Garcia-Avila v. Garland ( 2022 )

Case: 20-60406 Document: 00516321079 Page: 1 Date Filed: 05/16/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
May 16, 2022
No. 20-60406 Lyle W. Cayce
Clerk
Leonel Garcia-Avila,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A216 585 072
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:*
Leonel Garcia-Avila filed a motion to reopen and reconsider in
relation to his immigration proceedings and the Immigration Judge’s
decision to deny Garcia-Avila cancellation of removal under either 8 U.S.C.
§ 1229b(b)(1) or § 1229b(b)(2). The Immigration Judge denied Garcia-
Avila’s motion, and the Board of Immigration Appeals affirmed that
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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decision. He now challenges those decisions here through a petition for
review. For the following reasons, the petition for review is DENIED.
I.
Leonel Garcia-Avila is a native and citizen of Mexico who entered the
United States in 2002 without having been admitted or paroled. He is
married to a United States citizen with whom he has three children who are
also United States citizens. In October 2018, Garcia-Avila pleaded no contest
to a Class B misdemeanor for driving while intoxicated and was placed on
probation for one year.
In November 2018, the district attorney’s office moved to revoke
Garcia-Avila’s probation based on allegations that he had violated his
probation by: (1) using cocaine, (2) registering a 0.018 blood alcohol level on
the Smart Start Mobile Device that had been placed in his vehicle, and
(3) failing to complete or register for various treatment programs, community
service requirements, and panels. At his probation revocation hearing,
Garcia-Avila admitted to some of the charged violations, his probation was
revoked, and he was sentenced to six months in jail.
In April 2019, Garcia-Avila was served with a Notice to Appear at
removal proceedings by the Department of Homeland Security and was
charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing before
the Immigration Judge (“IJ”), Garcia-Avila conceded removability and
sought cancellation of removal on two grounds: cancellation of removal for
certain non-permanent residents under 8 U.S.C. § 1229b(b)(1) (“NPR
cancellation”) 1 and special cancellation of removal for battered spouses
1
The requirements for NPR cancellation are that the applicant: (1) has been
physically present in the United States for a continuous period of ten years immediately
preceding the application; (2) has been a person of good moral character; (3) has not been
convicted of certain criminal offenses; and (4) that removal of the applicant would result in
2
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under the Violence Against Women Act (VAWA) as codified at 8 U.S.C.
§ 1229b(b)(2) (“VAWA cancellation”). 2
At the hearing, Garcia-Avila testified that he had three United States
citizen children and a United States citizen wife who had abused him on two
occasions in the past but was no longer abusive. He additionally testified to
the hardship that he had faced in his past as well as the hardship both he and
his family would suffer should he be returned to Mexico. Regarding his
family, he testified that (1) his children would face emotional hardship if he
was not around for them in the United States, (2) that his entire family would
face financial hardship as he was the primary breadwinner and neither his
wife nor elderly in-laws were able to earn enough money to support the
family, and (3) that his wife and children would be unable to join him in
Mexico due to issues with permits and fears about crime. Specifically as to
himself, Garcia-Avila testified about the hardship he had faced during a
difficult childhood before he left for the United States at age 17 (including
being left by his parents and living with his abusive uncles) and the hardship
he would face in the future should he be returned to Mexico, where he has
little to no family ties. Garcia-Avila also presented several exhibits, including
counselor’s evaluations, letters, and drawings, supporting the hardship he
and his family would face. During Garcia-Avila’s testimony regarding his
hardship, the IJ laid out the two differing hardship standards for NPR and
exceptional and extremely unusual hardship to a United States citizen or lawful permanent
resident spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).
2
The requirements for VAWA cancellation are that the applicant: (1) has been
battered or subjected to extreme cruelty by a United States citizen or lawful permanent
resident (or is the parent of a child who has been subjected to such treatment); (2) has been
physically present in the United States for three years immediately preceding the
application; (3) has been a person of good moral character; (4) has not been convicted of
certain criminal offenses; and (5) that removal of the applicant would result in extreme
hardship to the alien or to a child or parent. 8 U.S.C. § 1229b(b)(2)(A).
3
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VAWA cancellation, both in terms of the level of hardship required and the
necessary affected individuals, and highlighted each as part of the “disputed
issues” in the case.
In addition to testimony about hardship, Garcia-Avila testified about
his DWI conviction and probation revocation; this testimony included an
explanation that while he had tested positive for cocaine, that test resulted
from taking two pain pills of which he did not know the type and for which
he did not have a prescription.
At the conclusion of the hearing, the IJ stated that she would deny
Garcia-Avila’s applications for NPR cancellation and VAWA cancellation.
She first addressed the good moral character prong, stating that “the court
[could not] ignore the recency of [Garcia-Avila’s] DWI conviction” and that
his violations of the terms of his probation that led to revocation (including
his explanation for the positive cocaine test that the IJ did not find credible)
weighed against granting cancellation of removal. The IJ then stated:
“Additionally, I don’t find that there is extreme hardship to the children, and
I don’t find that there’s exceptional and extremely unusual hardship to the
spouse or the children in regards to special cancellation and regular
cancellation of removal.”
Once she had announced her decision, the IJ stated that she would
“take about 45 minutes to write an oral decision that [she would] come back
and dictate on the record . . . if [Garcia-Avila’s] attorney decide[d] to
appeal”; Garcia-Avila then requested voluntary departure. After a recess,
the IJ granted Garcia-Avila voluntary departure, and he subsequently waived
his right to appeal the IJ’s ruling. Because the IJ granted voluntary departure
and Garcia-Avila waived his right to appeal, she did not issue her proffered
oral decision.
4
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After Garcia-Avila departed from the United States, he filed a motion
to reopen and reconsider the IJ’s decision. The motion to reopen was based
on new evidence related to his probation revocation. Specifically, Garcia-
Avila pointed to a decision from the Texas Court of Appeals, Jacobs v. Texas,
594 S.W.3d 377, 382 (Tex. App.—San Antonio 2019, no pet.), which
overturned the probation revocation of a different defendant after finding due
process violations occurred during the hearing, which was conducted by the
same judge who revoked Garcia-Avila’s probation. Garcia-Avila additionally
supported his motion with an article in the San Antonio Express-News
detailing other instances where that judge revoked probation without
sufficient evidence or due process during the hearing, as well as a letter from
the Bexar County District Attorney’s Office stating that it would have
opposed revocation of Garcia-Avila’s probation should the prosecutor have
been able to sufficiently participate in the hearing. 3 In his motion, Garcia-
Avila also requested that the IJ reconsider her decision, arguing that the IJ
conflated the two different hardship standards for NPR cancellation and
VAWA cancellation and did not fully consider the aggregate hardship to both
Garcia-Avila’s children and himself as required when considering VAWA
cancellation.
3
We have also taken judicial notice of several facts related to Garcia-Avila’s
probation revocation that occurred after the Board of Immigration Appeals (“BIA”)
rendered its decision. Namely, we have noted that the judge who revoked Garcia-Avila’s
probation has issued Garcia-Avila a writ of habeas corpus to reopen his case and that his
probation has been reinstated. We have also taken notice of a Public Admonition and Order
of Additional Education issued by the Texas Commission on Judicial Conduct that the
judge in question “should be publicly admonished for failing to have a witness sworn,
denying the State the opportunity to be heard on the motion to revoke, denying the
defendant the right to present evidence, and denying bail pending appeal, in violation of
Canon 2A and Canon 3B(8) of the Texas Code of Judicial Conduct.”
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The IJ denied Garcia-Avila’s motion. She first declined to reopen the
proceedings based on the new evidence, stating that while the evidence
demonstrated that Garcia-Avila’s “probation may have been wrongfully
revoked,” that did “not exonerate [him] from the alleged actions that lead
[sic] to the revocation of his probation.” The IJ also stated that “[i]n
announcing its decision, the court primarily noted that it was unable to ignore
the recency and serious nature of the respondent’s driving while intoxicated
conviction,” which was unrelated to the later revocation of Garcia-Avila’s
probation. The IJ then declined to reconsider Garcia-Avila’s case, noting that
the IJ “explicitly stated on the record that even when considering the
hardship to all of [Garcia-Avila’s] children, [she] could not find extreme
hardship.” The IJ also stated that she had “made explicitly clear” that she
“was using the VAWA hardship standard” and that the IJ had “duly
considered the aggregate hardship to the respondent and his children . . . and
concluded [Garcia-Avila’s] burden had not been met.”
The BIA affirmed the IJ’s decision, basing its decision solely on the
rationale given by the IJ for denying the motion to reconsider. The BIA stated
that it “agree[d] that the [IJ] considered the hardship in the aggregate, under
the proper standard for each application of relief” and noted that the IJ
“cited the correct standards” for each form of relief considered. The BIA
specifically found that Garcia-Avila “was given the opportunity to detail the
hardship to his family” and that the IJ “explained the reasons for her denial
to the respondent” after which Garcia-Avila waived his appeal. Therefore,
the IJ “reasonably believed that the respondent was satisfied with her
explanations, and did not issue a formal oral or written decision” and Garcia-
Avila subsequently could point only to “the lack of detailed findings” to
support his arguments and was unable to “point to any evidence that the [IJ]
did not consider.” Because the BIA affirmed on these grounds, it stated that
it “need not reach the discretionary determination” of Garcia-Avila’s
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cancellation of removal nor decide whether the new evidence related to his
probation revocation could have changed that determination. Garcia-Avila
timely filed a petition for review.
II.
As an initial matter, we address our jurisdiction to consider this case.
The landscape surrounding our jurisdiction over certain BIA decisions has
recently been thrown into a state of flux by the Supreme Court’s holding in
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020). Before that decision, we
had consistently held that the jurisdictional bar found in 8 U.S.C.
§ 1252(a)(2)(B)(i), which strips federal courts of jurisdiction to review “any
judgment regarding the granting of relief under section . . . 1229b,” applied
to BIA determinations, including the hardship determination, related to
eligibility for cancellation of removal under § 1229b. See, e.g., Rueda v.
Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004) (per curiam); Sung v. Keisler, 505
F.3d 372, 377 (5th Cir. 2007); Sattani v. Holder, 749 F.3d 368, 372 (5th Cir.
2014) (per curiam). The Supreme Court in Guerrero-Lasprilla, however, held
that the Limited Review Provision in 8 U.S.C. § 1252(a)(2)(D), which lifts
the above-discussed jurisdictional bar for “constitutional claims or questions
of law,” applies to “the application of a legal standard to undisputed or
established facts” (often called a mixed question of law and fact). Guerrero-
Lasprilla, 140 S. Ct. at 1067–68.
Recently, in Trejo v. Garland, our court issued a narrowly-tailored
decision holding that the hardship determination required for a person to be
eligible for discretionary cancellation of removal under 8 U.S.C.
§ 1229b(b)(1)—what we have referred to as NPR cancellation in this
opinion—is a mixed question of law and fact that we have jurisdiction to
consider. 3 F.4th 760, 764 (5th Cir. 2021). Our decision in Trejo was heavily
based on the specific statutory language of § 1229b(b)(1), as well as the
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history of that statute, and additionally noted “‘that our jurisdiction’ to
review challenges to a cancellation of removal determination ‘turns on the
type of issue that an immigrant raises.’” Id. at 767 (quoting Singh v. Rosen,
984 F.3d 1142, 1148 (6th Cir. 2021)). As Trejo demonstrates, the proper path
forward in the wake of Guerrero-Lasprilla is to consider specific statutes, and
the questions deriving from those statutes, to determine whether we have
jurisdiction.
We thus note that we have yet to decide whether any questions related
to eligibility for VAWA cancellation under 8 U.S.C. § 1229b(b)(2) are subject
to § 1252(a)(2)(B)’s jurisdictional bar. And for the purposes of this case, we
need not decide that question today. Rather than a direct appeal, we consider
here a motion to reopen and reconsider. In doing so, we are limited to
considering two questions: (1) for the motion to reopen, whether newly
discovered facts or a change in circumstance are material and warrant a new
determination for the applicant, 8 U.S.C. § 1229a(c)(7)(B); and (2) for the
motion to reconsider, whether errors of fact or law occurred in the original
determination that warrant a new determination, 8 U.S.C. § 1229a(c)(6)(C).
Neither question calls for us to review any issue affecting the BIA’s actual
decision related to eligibility for cancellation of removal, as we might on a
direct appeal. We instead look only to whether legal errors (such as applying
the wrong statutory standard) occurred, whether erroneous factual
determinations were made, or whether new evidence calls for a proverbial
second bite at the apple (or, more accurately, first bite at a new, freshly
ripened apple). Therefore, the jurisdictional question that remains open after
Guerrero-Lasprilla and Trejo is not implicated here.
III.
We next turn to the merits of the BIA’s decision on Garcia-Avila’s
motion to reopen and reconsider. “We generally have authority to review
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only the decision of the BIA,” but will additionally consider the underlying
decision of the IJ to the extent that decision influenced the BIA. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Here, the BIA’s opinion only
considered the arguments raised in Garcia-Avila’s motion to reconsider
(namely, the question of whether the IJ misapplied the hardship standards)
and expressly declined to consider whether the new evidence cited in Garcia-
Avila’s motion to reopen would change the outcome of the discretionary
determination on his cancellation of removal. Therefore, we only consider
the BIA’s decision on the motion to reconsider, as well as the IJ’s decision to
the extent it influenced that aspect of the BIA’s decision.
We consider a motion to reconsider “under a highly deferential abuse-
of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
We will uphold a BIA decision “as long as it is not capricious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009). “We review the BIA’s factual
findings under the substantial-evidence test, which prevents us from
reversing the BIA’s factual determinations unless the evidence compels
reversal.” Hernandez-Castillos v. Sessions, 875 F.3d 199, 204 (5th Cir. 2017).
For questions of law, we review de novo but “accord[] deference to the BIA’s
interpretation of immigration statutes unless the record reveals compelling
evidence that the BIA’s interpretation is incorrect.” Gomez-Palacios, 560
F.3d at 358.
A motion to reconsider “shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.” 8 U.S.C.
§ 1229a(c)(6)(C). As opposed to presenting new evidence (as in a motion to
reopen), “[a] motion to reconsider contests the correctness of the original
decision based on the previous factual record.” Matter of O-S-G-, 24 I. & N.
Dec. 56, 57 (BIA 2006). Here, Garcia-Avila “alleges that [the original
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decision] is defective,” id. at 57, because the IJ applied the wrong standard
when considering Garcia-Avila’s eligibility for VAWA cancellation and
subsequently failed to consider the hardship in the aggregate because she
failed to consider the hardship to Garcia-Avila along with the hardship to his
children.
We note again that, on a motion to reconsider, we do not address the
merits of the BIA or IJ’s initial hardship determination and have “virtually
no substantive review of the BIA’s ‘extreme hardship’ finding.” Hernandez-
Cordero v. U.S. INS, 819 F.2d 558, 563 (5th Cir. 1987) (en banc). Instead, our
task is to “scrutinize the BIA’s decision for procedural regularity” and to
ensure that the BIA did not abuse its discretion in finding that the IJ applied
the proper procedures (including applying the correct law to the correct
facts) in reaching her determination. Id. We hold that the BIA’s decision
“that the [IJ] considered the hardship in the aggregate, under the proper
standard for each application of relief” was not an abuse of discretion.
Because of the somewhat anomalous procedural nature of this case
(which has no initial BIA decision due to the lack of a direct appeal), we must
circle back to the initial IJ decision—the BIA, in finding that the hardship
standards were properly applied, relied on the IJ’s decision on the motion to
reconsider, which in turn relied on the IJ’s oral pronouncement at the
termination of Garcia-Avila’s hearing. In reaching its initial hardship
determination, it is sufficient that “‘any consideration has been given’ by the
BIA to the factors establishing ‘extreme hardship’” and therefore the BIA
(and, if relied upon by the BIA, the IJ’s) adjudicative duty is satisfied as long
as it “did not ‘utterly fail’ to give consideration to the factors pertinent to a
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determination of ‘extreme hardship.’” Id. (quoting Sanchez v. INS, 755 F.2d
1158, 1160 (5th Cir. 1985)). 4
It was not an abuse of discretion to find that standard satisfied. As the
BIA notes, Garcia-Avila “was given the opportunity to detail the hardship to
his family,” including himself; the IJ listened to and engaged with that
testimony throughout the hearing. While doing so, the IJ consistently
demonstrated that she was considering Garcia-Avila’s evidence under two
separate standards—one for NPR cancellation, and one for VAWA
cancellation. She first demonstrated said consideration when outlining,
correctly, the two different standards for each form of relief, including stating
the parties were “at issue for the extreme hardship to the respondent or a child
on the VAWA 42B.” Those issues, including hardship to Garcia-Avila
himself, were among “the disputed issues” that the IJ specifically identified
during Garcia-Avila’s testimony.
Next, when issuing her decision, the IJ again applied two different
hardship standards—she found that Garcia-Avila was not eligible for either
“special cancellation [or] regular cancellation of removal” after first finding
no “extreme hardship to the children” and then finding no “exceptional and
extremely unusual hardship to the spouse or the children.” And then lastly
the IJ, in denying the motion to reconsider, again stated she “was using the
VAWA hardship standard” and that “[t]he court duly considered the
4
Garcia-Avila argues that our review is more rigorous, and that we must determine
that the BIA and/or IJ “has meaningfully addressed and reached a reasoned conclusion on
the alien’s specific assertions of hardship that are based on evidence.” Ramos v. INS, 695
F.2d 181, 188 (5th Cir. 1983). But to the extent that Ramos presents a more rigorous test, it
was abrogated by our later, en banc decision in Hernadez-Cordero. See Phomsavanh v. INS,
No. 94-40208, 1994 U.S. App. LEXIS 43366, at *5 n.1 (“Whatever tension may have
existed in [Ramos and Sanchez], it has been abrogated by our en banc decision in Hernandez-
Cordero.”).
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aggregate hardship to the respondent and his children that would be caused
by his removal to Mexico and concluded his burden had not been met.” At
each turn, the IJ demonstrated she was considering two different hardship
standards, one stricter than the other, and that Garcia-Avila had failed to
satisfy either. Given this record, it was not an abuse of discretion for the BIA
to find that “any consideration” had been given to Garcia-Avila’s case.
It is of course true that “[c]ommon sense as well as the weight of
authority requires that we determine whether the BIA [or IJ] applied the
correct legal standard, not simply whether it stated the correct legal
standard.” De Rodriguez v. Holder, 585 F.3d 227, 235 (5th Cir. 2009) (quoting
Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008)). Citing to that
simple truth, Garcia-Avila then makes much of the fact that the IJ only
referred to Garcia-Avila’s children, and not additionally to Garcia-Avila
himself, when deciding that the VAWA hardship standard had not been
satisfied. But that argument ignores the procedural realities of this case,
which we again note are strikingly atypical. Garcia-Avila heard the IJ’s
decision on his case, including her determination that he had not
demonstrated sufficient hardship for either form of relief sought. He had, and
was reminded that he had, “every right to appeal [his] case.” He then chose
not to. We agree with the BIA that, once Garcia-Avila decided to waive that
right to appeal, the IJ quite “reasonably believed that [Garcia-Avila] was
satisfied with her explanations.”
In light of that fact, we also fully understand why the IJ could have
reasonably thought that there was no reason to provide a more fulsome
recitation of her reasoning for the record. After all, the formal process of
drafting an opinion exists at least in part “to enable a reviewing court to
perceive that [the initial court] has heard and thought and not merely
reacted,” Hernandez-Cordero, 819 F.2d at 563 (quoting Osuchukwu v. INS,
744 F.2d 1136, 1142–43 (5th Cir. 1984)), as well to provide the litigants of a
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case reasoned explanations so that, when they leave the courthouse, they feel
that they have truly had their day in court. If an IJ reasonably expects that
there is not going to be an appeal of her decision because the right to that
appeal has been waived, the first rationale requires no further explanation of
the decision. And when a person has waived his right to an appeal, he
similarly represents that he is satisfied with the decision, reasoning and all.
In those situations, requiring more would be superfluous. Cf. In re San Juan
Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993) (noting that a
court should “hesitate to wax longiloquent simply to hear its own words
resonate”).
Given all of that, Garcia-Avila’s contention ultimately boils down to
the IJ saying “I don’t find that there is extreme hardship to the children”
instead of something like “I don’t find that there is extreme hardship to the
children and the respondent.” We agree with the BIA that such a
distinction—which ultimately resembles a mere slip of the tongue that,
should Garcia-Avila have desired, could have been rectified in the formal
decision the IJ spent the better part of an hour preparing while Garcia-Avila
decided whether to appeal—does not require reconsideration of Garcia-
Avila’s case.
IV.
For the foregoing reasons, the petition for review is DENIED.
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