Garcia Sarmiento v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1679
FABIO NOE GARCIA SARMIENTO,
Petitioner,
v.
MERRICK B. GARLAND,* Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Susan M. Pires on brief for petitioner.
Timothy G. Hayes, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, United States Department
of Justice, Brian Boynton, Acting Assistant Attorney General, and
Cindy S. Ferrier, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
August 17, 2022
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the respondent.
LYNCH, Circuit Judge. Petitioner Fabio Noe Garcia
Sarmiento purports to petition for review of two decisions of the
Board of Immigration Appeals ("BIA"). In the first decision, dated
January 16, 2020, the BIA dismissed Garcia Sarmiento's appeal of
an Immigration Judge's ("IJ") denial of his application for
withholding of removal, 8 U.S.C. § 1231(b)(3), and protection
under the Convention Against Torture ("CAT"), 8 C.F.R.
§ 1208.16(c). In the second, dated June 10, 2020, the BIA denied
his motion to reopen proceedings, 8 U.S.C. § 1229a(c)(7). Because
the petition is timely only as to the June 10 decision, we dismiss
Garcia Sarmiento's petition for review of the January 16 decision.
As to the June 10 decision, we deny the petition to review the
BIA's denial of the motion to reopen.
I.
These facts are drawn primarily from the IJ's oral
decision of August 30, 2019, which was the subject of the January
16, 2020 BIA decision. Garcia Sarmiento is a native and citizen
of Honduras. He first entered the United States in 2001 as a
lawful permanent resident. He was ordered removed and deported to
Honduras in 2008 after he was convicted of possession of cocaine.
In Honduras, Garcia Sarmiento had a barbershop. Gang members came
to his business several times in the summer of 2014 and threatened
him, demanding that he pay them rent. In June of 2014, gang
members killed Garcia Sarmiento's brother. Garcia Sarmiento left
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Honduras and, fearing violence from the gangs, reentered the United
States without inspection in 2014. Garcia Sarmiento pleaded guilty
to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(1) and
was sentenced to time served. See Judgment in a Criminal Case,
United States v. Garcia-Sarmiento, No. 18-cr-00108 (D.R.I. June
14, 2019), ECF No. 26. On July 26, 2019, the Department of Homeland
Security ("DHS") reinstated Garcia Sarmiento's previous removal
order.
After expressing a fear of returning to Honduras, Garcia
Sarmiento was referred to an asylum officer to determine his
eligibility to apply for withholding of removal. Following an
interview where it was determined Garcia Sarmiento had a reasonable
fear of harm if he were returned to Honduras, he applied for
withholding of removal. On August 30, 2019, Garcia Sarmiento had
a hearing before an IJ. The IJ found that Garcia Sarmiento was
credible. The IJ concluded that Garcia Sarmiento had not met his
burden of showing eligibility for withholding of removal for three
reasons: he had not demonstrated that he was a member of a
protected social group, he had not shown the requisite nexus
between his belonging to even his purported protected social group
and the violence he feared, and he did not show that the Honduran
government would be unwilling or unable to control the gang
violence. See 8 U.S.C. § 1231(b)(3); see also Pulisir v. Mukasey,
524 F.3d 302, 308 (1st Cir. 2008). The IJ found that CAT protection
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was not warranted because there was insufficient evidence that
Garcia Sarmiento would more likely than not be tortured if he
returned to Honduras. This was based on the evidence that Garcia
Sarmiento had never been harmed by government officials and his
testimony that he did not think the police would harm him, he did
not fear the police, and he did not know if police were working
with the people who wanted to harm him or if they would allow
others to hurt him. See 8 C.F.R. § 1208.18(a)(1); see also Ali v.
Garland, 33 F.4th 47, 53 (1st Cir. 2022). On appeal, the BIA
adopted and affirmed the IJ's decision on January 16, 2020.
Garcia Sarmiento filed a motion with the BIA to reopen
removal proceedings regarding the 2008 removal order and to stay
removal on January 24, 2020. See 8 U.S.C. § 1229a(c)(7). The
basis of his motion was the vacatur of his cocaine-possession
conviction, which had led to his removal in 2008. He argued that
the vacatur of his cocaine-possession conviction would make him
eligible for and likely to succeed on a claim for either
cancellation of removal or voluntary departure.
On June 10, 2020, the BIA denied Garcia Sarmiento's
motion to reopen, finding that he had not established prima facie
eligibility for relief. The BIA first found that under section
241(a)(5) of the Immigration and Nationality Act, Garcia Sarmiento
was ineligible for relief because he was in withholding-only
proceedings after having a prior removal order reinstated. See 8
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U.S.C. § 1231(a)(5). It next found that even if Garcia Sarmiento
were not barred from such relief, he had not demonstrated either
that he had been continuously physically present in the United
States for ten years or any hardship to qualifying relatives, both
of which are necessary to establish a prima facie case for
eligibility for cancellation of removal. See id. § 1229b(b)(1).
The BIA also found that the new evidence would "not impact the
reasoning for the denial of his prior applications for relief."
Garcia Sarmiento timely petitioned for review of the
June 10 BIA decision on July 9, 2020. See 8 U.S.C. § 1252(b)(1).
II.
A. January 16, 2020 BIA Decision
In his petition, Garcia Sarmiento argues that the BIA
erred in dismissing his appeal of the IJ's determination that he
was ineligible for withholding of removal. The government contends
that this court lacks jurisdiction to review the January 16
decision because Garcia Sarmiento did not file his petition within
the statutorily required thirty days. See 8 U.S.C. § 1252(b)(1);
see also Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir. 2016).1 Garcia
1 There is some question as to whether the appropriate
date to begin the thirty-day clock is the date of the BIA's denial
of the appeal or the date that the removal order was reinstated.
See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 191-93 (2d Cir.
2022) (finding that a reinstated removal order's reinstatement
"became final on the day of that decision, order, and
certification" rather than the date that the BIA affirmed the order
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Sarmiento did not file the present petition until July 9, 2020,
well outside of the thirty-day deadline.
"A motion to reopen or reconsider does not toll the
period for filing a petition for judicial review of the underlying
order of deportation." Ven v. Ashcroft, 386 F.3d 357, 359 (1st
Cir. 2004); see also Stone v. INS, 514 U.S. 386, 405-06 (1995).
The thirty-day time limit to file petitions for review is a "strict
jurisdictional requirement." Zhang v. INS, 348 F.3d 289, 292 (1st
Cir. 2003). Accordingly, we do not have jurisdiction to hear
Garcia Sarmiento's challenge to the January 16 decision.
B. June 10, 2020 BIA Decision
Our review of the BIA's denial of Garcia Sarmiento's
motion to reopen is "under the highly deferential abuse-of-
discretion standard." Adeyanju v. Garland, 27 F.4th 25, 51 (1st
Cir. 2022) (internal quotation marks omitted) (quoting Tay-Chan v.
Barr, 918 F.3d 209, 212 (1st Cir. 2019)). We will find an abuse
of discretion only where the petitioner shows that the BIA
"committed a material error of law or exercised its authority
arbitrarily, capriciously, or irrationally." Id. (quoting Tay-
Chan, 918 F.3d at 212).
for purposes of the thirty-day time limit in section 1252).
Because it would not change the outcome in the present case, we do
not delve into this question.
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The BIA correctly found that Garcia Sarmiento is barred
from reopening his removal order by 8 U.S.C. § 1231(a)(5). This
provision states:
If the Attorney General finds that an alien
has reentered the United States illegally
after having been removed or having departed
voluntarily, under an order of removal, the
prior order of removal is reinstated from its
original date and is not subject to being
reopened or reviewed, the alien is not
eligible and may not apply for any relief
under this chapter, and the alien shall be
removed under the prior order at any time
after the reentry.
Because Garcia Sarmiento reentered the country illegally in 2014
following removal, as the BIA concluded, he is now prohibited from
the relief he seeks. See Lattab v. Ashcroft, 384 F.3d 8, 16 (1st
Cir. 2004) ("[8 U.S.C. § 1231(a)(5)] subjects an illegal reentrant
to three independent consequences: reinstatement of the prior
deportation order, ineligibility for any relief, and removal.").
Many of our sister circuits have held that persons
subject to reinstated removal orders following unlawful reentry
are barred from reopening their orders of removal. See Tarango-
Delgado v. Garland, 19 F.4th 1233, 1238–39 (10th Cir. 2021);
Sanchez-Gonzalez v. Garland, 4 F.4th 411, 414-15 (6th Cir. 2021);
Gutierrez-Gutierrez v. Garland, 991 F.3d 990, 994 (8th Cir. 2021);
Cuenca v. Barr, 956 F.3d 1079, 1088 (9th Cir. 2020); Alfaro-Garcia
v. U.S. Att'y Gen., 981 F.3d 978, 983 (11th Cir. 2020); Rodriguez-
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Saragosa v. Sessions, 904 F.3d 349, 354 (5th Cir. 2018); Tapia-
Lemos v. Holder, 696 F.3d 687, 689-90 (7th Cir. 2012). We agree.
We begin with the text of section 1231(a)(5). See Baker
v. Smith & Wesson, Inc., 40 F.4th 43, 48 (1st Cir. 2022). It
states that where a petitioner "has reentered the United States
illegally after having been removed," "the prior order of removal
is reinstated from its original date and is not subject to being
reopened." 8 U.S.C. § 1231(a)(5); see also Tarango-Delgado, 19
F.4th at 1238-39. Here, Garcia Sarmiento does not contest that he
was removed, unlawfully reentered the country, and is now the
subject of a reinstated removal order. Under a plain reading of
section 1231(a)(5), his reinstated removal order cannot be
reopened. See Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2284
(2021) ("[R]einstated orders are not subject to reopening or
review . . . .").
This plain reading accords with Congress's decision to
take a "harder line" with people who reenter the country unlawfully
when it enacted the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, amending section 1231(a)(5) to apply
to all illegal reentrants. Fernandez-Vargas v. Gonzales, 548 U.S.
30, 33-35 (2006); accord Sanchez-Gonzalez, 4 F.4th at 415.
This reading also accords with the Supreme Court's
discussion of withholding-only proceedings in Guzman Chavez.
There, the Court only noted that withholding proceedings are
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available to petitioners subject to reinstated removal orders.
Guzman Chavez, 141 S. Ct. at 2282-83. In withholding-only
proceedings, a petitioner can seek, as Garcia Sarmiento did,
statutory withholding under section 1231(b)(3)(A) and withholding
under the CAT. Id. at 2282. However, even obtaining protection
in withholding-only proceedings (which Garcia Sarmiento did not)
does not change the finality of the reinstated removal order; it
only prevents removal to a specific country, not removal from the
United States. Id. at 2285–86. As the Court explained, "removal
orders and withholding-only proceedings address two distinct
questions. . . . [A]nd the finality of the order of removal does
not depend in any way on the outcome of the withholding-only
proceedings." Id. at 2287. That Garcia Sarmiento entered into
withholding-only proceedings does not affect the finality of his
reinstated removal order, which the BIA correctly found is not
subject to being reopened.
Finally, Garcia Sarmiento asserts that the BIA erred not
only by denying his motion to reopen removal proceedings but also
by failing to "otherwise grant" him voluntary departure. But to
the extent Garcia Sarmiento now requests voluntary departure
independent of his motion to reopen, we must dismiss his petition
for failure to exhaust administrative remedies. "We have
consistently held that 'arguments not raised before the BIA are
waived due to a failure to exhaust administrative remedies.'" Shah
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v. Holder, 758 F.3d 32, 37 (1st Cir. 2014) (quoting Molina De
Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007)). Garcia
Sarmiento made only a passing reference before the BIA that, as
part of reopening, he should be granted voluntary departure. The
argument he makes to us was not exhausted before the agency. Nor
does his petition argue that the BIA was incorrect to interpret
his references to voluntary departure as part of his motion to
reopen. That ends the matter.
III.
The petition is dismissed in part and denied in part.
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