Application for asylum & withholding of removal; Non-governmental conduct; Juan Antonio v Barr; Waiver; Failure of the initial Notice to Appear to state the time & place of the removal hearing; Applicability of Pereira v Sessions & Niz-Chavez v Garland; Satisfying the jurisdictional requirements of 8 USC § 1229(a); Due process; Prejudice

In an opinion originally issued as unpublished, the court held that petitioner-Ramos Rafael failed to meet her burden of proof as to her claim “that the Guatemalan government is or was unable or unwilling to protect women from” persecution in the form of kidnapping or violence by private individuals. Her jurisdictional challenge based on the absence of the time and place in her initial Notice to Appear also failed. Finally, she waived her due process argument based on this omission and even if she had not, she failed to allege actual prejudice. Thus, the court denied her petition for review of the BIA’s dismissal of her appeal of the IJ’s denial of her application for asylum and withholding of removal. She asserted that “the IJ and BIA ‘erred in finding that she did not meet her burden of proving that she possessed a well-founded fear of persecution on account of her membership in a particular social group should she return to Guatemala.’” However, she failed to “acknowledge the BIA’s ruling that she waived any claim or argument” as to the persecution she claimed to fear. In addition, pursuant to Juan Antonio, an applicant asserting an asylum claim focused on non-governmental conduct “must show that the alleged persecutor is either aligned with the government or that the government is unwilling or unable to control him.” The court noted that the closest Ramos Rafael came to addressing this issue on appeal was “a single, conclusory statement that ‘corruption and impunity continues to be a widespread issue in Guatemala’s government; therefore, [she] could not seek the assistance of the Guatemalan government and reasonably expect assistance.’” This was insufficient. As to her argument that her removal proceedings were void for lack of jurisdiction, the cases on which she relied, Pereira and Niz-Chavez, did not apply. Further, for “jurisdictional purposes, it is not necessary that the Notice to Appear contain all the required information or that all the information be included in a single document.” Given that she received a later Notice of Hearing that “provided the required time and date information that was missing from the Notice to Appear, Ramos Rafael received the necessary notice and the IJ had jurisdiction.”