VICTOR MERAZ-SAUCEDO, Petitioner, v. JEFFREY A. ROSEN, Acting Attorney General of the United States, Respondent.
No. 20-1438
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 6, 2020 — DECIDED JANUARY 15, 2021
Petition for Review of an Order of the Board of Immigration Appeals. No. A205-154-483.
ST. EVE, Circuit Judge. Victor Meraz-Saucedo seeks asylum, withholding of removal, and protection under the Immigration and Nationality Act and the Convention Against Torture (“CAT”). He petitions for review of the order of the Board of Immigration Appeals (“Board”) and requests we remand his case for additional proceedings before thе Immigration Court. We deny his petition. We find the Board did not abuse its
I. Background
Meraz-Saucedo is a native and citizen of Mexico. He is married to a Mexican native and citizen with whоm he has two young U.S.-citizen children. Meraz-Saucedo first attempted to enter the United States around October 2003. After encountering immigration officials at the border, he was returned to Mexico. He entered the United States without inspection in 2004 and has not departed.
On October 25, 2013, the Department of Homeland Security issued and served a Notice to Appear (“NTA”) on Meraz-Saucedo for removal proceedings. See
During the proceedings before the IJ on July 23, 2014, Meraz-Saucedo admitted the factual allegations, conceded the charge of removability under
The IJ denied his request for asylum and withholding of removal. At his hearing, Meraz-Saucedo testified and based his asylum claim on the physical abuse and threats that his family had received from the Sinaloa Cartel in El Palmito, Durango, Mexico because of his father’s refusal to grow marijuana for the cartel in 2003. Following this refusal, Meraz-Saucedo’s father sent him to the United States for his safety. His father and siblings subsequently relocated to Durango City, approximately six hours from their farm and the cartel.
Meraz-Saucedo testified that in 2013, other cartel members beat his father badly and kidnapped Meraz-Saucedo’s brother and niece. After Meraz-Saucedo’s father paid for their release, the cartel members warned him that they would kill them аll if they said anything about the incident. The cartel members also told his father that they were going to use the family’s land and house, that they knew Meraz-Saucedo was in the United States, and that they would make them disappear as soon as Meraz-Saucedo returned to Mexico. Meraz-Saucedo’s immediate family has not had any encounters with cartel members since this incident.
The IJ found Meraz-Saucedo credible, but concluded he had “not establishеd a pattern or practice of persecution against his family members by the cartel.” Moreover, even if such a pattern or practice existed, the IJ concluded Meraz-
The IJ also found Meraz-Saucedo failed to show a substantiаl risk or likelihood that he would be singled out for torture in Mexico or that a government official would acquiesce to any harm inflicted upon him by the cartel. Although Meraz-Saucedo submitted general reports regarding country conditions in Mexico describing gang violence and other safety issues, the record did not show a particularized threat of torture. Meraz-Saucedo conceded that he had never been tortured in Mexico. Further, he аdmitted that nothing else had happened to his immediate family after the 2013 incident even though his parents live in the same house where they lived during that incident and his brother and niece who were kidnapped still live in Mexico. And although several of his cousins were killed in 2017, the IJ found no link between their deaths and the cartel attack and extortion of Meraz-Saucedo’s family.
Meraz-Saucedo appealed to the Board. While his appeal was pending, he filed a motion to remand to apply for cancellation of removal under
In February 2020, the Board adopted and affirmed the IJ’s decision. The Board found no clear error in the IJ’s findings of fact. It also denied Meraz-Saucedo’s motion to remand, finding the argument “foreclosed” by Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019), and distinguishable from Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019).
II. Discussion
In his petition, Meraz-Saucedo challenges the Board’s denial of his motion to remand on several grounds. He again claims the Supreme Court’s decision in Pereira makes him eligible for cancellation of removal because the NTA was defective for purposes of stopping time under
A. Motion to Remand
We first address whether the Board erred in denying Meraz-Saucedo’s motion to remand to apply for cаncellation of removal. We review the Board’s decision for abuse of discretion and will reverse only if the Board’s decision “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.” Alvarez-Espino v. Barr, 959 F.3d 813, 817 (7th Cir. 2020) (quoting Giri v. Lynch, 793 F.3d 797, 800–01 (7th Cir. 2015)).
For Meraz-Saucedo to be eligible for cancellation of removal under
In Pereira, the Supreme Court held that when a NTA fails to designate the specific time or place of a noncitizen’s removal proceedings, it is putative and not a “notice to appear under section 1229(a)” of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Id. at 2115–16. Therefore, a defective NTA does not trigger the stop-time rule ending the noncitizen’s period of continuous physical presence for purposes of cancellation of removal. Id. Following Pereira, the Board reconsidered
The Board denied Meraz-Saucedo’s motion to remand based on Matter of Mendoza-Hernandez, holding Meraz-Saucedo’s subsequent receipt of a NOH perfected the deficient NTA and triggered the stop-time rule. The Board also found our decision in Ortiz-Santiago to be consistent with its decision. In Ortiz-Santiago, we held that
Meraz-Saucedo contends the Board erred in denying his motion to remand for two reasons. He first argues that it wrongly decided Matter of Mendoza-Hernandez, so we should not follow it. He also asserts his case is distinguishable from Ortiz-Santiago because the stop-time rule is not a procedural claim-processing rule but one that involves substantive eligibility for immigration relief. We address each of these arguments.
There is no dispute that the NTA Meraz-Saucedo received on October 25, 2013 did not contain the requisite time and place information. Meraz-Saucedo did, however, subsequently receive information concerning the time and place of his hearing through a NOH on December 4, 2013. Meraz-Saucedo correctly notes that the Third and Tenth Circuits have not followed Matter of Mendoza-Hernandez, and hold instead that
As in our recent decision in Chen v. Barr, 960 F.3d 448 (7th Cir. 2020), we need not decide here whether we agree with
Timely objections provide the government the opportunity to cure any error. As such, “[r]elief will be available for those who make timely objections, as well as those whose timing is excusable and who can show prejudice.” See Ortiz-Santiago, 924 F. 3d at 965. Because Meraz-Saucedo did not timely object to the defective NTA, he has forfeited his argument and can only obtain relief if he can establish excusable delay and prejudice. See Chen, 960 F.3d at 451 (“[W]e ask (as Ortiz-Santiago itself did) whether Chen made a timely objection or can show excusable delay and prejudice.”).
Meraz-Saucedo argues his objection was timely because he presented his Pereira argument during the pendency of his appeal before the Board unlike Chen who raised it in an untimely motion to reopen. As the government correctly points out, however, the relevant inquiry is whether Meraz-Saucedo raised his objection during the proceedings before the IJ after
Alternatively, Meraz-Saucedo contends his delay is excusable because the Supreme Court decided Pereira after he appeared before the IJ. We have squarely rejected this argument. In United States v. Manriquez-Alvarado, 953 F.3d 511 (7th Cir. 2020), we held that while Pereira was not decided until 2018, Manriquez-Alvarado could have relied on the underlying statute,
Meraz-Saucedo further claims that he suffered prejudice because the Board’s denial of his motion “affected the outcome of his case by depriving him of the opportunity to apply for cancellation of removal.” As we recently held in Hernandez-Alvarez v. Barr, 982 F.3d 1088 (7th Cir. 2020), however, “Ortiz-Santiago’s prejudice inquiry does not focus on prejudice derived from the removal proceedings generally; rather, it focuses specifically on prejudice suffered at the time of the
In assessing prejudice, “we look, for example, to whether the defects in the notice to appear deprived the alien of the ability to attend or prepare for the heаring, including the ability to secure counsel.” Id.; see Chen, 960 F.3d at 451 (determining that respondent could not show prejudice because she did not “contend that she lacked actual knowledge of the time and place for the hearing” and she appeared with counsel). Indeed, we have held that where petitioners receive later hearing notices that contain the time and place of their scheduled and rescheduled hearings, as occurred herе, there is no prejudice. See Salazar-Marroquin, 969 F.3d at 817; Ortiz-Santiago, 924 F.3d at 964–65; Vyloha, 929 F.3d at 817. And where a petitioner actually attends the proceeding, any claim of prejudice is eliminated. Alvarez-Espino, 959 F.3d at 819; see Chen, 960 F.3d at 451. Meraz-Saucedo appeared in Immigration Court as ordered by his NTA with counsel and never argued that he suffered prejudice from the lack of time and place information in his NTA. As such, he has forfeited this argument.
Finally, Meraz-Saucedo attempts to distinguish his case from Ortiz-Santiago and Chen by arguing that the stop-time rule is not a claim-processing rule and thus forfeiture does not apply as it did in Ortiz-Santiago and Chen. This argument is simply an attempt to dodge the claims-processing rule articulated in Ortiz-Santiago and rehash his prejudice arguments. For the reasons described above, it fails.
B. Asylum, Withholding of Removal, and Protection under the Convention Against Torture
We next turn to the merits of Meraz-Saucedo’s petition. Meraz-Saucedo contends the Board erred in denying his asylum, withholding of removal, and protection under the CAT claims. The Bоard reasoned that although Meraz-Saucedo may fear the Sinaloa Cartel in Mexico, he “has not established eligibility for asylum or withholding of removal, because he has not demonstrated a nexus between the claimed persecution and a protected ground.” The Board also found that Meraz-Saucedo has not established eligibility for protection under the CAT because “there is a lack of evidence or testimony to establish that any such harm would be inflicted with the requisite degree of state action.”
We review questions of law de novo and findings of fact for “substantial evidence.” See Cece v. Holder, 733 F.3d 662, 675–76 (7th Cir. 2013) (en banc). Whether a petitioner suffered past persecution or harbors a well-founded fear of future persecution are factual findings subject to the deferential “substantial evidence” standard, requiring reversal only if the evidence compels a different result. See N.Y.C.C. v. Barr, 930 F.3d 884, 888 (7th Cir. 2019). Under the substantial evidencе standard, the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (citations omitted). Where the Board “adopted the findings of the IJ and added its own analysis, we review the IJ’s decision as supplemented” by the Board. Giri, 793 F.3d at 800.
1. Asylum
Meraz-Saucedo contends that the Board erred by affirming the IJ’s decision that he failed to demonstrate that he has a well-founded fear of futurе persecution on account of his membership in his family. He points to testimony that his father’s assault and the kidnapping, beating, and detention of his brother by the Sinaloa cartel in September 2013 were directly related to his father’s refusal to grow marijuana for the cartel in 2003. He relies on his father’s statement that cartel members warned him that he and his family members would be killed if they said anything about the incident, that they knew Meraz-Saucedo was in the United States, аnd that they would make them disappear as soon as Meraz-Saucedo returned to Mexico.
To qualify for asylum, a petitioner must prove that he is “unable or unwilling” to return to his home 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.”
Substantial evidence supports the Board’s determination that Meraz-Saucedo failed to establish the requisite nexus between his fear of persecution upon return to Mexico and his family membership. Although Meraz-Saucedo testified about the 2003 incident at his father’s farm and the 2013 kidnapping and extortion incident against his family, he failed to prove that these attacks were linked or that they were motivated by his family status rather than the cartel’s financial incentive. The 2013 kidnapping took place ten years after, and hundreds of miles from, the 2003 incident. There is no evidence that the cartel members involved in the kidnapping knew about the 2003 incident or had any connection to it. Furthermore, since the 2013 episode, the cartel has not threatened Meraz-Saucedo’s family. That fact is not dispositive, but it supports the conclusion that the cartel is not persecuting the family. See Plaza-Ramirez v. Sessions, 908 F.3d 282, 286 (7th Cir. 2018); Orellana-Arias v. Sessions, 865 F.3d 476, 488 (7th Cir. 2017) (holding no future persecution where El Salvador gang did not deliver on any threats against petitioner’s family or engagе in extortion after he left four years earlier).
Meraz-Saucedo also failed to demonstrate that his cousins’ disappearances and killings directly resulted from either the cartel or the cartel targeting his family rather than generalized crime. See Plaza-Ramirez, 908 F.3d at 286 (holding in the absence of more evidence that the IJ correctly “found that the
Meraz-Saucedo also claims the Mexican government is unable to control persecution and torture against its citizens by the cartels. Yet the record contains no evidence that he ever sought assistance from the Mexican government to protect him from abuse. An applicant who claims persecution by a private actor must demonstrate that the government either condoned the рersecution or was helpless to prevent it. See N.Y.C.C., 930 F.3d at 888–89. We have held that petitioners do not meet this standard when they do not provide evidence that they sought assistance from the authorities. See Ferreyra, 962 F.3d at 338.
2. Withholding of Removal and CAT
Since an asylum claim has a lower burden of proof, failure to establish eligibility for asylum means it is unlikely that Meraz-Saucedo can prevail on his withholding of removal and CAT claims. See Toure v. Holder, 624 F.3d 422, 428 (7th Cir. 2010) (explaining that a failure to prove persecution for purposes of asylum еligibility necessarily means a petitioner cannot meet the higher standard for withholding of removal); see also Bathula v. Holder, 723 F.3d 889, 903 (7th Cir. 2013)
To receive protection under the CAT, an applicant must show that there is “a ‘substantial risk’ that [he] would be tortured if forced to return to Mexico.” Garcia-Arce v. Barr, 946 F.3d 371, 377 (7th Cir. 2019) (citation omitted). “Torture” is defined as “severe pain or suffering” or an “extreme form of cruel and inhuman treatment” that is intentionally inflicted with the consent or acquiescence of a public official.
Meraz-Saucedo has not identified evidence compelling the conclusion that there is a substantial risk that he will be tortured if returned to Mexico. To support his allegation of future torture, Meraz-Saucedo cites the same evidence he provided for his asylum claim. His allegation of future torture fails on similar grounds. Meraz-Saucedo has never been tortured in Mexico. He has not described any threats or harm directed at him since his father’s 2013 extortion. He has also not shown a link between the deaths of his cousins and the cartel attack and the extortion of his family. In sum, Meraz-Saucedo provides no basis to disturb the Board’s conclusion that he failed to establish he would face a substantial risk of torture if returned to Mexico. See, e.g., W.G.A. v. Sessions, 900 F.3d 957, 968 (7th Cir. 2018) (finding error where the Board did not consider that masked gang members raided the house of a close family friend at night and “murdered and dismembered him for disobeying their orders”); see also Rashiah v. Ashcroft, 388 F.3d 1126, 1133 (7th Cir. 2004) (collecting examples of conduct not extreme enough to be “torture”).
Meraz-Saucedo also failed to present sufficient evidence that he would be tortured at the hands of, or with the acquiescence of, a government official. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Lopez v. Lynch, 810 F.3d 484, 493 (7th Cir. 2016) (citing
III. Conclusion
For the foregoing reasons, we deny Meraz-Saucedo’s petition for review.