Opinion

Winston Gutierrez-Alm v. Merrick Garland

62 F.4th 1186

Court: Court of Appeals for the Ninth Circuit
Filed: Mar 15, 2023
Status: Published
Cited by: 60 cases
Authority: More cited than 90.5%

explaining that, under 8 U.S.C. § 1252b(a)(2)(A), an Order to Show Cause, unlike a Notice to Appear, “was not required to include the time and place of the immigrant’s deportation proceedings,” and that “this information could be provided in a separate document”

How later courts described this case

explaining that, under 8 U.S.C. § 1252b(a)(2)(A), an Order to Show Cause, unlike a Notice to Appear, “was not required to include the time and place of the immigrant’s deportation proceedings,” and that “this information could be provided in a separate document”
concluding that where a petitioner's fear of future torture is "entirely speculative and unsupported by the record," substantial evidence supports the denial of CAT relief
noting that we have previously rejected social groups similar to the petitioner’s “proposed social groups defined as ‘people fearing gang recruitment’ and ‘individuals deported from the United States’”
concluding that substantial evidence supported the BIA’s denial of withholding of removal when the petitioner failed to establish eligibility

Written by the judges who cited it.

The opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WINSTON IVAN GUTIERREZ- No. 17-71012

ALM,

Agency No.

Petitioner, A070-031-172

OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 13, 2022

Pasadena, California

Filed March 15, 2023

Before: Kenneth K. Lee and Holly A. Thomas, Circuit

Judges, and Richard D. Bennett, * District Judge.

Opinion by Judge Bennett

The Honorable Richard D. Bennett, United States District Judge for the

District of Maryland, sitting by designation.

2 GUTIERREZ-ALM V. GARLAND

SUMMARY **

Immigration

Denying Winston Gutierrez-Alm’s petition for review of

a decision of the Board of Immigration Appeals, the panel

held that: 1) an Order to Show Cause (“OSC”) that fails to

disclose the time and place of an immigrant’s deportation

proceedings is sufficient to trigger the stop-time rule in a

transitional rules case; 2) Gutierrez’s OSC triggered the

stop-time rule, making him ineligible for suspension of

deportation; and 3) substantial evidence supported the denial

of withholding of removal and protection under the

Convention Against Torture (“CAT”).

In 1989, Gutierrez entered the United States without

inspection. In 1993, he was served an OSC, the charging

document that initiated immigration proceedings prior to the

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”). Gutierrez’s OSC did not list the

time and place of his proceedings. Gutierrez sought

suspension of deportation, a form of relief available prior to

IIRIRA. As relevant here, an applicant for suspension of

deportation was required to accrue at least seven years of

continuous physical presence in the United States prior to

applying. However, IIRIRA provided that continuous

physical presence is deemed to end when the applicant is

served with a notice to appear (“NTA”). Under IIRIRA’s

transitional rules, which apply to individuals, like Gutierrez,

whose proceedings were pending when IIRIRA was enacted,

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GUTIERREZ-ALM V. GARLAND 3

this stop-time rule applies retroactively to proceedings

initiated by an OSC. Accordingly, Gutierrez’s continuous

physical presence was deemed to end when he was served

his OSC—only four years after his arrival, and thus short of

the required seven years.

Gutierrez contended that the Supreme Court’s decision

in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that

his OSC was statutorily defective and that the stop-time rule

was therefore inapplicable. In Pereira, the Supreme Court

held that a putative NTA that fails to designate the time or

place of removal proceedings does not trigger the stop-time

rule. The panel wrote that the issue of whether Pereira

applies to an OSC was an open issue, but it was not a close

one: Every circuit to address the question has held that

Pereira does not apply.

In joining those circuits and holding that an OSC that

fails to disclose the time and place of proceedings is

sufficient to trigger the stop-time rule in a transitional rules

case, the panel explained that Pereira turned on the statutory

definition of an NTA under 8 U.S.C. § 1229(a), which

unambiguously requires an NTA to disclose the time and

place of proceedings. The central reasoning in Pereira was

that a document must meet all of the requirements set forth

by § 1229(a) to trigger the stop-time rule. Comparatively,

the pre-IIRIRA provision defining an OSC instructed

officials to provide written notice of the time and place of

deportation proceedings “in the order to show cause or

otherwise.” 8 U.S.C. § 1252b(a)(2)(A) (1994). The panel

explained that the inclusion of the phrase “or otherwise”

indicates that an OSC was not required to include the time

and place information. Therefore, the panel concluded that

Pereira’s logic, which rests on the “clear and unambiguous”

mandate that a NTA include time-and-place information, is

4 GUTIERREZ-ALM V. GARLAND

inapplicable to an OSC, which contains no such

requirement. As applied to Gutierrez, the panel concluded

that he was ineligible for suspension of deportation because

his physical presence was deemed to end with the service of

his OSC.

Next, the panel concluded that substantial evidence

supported the denial of withholding of removal. First,

Gutierrez claimed that he would face persecution in

Nicaragua due to his father’s opposition to the Sandinista

government. The panel concluded that substantial evidence

supported the BIA’s findings, as Gutierrez offered no

credible, direct, and specific evidence that he would be

perceived as an enemy of the Ortega regime and be

persecuted on account of an imputed political opinion. The

panel also observed that Gutierrez and his family had not

faced persecution on account of his father’s actions.

Second, Gutierrez claimed that he would be persecuted

on account of membership in one of four putative particular

social groups. With respect to his first two social groups—

(1) persons fearing gang recruitment; and (2) individuals

deported from the United States—the panel concluded that

Gutierrez made no arguments related to those proposed

social groups and therefore had waived those claims.

The panel concluded that Gutierrez’s third proposed

social group, “family members of people who opposed the

government in the 1980s,” was coextensive with his imputed

political opinion claim and failed for the same reason: the

record did not compel the conclusion that Gutierrez would

be targeted for persecution based on his father’s opposition

to the Sandinista government. As to his fourth proposed

social group, “persons who the authorities would suspect as

being a gang member,” the panel concluded that it failed for

GUTIERREZ-ALM V. GARLAND 5

lack of social distinction. The panel explained that, although

this Court has recognized that persons who are incorrectly

perceived to be gang members may constitute a cognizable

social group, the applicant bears the burden to demonstrate

that the proposed country of removal recognizes the group

in question. Here, Gutierrez offered nothing beyond his own

speculation to suggest that Nicaragua views “those

perceived as gang members” as a distinct identity.

Finally, the panel concluded that substantial evidence

supported the denial of CAT relief. The panel concluded

that Gutierrez’s contentions were entirely speculative and

unsupported by the record, noting that, although the

Sandinista regime has taken action against political

dissidents, Gutierrez offered no evidence he will be

perceived as such an adversary or targeted for

torture. Moreover, the panel observed that Gutierrez left

Nicaragua over twenty-five years ago, his family was able to

reside in the country without issue following his father’s

departure in 1988, and his brother was not tortured upon his

return in 2007.

COUNSEL

Alejandro Garcia (argued), Law Offices of Alejandro

Garcia, Commerce, California, for Petitioner.

Leslie McKay (argued) and Keith I. McManus, Assistant

Directors, Office of Immigration Litigation; Maarja Luhtaru

and John Beadle Holt, Trial Attorneys; Joseph H. Hunt,

Assistant Attorney General, Civil Division; Office of

Immigration Litigation, United States Department of Justice;

Washington, D.C.; for Respondent.

6 GUTIERREZ-ALM V. GARLAND

OPINION

BENNETT, District Judge:

Petitioner Winston Gutierrez-Alm (“Gutierrez” or

“Petitioner”) is a native and citizen of Nicaragua who

entered the United States in 1989, one year after his father

fled the country following his incarceration for taking up

arms against the Sandinista regime. The government served

Gutierrez an Order to Show Cause (“OSC”) in 1993, and he

has remained entangled in deportation proceedings for thirty

years. He now seeks review of a decision of the Board of

Immigration Appeals (“BIA”) upholding a ruling of an

Immigration Judge (“IJ”), who denied his application for

suspension of deportation under pre-1996 immigration law

and rejected his application for withholding of removal and

relief under the Convention Against Torture (“CAT”). 1

This petition arrives in a unique procedural posture. The

government initiated deportation proceedings against

Gutierrez in 1993, under the statutory scheme that preceded

the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-

208, 110 Stat. 3009-546 (1996). Among other changes,

IIRIRA implemented the “stop-time rule,” which provides

that an immigrant ceases to accrue physical presence in the

United States upon service of the charging document in an

United Nations Convention Against Torture and Other Forms of Cruel,

Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465

U.N.T.S. 85. The Convention was codified by the Section 2242 of the

Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105–

227, 112 Stat. 2681–822. Its protections are implemented primarily

through regulations. See, e.g., 28 C.F.R. § 200.1; 8 C.F.R. §§ 1208.16–

1208.18.

GUTIERREZ-ALM V. GARLAND 7

immigration case. 8 U.S.C. § 1229b(d)(1). The transitional

rules that accompany IIRIRA require us to grant the stop-

time rule retroactive effect over immigration proceedings

that were pending at the time IIRIRA was adopted.

Accordingly, the stop-time rule applies to Gutierrez’s

petition.

This case presents an issue of first impression: Does an

Order to Show Cause that fails to disclose the time and place

of an immigrant’s deportation proceedings trigger the stop-

time rule? Gutierrez contends that the Supreme Court’s

decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018),

instructs that such an order would not trigger the stop-time

rule, rendering him eligible for suspension of deportation.

For the reasons that follow, we hold that Pereira is

inapplicable, and that an Order to Show Cause lacking the

time and place of an immigrant’s deportation hearing is

sufficient to trigger the stop-time rule in a transitional rules

case. Accordingly, we hold that Gutierrez is ineligible for

suspension of deportation. We further hold that substantial

evidence supports the BIA’s denial of his application for

withholding of removal and CAT protection.

BACKGROUND

Petitioner Winston Gutierrez-Alm is a native and citizen

of Nicaragua, who entered the United States without

inspection on March 25, 1989. At the time he entered the

United States, Gutierrez was about eight years old.

Accompanied by his mother and his three brothers, he

travelled to join his father, who had fled to the United States

one year prior. He was served an Order to Show Cause

8 GUTIERREZ-ALM V. GARLAND

(“OSC”) 2 in 1993 and has remained entangled in

immigration proceedings ever since.

I. Initial Deportation Proceedings

On August 3, 1993, Gutierrez was detained by officers

of the Immigration and Naturalization Service (“INS”) and

served an Order to Show Cause, charging him with

deportability as an alien who entered without inspection, in

violation of former Section 241(a)(1)(B) of the Immigration

and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B)

(1993). This OSC did not disclose the time and place of

Gutierrez’ deportation hearing; it provided only that a

deportation hearing was “to be calendared,” and that notice

was to be provided by an Immigration Judge.

Three years elapsed before the government scheduled a

deportation hearing. By March 1996, Gutierrez had been

living in the United States for a continuous period of seven

years, as required to apply for suspension of deportation. On

May 16, 1996, the INS filed his OSC with the Immigration

Court. That same day, the Immigration Court mailed

Gutierrez a Notice of Hearing (“NOH”), advising him that a

hearing had been scheduled before an IJ on September 6,

1996. At this initial hearing, Gutierrez admitted the factual

allegations set forth in the OSC and conceded the charge of

deportability, but expressed his intention to apply for

suspension of deportation, asylum, withholding of removal,

and relief under the Convention Against Torture.

Accordingly, the IJ postponed proceedings to the following

year.

As noted throughout, an OSC was the charging document in

immigration proceedings prior to the enactment of IIRIRA. See Ram v.

INS, 243 F.3d 510, 512–13 (9th Cir. 2001).

GUTIERREZ-ALM V. GARLAND 9

Immigration law went through two substantial changes

while Gutierrez’ proceedings remained pending. First, on

September 30, 1996, Congress enacted IIRIRA, which

instituted sweeping changes to the immigration laws, and

generally “made it harder for aliens to adjust their

immigration status.” Rivera Vega v. Garland, 39 F.4th 1146,

1150 (9th Cir. 2022). Subsequently, in 1997, Congress

passed the Nicaraguan Adjustment and Central American

Relief Act (“NACARA”), Pub. L. No. 105-100, 111 Stat.

2160, 2193 (1997). Enacted to ameliorate the effects of

IIRIRA for “Central Americans . . . who came to the United

States because their lives and families had been torn apart by

war and oppression,” NACARA authorized certain

Nicaraguan immigrants who had entered the United States

prior to 1995 to apply for lawful permanent resident status.

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1164 (9th

Cir. 2002) (quoting 143 Cong. Rec. S12258-01, S12261

(daily ed. Nov. 9, 1997)).

Accordingly, on November 10, 1998, Gutierrez

informed the IJ that he intended to seek adjustment of status

pursuant to NACARA. The IJ found that Gutierrez was

prima facie eligible for relief, and administratively closed his

deportation proceedings with the consent of all parties.

Gutierrez submitted his NACARA application on April 28,

2000, but was deemed inadmissible due to his criminal

record. However, his proceedings remained closed for seven

years.

10 GUTIERREZ-ALM V. GARLAND

II. Application for Suspension and Withholding of

Deportation

The Department of Homeland Security reinstated

deportation proceedings against Gutierrez in January 2007. 3

Following five years of intermittent proceedings, Gutierrez

applied for asylum, withholding of deportation, and CAT

relief on June 26, 2012. At a hearing before another IJ,

Gutierrez and his father, Julio Rafael Gutierrez (“Julio”),

testified in support of his application.

Julio testified that he immigrated to the United States on

June 15, 1988, to seek asylum after fleeing political

persecution in Nicaragua. At the time, the Nicaraguan

government had been controlled by the Sandinista party. In

1987, the Sandinista government arrested Julio for

possession of weapons and explosives and incarcerated him

from November 1987 to February 1988. Julio testified that

the government prosecuted him for taking up arms with the

“Partido Liberal Independiente,” or “Independent Liberal

Party,” which had engaged in armed conflict against the

Sandinista regime in the late 1980s. The government beat

Julio in custody and forced him to serve the Sandinista

military after his release, prompting him to desert and flee to

the United States three months later. In the months after he

fled, Julio feared for his family’s safety, as he was concerned

that the Nicaraguan government would retaliate against them

It appears that Gutierrez was in government custody when the

Government moved to reopen his application. During the nine-year

period in which his proceedings were administratively closed, Gutierrez

was arrested and convicted of several offenses, including use of

controlled substances, manufacture and possession of a dangerous

weapon, carrying a concealed dirk or dagger, burglary, theft, and driving

with a suspended license.

GUTIERREZ-ALM V. GARLAND 11

for his political opposition. However, he acknowledged that

his wife and children had been able to remain in Nicaragua

without issue for eight months following his departure.

Testifying on his own behalf, Gutierrez explained that he

had entered the United States with his family in 1989, one

year after his father fled Nicaragua. He acknowledged that

he had never been involved in “any kind of political party

either here or in Nicaragua,” and that he was unaware of

whether the Sandinista party had returned to power in

Nicaragua. However, he claimed that he did not wish to

return to Nicaragua because he was unfamiliar with the

country’s culture and concerned about its poor economic

conditions. Gutierrez recounted that Julio was afraid that

Gutierrez would be targeted because of Julio’s actions.

Additionally, he indicated that his brother Norvin, a gang

member, had been incarcerated in Nicaragua for three weeks

following his deportation from the United States, and has

since been followed by police. Gutierrez expressed concern

he would be viewed as a gang member because of his

relationship with Norvin and imprisoned immediately upon

his arrival. He also insisted that he could not leave his wife

and children behind in the United States.

III. Decisions of the Immigration Judge and the

Board of Immigration Appeals

On August 14, 2012, the Immigration Judge denied

Petitioner’s application for relief. First, the IJ denied

Gutierrez’s application for suspension of deportation,

concluding that the stop-time rule paused his accrual of

continuous physical presence on August 3, 1993, the date he

was served with an Order to Show Cause under the pre-

IIRIRA immigration laws. See INA § 240A(d)(1), 8 U.S.C.

§ 1229b(d)(1); In re Nolasco-Tofino, 22 I. & N. Dec. 632

12 GUTIERREZ-ALM V. GARLAND

(BIA 1999). Second, the IJ determined that Gutierrez’s

asylum application was untimely, as he had failed to file it

within one year of his arrival in the United States. Third, the

IJ concluded that Gutierrez could not demonstrate a

reasonable fear of persecution on a protected ground and that

his fear of torture was speculative. In rejecting these claims,

the IJ observed that Gutierrez’s family had been able to

reside in Nicaragua without incident for eight months after

his father fled the country, and that the Nicaraguan

government had enacted a law granting amnesty to

individuals who took up arms against the government prior

to 1994. Additionally, although his brother Norvin had been

imprisoned following his deportation, this was attributable

to his criminal offenses and his membership in a criminal

gang—not to the political activities of his father.

Gutierrez appealed, and the Board of Immigration

Appeals dismissed his appeal on March 12, 2014. The BIA

affirmed the IJ’s finding that the service of the OSC on

Gutierrez paused the accrual of physical presence and

precluded his application for suspension of deportation. The

BIA specifically reasoned that an OSC is not required to

include the time and place of deportation proceedings, unlike

a Notice to Appear (“NTA”), the charging document under

current immigration law. The BIA also concluded that

Gutierrez’s proposed particular social groups were not

cognizable, and that he failed to establish a likelihood of

future persecution or torture by the Nicaraguan government.

On April 7, 2014, Gutierrez petitioned this Court for

review of the BIA’s denial of his application. Shortly

thereafter, the Government filed a motion to remand in light

of intervening case law that adjusted the definition of the

“particular social group” protected ground. See generally

Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014); In re M-

GUTIERREZ-ALM V. GARLAND 13

E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); In re W-G-R-, 26

I. & N. Dec. 208 (BIA 2014). We granted this motion and

remanded to the BIA, which subsequently remanded to the

IJ. However, Gutierrez presented no new witnesses or

evidence in support of his application, and the IJ again

denied all forms of relief. 4

Gutierrez once again appealed to the BIA. On March 15,

2017, the BIA dismissed his appeal without addressing his

arguments regarding suspension of deportation. In so ruling,

the BIA found that three of Gutierrez’s claimed particular

social groups—“individuals deported from the United

States,” “persons fearing gang recruitment,” and “persons

who the authorities would suspect as being a gang

member”—were not legally cognizable. Addressing his

political persecution claim and his proposed social group of

“family members of people who opposed the government in

the 1980s,” the BIA concluded that Gutierrez failed to

establish an objectively reasonable fear of persecution in

Nicaragua on either ground. Consequently, the BIA upheld

the IJ’s conclusion that it was unlikely Gutierrez would be

persecuted based on his relationship to his father.

This petition followed.

STANDARD OF REVIEW

This Court reviews the factual findings of the Board of

Immigration Appeals for substantial evidence. 8 U.S.C. §

1252(b)(4)(B). Substantial evidence exists when the BIA’s

conclusions “are ‘supported by reasonable, substantial, and

probative evidence in the record.’” Dawson v. Garland, 998

F.3d 876, 882 (9th Cir. 2021) (quoting Melkonian v.

The IJ incorporated his August 14, 2012, decision by reference.

14 GUTIERREZ-ALM V. GARLAND

Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003)). “This strict

standard bars the reviewing court from independently

weighing the evidence and holding that the petitioner is

eligible for asylum, except in cases where compelling

evidence is shown.” Kotasz v. INS, 31 F.3d 847, 851 (9th

Cir. 1994); see also Guo v. Sessions, 897 F.3d 1208, 1212

(9th Cir. 2018). Accordingly, the agency’s factual findings

“are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Zehatye v. Gonzales,

453 F.3d 1182, 1185 (9th Cir. 2006) (quoting 8 U.S.C. §

1252(b)(4)(B)); see also Silva-Pereira v. Lynch, 827 F.3d

1176, 1185 (9th Cir. 2016) (“[I]n order to reverse the BIA,

‘we must determine that the evidence not only supports a

contrary conclusion, but compels it—and also compels the

further conclusion that the petitioner meets the requisite

standard for obtaining relief.’” (emphasis in original)

(quoting Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir.

2014))). Issues of law, mixed questions of law and fact, and

constitutional issues are reviewed de novo. Zhi v. Holder,

751 F.3d 1088, 1091 (9th Cir. 2014); Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 921 (9th Cir. 2007).

ANALYSIS

I. Suspension of Deportation

First, Gutierrez argues that he is eligible for suspension

of deportation under the pre-1996 Immigration and

Nationality Act. Suspension of deportation, the predecessor

of cancellation of removal, was a form of relief available

prior to IIRIRA, which consolidated deportation and

exclusion proceedings into a single statutory pipeline. See

Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir.

2003). “In IIRIRA, Congress created proceedings—with

different names and slightly different requirements—that

GUTIERREZ-ALM V. GARLAND 15

paralleled the pre-IIRIRA deportation scheme.” Ram, 243

F.3d at 513. “Before IIRIRA, aliens were placed in

deportation proceedings after being served with an OSC, and

could seek relief by applying for ‘suspension of deportation.’

After IIRIRA, aliens are placed in removal proceedings after

being served with a notice to appear, and can seek relief by

applying for ‘cancellation of removal.’” Mendiola-Sanchez

v. Ashcroft, 381 F.3d 937, 939 (9th Cir. 2004) (quoting Ram,

243 F.3d at 513); see also Campos-Hernandez v. Sessions,

889 F.3d 564, 567 n.3 (9th Cir. 2018) (“IIRIRA . . . changed

the terms previously used in immigration statutes, replacing

‘deportation’ with ‘removal’ . . . .”).

Gutierrez’s case arrives in an unusual procedural

posture. “When Congress enacted IIRIRA, it included in the

statute a set of ‘transitional rules’ specifying that particular

provisions of the permanent statute should apply to

petitioners against whom the INS had already initiated

proceedings before the statute’s effective date.” Garcia-

Ramirez v. Gonzales, 423 F.3d 935, 940 (9th Cir. 2005);

accord Mendiola-Sanchez, 381 F.3d at 939 (“Congress

enacted transitional rules that instruct us to apply the pre-

IIRIRA rules to cases that were pending when IIRIRA was

enacted subject to limited exceptions.”); IIRIRA § 309(c)(1),

Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996)

(transitional rules). Gutierrez entered the United States in

1989 and was served with an OSC in 1993. Congress enacted

IIRIRA in 1996, after his proceedings were initiated but

before they were administratively closed. As Gutierrez’s

proceedings were pending when IIRIRA was enacted, the

transitional rules govern this case.

“The transitional rules that apply to these petitions

instruct us to apply the law of suspension of deportation as

it existed in 1996.” Mendiola-Sanchez, 381 F.3d at 939 &

16 GUTIERREZ-ALM V. GARLAND

n.3 (citing 8 U.S.C. § 1229b(d)). Prior to IIRIRA, an

immigrant was eligible for suspension of deportation if:

(1) he or she had been physically present in

the United States for a continuous period of

not less than seven years immediately

preceding the date of the application for

suspension of deportation; (2) he or she was

a person of good moral character; and (3)

deportation would result in extreme hardship

to the alien or to an immediate family

member who was a United States citizen or a

lawful permanent resident.

Ram, 243 F.3d at 513 (cleaned up) (quoting 8 U.S.C. §

1254(a)(1) (1994)). Gutierrez sought suspension of

deportation under this provision in his 2012 application, as

he has resided in the United States for more than thirty years.

However, IIRIRA and the transitional rules that

accompany it adjust the framework for this analysis. IIRIRA

changed the calculation of physical presence by providing

that an immigrant’s continuous physical presence is

“deemed to end . . . when the [immigrant] is served with a

notice to appear.” 8 U.S.C. § 1229b(d)(1). The transitional

rules mandate that this “stop-time rule” has retroactive effect

over deportation proceedings initiated by an OSC that was

issued prior to the enactment of IIRIRA. Ram, 243 F.3d at

516; accord Garcia-Ramirez, 423 F.3d at 939–41 (observing

that the transitional rules “contain unambiguous

congressional intent that the Act’s stop-time and 90/180-day

rules apply retroactively”). Accordingly, in a transitional

rules case, an immigrant’s continuous physical presence in

the United States is deemed to have ended when the

GUTIERREZ-ALM V. GARLAND 17

immigrant was served with an OSC under the pre-IIRIRA

deportation scheme. The stop-time rule presents a problem

for Gutierrez, who entered the United States in 1989 and

received an OSC in 1993—only four years later.

At issue in this case is whether an Order to Show Cause

that does not disclose the time and place of an immigrant’s

deportation proceedings is sufficient to trigger the stop-time

rule. Gutierrez’s OSC did not list the time and place of his

deportation proceedings, providing only that a hearing was

“to be calendared” with “notice to be provided” by an

Immigration Judge. The government did not provide

Gutierrez with information regarding the time and place of

his hearing until it sent him an NOH in May 1996—about

two months after he would have accrued the seven years of

continuous physical presence necessary to be eligible for

suspension of deportation under the statutory framework that

preceded IIRIRA. Gutierrez contends that the Supreme

Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105

(2018), instructs that his OSC is statutorily defective and that

the stop-time rule is therefore inapplicable.

In Pereira, the Supreme Court considered whether a

Notice to Appear (“NTA”) that does not list the time and

place of removal proceedings triggers the stop-time rule. 138

S. Ct. at 2113. The Court characterized this issue as a

“narrow question” that “lies at the intersection of [two]

statutory provisions,” and it predicated its analysis on the

“clear and unambiguous” language of IIRIRA. Id. at 2110,

2113. The plain language of 8 U.S.C. § 1229b(d)(1)(A)

provides that the stop-time rule requires service of “a notice

to appear under section 1229(a).” Id. at 2109–10 (quoting 8

U.S.C. § 1229b(d)(1)(A)). That provision defines an NTA as

a “‘written notice . . . specifying’ several required pieces of

information, including ‘[t]he time and place at which the

18 GUTIERREZ-ALM V. GARLAND

[removal] proceedings will be held.’” Id. (alterations in

original) (quoting 8 U.S.C. § 1229(a)(1)(G)(i)).

Accordingly, the Supreme Court held that “[a] putative

notice to appear that fails to designate the specific time or

place of the noncitizen’s removal proceedings is not a

‘notice to appear under section 1229(a),’ and so does not

trigger the stop-time rule.” Id. at 2113–14; see also Niz-

Chavez v. Garland, 141 S. Ct. 1474, 1482 (2021) (holding

that an NTA must consist of “a single document” containing

all requisite information).

This Court has not issued a binding opinion on the issue

of whether Pereira applies to an Order to Show Cause.

While this is an open issue, it is not a close one: Every circuit

to address this question has held that Pereira does not apply

to an OSC, a charging document issued before IIRIRA under

a separate statutory framework with distinct requirements.

See, e.g., Jiang v. Garland, 18 F.4th 730, 734–35 (2d Cir.

2021) (per curiam); Maradia v. Garland, 18 F.4th 458, 462–

63 (5th Cir. 2021); Perez-Perez v. Wilkinson, 988 F.3d 371,

375 (7th Cir. 2021); see also United States v. Escobar, 970

F.3d 1022, 1026–27 (8th Cir. 2020); Bilek v. Att’y General,

793 F. App’x 929, 933 n.1 (11th Cir. 2019). We now hold

the same.

This result flows directly from the text and structure of

the pre-IIRIRA immigration laws. Pereira turned on the

statutory definition of a Notice to Appear. Its central

reasoning was that a document must meet all of the

requirements set forth by 8 U.S.C. § 1229(a) to trigger the

stop-time rule. Pereira, 138 S. Ct. at 2109–10. That

provision unambiguously requires an NTA to disclose the

time and place of an immigrant’s removal proceedings. Id.

at 2110; see 8 U.S.C. § 1229(a)(1).

GUTIERREZ-ALM V. GARLAND 19

Comparatively, the pre-IIRIRA provision defining an

Order to Show Cause instructed immigration officials to

provide written notice of the time and place of deportation

proceedings “in the order to show cause or otherwise.” 8

U.S.C. § 1252b(a)(2)(A) (1994). The inclusion of the

qualifying phrase “or otherwise” indicates that an OSC,

unlike an NTA, was not required to include the time and

place of the immigrant’s deportation proceedings, and that

this information could be provided in a separate document. 5

Pereira, 138 S. Ct. at 2117 n.9 (“[O]rders to show cause did

not necessarily include time-and-place information.”);

accord Ortiz-Santiago v. Barr, 924 F.3d 956, 962 (7th Cir.

2019) (“The Order to Show Cause had to include largely the

same information as the later Notice to Appear, except that

it did not need to specify the time and place of the hearing.”);

Jiang, 18 F.4th at 735 (“In other words, the OTSC statute

explicitly acknowledged the permissibility of giving an alien

in deportation proceedings notice of the time and place of

the hearing by separate document.”); Escobar, 970 F.3d at

1026–27; Banuelos v. Barr, 953 F.3d 1176, 1182 (10th Cir.

2020); Santos-Quiroa v. Lynch, 816 F.3d 160, 162 n.2 (1st

Cir. 2016) (same).

It necessarily follows that Pereira’s logic, which rests on

the “clear and unambiguous” mandate that a Notice to

Appear include time-and-place information, is inapplicable

to an Order to Show Cause, which contains no such

requirement. Pereira, 138 S. Ct. at 2113; accord Jiang, 18

Prior to IIRIRA, it was common practice for immigration officials to

initiate deportation proceedings with an OSC, and to later furnish an

NOH that disclosed this information. See, e.g., Dobrota v. INS, 311 F.3d

1206, 1210 (9th Cir. 2002) (discussing the statutory requirements for a

pre-IIRIRA NOH).

20 GUTIERREZ-ALM V. GARLAND

F.4th at 734–35; Maradia, 18 F.4th at 462–63; Perez-Perez,

988 F.3d at 375. Accordingly, we hold that an Order to Show

Cause that fails to disclose the time and place of an

immigrant’s deportation proceedings is sufficient to trigger

the stop-time rule in a transitional rules case. 6 The

immediate result of this holding is that Gutierrez is ineligible

for suspension of deportation. As Gutierrez was served an

OSC in 1993, only four years after entering the United

States, his physical presence is deemed to have ended at that

time.

II. Application for Relief

As Gutierrez is ineligible for suspension of deportation,

we turn now to his application for relief. Gutierrez seeks

withholding of removal under both asylum law and the

Convention Against Torture. “[T]he standards for the two

bases of relief are distinct and should not be conflated.”

Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). To

receive withholding under asylum law, a petitioner must

show that “it is more likely than not that he or she would be

persecuted on account of race, religion, nationality,

membership in a particular social group, or political

opinion.” 8 C.F.R. § 1208.16(b)(2); see also Vasquez-

Rodriguez v. Garland, 7 F.4th 888, 892 (9th Cir. 2021).

Comparatively, to qualify for protection under the

This holding extends only to an OSC that satisfies the remaining

statutory requirements articulated in 8 U.S.C. § 1252b(a)(2)(A) (1994)

and any additional prerequisites to trigger the stop time rule prescribed

by IIRIRA. This Court expresses no opinion regarding the sufficiency of

an OSC that contains additional defects. Nor does this Court opine as to

the effect of a defective NOH, such as a notice that inaccurately details

the location of an immigrant’s hearing or provides an improper date and

time.

GUTIERREZ-ALM V. GARLAND 21

Convention, a petitioner must demonstrate that “it is more

likely than not that he or she would be tortured if removed

to the proposed country of removal.’” 8 C.F.R. §

1208.16(c)(2); see also Lalayan v. Garland, 4 F.4th 822, 840

(9th Cir. 2021). The Board of Immigration Appeals denied

both forms of relief. For the reasons that follow, we hold that

the BIA’s decision is supported by substantial evidence.

A. Withholding of Removal – Persecution

Gutierrez seeks statutory withholding of removal based

on his fear of future persecution in Nicaragua. “To be

eligible for withholding of removal, an applicant must

demonstrate that [his] life will be ‘threatened in that country

because of [his] race, religion, nationality, membership in a

particular social group, or political opinion.’” Plancarte

Sauceda v. Garland, 23 F.4th 824, 832 (9th Cir. 2022)

(quoting 8 U.S.C. § 1231(b)(3)(A)). “Similar to asylum, a

petitioner may establish eligibility for withholding of

removal (A) by establishing a presumption of fear of future

persecution based on past persecution, or (B) through an

independent showing of clear probability of future

persecution.” Tamang v. Holder, 598 F.3d 1083, 1091 (9th

Cir. 2010) (citing 8 C.F.R. § 1208.16(b)(1), (2)).

In order to sustain an application for withholding of

removal based on future persecution, the applicant’s fear of

persecution must be “both subjectively genuine and

objectively reasonable.” Lolong v. Gonzales, 484 F.3d 1173,

1178 (9th Cir. 2007); accord Lalayan, 4 F.4th at 840. The

subjective component may be established through credible

testimony evincing a genuine fear of persecution on account

of a statutorily protected ground. See Siong v. INS, 376 F.3d

1030, 1039 (9th Cir. 2004). The objective component

requires the applicant to show that their fear is reasonable by

22 GUTIERREZ-ALM V. GARLAND

furnishing “‘credible, direct, and specific evidence’ that the

petitioner faces an individualized risk of persecution or that

there is a pattern or practice of persecution against similarly

situated individuals.” Lolong, 484 F.3d at 1178 (quoting

Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000));