Martha Chavez-Chilel v. Attorney General United States

                                       PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                ______________

                     No. 21-1180
                   ______________

        MARTHA ELENA CHAVEZ-CHILEL,
                             Petitioner

                           v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

                   ______________

         On Petition for Review of a Decision of
            the Board of Immigration Appeals
               (Agency No. A208-196-682)
          Immigration Judge: Steven A. Morley
                    ______________

      Submitted under Third Circuit L.A.R. 34.1(a)
                  December 6, 2021
                   ______________

Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.

               (Filed: December 9, 2021)
Theodore J. Murphy
Murphy Law Firm
320 North High Street
West Chester, PA 19380

              Counsel for Petitioner



Brian Boynton
Acting Assistant Attorney General
Sheri R. Glaser
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

              Counsel for Respondent

                       ______________

                          OPINION
                       ______________


SHWARTZ, Circuit Judge.

       Martha Elena Chavez-Chilel petitions for review of a
decision of the Board of Immigration Appeals (“BIA”)
affirming the order of the Immigration Judge (“IJ”) denying
her applications for asylum and withholding of removal.
Because (1) the Department of Homeland Security’s (“DHS”)




                                2
failure to include the date and time of her hearing in its Notice
to Appear (“NTA”) does not require termination of her
immigration proceedings, and (2) substantial evidence
supported the BIA’s conclusion that “Guatemalan women” is
not a particular social group (“PSG”) for asylum or
withholding purposes, we will deny the petition.

                                I

       Chavez-Chilel, a native and citizen of Guatemala,
entered the United States without admission or parole. DHS
issued her an NTA before an IJ, “on a date to be set at a time
to be set,” charging her with removability pursuant to 

(a)(6)(A)(i). A.R. 444–45. She was subsequently
served a Notice of Hearing that specified the date and time to
appear.

       Before the IJ, Chavez-Chilel admitted the factual
allegations in the NTA and conceded removability as charged.
She then filed applications for asylum, withholding of removal,
and protection under the United Nations Convention Against
Torture (“CAT”). With respect to her claims for asylum and
withholding of removal, she asserted that she would be subject
to persecution because she is a member of a PSG:
“Guatemalan women.” A.R. 202.

       Chavez-Chilel moved to terminate her removal
proceedings, arguing that the NTA was defective under Pereira
v. Sessions, 

, 2114–15 (2018). The IJ denied
the motion, reasoning that (1) Pereira concerned only




                               3
cancellation of removal and its stop-time rule,1 not asylum or
withholding of removal, (2) Chavez-Chilel suffered no
prejudice from any deficiency in the NTA, and (3) a deficient
NTA does not divest the IJ of jurisdiction.

        At her merits hearing, Chavez-Chilel testified that she
was raped as a teenager in Guatemala, the police did not take
any action when she reported this crime, and the same man
later threatened to rape her again. She explained that she feared
she would be sexually assaulted or killed if she was removed
to Guatemala. The IJ denied Chavez-Chilel’s applications for
asylum and withholding of removal,2 finding that, while she
was credible and that her rape qualified as past persecution, her
proposed PSG, “Guatemalan women,” did not constitute a PSG
for asylum or withholding of removal purposes. The IJ
concluded that this PSG was not “sufficiently particular”
because there was no evidence that Guatemalan women share
a “unifying characteristic” or present a “unified target” for
persecution. A.R. 98. Chavez-Chilel appealed to the BIA.

        The BIA dismissed the appeal and affirmed, reasoning
that: (1) the NTA and subsequent Notice of Hearing vested the
IJ with jurisdiction, so terminating and re-initiating the

       1
         The stop-time rule, relevant only to applications for
cancellation of removal, provides that a noncitizen’s “period of
continuous physical presence is ‘deemed to end . . . when the
[noncitizen] is served a[n NTA] under section 1229(a).’”
Pereira, 

 (quoting 8 U.S.C.
§ 1229b(d)(1)(A)).
       2
         However, the IJ granted Chavez-Chilel’s application
for CAT protection. The Government did not appeal this
decision to the BIA.



                               4
removal proceedings was not warranted, and (2) Chavez-
Chilel’s proposed PSG was “too broad to be cognizable.” A.R.
4.

       Chavez-Chilel petitions for review.

                              II3

                               A

       The BIA and IJ properly denied Chavez-Chilel’s motion
to terminate removal proceedings even though her NTA lacked
a specific date and time to appear. Title 

(a)
requires that an NTA include, among other things, the “time
and place at which the proceedings will be held.” 

(a)(1)(G)(i). Chavez-Chilel argues that DHS’s failure
to comply with § 1229(a) constitutes a statutory violation,
which itself requires terminating the proceedings.      This
argument fails for several reasons.

       First, while § 1229(a) sets forth the type of notice that
must be given to a noncitizen and requires an NTA to include
a date and time to appear, the absence of that information does

       3
          The BIA had jurisdiction under 

(b)(3), and we have jurisdiction over final orders of
the BIA under 

(a)(1). Garcia v. Att’y Gen.,

, 502 n.4 (3d Cir. 2011). We review legal
determinations de novo and “accept factual findings if
supported by substantial evidence,” meaning we must “uphold
the agency’s determination unless the evidence would compel
any reasonable fact finder to reach a contrary result.” Sesay v.
Att’y Gen., 

 (3d Cir. 2015) (citation omitted).



                               5
not impact the IJ’s authority to act. See Nkomo v. Att’y Gen.,

 (3d Cir. 2019); see also United States v.
Cortez, 

 (4th Cir. 2019) (observing that the
information that must be provided to a noncitizen under § 1229
differs from what must be provided to an IJ for it to act). An
IJ can act when a charging document, such as an NTA, is filed.
See 

 (“Jurisdiction vests, and proceedings
before an [IJ] commence, when a charging document is filed
with the Immigration Court by [DHS].”).                  Thus,
noncompliance with the language of § 1229 alone does not
require an IJ to terminate the proceedings.

        Second, even if Chavez-Chilel’s NTA did not comport
with the “letter” of § 1229, that statute is akin to a claims-
processing rule. Perez-Sanchez v. Att’y Gen., 

,
1153–57 (11th Cir. 2019). Claims-processing rules “seek to
promote the orderly progress of litigation by requiring that the
parties take certain procedural steps at certain specified times.”
Henderson ex rel. Henderson v. Shinseki, 

(2011). They differ from jurisdictional rules, which “govern[]
a court’s adjudicatory capacity,” namely “its subject-matter or
personal jurisdiction.” 

 Said differently, jurisdictional rules
typically act as “external constraints” on an entity, whereas
claims-processing rules are “internal rules” that help to
maintain order but do not “define the scope of [the entity’s]
power.” Cortez, 930 F.3d at 360–61 (citations omitted).4

       4
          Chavez-Chilel asserts that § 1003.18(b) contradicts
§ 1229 and is thus arguably claiming that the regulation is
entitled to no Chevron deference. There are no Circuit rulings
currently holding that the regulation violates Chevron, see,
e.g., Lopez v. Barr, 

 (9th Cir. 2019),




                                6
rehearing granted on separate grounds, 

 (2020),
but at least one has viewed the Attorney General as “exercising
congressionally delegated authority” when he “promulgated
regulations governing the initiation of removal proceedings.”
Cortez, 

 (citing 

(g)(2)). We do
not need to address this argument because Chavez-Chilel’s
petition is based upon her view that a violation of the statue
alone entitles her to relief. We nonetheless note that the
relevant regulations further the processing of a claim. For
example, the Attorney General has issued regulations setting
forth the requirements for charging documents, such as NTAs.
For instance, 

 provides that a charging
document must include the nature of the proceedings, the legal
authority under which the proceedings are being conducted, the
acts alleged to violate the law, the statutes allegedly violated,
the fact that the noncitizen may have counsel appear on her
behalf, the address of the IJ where the NTA is to be filed, and
notice to the noncitizen concerning in absentia removal.

(b); see also Pierre-Paul v. Barr, 

 (5th Cir. 2019) (stating that “proceedings before an [IJ]
commence when a charging document is filed. To constitute a
valid charging document, the regulations require that a notice
to appear list the nature of the proceedings, the legal authority
for the proceedings, and the warning about the possibility of in
absentia removal[.]”), abrogated in part on other grounds by
Niz-Chavez v. Garland, 

, 1479–80 (2021)). A
different regulation provides that an NTA need only include
the date and time of the initial hearing “where practicable.”

(b). As there was no showing that
providing a date and time in the NTA at the time it was issued
to Chavez-Chilel was practicable, the NTA here contained all




                                7
Section 1229 is a claims-processing rule because it seeks to
ensure that noncitizens appear for proceedings by requiring
that the noncitizen be informed of the time and place of the
hearing. By providing that information, the agency can set a
schedule for moving the case forward. When there is a
violation of a claims processing rule, as compared with a
jurisdictional rule, the adjudicator has the authority to
determine how to address the noncompliance. Cf. Gutierrez v.
Johnson & Johnson, 

 (3d Cir. 2008) (“The
import of th[e] distinction between jurisdictional and [claims-
processing] rules . . . is that courts cannot create equitable
exceptions to jurisdictional [rules].”). Thus, because there can
be equitable reasons to excuse noncompliance with a claims-
processing rule, see 

 at 197–98 (explaining that where there
is a violation of a “claims-processing rule . . . a court can
exercise its discretion and hear an untimely appeal”), there is
no automatic requirement that a violation of a claims-
processing rule results in the termination of a proceeding.5


of the required components. Thus, the NTA complied with the
regulations.
        5
          Several of our sister Circuits have described the
regulations relevant here as claims-processing rules and some
have viewed compliance with certain claims-processing rules
as mandatory. See Martinez-Perez v. Barr, 

,
1278–79 (10th Cir. 2020) (observing that a “claim-processing
rule is mandatory to the extent a court must enforce the rule if
a party properly raises it,” and suggesting no prejudice analysis
is required); Perez-Sanchez, 935 F.3d at 1153–57 (treating the
statute and regulations as claim-processing rules but not
addressing whether failure to comply with the statute required
a remand due to petitioner’s failure to exhaust that argument




                               8
       Third, even if the NTA’s omission of a date and place
did not comply with the statute, the omission was harmless.
“[H]armless error analysis . . . appl[ies] in immigration cases,”
and an error is harmless “when it is highly probable that [it] did
not affect the outcome of the case.” Li Hua Yuan v. Att’y Gen.,

 (3d Cir. 2011); see also Guadalupe v. Att’y
Gen., 

 (3d Cir. 2020) (concluding error in
petitioner’s NTA was not harmless); see also Matter of Rosales
Vargas, 

 (B.I.A. 2020) (“While the
respondents in this case timely challenged the deficiencies in
their [NTAs], there is no apparent prejudice.”). The purpose
of an NTA is to notify a noncitizen that she is removable and
provide the basis for that allegation. The NTA here provided
such notice, and the subsequent Notice of Hearing provided the
date and time of the hearing. The lack of a date and time for a
hearing on the NTA did not impede Chavez-Chilel’s
opportunity to contest the charge against her, present evidence,
and receive CAT relief. Accordingly, DHS’s failure to include
the date and time for her hearing on the NTA itself was




before the BIA); Pierre-Paul, 930 F.3d at 691–93 (noting that
“[a] claim-processing rule is mandatory to the extent a court
must enforce the rule if a party properly raises it,” but
determining petitioner failed to timely raise his objection to the
NTA); Cortez, 930 F.3d at 359–62; Ortiz-Santiago v. Barr, 

, 962–66 (7th Cir. 2019). Given the purpose of the
claims-processing rule before us, namely to ensure the
proceedings move forward and that the noncitizen have an
opportunity to participate, equitable considerations inform
whether technical noncompliance requires particular relief.



                                9
harmless error, and thus a remand to direct the termination of
the proceeding, or to re-initiate it, is unwarranted.6

       For all of these reasons, the violation of § 1229 did not
require the IJ to terminate the proceedings.7

       6
           To the extent Chavez-Chilel bases any of her
arguments on Pereira, that case is inapposite because it governs
only a specific aspect of cancellation of removal relief—the
stop-time rule—and Chavez-Chilel is not seeking that type of
relief. See 138 S. Ct. at 2114–15; Nkomo, 

(explaining that Pereira “did not purport to resolve issues
beyond the . . . stop-time rule context, and the Supreme Court
repeatedly emphasized the narrowness of its holding”).
        7
          None of the three cases Chavez-Chilel identified in her
Rule 28(j) letters changes the result. Rodriguez v. Garland, 

 (5th Cir. 2021), addresses in absentia removal orders,
which are not at issue here. In any event, the in absentia
provision specifically refers to § 1229(a), see 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (explaining that an in absentia removal
order may be rescinded “upon a motion to reopen filed at any
time if the alien demonstrates that the alien did not receive
notice in accordance with [§ 1229(a)]”), and thus “require[s] a
single document containing the required information[,
including the date and time of the hearing,] in the in absentia
context,” 

. By contrast, “the jurisdiction-vesting
regulation[] d[oes] not cross-reference 

(a).”
Mejia Romero v. Att’y Gen., 

 (3d Cir. 2021).
Rodriguez does not, therefore, affect our conclusion that
§ 1229(a) is not jurisdictional. Thus, Rodriguez has no bearing
on this case, the IJ’s jurisdiction, or Chavez-Chilel’s statutory
argument.




                               10
        De La Rosa v. Garland, 

 (7th Cir. 2021), also
does not change our analysis. De La Rosa held that § 1229(a)
is a mandatory claims-processing rule, and so “[a] noncitizen
who raises a timely objection to a noncompliant [NTA] . . . is
entitled to relief without also having to show prejudice from
the defect.” Id. at 688. Even if we were to adopt De La Rosa,
including its view that § 1229(a) is a mandatory claims-
processing rule, it would not provide Chavez-Chilel a basis for
relief. De La Rosa directs that an objection to the contents of
an NTA should “be[] lodged at the outset of the proceeding.”
Id.; see also Chen v. Barr, 

 (7th Cir. 2020)
(observing that “[a] problem in the charging document could
and should have been pointed out promptly, so that any error
could be fixed.”). According to De La Rosa, absent a timely
objection, the petitioner must show “excusable untimeliness
and . . . prejudice.” 2 F.4th 687–88. Chavez-Chilel waited
until just before her merits hearing to raise her complaint about
the omissions on the NTA, over two years after her
proceedings commenced, and did not raise her statutory
argument until she appealed to the BIA. Because her
objections were not raised at the “outset of the proceeding,”
they were untimely and, under De La Rosa, she is required to
show prejudice. As we have explained, she has failed to do so.
        That Chavez-Chilel filed her motion roughly one month
after Pereira was decided is of no moment. As previously
mentioned, the ruling addresses the stop-time rule. Moreover,
to the extent it is being relied upon as a basis to challenge
defects in NTAs, arguments concerning defective NTAs were
plainly available before Pereira. See, e.g., Mejia-Padilla v.
Garland, 

 (7th Cir. 2021) (noting that
arguments regarding “defect[s] in the notice to appear”




                               11
                                 B

       The BIA also correctly concluded that Chavez-Chilel is
not entitled to asylum or withholding of removal. A removable
noncitizen may be eligible for asylum if she demonstrates that
she is “unable or unwilling to return to, and is unable or
unwilling to avail [herself] . . . of the protection of, [the


premised on Pereira could have been raised in 2012 in light of
the “statute’s plain language”); Salazar-Marroquin v. Barr, 

 (7th Cir. 2020) (“Petitioner could have raised
this argument earlier, relying on . . . the clear statutory text and
the Third Circuit’s earlier disagreement with the effect of a
noncompliant [NTA].” (quotation marks omitted)); Ortiz-
Santiago, 

 (explaining that a Pereira-based
objection could have been lodged in the wake of Orozco-
Velasquez v. Attorney General, 

 (3d Cir. 2016)).
        Finally, as to Matter of Arambula-Bravo, 

 (B.I.A. 2021), Chavez-Chilel concedes it neither
helps nor hurts her position and simply does “not foreclose”
his contention that a “statutory violation is a distinct issue . . .
from . . . a jurisdictional defect.” ECF No. 27. Indeed, in
leaving “further consideration of [

(a)] as a
claims-processing rule for another day,” Arambula-Bravo, 28
I. & N. Dec. at 392 n.3, the BIA highlighted disagreement
among Courts of Appeals, comparing De La Rosa with B.R. v.
Garland, in which the Court of Appeals for the Ninth Circuit
held that “IJs . . . have authority to allow DHS to cure improper
service of an NTA without requiring termination of
proceedings,” 

 (9th Cir. 2021). Arambula-
Bravo is, therefore, also of no assistance to Chavez-Chilel.
        Thus, none of the cases identified in Chavez-Chilel’s
Rule 28(j) letters alters our analysis.



                                12
country to which she would be removed] because of
persecution or a well-founded fear of persecution on account
of . . . membership in a [PSG].” 

(a)(42)(A);
see also 

 § 1158(b)(1)(B)(i).

       Whether a petitioner’s proffered PSG is cognizable
“presents a mixed question of law and fact, since the ultimate
legal question of cognizability depends on underlying factual
questions concerning the group and the society of which it is a
part.” S.E.R.L. v. Att’y Gen., 

 (3d Cir.
2018). Accordingly, we “review de novo the ultimate legal
conclusion as to the existence of a [PSG]” but “review the
underlying factual findings for substantial evidence.” 

(quotation marks and citation omitted).

       Substantial evidence supports the BIA’s and IJ’s finding
that “Guatemalan women” is not a cognizable PSG. A PSG
must be: “(1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.” S.E.R.L., 

 (quotation marks and citation omitted).
Particularity “addresses the outer limits of a group’s
boundaries and is definitional in nature, whereas social
distinction focuses on whether the people of a given society
would perceive a proposed group as sufficiently separate or
distinct.” 

 (quotation marks omitted). To satisfy the
particularity requirement, “an alleged social group [must] have
discrete and . . . definable boundaries that are not amorphous,
overbroad, diffuse, or subjective, so as to provide a clear
standard for determining who is a member.” 

(quotation marks and citation omitted).




                               13
        Chavez-Chilel’s proposed PSG lacks particularity.
“[N]ot every immutable characteristic is sufficiently precise to
define a [PSG],” 

, and courts have concluded that a
proposed PSG of all women in a particular country “is
overbroad[] because no factfinder could reasonably conclude
that all [of a country’s] women had a well-founded fear of
persecution based solely on their gender,” Safaie v. INS, 

 (8th Cir. 1994) (addressing Iranian women).8
Reasons to depart from this general rule are not present here.
For example, in Hassan v. Gonzales, 

 (8th Cir.
2007), the Court of Appeals for the Eighth Circuit recognized
the PSG of all Somali women because “all Somali females
have a well-founded fear of persecution based solely on gender
given the prevalence of” female genital mutilation. 

;
see also Mohammed v. Gonzales, 

, 797–98 (9th
Cir. 2005) (same); In re Kasinga, 

, 365–66
(B.I.A. 1996) (recognizing PSG of “young women” in a
particular tribe in Togo due to pervasive practice of female

       8
         In Perdomo v. Holder, 

, 668–69 (9th Cir.
2010), the Court of Appeals for the Ninth Circuit disagreed
with the BIA’s conclusion that “all women in Guatemala” was
too broad a group to qualify as a PSG and remanded for further
analysis. That case rested on the Ninth Circuit’s two-part
definition of a PSG, which recognized any group “united by a
voluntary association, including a former association, or by an
innate characteristic that is so fundamental to the identities or
consciences of its members that members either cannot or
should not be required to change it.” 

 (quotation
marks and emphasis omitted). This definition is not consistent
with our Court’s three requirements for a PSG, see S.E.R.L.,

, so we decline to follow the reasoning in
Perdomo.



                               14
genital mutilation). Here, by contrast, there is no record
evidence that all Guatemalan women share a unifying
characteristic that results in them being targeted for any form
of persecution based solely on their gender. Cf. A.R. 170–73,
182 (Chavez-Chilel’s testimony that she knew of no other
women who suffered sexual or domestic violence); A.R. 232
(report explaining that one-third more Guatemalan women
experience sexual or domestic violence against them than
women in Paraguay). Accordingly, while the size of the group
standing alone would not disqualify a group from being a PSG,
Cece v. Holder, 

, 674–75 (7th Cir. 2013), Chavez-
Chilel has failed to demonstrate that her proposed PSG is
sufficiently particularized.      Thus, her alleged fear of
persecution based upon membership in such a group does not
provide a basis for asylum. Because Chavez-Chilel cannot
prove her asylum claim, she cannot meet the higher standard
to obtain withholding of removal. See Blanco v. Att’y Gen.,

 (3d Cir. 2020). As a result, the IJ and BIA
correctly denied her request for asylum and withholding of
removal.9

       9
         We will also deny Chavez-Chilel’s motion for remand
to apply for voluntary departure. An application for voluntary
departure must be made prior to or at the conclusion of removal
proceedings. See 

(b)-(c). Chavez-Chilel
failed to so apply before the IJ’s order became final.
Accordingly, to seek voluntary departure, Chavez-Chilel must
file a motion to reopen with the BIA, not a motion to remand
in this Court. See 

(c)(1) (“A motion to
reopen proceedings for the purpose of submitting an
application for relief must be accompanied by the appropriate
application for relief and all supporting documentation.”);




                              15
                              III

       For these reasons, we will deny the petition for review.




Reynoso-Lopez v. Ashcroft, 

 (3d Cir. 2004)
(“[After the Illegal Immigration Reform and Immigrant
Responsibility Act], the executive branch, not the judiciary, is
given the sole authority to determine when an alien must
depart.”).



                              16