WINSTON GUTIERREZ-ALM V. MERRICK GARLAND, No. 17-71012 (9th Cir. 2023)
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Petitioner entered the United States without inspection. In 1993, he was served an OSC, the charging document that initiated immigration proceedings prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Petitioner’s OSC did not list the time and place of his proceedings. Petitioner sought suspension of deportation, a form of relief available prior to IIRIRA. IIRIRA provided that continuous physical presence is deemed to end when the applicant is served with a notice to appear (“NTA”). Under IIRIRA’s transitional rules, which apply to individuals like Petitioner, whose proceedings were pending when IIRIRA was enacted, this stop-time rule applies retroactively to proceedings initiated by an OSC.
Accordingly, Petitioner’s continuous physical presence was deemed to end when he was served his OSC—only four years after his arrival, and thus short of the required seven years. Petitioner contended that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that his OSC was statutorily defective and that the stop-time rule was therefore inapplicable.
The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision, the panel held that: 1) an OSC that fails to disclose the time and place of an immigrant’s deportation proceedings is sufficient to trigger the stop-time rule in a transitional rules case; 2) Petitioner’s OSC triggered the stop-time rule, making him ineligible for suspension of deportation; and 3) substantial evidence supported the denial of withholding of removal and protection under the CAT.
Court Description: Immigration Denying Winston Gutierrez-Alm’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) an Order to Show Cause (“OSC”) that fails to disclose the time and place of an immigrant’s deportation proceedings is sufficient to trigger the stop-time rule in a transitional rules case; 2) Gutierrez’s OSC triggered the stop-time rule, making him ineligible for suspension of deportation; and 3) substantial evidence supported the denial of withholding of removal and protection under the Convention Against Torture (“CAT”). In 1989, Gutierrez entered the United States without inspection. In 1993, he was served an OSC, the charging document that initiated immigration proceedings prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Gutierrez’s OSC did not list the time and place of his proceedings. Gutierrez sought suspension of deportation, a form of relief available prior to IIRIRA. As relevant here, an applicant for suspension of deportation was required to accrue at least seven years of continuous physical presence in the United States prior to applying. However, IIRIRA provided that continuous physical presence is deemed to end when the applicant is served with a notice to appear (“NTA”). Under IIRIRA’s transitional rules, which apply to individuals, like Gutierrez, whose proceedings were pending when IIRIRA was enacted, GUTIERREZ-ALM V. GARLAND 3 this stop-time rule applies retroactively to proceedings initiated by an OSC. Accordingly, Gutierrez’s continuous physical presence was deemed to end when he was served his OSC—only four years after his arrival, and thus short of the required seven years. Gutierrez contended that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that his OSC was statutorily defective and that the stop-time rule was therefore inapplicable. In Pereira, the Supreme Court held that a putative NTA that fails to designate the time or place of removal proceedings does not trigger the stop-time rule. The panel wrote that the issue of whether Pereira applies to an OSC was an open issue, but it was not a close one: Every circuit to address the question has held that Pereira does not apply. In joining those circuits and holding that an OSC that fails to disclose the time and place of proceedings is sufficient to trigger the stop-time rule in a transitional rules case, the panel explained that Pereira turned on the statutory definition of an NTA under 8 U.S.C. § 1229(a), which unambiguously requires an NTA to disclose the time and place of proceedings. The central reasoning in Pereira was that a document must meet all of the requirements set forth by § 1229(a) to trigger the stop-time rule. Comparatively, the pre-IIRIRA provision defining an OSC instructed officials to provide written notice of the time and place of deportation proceedings “in the order to show cause or otherwise.” 8 U.S.C. § 1252b(a)(2)(A) (1994). The panel explained that the inclusion of the phrase “or otherwise” indicates that an OSC was not required to include the time and place information. Therefore, the panel concluded that Pereira’s logic, which rests on the “clear and unambiguous” mandate that a NTA include time-and-place information, is 4 GUTIERREZ-ALM V. GARLAND inapplicable to an OSC, which contains no such requirement. As applied to Gutierrez, the panel concluded that he was ineligible for suspension of deportation because his physical presence was deemed to end with the service of his OSC. Next, the panel concluded that substantial evidence supported the denial of withholding of removal. First, Gutierrez claimed that he would face persecution in Nicaragua due to his father’s opposition to the Sandinista government. The panel concluded that substantial evidence supported the BIA’s findings, as Gutierrez offered no credible, direct, and specific evidence that he would be perceived as an enemy of the Ortega regime and be persecuted on account of an imputed political opinion. The panel also observed that Gutierrez and his family had not faced persecution on account of his father’s actions. Second, Gutierrez claimed that he would be persecuted on account of membership in one of four putative particular social groups. With respect to his first two social groups— (1) persons fearing gang recruitment; and (2) individuals deported from the United States—the panel concluded that Gutierrez made no arguments related to those proposed social groups and therefore had waived those claims. The panel concluded that Gutierrez’s third proposed social group, “family members of people who opposed the government in the 1980s,” was coextensive with his imputed political opinion claim and failed for the same reason: the record did not compel the conclusion that Gutierrez would be targeted for persecution based on his father’s opposition to the Sandinista government. As to his fourth proposed social group, “persons who the authorities would suspect as being a gang member,” the panel concluded that it failed for GUTIERREZ-ALM V. GARLAND 5 lack of social distinction. The panel explained that, although this Court has recognized that persons who are incorrectly perceived to be gang members may constitute a cognizable social group, the applicant bears the burden to demonstrate that the proposed country of removal recognizes the group in question. Here, Gutierrez offered nothing beyond his own speculation to suggest that Nicaragua views “those perceived as gang members” as a distinct identity. Finally, the panel concluded that substantial evidence supported the denial of CAT relief. The panel concluded that Gutierrez’s contentions were entirely speculative and unsupported by the record, noting that, although the Sandinista regime has taken action against political dissidents, Gutierrez offered no evidence he will be perceived as such an adversary or targeted for torture. Moreover, the panel observed that Gutierrez left Nicaragua over twenty-five years ago, his family was able to reside in the country without issue following his father’s departure in 1988, and his brother was not tortured upon his return in 2007.
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