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NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA ELIZABETH CACERES No. 21-68

AGUILAR; ALEJANDRA YACEL

AGUILERA CACERES, Agency Nos. A209-439-478

A209-439-479

Petitioners,

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 13, 2023** San Francisco, California

Before: S.R. THOMAS and KOH, Circuit Judges, and RAKOFF, *** District Judge.

Maria Elizabeth Caceres Aguilar (“Caceres Aguilar”) and her minor

daughter (collectively, “petitioners”), natives and citizens of El Salvador,

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Case: 21-68, 04/18/2023, DktEntry: 35.1, Page 2 of 4

petition this court for review of a decision of the Board of Immigration Appeals

(“BIA”) affirming the denial by an immigration judge (“IJ”) of their

applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. “Where the BIA conducts its own review of the evidence and law,

rather than adopting the IJ’s decision, our review is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra v.

Barr, 974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v. Holder, 683 F.3d

1164, 1169 (9th Cir. 2012)). We deny the petition in part and grant and remand

in part for proceedings consistent with this disposition. 1

1. The absence of time and date information in the notice to appear

(“NTA”) did not divest the immigration court of jurisdiction. See United States

v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc). Because

the undated NTA was supplemented with a notice of hearing that complied with

8 C.F.R. § 1003.14(a), the immigration court had jurisdiction. See Bastide-

Hernandez, 39 F.4th at 1193. We thus deny this aspect of the petition for

review.

2. The defective NTA did, however, affect petitioners’ eligibility for

voluntary departure. See Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th

Cir. 2021) (“[A] noncitizen builds up physical-presence time under [8 U.S.C.]

1 In light of our ruling, the motion to remand, Dkt. 33, is denied as moot.

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§ 1229c(b)(1)(A) from the moment he enters the United States until the moment

he receives a single document that provides him with all the information

Congress listed in 8 U.S.C. § 1229(a).”). The IJ denied petitioners’ application

for voluntary departure solely on the basis of inadequate physical presence.

Although petitioners did not challenge this determination before the BIA, doing

so would have been futile. See Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896

(9th Cir. 2021) (noting that the exhaustion requirement does not apply where

“the agency could not have given ‘unencumbered consideration’” to an issue

because “[t]he agency’s rejection of that argument ‘appear[ed] already set’”

(second alteration in original) (quoting Sun v. Ashcroft, 370 F.3d 932, 942–43

(9th Cir. 2004))); In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.

2019) (en banc) (finding that a subsequent hearing notice perfects a deficient

NTA and ends a noncitizen’s period of physical presence in the United States),

abrogated by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Accordingly, we

remand to the agency to make further findings and conclusions about

petitioners’ eligibility for voluntary departure.

3. We also remand for further proceedings on the asylum and

withholding of removal claims. The BIA denied asylum and withholding on

nexus grounds, and the government has requested remand on this issue in light

of this court’s recent decision in Umana-Escobar v. Garland, 62 F.4th 1223

(9th Cir. 2023). Here, as in Umana-Escobar, the BIA reviewed the IJ’s nexus

determination for clear error. See id. at 1231. However, Umana-Escobar held

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that “the BIA must review de novo whether a persecutor’s motives meet the

nexus legal standards.” Id. Accordingly, “we remand the asylum and

withholding of removal claims so that the BIA can apply the proper standard.”

Id.; see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006)

(“[W]here the BIA applies the wrong legal standard to an applicant’s claim, the

appropriate relief from this court is to remand for reconsideration under the

correct standard . . . .”). 2

PETITION DENIED IN PART AND GRANTED IN PART;

REMANDED.3

2 Additionally, in evaluating nexus on remand, the BIA should bear in mind the difference between the nexus standards in the asylum and withholding contexts. The BIA’s conclusion that the withholding claims necessarily fail given the failure of the asylum claims did not account for the fact that although withholding of removal has a more demanding standard of proof, there is a “lighter standard for the strength of the nexus” in the withholding context. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (emphasis added). “The difference between the motive standards matters, particularly in cases . . . in which the BIA’s decision turns on its nexus determination.” Garcia v. Wilkinson, 988 F.3d 1136, 1147 (9th Cir. 2021). 3 The parties shall bear their own costs.

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