Domingo-Mendez v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1029
JEREMIAS LUCAS DOMINGO-MENDEZ,
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.
Michael B. Kaplan, with Jeffrey B. Rubin, Todd C. Pomerleau,
Kimberly A. Williams, and Rubin Pomerleau PC were on brief for
petitioner.
Brendan P. Hogan, Office of Immigration Litigation, with whom
Brian Boynton, Acting Assistant Attorney General, Civil Division,
and Andrew N. O'Malley, Senior Litigation Counsel, were on brief
for respondent.
August 31, 2022
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Acting Attorney
General Jeffrey Rosen.
KAYATTA, Circuit Judge. A parent's removal from the
United States creates foreseeable and substantial hardship for a
family. In the face of that reality, Congress has nevertheless
decreed that, with possible exceptions not applicable here, the
Attorney General may rely on that hardship to cancel a nonpermanent
resident's removal only if the removal would cause "exceptional
and extremely unusual hardship" for a qualifying family member. 8
U.S.C. § 1229b(b)(1). The case before us illustrates the
consequences of that stringent statutory requirement.
Petitioner Jeremias Lucas Domingo-Mendez is a native and
citizen of Guatemala who conceded that he was removable from the
United States. After an immigration judge ("IJ") granted his
application for cancellation of removal, the Board of Immigration
Appeals ("BIA" or "Board") vacated that relief and ordered Domingo-
Mendez removed. Domingo-Mendez argues that, in so doing, the BIA
committed reversible legal error. For the following reasons, we
disagree.
I.
Domingo-Mendez entered the United States without
inspection around March of 2009 and has remained in this country
since that time. He and his partner, Celia Mazariegos, have two
U.S.-citizen children under the age of 10. Domingo-Mendez's
request for cancellation of removal was predicated on the impact
his removal would have on his young children.
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Cancellation of removal is a discretionary form of
relief that is available, as relevant here, when an eligible
noncitizen's "removal would result in exceptional and extremely
unusual hardship to" his United States citizen or permanent
resident child. 8 U.S.C. § 1229b(b)(1)(D). In addition to showing
the requisite hardship, the noncitizen must have been continuously
present in the United States for at least ten years; must have
"been a person of good moral character during [that] period"; and
must not have been convicted of certain offenses. Id.
§§ 1229b(b)(1)(A)–(C).
An IJ held a hearing on Domingo-Mendez's application for
cancellation of removal on June 8, 2020. The government argued
that Domingo-Mendez had not demonstrated that his U.S.-citizen
children would suffer "exceptional and extremely unusual hardship"
as required by statute.1 8 U.S.C. § 1229b(b)(1)(D).
One question discussed several times throughout the
hearing was what kind of work Domingo-Mendez -- who had been a
cook in the United States -- could procure in Guatemala.
Government counsel asked Domingo-Mendez whether he "could work as
a chef in Guatemala." Domingo-Mendez initially responded that he
1The government also contended that Domingo-Mendez had not
demonstrated the requisite physical presence and good moral
character to qualify for cancellation of removal. The IJ
disagreed. The BIA did not reach either issue, and we do not
discuss them further.
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could not work as a chef, but after some apparent confusion about
the pending question, the following exchange took place:
JUDGE TO [GOVERNMENT COUNSEL] MR. CZUGH
Is the question, if he goes back to
Guatemala now, why couldn't he work as a
chef?
MR. CZUGH to JUDGE
Correct.
MR. DOMINGO TO MR. CZUGH
Oh, yes. I, I could find work in a
restaurant.
JUDGE TO MR. DOMINGO
So, could you find work in a restaurant
today in Guatemala?
MR. DOMINGO TO JUDGE
Yes, yes. I think so.
Later, Domingo-Mendez's counsel again steered his
testimony towards the subject of work:
MR. GALLO TO MR. DOMINGO
Mr. Domingo-Mendez, do you know the
difference between a chef and a cook?
MR. DOMINGO TO MR. GALLO
Yes.
MR. GALLO TO MR. DOMINGO
Okay. In the United States, are you a
chef, or you're a -- or are you a cook?
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MR. DOMINGO TO MR. GALLO
A cook.
MR. GALLO TO MR. DOMINGO
Okay. And because you're a cook in the
United States, could you then be a chef
in Guatemala?
MR. DOMINGO TO MR. GALLO
Perhaps.
MR. GALLO TO MR. DOMINGO
Okay. You said you were planting crops in
Guatemala before you came to the United
States. Is that correct?
MR. DOMINGO TO MR. GALLO
Yes.
MR. GALLO TO MR. DOMINGO
Do you know whether or not you would be
able to support Celia, [and the
children], planting crops in Guatemala?
MR. DOMINGO TO MR. GALLO
Yes. Well, I can there in a restaurant.
MR. GALLO TO MR. DOMINGO
Would you make the same amount of money
in Guatemala, as you do in the United
States, working in a restaurant?
MR. DOMINGO TO MR. GALLO
No.
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Finally, this exchange took place:
JUDGE TO MR. DOMINGO
And, if you went back to Guatemala, where
would you live?
MR. DOMINGO TO JUDGE
Over there, because I have my own house.
JUDGE TO MR. DOMINGO
And are there restaurants in that area?
MR. DOMINGO TO JUDGE
No.
JUDGE TO MR. DOMINGO
Then how could you work as a cook, if you
lived in that area?
MR. DOMINGO TO JUDGE
In the, in the place where I live, 30
minutes or half an hour away, there are
restaurants.
When Domingo-Mendez's partner, Mazariegos, took the
stand, the IJ asked her about the foregoing testimony as follows:
JUDGE TO MS. MAZARIEGOS
Now, he testified that he thought he
could work as a cook in Guatemala. Do
you, do you know -- what do you think of
that?
MS. MAZARIEGOS TO JUDGE
Well, I don't, I don't think they would
have the opportunity, because over here
-- over there, at 25 years old, they
don't hire you. You have to be 20 or 25
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in order to be worth -- to, to -- in order
to go to work, and now he's 32 years old.
In her subsequent decision, the IJ summarized the
testimony on Domingo-Mendez's work prospects in Guatemala as
follows:
The respondent and Celia worry that if he has
to go back to Guatemala, that it will not be
possible for him to support the children in
rural Guatemala, where both of them testified
that for the most part the available work is
subsistence agricultural work. The respondent
testified that he might be able to work as a
cook in a town some distance away from his
home town, but he never worked as a cook in
Guatemala before. And Celia explained that
she believes it would be very difficult for
him to find work as a cook, given his age,
given that he has not worked in this capacity
in Guatemala before, and given the fact that
the restaurants are not closely located to the
areas where their families live in Guatemala
today.
The IJ ultimately made no explicit finding as to whether
Domingo-Mendez would find work as a cook or other restaurant work
in Guatemala. Rather, she turned to discussing the "Coronavirus
pandemic" and testimony that travel restrictions would cause a
protracted separation of Domingo-Mendez from his two young
children (then ages 5 and 6). The IJ suggested that, if Domingo-
Mendez was removed, Mazariegos and the children faced two options:
(1) move to Guatemala, "subject[ing]" the children to "a life of
harsh rural poverty," or (2) stay behind in the United States and
lose the presence of their father, "the mainstay of th[e] family."
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The IJ found that Domingo-Mendez's "presence here in the United
States [was] an absolute necessity for the safety, security and
future well-being of [his] two United States citizen children."
"[F]or this reason," she found that Domingo-Mendez "met his burden
of proof to show that [his children] would suffer exceptional and
extremely unusual hardship if he was deported to Guatemala."
The BIA's judgment was otherwise. The Board began by
explaining that it reviewed the IJ's factual findings for clear
error. The BIA did not claim to find any clear error in the IJ's
factfinding. It focused instead on the IJ's ultimate judgment
that Domingo-Mendez had established the requisite extreme
hardship. It concluded as follows:
If the respondent's children do accompany him
to Guatemala, the poor economic conditions,
reduced educational opportunities, and
adjustment difficulties, considered
cumulatively, are not sufficient to establish
the requisite hardship standard under the
governing case law. If his children remain in
the United States, the likely diminution in
their economic circumstances and emotional
hardship created by their father's absence
similarly do not rise to the statutorily
mandated level of exceptional and extremely
unusual. See Matter of J-J-G-, 27 I&N Dec.
808 (BIA 2020); [Matter of] Recinas, 23 I&N
Dec. 467 (BIA 2002); Matter of Andazola, 23
I&N Dec. 319 (BIA 2002); Matter of Monreal,
23 I&N Dec. 56 (BIA 2001). We therefore
disagree with and reverse the Immigration
Judge's conclusion that the hardships
presented are sufficient to satisfy the
applicable standard.
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In so concluding, the BIA recited some but by no means
all of the evidence. In particular, it stated as follows:
The respondent's employment history includes
working as a cook, and he believes he would be
able to obtain restaurant work in Guatemala.
The respondent indicated that his parents
still live in Guatemala, and he has his own
house there (IJ at 6; Tr. at 109, 121-122).
This petition for review followed.
II.
Domingo-Mendez argues that the BIA committed legal error
by (1) failing to state whether it accepted the IJ's factual
findings or rejected them as clearly erroneous; (2) engaging in
its own factfinding; and (3) failing to consider "certain key
facts" cited by the IJ. Assuming that we have jurisdiction to
entertain these arguments,2 we find them to be unavailing. Our
reasoning follows.
2 As a general rule, we lack jurisdiction to review the BIA's
"judgment regarding the granting of relief under section . . .
1229b" (among others), 8 U.S.C. § 1252(a)(2)(B), but we retain
jurisdiction to decide "constitutional claims or questions of
law," id. § 1252(a)(2)(D). After argument in this case, the
Supreme Court construed section 1252(a)(2)(B) to preclude federal
courts from entertaining the argument "that any reasonable judge
would have been 'compelled'" to reach a particular factual
conclusion. Patel v. Garland, 142 S. Ct. 1614, 1620, 1627 (2022).
Ultimately, we need not determine whether all of Domingo-Mendez's
claims involve legal error or decide whether and to what extent
Patel would preclude us from reviewing those claims. The
government does not suggest that Patel divests of us jurisdiction
over Domingo-Mendez's appeal. And, in any event, where our
"statutory jurisdiction is ambiguous but the merits are
straightforward, we [may] bypass the jurisdictional issue and
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A.
We begin by dispensing with Domingo-Mendez's claim that
after the BIA identified the proper standard governing its review
of the facts found below, it was obliged to explicitly indicate
whether it accepted those findings. The BIA cited the correct
standard. See 8 C.F.R. § 1003.1(d)(3)(i) (2020).3 We do not read
the governing regulation (which instructs the BIA to review the
IJ's factual findings "only to determine whether [those findings]
are clearly erroneous") to require the kind of explicit statement
Domingo-Mendez desires. Id. And -- as we discuss more fully below
-- the Board's decision does not indicate that it applied a
different standard sub silentio. See Samayoa Cabrera v. Barr, 939
F.3d 379, 383 (1st Cir. 2019) (rejecting petitioner's contention
that the BIA applied the wrong standard of review even though the
agency did "not explicitly spell out the standard of review it
applied" absent evidence the agency applied the wrong standard);
Enwonwu v. Gonzales, 232 F. App'x 11, 15 (1st Cir. 2007) (per
explain why" Domingo-Mendez's claims fail on the merits. Tacuri-
Tacuri v. Garland, 998 F.3d 466, 472 (1st Cir. 2021).
3 The government filed its appeal with the BIA on July 7,
2020. The BIA's review was governed by the version of 8 C.F.R.
§ 1003.1 effective at that time. See Barros v. Garland, 31 F.4th
51, 57 n.2 (1st Cir. 2022). References to this regulation are to
that version.
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curiam) ("presumption of regularity . . . attaches to the BIA's
official acts").
B.
Domingo-Mendez's better, but still unsuccessful, claim
is that the BIA impermissibly engaged in its own factfinding by
ascribing a higher degree of likelihood to his ability to obtain
restaurant work in Guatemala than did the IJ. With a caveat not
at issue here, the BIA may "not engage in factfinding in the course
of deciding appeals." 8 C.F.R. § 1003.1(d)(3)(iv). See Barros v.
Garland, 31 F.4th 51, 63 (1st Cir. 2022) ("For the purposes of BIA
review, the IJ's predictive findings of what may or may not occur
in the future are findings of fact subject to a clearly erroneous
standard of review." (cleaned up) (quoting Samayoa Cabrera, 939
F.3d at 382)).
According to the IJ, Domingo-Mendez "testified that he
might be able to work as a cook in a town some distance away from
his home town." (Emphasis added.) The BIA described the testimony
slightly differently, saying that Domingo-Mendez "believes he
would be able to obtain restaurant work in Guatemala." (Emphasis
added.) So the question is whether this difference in the two
descriptions of the testimony warrants setting aside the BIA's
ruling. For the following reasons, we conclude that it does not.
First, the descriptions of the IJ and the BIA do not
directly conflict. The IJ said that Domingo-Mendez "testified
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that he might be able to work as a cook," while the BIA said that
Domingo-Mendez "believes he would be able to obtain restaurant
work." The BIA could certainly presume that "restaurant work"
includes work as a cook, and could also encompass restaurant jobs
other than a job as a cook. So this is not a case where the words
used by the IJ and BIA clash in a manner that suggests that the
BIA rejected any factfinding by the IJ. Indeed, it seems clear
that the BIA thought its description of the testimony was
consistent with the IJ's: To support the proposition that Domingo-
Mendez "believes he would be able to obtain restaurant work," the
BIA cited to both the transcript of Domingo-Mendez's hearing
testimony and the relevant page of the IJ's decision.
Second, the record shows that the BIA's description of
the testimony did not overstate what Domingo-Mendez said --
Domingo-Mendez did testify that he "could find work in a
restaurant" in Guatemala. So if there were indeed a meaningful
difference between the IJ's description and that of the BIA, it is
the IJ's that would have been clearly erroneous. And the BIA
certainly need not adopt a clearly incorrect recitation of the
record. See 8 C.F.R. § 1003.1(d)(3)(i).
Third, it does not appear that any difference in the
descriptions of the testimony was material. Neither the IJ nor
the BIA rested the ultimate hardship determination on the rather
nuanced difference in describing what Domingo-Mendez thought about
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his ability to obtain restaurant work in Guatemala. Nor did either
rely on the testimony to make a predictive finding. Rather, the
IJ found the requisite hardship without pinning down the precise
likelihood that Domingo-Mendez would find work as a cook. The
IJ's hardship determination rested on her conclusion that Domingo-
Mendez's "presence here in the United States is an absolute
necessity for the safety, security and future well-being of [his]
two United States citizen children." Likewise, the BIA did not
suggest that Domingo-Mendez had promising job prospects in
Guatemala that precluded a hardship finding. To the contrary, the
Board concluded that if his children accompanied him to Guatemala,
"the poor economic conditions, reduced educational opportunities,
and adjustment difficulties, considered cumulatively, are not
sufficient to establish the requisite hardship standard under the
governing caselaw." And if the children remained in the United
States, the Board said, "the likely diminution in their economic
circumstances and emotional hardship created by their father's
absence similarly do not rise to the statutorily mandated level of
exceptional and extremely unusual." In short, neither the IJ's
nor the BIA's bottom-line hardship determination rested on whether
Domingo-Mendez thought he could obtain restaurant work in
Guatemala. Thus, even if there was an error in the BIA's
description of Domingo-Mendez's testimony, it was harmless. See
Guta-Tolossa v. Holder, 674 F.3d 57, 60 n.2 (1st Cir. 2012)
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(explaining that although "[t]he IJ seem[ed] to have misread"
certain evidence, the error was harmless because the IJ's decision
was not based on that evidence).
C.
We close with Domingo-Mendez's argument that the BIA
committed legal error when it failed to discuss certain "key facts
cited by the IJ in her decision." In particular, Domingo-Mendez
says that the BIA did not mention (1) that Mazariegos and the
children were already suffering acute financial hardship while
Domingo-Mendez was detained; and (2) the "effectively . . .
permanent physical separation" of Domingo-Mendez from his children
that would result from the combination of the family's financial
circumstances and COVID-19-related travel restrictions if Domingo-
Mendez were removed.
Although "the BIA is required to consider all relevant
evidence in the record," Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir.
2008), "each piece of evidence need not be discussed in a [BIA]
decision," Chen v. Holder, 675 F.3d 100, 106 (1st Cir. 2012)
(alteration in original) (quoting Morales v. I.N.S., 208 F.3d 323,
328 (1st Cir. 2000)). "When the BIA's decision is neither
inconsistent with [the evidence at issue] nor gives reason to
believe the BIA was unaware of it, we have no reason to doubt that
the agency considered the evidence." Lin, 521 F.3d at 28.
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As we have explained, the BIA acknowledged that, should
Domingo-Mendez be removed and his children stay behind, the
children would experience a "likely diminution in their economic
circumstances" and "emotional hardship created by their father's
absence." Similarly, the BIA determined that even if the children
joined their father in Guatemala, "the poor economic conditions"
considered collectively with other circumstances did not establish
the requisite hardship. So "[w]e see no reason to surmise that
the BIA overlooked" the evidence in question. Lin, 521 F.3d at
28. Rather, pointing to what many may regard as a hard-hearted
statutory mandate, it disagreed with the IJ that the family's real
hardship rose to the level of the requisite "exceptional and
extremely unusual hardship" that the statute requires. 8 U.S.C.
§ 1229b(b)(1)(D).
In sum, Domingo-Mendez has not shown that the BIA
misconstrued or overlooked relevant evidence. Nor does the record
support any contention that the BIA applied an improper standard.
Without indication that the BIA misconstrued or
overlooked relevant evidence, we cannot remand for the Board to
undertake the hardship analysis afresh.
III.
For the foregoing reasons, we deny Domingo-Mendez's
petition and affirm the BIA's ruling.
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