942 F.3d 444
8th Cir.2019Background
- Ronal Henriquez Argueta, his wife, and two children (Honduran citizens) applied for asylum, withholding of removal, and CAT relief; an IJ denied relief and the BIA dismissed their appeal.
- Petitioners filed a motion to reopen/reconsider the BIA’s decision; the BIA denied that motion in June 2018.
- Petitioners argued the IJ lacked jurisdiction because the notices to appear (NTAs) did not specify hearing date/time (relying on Pereira v. Sessions).
- They also argued the BIA abused its discretion by failing to address alleged errors: failure to find past persecution, that family membership was a central reason for persecution by the Mara 18 gang, and that police acquiesced (supporting their CAT claim).
- The Eighth Circuit held it was bound by Ali v. Barr on the NTA/jurisdiction question, reviewed denial of reconsideration for abuse of discretion, and found the BIA did not err in denying reconsideration or in its CAT analysis.
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction under Pereira (defective NTA) | NTA lacking date/time fails to trigger jurisdiction per Pereira | Regulations and Ali v. Barr allow NTAs to omit time/place/date "where practicable"; Eighth Circuit precedent controls | Court bound by Ali; no jurisdictional defect requiring relief |
| Standard and timeliness for motion to reconsider | BIA abused discretion by not addressing claimed errors of law/fact and by "cherry-picking" evidence | Motion to reconsider must identify errors and is disfavored; denial reviewed only for abuse of discretion | No abuse of discretion; BIA applied proper standard and may refuse to relitigate rejected arguments |
| Alleged factual errors (past persecution, family as particular social group) | IJ/BIA erred in finding no past persecution and that family membership was not one central reason for threats/murders | These arguments rehash merits already adjudicated; BIA may summarily deny reconsideration of unchanged arguments | BIA did not abuse discretion in declining to reconsider these merit-based claims |
| CAT claim — government acquiescence to gang torture | Police leaked complaint to Mara 18, showing official awareness/acquiescence to future torture | Acquiescence requires proof public official had awareness prior to torture and then breached duty to intervene; evidence is insufficient | Denial of CAT relief upheld; no legal error — evidence did not show official awareness and breach as required |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defective NTA lacking time/place may not trigger stop-time rule)
- Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (Eighth Circuit interprets regulations to permit NTAs that omit time/place/date where practicable)
- Stone v. I.N.S., 514 U.S. 386 (1995) (filing a motion to reconsider does not toll the time to seek judicial review)
- Esenwah v. Ashcroft, 378 F.3d 763 (8th Cir. 2004) (abuse-of-discretion standard for BIA denial of reconsideration is highly deferential)
- Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (interpretation of CAT "acquiescence" to include actions of officials, including low-level ones)