United States v. Arturo Leal-Monroy

United States Court of Appeals
For the Eighth Circuit
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No. 20-2250
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Domingo Osorio Velasquez; Julia Camaja-Santiago; Cristian Tomas
Osorio-Camaja; Jonathan Francisco Osorio-Camaja
lllllllllllllllllllllPetitioners
v.
Monty Wilkinson, Acting 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: January 27, 2021
Filed: February 16, 2021
[Unpublished]
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Before KELLY, MELLOY, and GRASZ, Circuit Judges.
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PER CURIAM.
1Monty Wilkinson is now Acting Attorney General of the United States, and
is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).

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Guatemalan citizen and native Domingo Osorio Velasquez, individually and
on behalf of his spouse and minor sons, petitions for review of an order of the Board
of Immigration Appeals (BIA). The BIA dismissed his appeal from an immigration
judge’s decision, which denied his request to terminate the proceedings based on
Pereira v. Sessions, 138 S. Ct. 2105 (2018), and denied him asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).2
As an initial matter, this court has already considered and rejected the argument
Velasquez makes, based on Pereira, that an immigration court lacks jurisdiction over
removal proceedings when a Notice to Appear fails to designate a date or time for a
hearing. 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 immigration judge obtains
jurisdiction over removal proceedings; jurisdiction vests when a charging document
(such as a Notice to Appear) is filed with the immigration court; and a Notice to
Appear need only provide time, place, and date information “where practicable”
under 8 C.F.R. § 1003.18(b)). We are bound by that decision. See Rodriguez de
Henriquez v. Barr, 942 F.3d 444, 446 (8th Cir. 2019).
After careful review, we further conclude that substantial evidence supports the
agency’s decision to deny Velasquez’s asylum application, because a reasonable fact
finder could conclude he failed to demonstrate past persecution or a well-founded fear
of persecution on account of his indigenous identity. See Garcia-Milian v. Lynch,
825 F.3d 943, 945 (8th Cir. 2016) (standard of review). We therefore do not need to
2Because Velasquez’s wife’s and children’s asylum applications are derivative
of Velasquez’s application, all references are to Velasquez. See 8 U.S.C.
§ 1158(b)(3)(A) (spouse and 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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reach Velasquez’s arguments regarding relocation and the government’s ability or
willingness to protect him. See Gonzalez Cano v. Lynch, 809 F.3d 1056, 1059 (8th
Cir. 2016). Finally, we conclude that substantial evidence supports the agency’s
denial of withholding of removal and CAT relief. See Martin Martin, 916 F.3d at
1145 (reiterating that an applicant who fails to establish eligibility for asylum
necessarily cannot meet the more rigorous standard of proof for withholding of
removal); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 874 (8th Cir. 2006)
(concluding 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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