Maria Jose Enriquez-Cortez v. U.S. Attorney General
20-12680
| 11th Cir. | Jul 16, 2021Background
- Henriquez-Cortez, a Honduran national, fled Honduras after her brother Alan was kidnapped and murdered by gang members; she and her family received subsequent threats and she internally relocated before leaving for the U.S. in June 2014.
- Border agents detained Henriquez-Cortez and served a notice to appear (NTA) that did not list a time and date; she admitted removability and applied for asylum, withholding of removal, and CAT protection.
- At an immigration hearing the IJ found Henriquez-Cortez credible but denied all relief: no past persecution, fear of future persecution not objectively reasonable, withholding burden not met, and CAT not shown because violence was private, not state‑sponsored.
- The BIA dismissed her appeal, assuming without deciding family was a cognizable particular social group but finding no objectively reasonable fear or nexus to persecution; the BIA’s decision included a notice warning of a possible civil monetary penalty of up to $799 per day for willful failure to depart.
- Henriquez-Cortez petitioned for review arguing (1) the defective NTA deprived the agency of jurisdiction, (2) the BIA erred on asylum/withholding/CAT (family as PSG and nexus), and (3) the daily civil penalty violates the Eighth Amendment.
Issues
| Issue | Henriquez‑Cortez Argument | Government/Board Argument | Held |
|---|---|---|---|
| Jurisdiction: Does a defective NTA strip agency jurisdiction? | NTA missing time/date (Pereira) deprived the agency of jurisdiction, invalidating proceedings. | Eleventh Circuit precedent forecloses that claim; a defective NTA does not divest jurisdiction. | Denied: prior Eleventh Circuit precedent controls; agency had jurisdiction. |
| Asylum: Is family a particular social group and is there nexus/ well‑founded fear? | Family is a PSG and she will be persecuted because of family membership; fear is genuine and reasonable. | BIA assumed PSG but found no objectively reasonable fear or nexus to persecution; facts (year of safe internal relocation, four years since departure) defeat objective reasonableness. | Denied: BIA’s finding that fear was not objectively reasonable stands; petitioner did not challenge that ground on appeal. |
| Withholding of removal: Met the "more likely than not" standard? | Same factual basis supports withholding. | Withholding requires a higher burden; because asylum (lower standard) failed, withholding also fails. | Denied: Petitioner failed to meet the higher withholding standard. |
| CAT: Likelihood of torture by or with acquiescence of public official? | Private‑actor violence and threats suffice given local conditions; CAT protection warranted. | Record shows private criminal violence without evidence public officials would torture or acquiesce; petitioner’s testimony did not meet statutory standard. | Denied: Substantial evidence supports BIA’s conclusion CAT standard not met. |
| Eighth Amendment (civil fine): Is pre‑enforcement challenge ripe? | The $799/day notice is excessive and violates the Excessive Fines Clause. | Challenge is unripe until government seeks to enforce a final removal order and a specific fine is imposed; amount and duration speculative. | Dismissed as unripe: no enforcement, amount, or duration established—challenge premature. |
Key Cases Cited
- Perez‑Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019) (NTA defects do not deprive the agency of jurisdiction)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defective NTA can implicate notice and tolling issues—basis of petitioner’s argument)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (standard of review for agency decisions)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (must challenge all independent grounds or affirmance follows)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (withholding of removal requires a higher "more likely than not" showing)
- Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) (pre‑enforcement Excessive Fines challenges are generally unripe)
- United States v. Chinchilla, 987 F.3d 1303 (11th Cir. 2021) (discussing practical timing of removal enforcement and consequences for fines)