Aguilar Fermin v. Barr, No. 18-70855 (9th Cir. 2020)
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The Ninth Circuit denied petitions for review of the BIA's decision affirming the denial of asylum and related relief, as well as denial of petitioner's motion to reopen seeking termination of proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018).
The panel held that substantial evidence supported the denial of asylum relief where the IJ, and the BIA agreed, that petitioner was not credible based on identified inconsistencies and implausibilities in petitioner's account, some of which reach the heart of her claim for relief. Furthermore, substantial evidence support the denial of relief under the Convention Against Torture, based on the conclusion that petitioner could internally relocate within Mexico. The panel also held that a Notice to Appear lacking the time, date, and location of a petitioner's initial removal hearing does not deprive the agency of jurisdiction over removal proceedings. Therefore, the BIA did not abuse its discretion in denying petitioner's motion to reopen proceedings.
Court Description: Immigration. Denying Cecilia Aguilar Fermin’s petitions for review of the Board of Immigration Appeals’ denial of asylum and related relief, as well as the denial of her motion to reopen seeking termination of proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), the panel concluded that substantial evidence supported the denial of relief, and held that a Notice to Appear (“NTA”) lacking the time, date, and location of a petitioner’s initial removal hearing does not deprive the agency of jurisdiction over removal proceedings. * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). AGUILAR FERMIN V. BARR 3 The panel concluded that the evidence did not compel the conclusion that Aguilar was credible, for purposes of asylum and withholding relief, due to inconsistencies and implausibilities in the record. The panel also concluded that substantial evidence supported the Board’s determination that Aguilar could relocate in Mexico to avoid future torture. The panel also concluded that the Board did not abuse its discretion in denying Aguilar’s motion to reopen for termination of proceedings, in light of the Supreme Court’s decision in Pereira. Fermin contended that the Supreme Court in Pereira redefined the requirements for a valid NTA and rendered hers insufficient to vest the immigration court with jurisdiction because it lacked the time, date, and location of her hearing. The panel rejected Fermin’s contention, noting that Pereira addressed the requirements for an NTA in regards to the stop-time rule under 8 U.S.C. § 1229b(d)(1)(A), and not the requirements for an NTA to vest an immigration court with jurisdiction under 8 C.F.R. § 1003.14. The panel observed that in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), this court held that Pereira simply has no application in challenges to immigration-court jurisdiction because such jurisdiction is defined by regulation, whereas Pereira interpreted a provision of the INA. The panel further observed that Karingithi concluded that an NTA need not include time and date information to satisfy the regulations, because 8 C.F.R. § 1003.15(b) does not require that the time and date of proceedings appear in the initial notice, and 8 C.F.R. §1003.18(b) compels inclusion of such information only where practicable. The panel noted that the only difference between Karingithi and the present case is that Aguilar’s NTA was not only missing the time and the date, but also the location. 4 AGUILAR FERMIN V. BARR Aguilar contended that the omission of location information was different because 8 C.F.R. § 1003.15(b)(6) provides that the NTA must also include the address of the immigration court. The panel considered the Board’s recent opinion in Matter of Rosales Vargas, 27 I. & N. Dec. 745 (B.I.A. 2020), rejecting this argument. There, the Board pointed out that § 1003.14(a) vests jurisdiction when a charging document is filed, but provides no other specifications regarding the scope of the document, and nothing in 8 C.F.R. § 1003.15(b)(6) mandates that the address of the immigration court is a jurisdictional requirement or that it cannot be provided subsequent to service of the NTA. The Board found that its rules, including § 1003.15, were promulgated as procedural rules and should be read in the context of other internal docketing, procedural, and venue rules for the immigration courts. Accordingly, the Board read § 1003.15(b)(6) in conjunction with § 1003.18(b), which provides that if time, place, and date information is not contained in the NTA, the immigration court shall schedule the initial removal hearing and provide notice to the government and the alien of the time, place, and date of hearing. The Board thus concluded that § 1003.18(b) anticipates that when the address of the immigration court is not included in the NTA, the court can provide notice of that information at a later time in a subsequent Notice of Hearing. The panel pointed out that in Karingithi this court also read § 1003.15(b)(6) in conjunction with § 1003.18(b). The panel observed that Rosales Vargas and Karingithi are consistent, as under both decisions, an omission of some of the information required by § 1003.14(a) and § 1003.15(b)(6) can be cured and is not fatal. The panel stated that, as in Karingithi, it could find nothing in Rosales Vargas to suggest that the Board’s interpretation of its own regulation was AGUILAR FERMIN V. BARR 5 “plainly erroneous,” “inconsistent with the regulation,” or did “not reflect the agency’s fair and considered judgment.” The panel acknowledged that § 1003.15(b)(6) appears to be a clear statement that an NTA must include the address of the immigration court, but stated that the Board has carefully explained why that provision does not deprive an immigration court of jurisdiction. Given that the regulations expressly state that the omission of an address from an NTA may be fixed by a later hearing notice, the panel concluded that it was reasonable to construe the regulatory provisions as allowing the immigration judge to assert jurisdiction in circumstances, such as this, where Aguilar was provided complete notice at a later time and appeared for her hearings. The panel held that the Board therefore did not err in concluding that the Immigration Court had jurisdiction over her case. Based on the same reasoning, the panel also gave deference to the Board’s interpretation in Rosales Vargas of a similar provision, § 1003.14(a), which separately requires a charging document to include a certificate of service indicating the immigration court in which the charging document was filed.
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