ramirez expressed an intent to apply for asylum, DHS referred her to an asylum officer for a credible fear interview.

Ramirez told the asylum officer she feared a neighbor would kill her if she returned to Guatemala. Specifically, she said a man who lived near her in Guatemala frequently asked her to have sex, and she refused because she was married. In addition, she said she reported this neighbor to the police after he attempted to rape a local young woman, but the police did not arrest him. Ramirez believes he bribed the police. Ramirez said this same neighbor later sent two other men to confront her at knifepoint, demanding money and threatening to kill her. Ramirez told the asylum officer if she returned to Guatemala, her neighbor would kill her because she both refused his advances and reported him to the police. She said she could not move elsewhere in Guatemala because she had nowhere else to go, and she believed the police would not help her.

The asylum officer concluded Ramirez had a credible fear of "torture" and referred her case to an IJ for a removal proceeding under 8 U.S.C. § 1229a. DHS then served her with a Notice to Appear, charging her with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I), which provides that immigrants are inadmissible if they do not possess a valid entry document when seeking admission.

After a series of continuances, her final hearing took place in March 2016 in Kansas City, Missouri. Ramirez submitted her asylum application (completed with the help of an attorney) and represented herself pro se. A new IJ first asked an interpreter to read Ramirez’s entire asylum application back to her in Spanish. The IJ then asked if she understood what was read and if it was true and correct. Ramirez answered in the affirmative. The IJ also asked if everything in her credible fear interview, and in her application for asylum, was true and correct. Ramirez again answered affirmatively. The IJ proceeded to ask Ramirez a series of "Yes-or-No" questions about the specific reasons she feared returning to Guatemala based on her application. Ramirez answered "Yes" each time, reiterating she was afraid because her neighbor made sexual advances toward her and sent two men to extort money from her at knifepoint. When the IJ asked if "there is anything else that caused you to be afraid to return to Guatemala," Ramirez responded: "It’s just that." The IJ then twice asked if Ramirez had anything else to say, to which she responded each time: "That’s all."

The IJ issued a verbal ruling denying the application, stating Ramirez failed to meet her burden of proof for securing relief because the conduct she feared was "personal and a potential criminal act," but not "persecution" or "torture" necessary for securing asylum, withholding of removal, or CAT relief. The IJ then left the hearing to write a formal order and soon returned, giving Ramirez a multi-page written decision.

The IJ’s written decision concluded that Ramirez failed to demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, as required to secure asylum. The IJ found that (a) "married women in Guatemala who are approached by men to have sex and declined such invitation" is too broad to be a "particular social group"; (b) Ramirez did not demonstrate significant harm caused by her neighbor’s harassment and threat; and (c) she did not show her neighbor remained interested in her or would cause actual harm if she returned.

At this point, however, the IJ’s written decision became muddled. In discussing Ramirez’s claim for CAT relief, the IJ three times referenced Ramirez as a man who would be removed to "Mexico" instead of Guatemala. The decision also erroneously stated Ramirez "testified" that her other family members have not been harmed since "he left Mexico." The decision concluded that Ramirez failed to satisfy her burden that it is more likely than not she will be tortured "if returned to Mexico." In addition, the caption of the written decision charged Ramirez with violating the wrong section of the Immigration and Nationality Act (INA) ( 8 U.S.C. § 1182(a)(6)(A)(i), which renders inadmissible an alien present in the United States without having been admitted or paroled). The decision later noted the correct charge for seeking admission without a valid entry document.

Ramirez, at the time represented by counsel, appealed the IJ’s decision to the Board, challenging mostly the errors in the IJ’s written decision. In a written order, the Board (represented by a single member) stated it would "defer to the Immigration Judge’s decision" and then denied relief in a three-page opinion. The Board acknowledged the IJ’s errors but ultimately found them "to be no more than harmless error." It determined the "record as a whole" indicated the IJ was aware Ramirez is a woman from Guatemala. The Board then explained that the sexual advances and threat directed at Ramirez did not rise to the level of past persecution. It also concluded she lacked a well-founded fear of future persecution for similar reasons discussed in the IJ’s decision. The Board stated that by failing to establish eligibility for asylum, she could not satisfy her higher burden for establishing eligibility for withholding of removal. Finally, the Board found Ramirez ineligible for relief under the CAT, in part because she offered no evidence of torture beyond the harassment allegations underlying her other claims.

Ramirez timely petitioned this Court for review of the Board’s order dismissing her appeal. Noting that her prior appellate counsel failed to extensively brief the issues in her original appeal to the Board, Ramirez also filed a motion to reopen or reconsider with the Board. She argued the IJ’s hearing conduct violated procedural due process, and she further explained that the IJ’s fact errors demonstrated a failure to provide individualized consideration. Ramirez based her motion on a 2009 statement by former Board Chairman Juan Osuna, who indicated that where an alien’s prior counsel barely briefed a case, the alien can file a supplemental brief without alleging ineffective assistance of counsel. See Practice Before the BIA , 86 Interpreter Releases No. 30 (August 10, 2009) ("Osuna Statement").

The Board summarily denied the motion to reopen or reconsider, explaining that the motion either reiterated previous contentions or asserted arguments that were apparent at the time of the original appeal and could have been presented in the appeal brief. The Board also found the motion presented no new evidence that would justify reopening the case.

Ramirez timely appealed the Board’s denial of her motion to reopen or reconsider. Ramirez asks that we remand her case for further consideration by the Board. We consolidated the two petitions on appeal.

II. DISCUSSION

To establish eligibility for asylum, an applicant must show that he or she is "unable or unwilling to return to his or her 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.’ " Esenwah v. Ashcroft , 378 F.3d 763, 766 (8th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A) ). Eligibility for withholding of removal requires an applicant to show "his or her life or freedom would be threatened in the proposed country of removal on account of" the same statutory grounds. 8 C.F.R. § 1208.16(b). The applicant must demonstrate "it is more likely than not" he or she would be subject to persecution on one of the qualifying grounds, see Zine v. Mukasey , 517 F.3d 535, 540 (8th Cir. 2008), a burden of proof "more demanding than that for asylum." Id . (quoting Alemu v. Gonzales , 403 F.3d 572, 576 (8th Cir. 2005) ); see also 8 U.S.C. § 1231(b)(3)(A). To establish eligibility for CAT relief, an applicant must show "it is more likely than not" that "he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2).

This Court has jurisdiction to review "constitutional claims or questions of law raised upon a petition for review" of a removal order. 8 U.S.C. § 1252(a)(2)(D). "The [Supreme] Court [has] held that the appeal of the [Board] order affirming the IJ’s order and the appeal of the denial of the motion for reconsideration must be treated as ‘two separate petitions filed to review two separate final orders.’ " Esenwah , 378 F.3d at 765 (quoting Stone v. I.N.S. , 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) ). Theref...