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United States Court of Appeals for the Sixth Circuit
October 24, 2019, Filed
File Name: 19a0541n.06
Case No. 18-4264
[*525] COLE, Chief Judge. Agusto Niz-Chavez, a Guatemalan native and citizen, arrived in the United States without inspection in 2005. Immigration proceedings concerning Niz-Chavez commenced in 2013. Niz-Chavez applied for withholding of removal under the Immigration and Nationality Act and for relief under the Convention Against Torture. After the immigration judge ("IJ") denied those applications, Niz-Chavez appealed the IJ's decision to the Board of Immigration Appeals ("BIA") and asked the BIA to remand the case to the IJ to consider Niz-Chavez's application for cancellation of removal in light of the Supreme Court's decision in Pereira v. Sessions, 138 S. Ct. 2105, 201 L. Ed. 2d 433 (2018). The BIA denied Niz-Chavez's motion to remand and affirmed the IJ's determination that Niz-Chavez was not entitled to withholding of removal or relief under [**2] the Convention Against Torture. Niz-Chavez then appealed.
For the reasons stated below, we deny Niz-Chavez's petition for review of each of the challenged BIA decisions.
A. Factual Background
Niz-Chavez was born in Tajumulco, San Marcos, Guatemala in 1990. Prior to his arrival in the United States, he lived in Tajumulco with his family. He is the sixth of eight children in his family. Niz-Chavez and his family lived together on land that they owned without issue until around 2002. Around that time, a land dispute arose between Niz-Chavez's family and villagers from Ixchiguan, a neighboring village.
Niz-Chavez testified that Ixchiguan villagers murdered his brother-in-law during this dispute. Two years later, the dispute escalated again when fifty armed Ixchiguan villagers arrived at the land and took possession of the land by threatening Niz-Chavez's family, advising them that "if they found a member of [his] family [on the land], they were going to kill him or her." (September 13, 2017 Hearing Transcript, A.R. 197.) His family has not returned to the disputed land, and his parents now live on a piece of land about an hour from the land that the Ixchiguan villagers forcibly [**3] took. Some of Niz-Chavez's siblings also remain in Guatemala. Niz-Chavez testified that his family still receives threats from the Ixchiguan villagers, but he is not aware of any further acts of violence attempted or carried out against his family.
Niz-Chavez left Guatemala and arrived in the United States in 2005. After residing in Harrison, Virginia, for two years, Niz-Chavez moved to Detroit, Michigan, in 2007, where he has lived ever since. He is now the father of three children, who are United States citizens. Regarding a potential return to Guatemala, Niz-Chavez testified that he was concerned that the Ixchiguan villagers would learn of his return and, believing that he was in the country to reclaim the stolen land, kidnap or kill him. He also expressed concern that the village of Tajumulco would force him to fight in a land war against the Ixchiguan villagers.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
789 Fed. Appx. 523 *; 2019 U.S. App. LEXIS 31762 **; 2019 FED App. 0541N (6th Cir.); 2019 WL 5446002
AGUSTO NIZ-CHAVEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
Notice: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
Subsequent History: US Supreme Court certiorari granted by Niz-Chavez v. Barr, 141 S. Ct. 84, 207 L. Ed. 2d 169, 2020 U.S. LEXIS 3133 (U.S., June 8, 2020)
Reversed by Niz-Chavez v. Garland, 2021 U.S. LEXIS 2232 (U.S., Apr. 29, 2021)
Prior History: [**1] ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS.
Niz-Chavez v. Whitaker, 2019 U.S. App. LEXIS 2744 (6th Cir., Jan. 25, 2019)
removal, persecution, Torture, cancellation, villagers, relocate, notice, acquiescence, withholding, proceedings, stop-time, triggered, eligible, violence, notice to appear, time and place, immigration, petition for review, adjudicator, reopen
Immigration Law, Judicial Review, Standards of Review, De Novo Standard of Review, Judicial Proceedings, Scope of Review, Substantial Evidence, Asylum, Refugees & Related Relief, Restriction on Removal, Eligibility Requirements, Convention Against Torture, Abuse of Discretion, Deportation & Removal, Motions to Reconsider, Remand & Reopen, Relief From Deportation & Removal, Cancellation of Removal, Administrative Proceedings, Notices & Orders