15 F.4th 797
6th Cir.2021Background
- Petitioner Juana Dominga Ramos Rafael, a Guatemalan national, applied for admission to the U.S. on Dec. 22, 2016; DHS served a Notice to Appear (NTA) that did not state time or place.
- A subsequent Notice of Hearing (with time, date, and location) was mailed in July 2017; Ramos Rafael appeared pro se, later retained counsel, and applied for asylum and withholding of removal claiming gender-based violence and kidnapping by private actors.
- At the merits hearing the IJ found Ramos Rafael credible, reviewed documentary evidence (including the 2018 State Department report), but concluded the Guatemalan government was not shown to be unable or unwilling to protect her and denied relief.
- The BIA dismissed her appeal, deeming Ramos Rafael’s failure to address the IJ’s government-protection finding to be a waiver and holding that the subsequent Notice of Hearing cured any NTA deficiency for jurisdictional purposes.
- The BIA also concluded Ramos Rafael failed to show any due-process prejudice from the initial NTA omission. Ramos Rafael petitioned the Sixth Circuit, which denied review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner showed government unwillingness/inability to protect from private persecution | Corruption and impunity make Guatemalan government unable to protect women | IJ found and DHS/BIA argued petitioner did not prove government inability; petitioner failed to challenge that finding before BIA | Waived before BIA; alternatively insufficient evidence to meet burden |
| Whether NTA omission (no time/place) voids immigration court jurisdiction under Pereira/Niz-Chavez | Pereira/Niz-Chavez make proceedings void when NTA omits time/place | Subsequent Notice of Hearing supplied time/place; Pereira/Niz-Chavez address stop-time rule, not jurisdiction | Rejected: subsequent notice cured defect; no jurisdictional defect |
| Whether omission of time/place in NTA violated due process | Omission deprived petitioner of due process | BIA and government: petitioner suffered no prejudice; proper notice later | Waived and, on the merits, no actual-prejudice shown; due-process claim fails |
Key Cases Cited
- Hih v. Lynch, 812 F.3d 551 (6th Cir. 2016) (failure to raise issues in opening brief constitutes waiver)
- Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020) (applicant must show government unable/unwilling to control private persecutors)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (addressing whether an NTA without time/place triggers the stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (resolving what triggers the stop-time rule)
- Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019) (noncompliance with one-document rule does not necessarily defeat jurisdiction)
- United States v. Calan-Montiel, 4 F.4th 496 (7th Cir. 2021) (courts treat one-document rule noncompliance as non-jurisdictional)
- Warner v. Ashcroft, 381 F.3d 534 (6th Cir. 2004) (prejudice is required to establish a due-process violation in immigration proceedings)
- Garza-Moreno v. Gonzales, 489 F.3d 239 (6th Cir. 2007) (applicant must show actual prejudice to prevail on a due-process claim)