13 F.4th 708
8th Cir.2021Background
- Petitioner Paula Osorio Tino, a Guatemalan citizen, sought asylum, withholding of removal, and CAT protection for herself and derivative relief for her two minor children; the BIA dismissed her appeal and denied relief.
- She argued the immigration court lacked jurisdiction because her Notice to Appear (NTA) was deficient under Pereira/Niz-Chavez and sought termination of proceedings.
- The government/BIA contended Eighth Circuit precedent establishes jurisdiction once a charging document is filed and an NTA need only give time/place/date “where practicable.”
- On the merits, Osorio Tino proposed particular social groups (PSGs): (1) "family unaffiliated with any gangs who refuse to provide any support to transnational criminal gangs in Guatemala," (2) her nuclear family, and (3) her indigenous K’iche group.
- The agency found the first PSG not legally cognizable (lack of particularity/social distinction) and, even assuming the nuclear-family PSG was cognizable, determined there was insufficient nexus because attackers targeted her to extort money.
- The court held asylum was properly denied, withholding therefore failed (higher standard), and the CAT claim was unexhausted and thus not reviewable; the petition for review was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction based on NTA defect under Pereira/Niz‑Chavez | Osorio Tino: NTA missing required info so immigration court lacked jurisdiction; proceedings should be terminated | Respondent: Eighth Circuit precedent treats filing of a charging document as vesting jurisdiction; NTA need only include time/place/date where practicable | Denied — Eighth Circuit precedent controls; Pereira does not disturb jurisdiction rule (Ali; Rodriguez de Henriquez) |
| Cognizability of proposed PSG "family unaffiliated with gangs who refuse to provide support" | Osorio Tino: this PSG identifies victims targeted for gang-related coercion | Respondent: PSG lacks particularity and social distinction | Denied — PSG not legally cognizable for lack of particularity and social distinction (cite Malonga, Mayorga‑Rosa) |
| Nexus between persecution and protected ground (asylum) | Osorio Tino: persecution/fear stems from membership in proposed PSG(s) or K’iche indigenous group | Respondent: facts show attackers sought extortion (financial motive), not targeting because of protected ground | Denied — substantial evidence supports lack of nexus; persecution was for extortion, not a protected ground |
| Withholding/CAT claims and exhaustion | Osorio Tino: seeks withholding and CAT relief | Respondent: withholding requires higher standard; CAT claim not exhausted administratively | Denied — withholding fails because asylum not established (higher standard required); CAT claim unexhausted and not reviewable |
Key Cases Cited
- Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (Pereira does not disturb Eighth Circuit jurisdiction rule; charging document filing vests jurisdiction)
- Rodriguez de Henriquez v. Barr, 942 F.3d 444 (8th Cir. 2019) (same principle on NTAs and jurisdiction)
- Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) (particularity and social distinction requirements for PSGs)
- Mayorga‑Rosa v. Sessions, 888 F.3d 379 (8th Cir. 2018) (PSG cognizability analysis)
- Silvestre‑Giron v. Barr, 949 F.3d 1114 (8th Cir. 2020) (substantial‑evidence review of asylum findings)
- Garcia‑Moctezuma v. Sessions, 879 F.3d 863 (8th Cir. 2018) (nexus requirement for asylum — central reason standard)
- Baltti v. Sessions, 878 F.3d 240 (8th Cir. 2017) (denial of asylum dispositive of withholding claim; exhaustion principles)
- Martin Martin v. Barr, 916 F.3d 1141 (8th Cir. 2019) (withholding of removal requires more rigorous proof than asylum)
- Fuentes v. Barr, 969 F.3d 865 (8th Cir. 2020) (derivative asylum benefits for accompanying children)
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (all info for stop‑time rule must be in one document; court did not change jurisdictional precedents)