JOSUE UMANA-ESCOBAR V. MERRICK GARLAND, No. 19-70964 (9th Cir. 2023)

Court Description: Immigration. Dismissing in part, granting in part, and denying in part Josue Umana-Escobar’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel: (1) held that it lacked jurisdiction to consider Umana- Escobar’s unexhausted argument that the omission of required time and place information in his Notice to Appear (“NTA”) amounted to a claim-processing error; (2) remanded Umana-Escobar’s administrative closure claim for further consideration in light of intervening precedent; and (3) remanded Umana-Escobar’s asylum and withholding claims because the BIA erroneously reviewed the immigration judge’s nexus determination for clear error, rather than de novo. Before the agency, Umana-Escobar argued that because his NTA omitted required time and place information the IJ lacked jurisdiction. Before this court, however, Umana- Escobar raised a different argument, contending the BIA should have terminated his proceedings because the defective NTA amounted to a claim-processing violation. The panel observed that in his counseled brief on appeal to the BIA, Umana-Escobar argued exclusively that an NTA that lacks either the time or place of a removal proceeding cannot vest an immigration court with jurisdiction. Umana-Escobar also told the BIA that it did not have to consider whether his claim had been waived because UMANA-ESCOBAR V. GARLAND 3 “jurisdiction cannot be waived.” The panel wrote that it was therefore clear that Umana-Escobar’s NTA argument sounded exclusively in jurisdiction and that the BIA thus had no reason to consider whether the NTA’s defects could constitute some other type of violation which might be subject to waiver, such as a claim-processing violation. Because Umana-Escobar failed to exhaust the alleged claim-processing violation, the panel held that it lacked jurisdiction to consider it. The BIA denied Umana-Escobar administrative closure after concluding that it had no authority to grant such relief under Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). However, while this petition was pending, the Attorney General issued Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021), which overruled Matter of Castro- Tum and reinstated the BIA’s authority to grant administrative closure pending the Department of Justice’s review of a regulation concerning the issue. Given this change, the panel agreed with the government’s unopposed recommendation to remand the administrative closure issue to the BIA for further consideration. The BIA upheld the immigration judge’s denial of asylum and withholding of removal solely based on Umana- Escobar’s failure to establish the required nexus between a protected ground and past or future harm. Umana-Escobar first argued that the IJ applied the wrong nexus standard to his withholding of removal claim because, rather than determine whether a protected ground was a reason for the harm, the IJ stated that the evidence was insufficient to show that family was the reason for any threats. The panel rejected Umana-Escobar’s contention, concluding that the IJ’s allegedly problematic statement, when read in context with other statements in the decision, demonstrated that the 4 UMANA-ESCOBAR V. GARLAND IJ knew and applied the correct a reason nexus standard to the withholding of removal claim. Umana-Escobar additionally argued that the BIA erred by reviewing the IJ’s nexus determination for clear error, rather than de novo. The panel agreed. The panel explained that in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), the BIA stated that the nexus determination was a legal determination subject to de novo review. As support for its statement, Matter of S-E-G-cited among other authorities: (1) 8 C.F.R. § 1003.1(d)(3), the regulation setting forth the BIA’s standards for reviewing an IJ’s decision, and (2) the Department of Justice’s commentary on the regulation, which discusses the interplay between the clearly erroneous standard of review applicable to an IJ’s factual findings and the BIA’s de novo authority. The DOJ Guidance explains that the nexus determination is not a factual determination subject to clear error review. Thus, the panel explained that the BIA reviews the IJ’s underlying factual findings, such as what a persecutor’s motive may be, for clear error. But the BIA must review de novo whether a persecutor’s motives meet the nexus legal standards, i.e., whether a protected ground was “one central reason” (for asylum) or “a reason” (for withholding of removal) for the past or feared harm. Here, the BIA stated: “[T]here is no clear error in the Immigration Judge’s determination that [Umana-Escobar] did not establish the requisite nexus between a protected ground . . . and the harm he fears in El Salvador.” Given that express statement, the panel concluded that the BIA applied the wrong standard of review, and thus remanded Umana- Escobar’s asylum and withholding of removal claims for application of the proper standard. UMANA-ESCOBAR V. GARLAND 5 Finally, the panel concluded that substantial evidence supported the agency’s determination that Umana-Escobar failed to establish the requisite government involvement, or government acquiescence to, any torture.