Fatima Coreas-Chavez v. Merrick Garland ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2900
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Fatima Carolina Coreas-Chavez; Carlos Antonio Zelaya-Chavez; S.C.Z.C.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 23, 2022
Filed: November 1, 2022
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Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.
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SHEPHERD, Circuit Judge.
Carlos Antonio Zelaya-Chavez, Fatima Carolina Coreas-Chavez, and their
daughter, S.C.Z.C. (collectively, Petitioners), natives and citizens of El Salvador,
petition for review of the Board of Immigration Appeals’s (BIA) denial of
Petitioners’ motion to reconsider the BIA’s prior order, which upheld the
immigration judge’s (IJ) decision finding the Petitioners removable and denying
their applications for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). Having jurisdiction under 8 U.S.C. § 1252, we
deny the petition.
I.
Prior to seeking asylum in the United States, Petitioners lived in a village in
El Salvador. Zelaya-Chavez operated several businesses, including a small store, a
mill, and a welding shop. In 2015, “gangsters” began harassing and extorting
Zelaya-Chavez at his store, demanding drinks, cigarettes, and calling cards once or
twice a week. Though the gangsters never physically attacked Zelaya-Chavez, he
nonetheless complied with their demands, fearing that the gangsters would harm him
or his relatives if he refused. At one point, Zelaya-Chavez received an anonymous
note demanding $130. The note stated that “it was going to be bad” for Zelaya-
Chavez and his family if he refused to comply. Accordingly, Zelaya-Chavez paid
as much of the demand as he could. The gangsters continued to take merchandise
from the store, but they never discussed the note.
Eventually, Zelaya-Chavez filed a police report with a police station in a
neighboring town. A detective interviewed Zelaya-Chavez and asked him to help
identify the gangsters. Zelaya-Chavez agreed. On two separate occasions,
Zelaya-Chavez donned a police uniform and ski mask, rode with the detective
through the village, and identified gang members, including the gang’s leader. On
one occasion, police attempted to stop the gangsters, but they fled the scene. They
later arrested one of the gangsters but released him due to his young age. Sometime
later, a group of seven armed gangsters came to Zelaya-Chavez’s house and
threatened to kill him and his family if he had reported them to the police. They
stayed outside the house for approximately 30 minutes. Despite the encounter,
Zelaya-Chavez did not believe the gangsters knew at the time that he had already
reported their activities to the police.
Petitioners left El Salvador and entered the United States without a valid entry
document on December 25, 2015. Since their departure, gangsters have continued
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to threaten Zelaya-Chavez’s relatives. They have demanded two to three dollars
from his mother and brother each week. However, the record is unclear as to whether
these demands are related to Zelaya-Chavez.
The United States Department of Homeland Security (DHS) filed separate
Notices to Appear (NTA) for each Petitioner, charging each with removability. The
NTAs noted that Petitioners would receive their hearing dates at a later time, and
they did. Coreas-Chavez and her daughter admitted to the allegations contained in
the NTAs and conceded to the charges. Zelaya-Chavez’s case was later consolidated
with his wife and daughter’s. Zelaya-Chavez contested his removal solely on the
basis that his NTA was deficient by not initially stating his hearing date. He filed a
corresponding motion to terminate the proceedings, arguing that such a deficiency
deprived the immigration court of jurisdiction. Zelaya-Chavez and Coreas-Chavez
independently applied for asylum, each listing their daughter as a derivative
applicant. In addition to their application for asylum, each sought withholding of
removal and protection under CAT.
The IJ denied Zelaya-Chavez’s motion to terminate, noting that this Circuit
and the Supreme Court have found that an NTA deficient in stating a hearing date
and time does not implicate jurisdictional concerns and that Petitioners received
proper notice of the hearing through a subsequent document. Accordingly, the IJ
found Zelaya-Chavez removable. Regarding Petitioners’ requests for relief, the IJ
found that they had not shown past persecution or a well-founded fear of future
persecution. The IJ additionally found that Petitioners had failed to show that the
Salvadoran government had inflicted or acquiesced in the purported persecution.
Accordingly, the IJ denied Petitioners’ requests for relief.
Petitioners appealed the decision to the BIA. The BIA first found that
Petitioners had not challenged the IJ’s denial of Petitioners’ application for
protection under CAT and Zelaya-Chavez’s motion to terminate. The BIA further
found that Petitioners’ “appellate assertion of the definition of ‘persecution’ [did]
not meaningfully challenge the [IJ’s] findings that the extortion attempts and threats
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[did] not rise to the level of persecution” required to prevail on an application for
asylum. Accordingly, it found those issues waived. Addressing the merits, the BIA
agreed with the IJ that Petitioners had failed to show an objective fear of future
persecution and government action or acquiescence. Thus, the BIA dismissed the
appeal.
After obtaining new counsel, Petitioners filed a motion to reconsider and a
request for stay of relief with the BIA. Petitioners asserted that the BIA erred in
affirming the IJ’s decision by (1) finding that Petitioners had waived their challenge
to the IJ’s past-persecution determination, (2) upholding the IJ’s determination that
Petitioners had failed to show a well-founded fear of future persecution, (3)
upholding the IJ’s determination that Petitioners had failed to show the Salvadoran
government’s involvement or acquiescence, and (4) ignoring the nexus between
Petitioners’ interactions with police and the gang’s subsequent threats. The BIA
denied the motion and request, noting that Petitioners were largely attempting to
impermissibly supplement their previous arguments.
Petitioners then filed this petition for review, arguing that the BIA erred in
denying their motion to reconsider and request for stay of relief by (1) finding their
challenge to the IJ’s past-persecution determination waived, (2) failing to address
their alternative argument related to past persecution, (3) ignoring their claims that
the gang’s threats were related to Zelaya-Chavez’s interactions with the police, and
(4) misconstruing their arguments related to fear of future persecution.
Subsequent to filing this petition, Petitioners filed a motion to remand, arguing
that the agency needed an opportunity to apply its intervening precedent, Matter of
Fernandes, 28 I. & N. Dec. 605 (BIA 2022) (holding that NTAs deficient in listing
a court date and time violate a mandatory claims-processing rule), to Petitioners’
case. We entered an order denying the motion on August 22, 2022.
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II.
Petitioners argue that the BIA erred in denying their motion to reconsider and
request for stay of relief by (1) finding their challenge to the IJ’s past-persecution
determination waived, (2) failing to address their second argument related to past
persecution, (3) ignoring their claims that the gang’s threats were related to
Zelaya-Chavez’s interactions with the police, and (4) misconstruing their arguments
related to fear of future persecution. However, we need not decide any of the
foregoing because Petitioners fail to challenge a determinative issue: whether the
Salvadoran government inflicted or acquiesced in Petitioners’ alleged persecution.
See Salman v. Holder, 687 F.3d 991, 994-95 (8th Cir. 2012) (“Importantly, our cases
and those of the BIA . . . hold that ‘persecution’ requires the harm applicant fears to
be ‘inflicted either by the government of a country or by persons or an organization
that the government was unable or unwilling to control.’” (citation omitted)); see
also Matter of A-R-C-G-, 26 I. & N. Dec. 388, 395 (BIA 2014) (noting that on
remand petitioner must “demonstrate that the [government] was unwilling or unable
to control the ‘private’ actor” to prevail on asylum claim based on past persecution
(citation omitted)).
Here, in denying Petitioners’ motion to reconsider, the BIA reaffirmed its
previous finding: “Moreover, [Petitioners] have not persuasively shown any error of
law or fact in our prior decision to establish that the Salvadoran government would
be unable or unwilling to control the individuals they fear.” In their petition for
review, Petitioners do not meaningfully argue that the BIA erred in reaching this
conclusion and have accordingly waived any challenge to such finding. Lemus-
Arita v. Sessions, 854 F.3d 476, 479 n.2 (8th Cir. 2017). Thus, Petitioners cannot
show that they suffered persecution and their claims for relief necessarily fail.
III.
For the foregoing reasons, we deny Petitioners’ petition for review.
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