United States v. Barrett Prelogar

United States Court of Appeals
For the Eighth Circuit
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No. 20-3055
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Alicia Chitic-Pol; Andy Chitic-Pol
lllllllllllllllllllllPetitioners
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 5, 2021
Filed: April 8, 2021
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Guatemalan native and citizen Alicia Chitic-Pol, individually and on behalf of
her minor son Andy Chitic-Pol, petitions for review of an order of the Board of
1Merrick B. Garland is serving as Attorney General of the United States, and
is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).

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Immigration Appeals (BIA), which dismissed her appeal from an immigration judge’s
(IJ’s) decision denying her motion to terminate the proceedings based on Pereira v.
Sessions, 138 S. Ct. 2105 (2018), and denying her applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT).2
As a preliminary matter, this court’s precedent forecloses Chitic-Pol’s
argument, based on Pereira, that the immigration court never acquired jurisdiction
over her proceedings because her Notice to Appear (NTA) was deficient. See Ali v.
Barr, 924 F.3d 983, 985–86 (8th Cir. 2019) (concluding that Pereira decided a
“narrow” issue relating to the stop-time rule for cancellation of removal and “had
nothing to say” about when an IJ obtains jurisdiction over removal proceedings;
jurisdiction vests when a charging document (such as an NTA) is filed with the
immigration court; and an NTA need only provide time, place, and date information
“where practicable” under 8 C.F.R. § 1003.18(b)); accord Rodriguez de Henriquez
v. Barr, 942 F.3d 444, 446 (8th Cir. 2019).
Having carefully considered the record, even assuming that Chitic-Pol’s
proposed particular social groups were cognizable, we conclude the agency properly
denied relief, see Njong v. Whitaker, 911 F.3d 919, 922–23 (8th Cir. 2018) (standard
of review). Specifically, the events Chitic-Pol described did not amount to past
persecution. See Cano v. Barr, 956 F.3d 1034, 1039 (8th Cir. 2020) (reiterating that
persecution is an extreme concept that involves infliction or credible threat of death,
torture, or injury, and excludes low-level intimidation and harassment); Al Yatim v.
Mukasey, 531 F.3d 584, 588–89 (8th Cir. 2008) (explaining that difficulties resulting
2Because Andy’s asylum application is derivative of his mother’s, all references
are to his mother. See 8 U.S.C. § 1158(b)(3)(A) (child may be granted asylum if
accompanying principal noncitizen was granted asylum). There are no derivative
benefits for withholding of removal or CAT relief. See Fuentes v. Barr, 969 F.3d
865, 868 n.1 (8th Cir. 2020) (per curiam).
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from generalized violence or crime typically do not qualify as persecution). A
reasonable fact finder could conclude, moreover, that Chitic-Pol failed to demonstrate
an objectively reasonable fear of future persecution because she had no contact with
her alleged abuser after 2013, she presented no competent evidence that masked
aggressors who once entered her home were still interested in her whereabouts, and
her family members remained unharmed in Guatemala. See Lemus-Arita v. Sessions,
854 F.3d 476, 482 (8th Cir. 2017) (explaining that a noncitizen must demonstrate
objective reasonableness through credible, direct, and specific evidence that a
reasonable person in the noncitizen’s position would fear persecution; a lapse in time
after threats renders fear speculative and objectively unreasonable); Krasnopivtsev
v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004) (concluding that the reasonableness
of feared persecution is diminished when family members remain unharmed in native
country). Finally, substantial evidence supports the agency’s denial of withholding
of removal and protection under the CAT. See Guled v. Mukasey, 515 F.3d 872,
881–82 (8th Cir. 2008) (concluding that a noncitizen who does not meet the standard
for asylum cannot meet the more rigorous clear probability standard for withholding
of removal); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 874 (8th Cir. 2006)
(explaining that the denial of asylum and withholding of removal dictates the same
outcome on a CAT claim when the claims are based on the same underlying facts).
Accordingly, we deny the petition for review.
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