Nava-Hernandez v. Barr ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 16, 2020
Christopher M. Wolpert
Clerk of Court
SERGIO NAVA-HERNANDEZ,
Petitioner,
v. No. 19-9546
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
After the United States Department of Homeland Security (“DHS”) initiated
removal proceedings against him, Sergio Nava-Hernandez requested cancellation of
removal under 8 U.S.C. § 1229b(b)(1). An immigration judge denied Mr. Nava-
Hernandez’s request because he failed to establish that removal would result in
exceptional and extremely unusual hardship to his U.S. citizen daughter, and the Board of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
Immigration Appeals (“BIA”) affirmed. Mr. Nava-Hernandez now petitions for review of
the BIA’s decision. Because we do not have jurisdiction over the arguments raised in the
petition, we dismiss.
BACKGROUND
On November 3, 2008, DHS issued Mr. Nava-Hernandez a Notice to Appear
(“NTA”) before an immigration judge in Denver, Colorado, to adjudicate his removal
from the United States. In the NTA, DHS alleged that Mr. Nava-Hernandez is a citizen of
Mexico who entered the United States without inspection in 1996. The NTA described
the “date” of Mr. Nava-Hernandez’s hearing as “a date to be set” and the “time” as “a
time to be set.” AR 677.
Three days later, the Denver immigration court mailed Mr. Nava-Hernandez a
notice explaining that his case had been scheduled for a hearing on January 20, 2009, at
1:00 P.M. Over the subsequent decade, the immigration court mailed Mr. Nava-
Hernandez many similar notices, each of which specified a time and date for the relevant
proceeding. Finally, on January 31, 2018, the immigration court held a merits hearing to
adjudicate Mr. Nava-Hernandez’s removal.
Mr. Nava-Hernandez conceded the charge in the NTA and moved for cancellation
of removal under 8 U.S.C. § 1229b(b)(1).1 Specifically, he argued that removal would
1
Section 1229b(b)(1) provides that:
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully
admitted for permanent residence, an alien who is inadmissible or deportable from the
United States if the alien—
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result in exceptional and extremely unusual hardship to his seventeen-year old daughter.
Mr. Nava-Hernandez presented evidence—based on visits with therapists in 2011 and
2016—that his daughter suffers from depression or an anxiety disorder as a result of her
father’s long-pending removal from the United States. He also presented evidence that
she suffers from chronic asthma. Mr. Nava-Hernandez further argued that he would not
be able to support his family from Mexico.
The immigration judge found Mr. Nava-Hernandez credible and a person of good
moral character, but nevertheless denied his application for cancellation of removal
because Mr. Nava-Hernandez failed to establish that his daughter would suffer
exceptional and extremely unusual hardship. In a written decision, the immigration judge
defined “exceptional and extremely unusual hardship” as “hardship that is substantially
different from or beyond that which would ordinarily be expected to result from the
alien’s deportation.” AR 54. The immigration judge then identified three factual reasons
why Mr. Nava-Hernandez fell short of meeting that standard: First, Mr. Nava-
Hernandez’s daughter “would not accompany him if he returns to Mexico.” AR 56.
Second, Mr. Nava-Hernandez did not present sufficient evidence “that his daughter’s
physical health, specifically her asthma, would be exacerbated if he were removed from
(A) has been physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence.
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the United States.” AR 56. Third, Mr. Nava-Hernandez “is healthy and able to work.”
AR 57.
Mr. Nava-Hernandez appealed to the BIA. In his merits brief before the BIA, Mr.
Nava-Hernandez argued the immigration judge had abused his discretion in undervaluing
the hardship that removal would impose on Mr. Nava-Hernandez’s daughter.
On June 18, 2019, the BIA, acting through a single judge, dismissed the appeal.
The BIA summarized the immigration judge’s discussion of exceptional and extremely
unusual hardship and concluded the immigration judge “properly denied [Mr. Nava-
Hernandez’s] application for cancellation of removal.” AR 5.
On July 11, 2019, Mr. Nava-Hernandez petitioned this court for review of the
BIA’s decision.
ANALYSIS
Congress has carefully circumscribed this court’s jurisdiction to review the BIA’s
decisions. Two of those limitations are relevant to this case. First, 8 U.S.C. § 1252(d)
provides that “[a] court may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.” We have
“applied this statutory exhaustion requirement to conclude that [t]he failure to raise an
issue on appeal to the [BIA] constitutes failure to exhaust administrative remedies with
respect to that question and deprives the Court of Appeals of jurisdiction to hear the
matter.” Robles-Garcia v. Barr, 944 F.3d 1280, 1283 (10th Cir. 2019) (alterations in
original) (emphasis omitted) (internal quotation marks omitted).
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Second, 8 U.S.C. § 1252(a)(2)(B) provides that “no court shall have jurisdiction to
review . . . any judgment regarding the granting of relief under section . . . 1229b.” We
have interpreted “this subsection as referring to the discretionary aspects of a decision
concerning cancellation of removal.” Arambula-Medina v. Holder, 572 F.3d 824, 828
(10th Cir. 2009). “This includes any underlying factual determinations, as well as the
determination of whether the petitioner’s removal from the United States ‘would result in
exceptional and extremely unusual hardship’ to a qualifying relative under 8 U.S.C.
§ 1229b(b)(1)(D).” Id. (citation omitted). “We do, however, have jurisdiction to review
‘constitutional claims’ and ‘questions of law.’” Id. (quoting 8 U.S.C. § 1252(a)(2)(D)).
Mr. Nava-Hernandez’s primary argument on appeal is that the BIA lacked
jurisdiction to order his removal because the NTA did not specify a time or date. We do
not have jurisdiction to consider this argument because Mr. Nava-Hernandez did not raise
it before the BIA.
Mr. Nava-Hernandez responds that it would have been futile to make this
argument to the BIA because it rejected the same argument in In re Bermudez-Cota, 27
I. & N. Dec. 441 (BIA 2018). This argument is foreclosed by our decision in Robles-
Garcia. There, we noted the possibility that 8 U.S.C. § 1252(d)’s exhaustion requirement
might be amenable to a futility exception, but nevertheless held the petitioner was
required to ask the BIA to overturn In re Bermudez-Cota to supply this court with
jurisdiction. See Robles-Garcia, 944 F.3d at 1284 & n.3.2 For these reasons, we lack
2
Our decision in Robles-Garcia also answers Mr. Nava-Hernandez’s argument
that we have jurisdiction to consider his position for the first time on appeal because it
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jurisdiction to consider Mr. Nava-Hernandez’s argument that the NTA in his case was
defective.3
We also lack jurisdiction to consider Mr. Nava-Hernandez’s second argument;
namely, that the BIA erred in its evaluation of exceptional and extremely unusual
hardship. “If the BIA decides, in an exercise of agency discretion, an alien has not
produced sufficient evidence to warrant a finding of exceptional and extremely unusual
hardship, we cannot review that decision.” Alzainati v. Holder, 568 F.3d 844, 850 (10th
Cir. 2009); see also Arambula-Medina, 572 F.3d at 828.
In his attempt to overcome this straightforward application of our precedents,
Mr. Nava-Hernandez invokes Prapavat v. INS, 662 F.2d 561 (9th Cir. 1981), a case in
which the Ninth Circuit held that the BIA abused its discretion in its hardship analysis.
Id. at 563. We need not engage in a detailed examination of the facts in Prapavat,
because that opinion predates Congress’s decision to bar judicial review of discretionary
§ 1229b decisions. See Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104–208, sec. 306(a), 110 Stat. 3009–546, 3009–607. Because
Mr. Nava-Hernandez’s disagreements with the BIA’s decision on whether he has shown
implicates the BIA’s jurisdiction. The petitioner in Robles-Garcia tried to advance the
same date/time position as Mr. Nava-Hernandez, and we required the petitioner to
comply with the normal rules of exhaustion.
3
Were we to reach the merits, recent circuit precedent would require that we reject
Mr. Nava-Hernandez’s argument. See Lopez-Munoz v. Barr, 941 F.3d 1013, 1018 (10th
Cir. 2019).
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an exceptional and extremely unusual hardship are expressly covered by 8 U.S.C.
§ 1252(a)(2)(B), we do not have jurisdiction to review that ruling.
CONCLUSION
For the foregoing reasons, Mr. Nava-Hernandez’s petition for review is
DISMISSED for lack of jurisdiction.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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