21

- 6558 Orellana

- Jarrin v. Garland BIA Verrillo , IJ A 208 893 381 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on th e 1 st da y of December , two thousand 3 twenty

- t hree

. 4 5 PRESENT: 6 JOSÉ A. CABRANES, 7 DENNY CHIN, 8 MARIA ARAÚJO KAHN, 9 Circuit Judges. 10

_____________________________________ 11 12 JOSE LUIS ORELLANA

- JARRIN , 13 Petitioner , 14 15

v. 21

- 6558 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 21 22 FOR PETITIONER : Ramiro Alcazar, Meriden, CT

. 232 FOR RESPONDENT: Brian Boynton , Principal Deputy Assistant 1 Attorney General ; Keith I. McManus , 2 Assistant Director; Spencer Shucard , Trial 3 Attorney, Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D C. 6 UPON DUE CONSIDERATION of this petition for review of a Board of 7
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 8
DECREED that the petitio n for review is DENIED

. 9

Petitioner Jose Luis Orellana

- Jarrin , a native and citizen of Ecuador , seeks 10

review of a September 21, 2021 , decision of the BIA affirming a December 20, 2018 , 11
decision of an Immigration Judge (“IJ”) denying his application for asylum, 12
withholding of removal, and relief under the Convention Against Torture 13
(“CAT”)

. In re Orellana

- Jarrin , No. A 208 893 381 (B.I.A. Sept. 21, 2021 ), aff’g No. 14

A 208 893 381 (Immig. Ct. Hartford Dec. 20, 2018 ). We assume the parties’ 15
familiarity with the underlying facts and procedural history. 16
We have reviewed the IJ’s decision as modified and supplemented by the 17

BIA. See Xue Hong Yang v. U.S. Dep’t of Just. , 426 F.3d 520, 522 (2d Cir. 2005); Yan 18

Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual 19
findings for substantial evidence, and we review questions of law and the 20
application of law to fact de novo

. Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 213 Cir. 2018); see 8 U.S.C. § 1252(b)(4)(B) ( “[T]he administrative findings of fact are 1
conclusive unless any reasonable adjudicator would be compelled to conclude to 2
the contrary.”). 3

I. Agency Jurisdiction 4

Orellana

- Jarrin first argues that the agency lacked jurisdiction over his 5
removal proceedings because his notice to appear (“NTA”) did not include a 6
hearing date and time. That argument is without merit. In Pereira v. Sessions , the 7
Supreme Court held that an NTA that fails to specify a time or place of hearing as 8
required in 8 U.S.C. § 1229(a)(1) does not stop the accrual of continuous presence 9
required for cancellation of removal (a form of relief that Orellana

- Jarrin has not 10
sought). 138 S. Ct. 2105 , 2113

– 16 (2018). The Supreme Court clarified in Niz

11

Chavez v. Garland , that a subsequent hearing notice does not cure the defective 12

NTA in that context. 141 S. Ct. 1474 , 1480

– 86 (2021). But Niz

- Chavez and Pereira 13
are limited to the stop

- time rule for cancellation of removal and are “not properly 14

read to void jurisdiction in cases in which an NTA omits a hearing time or place.” 15
Banegas Gomez v. Barr , 922 F.3d 101, 110 (2d Cir. 2019); see also Chery v. Garland , 16 16
F.4th 980, 987 (2d Cir. 2021) (“ Banegas Gomez remains good law even after the 17
Supreme Court’s opinion in Niz

- Chavez ” because, “ [ a ] s with Pereira , Niz

- Chavez 184 focused only on the stop

- time rule .

. . and did not address the effect of a defective 1
NTA on an IJ’s jurisdiction.”). “[A]n NTA that omits information regarding the 2
time and date of the initial hearing is nevertheless adequate to vest jurisdiction .

. . 3
so long as a notice of hearing specifying this information is later sent to the alien.” 4
Banegas Gomez , 922 F. 3d at 112. Here, although Orellana

- Jarrin’s NTA omitted 5
the date and time of his hearing, he does not dispute that he received a hearing 6
notice containing this information, and he appeared at his hearing s . The agency 7
therefore had jurisdiction. See Chery , 16 F.4th at 986

– 87; Banegas Gomez , 922 F.3d 8

at 11 2

. 9

II. Abandonment of Claims 10

Orellana

- Jarrin has abandoned dispositive issues related to the denial of 11
asylum, withholding of removal, and CAT relief, and we deny his petition for that 12

reason. To establish eligibility for asylum and withholding of removal , Orellana

13
Jarrin had to show that he suffered past persecution or fear ed future persecution 14
“on account of race, religion, nationality, membership in a particular social group, 15
or political opinion.” 8 U.S.C. § 1101(a)(42) ; see id. §§ 1158(b)(1)(A), (B)(i) , 16
1231(b)(3)

. A “particular social group” must be “cognizable,” meaning that its 17

members share a “common immutable characteristic,” the group is “defined with 185 particularity,” and it is “socially distinct within the society in question.” Paloka v. 1

Holder , 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of M

– E

– V

– G

– , 26 I. & N. 2

Dec. 227, 23 7 (B

. I

. A

. 2014) )

. 3
The IJ found that Orellana

- Jarrin failed to satisfy his burden for asylum and 4
withholding of removal because, among other reasons, he did not demonstrate 5

that his past or feared harm was on account of his membership in a cognizable 6
particular social group or another protected ground, concluding that his proffered 7
particular social group of “honest truck driver[s] working with corrupt truck 8
drivers [and] not protected by corrupt police officers” was not particular or 9
socially distinct. 1 Certified Administrative Record at 43. The BIA found that 10

Orellana

- Jarrin waived any challenge to that conclusion, and it declined to address 11
proposed social groups that he articulated for the first time on appeal. Orellana

12
Jarrin does not challenge those dispositive rulings here. See Yueqing Zhang v. 13

Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005) (finding claim abandoned when it was 14
not raised in petitioner’s brief). 15

1 W e do not consider political opinion as a basis for relief because Orellana

- Jarrin d id not mention that claim on appeal to the BIA and does not raise it here

. See Gui Yin Liu v. INS , 508 F.3d 716, 723 n.6 (2d Cir. 2007) (declining to consider claim not raised in briefs to this Court or the BIA).6 Instead, Orellana

- Jarrin repeats the argument he raised before the BIA that 1
a particular social group consisting of members of his immediate family is 2
cognizable. Even if that argument could be construed as challenging the BIA’s 3
decision not to reach this issue, such an argument would be without merit. See 4

Matter of W

- Y

- C

- & H

- O

- B

- , 27 I. & N. Dec. 189, 191

– 92 (B.I.A. 2018) (requiring 5
asylum applicants to articulate each proposed social group to the IJ in the first 6
instance); see also Prabhudial v. Holder , 780 F.3d 553, 555 (2d Cir. 2015) (holding that 7
BIA may decline to consider issue not raised before IJ). 8
Finally, Orellana

- Jarrin’s brief does not articulate a challenge to the agency’s 9
denial of CAT relief, either to the BIA’s finding that he waived this claim, or to the 10
IJ’s finding that he failed to demonstrate that he was more likely than not to be 11

tortured

. Thus, he has also abandoned his CAT claim. See Yueqing Zhang , 426 12

F.3d at 541 n.1. Moreover, the BIA’s waiver finding was correct because Orellana

13
Jarrin’s brief to the BIA only challenged the IJ's jurisdiction and argued for relief 14
based on a particular social group (which has no bearing on eligibility for CAT 15
protection). 2 16

2 For the same reason, the Government is correct that Orellana

- Jarrin’s CAT claim is unexhausted, which is yet another reason that we do not reach it. While the Supreme Court recently held that the administrative exhaustion requirement in7 For the foregoing reasons, the petition for review is DENIED

. All pending 1
motions and applications are DENIED and stays VACATED. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe , 4 Clerk of Court 5 6

8 U.S.C. § 1252(d)(1) is not jurisdictional, we cannot excuse this mandatory requirement where, as here, the Government has raised the failure to exhaust. See Santos

- Zacaria v. Garland , 598 U.S. 411, 419, 423 (2023) (holding that 8 U.S.C. § 1252(d)(1)’s administrative exhaustion requirement is a non

- jurisdictional claim

processing rule “subject to waiver and forfeiture”); Donnelly v. CARRP , 37 F.4th 44, 56 (2d Cir. 2022) (explaining that “statutory exhaustion requirements are mandatory, and courts are not free to dispense with them.” (alteration and quotation marks omitted)).