Paz-Zaldivar v. Garland ( 2022 )

Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 29, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
INGRID YAMILETH PAZ-ZALDIVAR;
JOHN DOE, a minor,
Petitioners,
v. No. 21-9571
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
_________________________________
Ingrid Yamileth Paz-Zaldivar and her minor son are natives and citizens of
Honduras who entered the United States without permission. An immigration judge
(IJ) found them removable and ineligible for asylum, withholding of removal, or
protection under the Convention Against Torture (CAT), and ordered that they be
returned to their home country. The Board of Immigration Appeals (BIA) dismissed
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 2
their appeal in a brief, single-member order. Paz-Zaldivar and her son now petition
for review of the BIA’s decision. We have jurisdiction under 8 U.S.C. § 1252(a), and
we deny the petition.
I. STANDARD OF REVIEW
We review the BIA’s decision, but we may consult the IJ’s more-complete
discussion of the same grounds relied upon by the BIA. Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006). “[W]e will not affirm on grounds raised in the
IJ decision unless they are relied upon by the BIA in its affirmance.” Id.“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
II. BACKGROUND & PROCEDURAL HISTORY
Paz-Zaldivar and her son entered the United States in October 2016.
Immigration authorities soon served each of them with a notice to appear (NTA),
charging them with removability because they entered the country without being
admitted or paroled. Paz-Zaldivar and her son conceded removability and Paz-
Zaldivar then filed an application for asylum, withholding of removal, and CAT
protection, with her son as a derivative beneficiary on the asylum claim.
Persons claiming asylum must establish that they are unable or unwilling to
return to their 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.” 8 U.S.C. § 1101(a)(42)(A). For the persecution to be on account
of a protected ground, the alien must show the protected ground “was or will be at
2
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 3
least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). “The
reason cannot be incidental, tangential, superficial, or subordinate to another reason
for harm.” Aguilar v. Garland, 29 F.4th 1208, 1211–12 (10th Cir. 2022) (internal
quotation marks omitted).
Paz-Zaldivar claimed persecution on account of membership in a particular
social group. She proposed multiple different social groups to the IJ, but she has
since abandoned all of them but one, which she defines as Hondurans who have been
targeted by the Mara 18 gang due to their female gender and single-mother status.
After a hearing, the IJ rejected Paz-Zaldivar’s reliance on this proposed social
group. The IJ reasoned that single-mother status was not immutable, as shown by the
fact that Paz-Zaldivar has married since arriving in the United States. Cf. Matter of
Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985) (interpreting “particular social group”
to require an “immutable characteristic,” meaning “one that the members of the
group either cannot change, or should not be required to change because it is
fundamental to their individual identities or consciences”), overruled on other
grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). As for female gender, the
IJ recognized that characteristic as immutable but concluded that there was no
evidence the gangs targeted her on account of her gender. The IJ reached the same
conclusion as to Paz-Zaldivar’s previous single-mother status. In the IJ’s view, her
evidence of gang violence showed that gangs mostly targeted the male members of
her family, and, in any event, their criminal behavior appeared motivated by greed,
not gender or parenting status.
3
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 4
For these reasons, the IJ denied Paz-Zaldivar’s asylum application. The IJ also
denied Paz-Zaldivar’s applications for withholding of removal and CAT relief. Paz-
Zaldivar then appealed to the BIA, but only on the asylum issue. The BIA adopted
the IJ’s findings, however, including that Paz-Zaldivar’s evidence did not show she
had been targeted by gang members on account of her gender or single-mother status.
The BIA therefore dismissed the appeal.
III. ANALYSIS
A. Effect of Defective NTAs
Paz-Zaldivar first argues that her NTA (and her son’s) did not state the time
and place of their removal hearing, contrary to Congressional command, see 8 U.S.C.
§ 1229(a)(1)(G)(i), so the agency never obtained jurisdiction. She relies on Pereira
v. Sessions, 138 S. Ct. 2105, 2109–10 (2018), holding that an NTA without time or
place information fails to trigger the “stop-time rule,” meaning the noncitizen
continues to accrue continuous physical presence for purposes of cancellation of
removal; and Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479, 1486 (2021), holding
that a later document which fills in time and place information likewise does not
trigger the stop-time rule. According to Paz-Zaldivar, these two decisions show that
the NTA requirements are jurisdictional (although the Supreme Court never said as
much).
Paz-Zaldivar did not present this argument to the agency, so we would
normally refuse to consider it. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237
(10th Cir. 2010). Even if some exception could apply, this court held after Pereira
4
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 5
“that the requirements relating to notices to appear are non-jurisdictional, claim-
processing rules.” Martinez-Perez v. Barr, 947 F.3d 1273, 1278 (10th Cir. 2020).
“We are bound by the precedent of prior panels absent en banc reconsideration or a
superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724
(10th Cir. 1993). Paz-Zaldivar does not argue that Niz-Chavez, decided a year after
Martinez-Perez, is a superseding contrary decision. Thus, we remain bound by our
panel decision in Martinez-Perez that the NTA requirements are claim-processing
rules, not jurisdictional elements.
Paz-Zaldivar argues, however, that even if the NTA requirements are claim-
processing rules, the agency should have dismissed her immigration proceedings for
failure to follow those rules. But a claim-processing rule is not self-enforcing: “a
court must enforce the rule if a party properly raises it.” Martinez-Perez, 947 F.3d at
1279 (emphasis added). Again, Paz-Zaldivar never raised the issue before the
agency.
Understanding as much, Paz-Zaldivar points to Ortiz-Santiago v. Barr,
924 F.3d 956 (7th Cir. 2019). There, an immigration court ordered the petitioner
removed, and the petitioner appealed to the BIA. While that appeal was pending, the
Supreme Court decided Pereira, prompting the petitioner to file a motion to remand.
Id. at 959. He argued that, under Pereira, a defect in the NTA equals a defect in
jurisdiction. Id. The BIA denied the motion and upheld the immigration court’s
removal order.
5
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 6
On a petition for review from that decision, the Seventh Circuit concluded
that, after Pereira, an NTA lacking time and place information is indeed defective,
and it rejected the idea that a later document could cure the defect by supplying the
missing information. Id. at 961–62. Thus, the agency had proceeded against the
petitioner on a genuinely defective NTA. But the Seventh Circuit also rejected the
notion that a defective NTA equals a defect in jurisdiction. Id. at 963. The court
held (as we later did in Martinez-Perez) that the statutory NTA requirements are
claim-processing rules, so a party must timely object or forfeit the objection. Id.at 963–64. In the Seventh Circuit’s view, that forfeiture occurred when the petitioner
failed to raise his objection before the immigration court. See id. at 964.
The Seventh Circuit nonetheless entertained the possibility that the BIA should
have excused the forfeiture because the Supreme Court decided Pereira while the
matter had been on appeal, and “[c]ourts are normally obliged to apply changes in the
law that occur while they continue to have power to adjudicate the case before them.”
Id. This was a matter of determining whether the petitioner suffered “discernible
prejudice” from the defective NTA, and “considering the equities.” Id. at 965. On
the record before it, the Seventh Circuit decided that the petitioner suffered no
prejudice and the equities counseled against excusing the forfeiture. Id. at 964–65.
Paz-Zaldivar urges us to follow the approach set forth in Ortiz-Santiago, but
we need not decide whether we agree with that approach. Before the BIA decided his
appeal, the petitioner in Ortiz-Santiago moved to remand based on Pereira, so he
preserved the question whether the BIA should have granted that motion. Paz-
6
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 7
Zaldivar, by contrast, never raised a jurisdictional or claim-processing objection
before the agency. She therefore failed to exhaust the issue and we may not address
it. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if
. . . the alien has exhausted all administrative remedies available to the alien as of
right . . . .”).
B. Remaining Arguments
Paz-Zaldivar further argues that:
 the IJ abused his discretion when he found that Paz-Zaldivar’s
testimony about one instance of alleged persecution (a home break-in)
was incredible;
 the IJ violated Paz-Zaldivar’s due process rights when he refused to
allow her to call a witness who could corroborate the home break-in;
and
 the agency erred when it concluded that Paz-Zaldivar’s marriage took
her outside of any proposed social group based on single motherhood.
Notably, however, Paz-Zaldivar does not challenge the agency’s finding that
she failed to prove she was targeted because of her gender or single-mother status.1
1
The introductory section of her brief suggests she may have intended to make
such a challenge. See Pet’r Opening Br. at 10 (“[Paz-Zaldivar] established through
direct and circumstantial evidence, provided in documents and by her testimony, that
the ‘one central reason’ for the violence to which she was exposed was this belief
that she is subservient to men . . . .”); id. (“The Immigration Judge and the Board
erred in determining that the Appellant did not establish a nexus between the harm
that she suffered and her proposed social groups.”). But she never develops these
arguments, so they are waived. See Eizember v. Trammell, 803 F.3d 1129, 1141
7
Appellate Case: 21-9571 Document: 010110717735 Date Filed: 07/29/2022 Page: 8
Absent such a challenge, we have no reason to reach any of her remaining arguments.
See Zzyym v. Pompeo, 958 F.3d 1014, 1033–34 (10th Cir. 2020) (“[W]e can uphold
administrative action when an agency gives two independent reasons and only one of
them is valid.”).
IV. CONCLUSION
We deny the petition for review.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
(10th Cir. 2015) (“[S]tray sentences like these are insufficient to present an argument
. . . .”).
8