Petition for Review of a Decision of the Board of Immigration
Appeals Agency No. A206-459-138
MARTIN, ROSENBAUM, and BOGGS, [*] Circuit Judges.
MARTIN, CIRCUIT JUDGE:
Perez-Sanchez's case sits at a familiar crossroad in
immigration law, where personal hardship intersects with
technical administrative and statutory requirements. Among
other issues, his petition for review asks us to consider the
effect of the Supreme Court's decision in Pereira v.
Sessions, 585 U.S., 138 S.Ct. 2105 (2018).
Pereira interpreted 8 U.S.C. § 1229(a)(1), the
provision of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA") defining a
Notice to Appear ("NTA"). 138 S.Ct. at 2113-16. Mr.
Perez-Sanchez argues the immigration judge ("IJ")
never had jurisdiction over his removal case because the
Department of Homeland Security ("DHS") issued him
an NTA that did not include either the time or date of his
removal hearing. He relies on Pereira, which held in
a different context that § 1229(a)(1) requires this
information. Id. at 2113-14. DHS insists in response
that the agency properly exercised jurisdiction since the
jurisdictional rule in question was established by
regulation, not by statute, and Mr. Perez-Sanchez's NTA
complied with the regulations. See 8 C.F.R. §
Congress alone has the power to define the scope of an
agency's authority, we join several of our sister
circuits and hold today that the regulations set forth a
claim-processing rule as opposed to a jurisdictional one. We
recognize § 1229(a)(1) as setting out a claim processing
rule as well. We therefore deny Mr. Perez-Sanchez's
petition for review as to this claim because the deficient
NTA did not deprive the agency of jurisdiction over his
not, however, accept the agency's analysis of Mr.
Perez-Sanchez's asylum and withholding claims. The Board
of Immigration Appeals ("BIA") affirmed the
IJ's denial of both claims, saying that Mr.
Perez-Sanchez's relationship to his father-in-law was not
a central reason for his persecution at the hands of the Gulf
Cartel. This conclusion cannot be squared with the record
evidence. We therefore grant Mr. Perez-Sanchez's petition
for review and remand his asylum and withholding of removal
claims for further proceedings consistent with this opinion.
Gulf Cartel is one of Mexico's oldest and most dangerous
cartels. On December 21, 2013, five of its members broke into
Mr. Perez-Sanchez's house in Tapachula, Mexico and held
him at gunpoint. They told him they were there to collect
on a debt the cartel believed he owed. Some years before, a
man nicknamed "El Banana" lost a shipment
containing 500 kilograms of cocaine that belonged to the
cartel. The cartel never forgot the loss. When its members
could not find El Banana, they tracked down his daughter and
her partner for information and, failing that, repayment. By
the time the cartel broke into Mr. Perez-Sanchez's house,
the members knew something he did not: namely, that El Banana
was Perez-Sanchez's father-in-law, Elias Gamaliel
to make their trip worthwhile, the cartel members demanded
Mr. Perez-Sanchez reveal his father-in-law's whereabouts.
But Mr. Perez-Sanchez had no idea where Mr. Martinez-Carasco
was. Because Mr. Martinez-Carasco abandoned his daughter,
Sandra Gabriela Martinez Reyes, at a young age, neither she
nor Mr. Perez-Sanchez knew much about the man, much less that
he had been involved in the Gulf Cartel's drug
trafficking operations. The cartel, however, was unmoved by
Mr. Perez-Sanchez's pleas of ignorance. With each
unsatisfactory answer, the cartel members beat Mr.
Perez-Sanchez, fracturing his collarbone and at least one of
his ribs. They also warned him that anyone caught stealing
from or snitching on them would "have their hands
chopped off or blown off and . . . their heads blown
one of the cartel members proposed that Mr. Perez-Sanchez use
his banking job to help the cartel set up fake accounts. The
cartel knew that Mr. Perez-Sanchez was a college graduate who
was currently working for a bank handling credit card
payments. The cartel explained that because Mr.
Perez-Sanchez's father-in-law owed them money,
Perez-Sanchez did as well. Scared of losing the license
he'd worked so hard to earn, Mr. Perez-Sanchez refused to
help the Gulf Cartel set up fake accounts. The cartel members
then ransacked Mr. Perez-Sanchez's house, where they
stumbled upon a box containing 46, 000 pesos in the bedroom.
Again, the cartel directed Mr. Perez-Sanchez to assist them.
And again, Mr. Perez-Sanchez refused, telling them that he
had "no reason to pay [the] debt of another
with his continued resistance, the most violent member of the
group grabbed Mr. Perez-Sanchez by the shirt, put a gun to
his head, and told him to pray because his time had come. Mr.
Perez-Sanchez's life was spared at the last second only
when another cartel member seized on the idea that
Perez-Sanchez could repay his father-in-law's debts with
money. This idea was born from the 46, 000 pesos found in the
cartel then made Mr. Perez-Sanchez one final offer: in
exchange for the 46, 000 pesos (which the cartel would credit
toward an interest payment on his father-in-law's debt)
and a monthly payment of 26, 000 pesos, the cartel would stay
its hand. This time, Mr. Perez-Sanchez accepted. The cartel
members then left, with one driving off in a Mexican police
car. Some time later, Ms. Reyes arrived home with a friend,
where they discovered Mr. Perez-Sanchez on the ground,
bleeding and badly beaten. They immediately took him to the
hospital for treatment.
his word, Mr. Perez-Sanchez paid the cartel 26, 000 pesos
every month afterward by showing up at the designated park
with a fanny pack full of money. But the payments were taking
their toll. Prior to the couple's encounter with the
cartel, Mr. Perez-Sanchez and Ms. Reyes lived relatively
comfortable lives. Between their environmental consulting
business and Mr. Perez-Sanchez's banking job, the couple
did not want for money. The extortion payments changed
everything. Just four months into the payment plan, Mr.
Perez-Sanchez ran out of money. When the couple was not able
to make their May 2014 payment, they fled to the United
States. They never finished paying off Mr.
Perez-Sanchez and Ms. Reyes arrived in the United States on
May 27, 2014. DHS began removal proceedings against Mr.
Perez-Sanchez on June 9, 2014 and served him with an NTA
ordering him to appear before an IJ in Eloy, Arizona at a
date and time "to be set." Proceedings were
eventually transferred to Florida, where Mr. Perez-Sanchez
applied for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT").
two hearings, during which Mr. Perez-Sanchez and Ms. Reyes
testified about their experiences with the Gulf Cartel, the
IJ denied Perez-Sanchez all relief. The IJ found that
although "[t]he cartel's motive to increase its
profits and obtain repayment for the [father-in-law's]
debt was one central reason for its actions against [Mr.
Perez-Sanchez] and [Ms. Reyes]," any motive to harm
Perez- Sanchez based on his relationship to Mr.
Martinez-Carasco "was, at most, incidental." The IJ
concluded that because Mr. Perez-Sanchez failed to show he
suffered persecution "on account of a protected
ground," he was ineligible for asylum and withholding of
removal. The IJ then ordered Mr. Perez-Sanchez
removed to Mexico.
Perez-Sanchez appealed the IJ's decision to the BIA,
which dismissed the appeal on May 21, 2018 without briefing
by DHS. Although the BIA acknowledged at the outset that
"the issue of nexus [was] close," because Mr.
Perez-Sanchez's "relationship to his father-in-law
[was] a reason for the harm and extortion he
experienced," the BIA nonetheless agreed with the IJ
that the family relationship was not a central reason for
Perez-Sanchez's suffering. The BIA did not consider the
IJ's twin findings that the Gulf Cartel targeted Mr.
Perez-Sanchez to "recuperate money owed by [his]
father-in-law" and that "any motive to harm
[Perez-Sanchez] based on his family status was at most
incidental" to be clearly erroneous.
Perez-Sanchez timely petitioned ...