Bernalda Alfaro Pineda v. Robert Wilkinson ( 2021 )


Menu:
  •                                                                             FILED
    NOT FOR PUBLICATION
    OCT 13 2021
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    BERNALDA PAULINA ALFARO                          Nos. 18-70882
    PINEDA; ANGEL JOSUE ALFARO                            19-71705
    PINEDA,
    Agency Nos.         A208-898-500
    Petitioners,                                           A208-898-501
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted February 3, 2021**
    Submission Withdrawn February 5, 2021
    Resubmitted October 13, 2021
    San Francisco, California
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.
    Bernalda Paulina Alfaro Pineda (Alfaro) and Angel Josue Alfaro Pineda
    (Angel), a Honduran mother and son, seek review of the decisions of the Board of
    Immigration Appeals (BIA) that (1) denied the motion to terminate the removal
    proceedings and affirmed the denial of Alfaro’s application for asylum, statutory
    withholding of removal, and protection under the Convention Against Torture
    (CAT), and (2) denied the motion to reopen. We have jurisdiction under 
    8 U.S.C. § 1252
    , and we deny the petitions for review.
    The BIA did not abuse its discretion in denying the motion to terminate.
    The requirement that the government file a certificate showing service along with a
    Notice to Appear (NTA), 
    8 C.F.R. §§ 1003.32
    , 1003.14(a), is not a jurisdictional
    requirement. Aguilar Fermin v. Barr, 
    958 F.3d 887
    , 895 n.4 (9th Cir. 2020).
    Failure to comply with this requirement “does not provide a reason for terminating
    proceedings” where “there is no apparent prejudice.” Matter of Rosales Vargas, 
    27 I. & N. Dec. 745
    , 753 (BIA 2020). Petitioners do not dispute the BIA’s finding
    that they “were notified of the specific time, date, and place of their hearing and
    appeared for the hearing.” Therefore, the BIA’s conclusion that petitioners “have
    not identified prejudice flowing from the lack of a certificate of service indicating
    the location of the court where proceedings were to commence,” is not “arbitrary,
    2
    irrational, or contrary to law.” Aguilar Fermin, 958 F.3d at 892 (quoting Bonilla v.
    Lynch, 
    840 F.3d 575
    , 581 (9th Cir. 2016)); see Matter of Rosales Vargas, 27 I. &
    N. Dec. at 753–54.
    The BIA’s determination that Alfaro was not a member of the particular
    social group she described—“women from Honduras who are unable to leave a
    domestic relationship”—because she was not in a domestic relationship with her
    attacker, is supported by substantial evidence, given Alfaro’s testimony that the
    attacker had no relationship with her or her child. Neither Alfaro’s testimony nor
    the country conditions evidence compels the conclusion that Honduran society
    considers Alfaro and Pastor to be in a “domestic relationship.” Because a
    particular social group must feature the element of social distinction, which
    depends here on the perception of Honduran society, see Matter of M-E-V-G-, 
    26 I. & N. Dec. 227
    , 240, 242 (BIA 2014), petitioners’ reliance on the statutory
    definition of “crime of domestic violence” in 
    8 U.S.C. § 1227
     is misplaced.
    The BIA denied the motion to reopen on the ground that it was untimely.
    Petitioners do not challenge this determination, and therefore forfeit the issue.
    See Aguilar-Ramos v. Holder, 
    594 F.3d 701
    , 703 n.1 (9th Cir. 2010). We affirm
    the BIA’s determination that the NTAs vested the immigration judge with
    jurisdiction, despite not including the time and date of the hearing or the correct
    3
    address of the immigration court. See Aguilar Fermin, 958 F.3d at 895. Because
    neither 
    8 U.S.C. § 1229
    (a)(1)(G)(i) nor 
    8 C.F.R. § 1003.18
    (b) imposes
    jurisdictional restrictions, the failure to include the “time and place at which the
    proceedings will be held” in the NTAs, as required by § 1229(a)(1)(G)(i), does not
    affect the immigration judge’s authority to conduct the removal proceeding. See
    Karingithi v. Whitaker, 
    913 F.3d 1158
    , 1160 (9th Cir. 2019), cert. denied sub nom.
    Karingithi v. Barr, 
    140 S. Ct. 1106
     (2020).
    PETITIONS DENIED.
    4
    

Document Info

Docket Number: 18-70882

Filed Date: 10/13/2021

Precedential Status: Non-Precedential

Modified Date: 10/13/2021