Blanca Luz Escalante Paz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLANCA LUZ ESCALANTE PAZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-73197
Agency No. A077-278-389
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2022**
San Francisco, California
Before: WATFORD and SANCHEZ, Circuit Judges, and BENITEZ,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
FILED
DEC 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Blanca Luz Escalante Paz petitions for review of a Board of Immigration
Appeals (“BIA”) decision finding her ineligible for asylum and withholding of
removal and denying her motion to terminate removal proceedings pursuant to
Pereira v. Sessions, 138 S. Ct. 2105 (2018). We grant in part and deny in part the
petition.
1. The precedent that the BIA relied on to reject Escalante Paz’s proposed
particular social group—“[Honduran] women in relationships [who] are unable to
leave and receive appropriate assistance from governmental sources”—has since
been vacated in its entirety by an intervening opinion. See In re A-B-, 28 I. & N.
Dec. 307 (A.G. 2021) (overruling In re A-B-, 27 I. & N. Dec. 316 (A.G. 2018)).
Given the change in law, remand is proper, especially since the BIA’s opinion
declined to “address additional issues” on the view that the invalidity of Escalante
Paz’s particular social group was dispositive. See, e.g., Pannu v. Holder, 639 F.3d
1225, 1229 (9th Cir. 2011) (remanding to the BIA in light of an intervening change
in the law).
We reject the government’s argument that Escalante Paz failed to challenge
the BIA’s particular social group determination in her opening brief, thereby
waiving the issue. Escalante Paz argues that a particular social group composed of
“Honduran women . . . unable to leave a domestic relationship” due, in part, to the
“[i]neffectiveness of restraining orders [and] the systematic failure of police to

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protect women separated from abusive partners,” is cognizable. That is
functionally the same particular social group she asserted before the BIA.
The other two particular social groups Escalante Paz raises on appeal—
“Honduran women viewed as property” and “nuclear family members with the
abuser”—were not raised before the BIA and are therefore unexhausted. See, e.g.,
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
We grant the petition in part and remand for the BIA to review the particular
social group Escalante Paz raised below (“[Honduran] women in relationships
[who] are unable to leave and receive appropriate assistance from governmental
sources”) under the new Attorney General opinion in the first instance.
2. Escalante Paz asserts that the notice to appear (“NTA”) she was issued
did not confer jurisdiction on the Immigration Court because it did not contain the
date, time, and place of hearing. As we recently held, however, the failure of an
NTA “to include time and date information does not deprive the immigration court
of subject matter jurisdiction.” United States v. Bastide-Hernandez, 39 F.4th 1187,
1188 (9th Cir. 2022) (en banc); see also Aguilar Fermin v. Barr, 958 F.3d 887, 889
(9th Cir. 2020) (holding “an initial NTA need not contain time, date, and place
information to vest an immigration court with jurisdiction if such information is
provided before the hearing”). We deny the petition as to this claim.
PETITION GRANTED IN PART AND DENIED IN PART.

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