Jose Esparza-Espino v. William Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0546n.06
No. 19-4203
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 22, 2020
JOSE ALFREDO ESPARZA-ESPINO, )
DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: McKEAGUE, GRIFFIN, and BUSH, Circuit Judges.
PER CURIAM. Jose Alfredo Esparza-Espino petitions this court for review of an order of
the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings.
As set forth below, we DENY the petition for review.
Esparza-Espino, a native and citizen of Mexico, first entered the United States without
inspection in 1999. On May 25, 2012, the Department of Homeland Security (DHS) served
Esparza-Espino with a notice to appear in removal proceedings, charging him with removability
as an alien present in the United States without being admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). The immigration court sent Esparza-Espino a hearing notice on June 13, 2012.
Appearing before an immigration judge (IJ), Esparza-Espino admitted the factual allegations set
forth in the notice to appear and conceded removability as charged.
Esparza-Espino then filed an application for cancellation of removal, asserting that his
removal would result in exceptional and extremely unusual hardship to his United States citizen
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child. See 8 U.S.C. § 1229b(b)(1). At the hearing on his application, the DHS disputed only one
of the requirements for cancellation of removal: Esparza-Espino’s physical presence in the United
States for a continuous period of not less than ten years. See id. § 1229b(b)(1)(A). Esparza-Espino
testified that he went to Mexico in December 2005 and again in January 2007 but could not recall
specifically how long he stayed in Mexico or when he returned to the United States. Denying
Esparza-Espino’s application, the IJ concluded that he had failed to prove that either departure
from the United States was for ninety days or less. See id. § 1229b(d)(2). The BIA dismissed
Esparza-Espino’s appeal, agreeing with the IJ that he had failed to meet his burden to establish ten
years of continuous physical presence in the United States and in particular had failed to meet his
burden to show that his departures from the United States lasted ninety days or less. This court
dismissed Esparza-Espino’s subsequent petition for review for want of prosecution. Esparza-
Espino v. Sessions, No. 17-3606 (6th Cir. Jan. 16, 2018) (order).
Well over a year after the final administrative order of removal, Esparza-Espino filed a
motion with the BIA to reopen his removal proceedings. Esparza-Espino sought termination of
the proceedings for lack of jurisdiction based on the Supreme Court’s decision in Pereira v.
Sessions, 138 S. Ct. 2105 (2018), asserting that the notice to appear issued to him did not include
the date and time of his initial hearing. If the BIA did not terminate the proceedings, Esparza-
Espino argued, his application for cancellation of removal should be approved because the putative
notice to appear did not trigger the “stop-time rule” ending the period of continuous physical
presence, see 8 U.S.C. § 1229b(d)(1)(A), and he had not left the United States for the last ten years.
In the alternative, Esparza-Espino asserted that he had previously unavailable, material evidence
to prove that his departures from the United States did not exceed ninety days. Citing the change
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in law established by Pereira, Esparza-Espino sought equitable tolling of the deadline for filing
his motion to reopen and made an alternative request for sua sponte reopening of the proceedings.
The BIA denied Esparza-Espino’s motion to reopen. Assuming without deciding that
equitable tolling applied, the BIA concluded that Esparza-Espino’s period of continuous physical
presence did not end on May 25, 2012, when the DHS served him with the notice to appear, but
ended on June 13, 2012, when the immigration court served him with the notice of hearing
containing the date and time of his initial hearing. See Matter of Mendoza-Hernandez, 27 I. & N.
Dec. 520 (B.I.A. 2019) (en banc). The BIA observed that Esparza-Espino did not “cogently argue”
that this different date would change the outcome of his case. The BIA went on to determine that
Esparza-Espino’s new evidence failed to show that his December 2005 departure was for a period
of ninety days or less and that he therefore would not be eligible for cancellation of removal in
reopened proceedings. Finally, the BIA found that Esparza-Espino had failed to establish
exceptional circumstances to warrant sua sponte reopening of the proceedings.
This timely petition for review followed. We review the BIA’s denial of a motion to reopen
removal proceedings for abuse of discretion. Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir.
2018). The BIA “abuses its discretion only when its determination was made ‘without a rational
explanation, inexplicably departed from established policies, or rested on an impermissible basis
such as invidious discrimination against a particular race or group.’” Santos-Santos v. Barr,
917 F.3d 486, 489 (6th Cir. 2019) (quoting Camaj v. Holder, 625 F.3d 988, 991 (6th Cir. 2010)).
In support of his petition for review, Esparza-Espino argues that his new evidence
established his eligibility for cancellation of removal—that is, his ten years of continuous physical
presence in the United States. To be eligible for cancellation of removal, an alien must show,
among other requirements, that the alien “has been physically present in the United States for a
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continuous period of not less than 10 years immediately preceding the date of [the alien’s]
application.” 8 U.S.C. § 1229b(b)(1)(A). “An alien shall be considered to have failed to maintain
continuous physical presence in the United States . . . if the alien has departed from the United
States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.”
Id. § 1229b(d)(2). We review the factual determination that an alien has failed to demonstrate the
ten years of continuous physical presence for substantial evidence, reversing only if “the evidence
not only supports a contrary conclusion, but indeed compels it.” Santana-Albarran v. Ashcroft,
393 F.3d 699, 705 (6th Cir. 2005) (quoting Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992));
see 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary . . . .”).
In denying Esparza-Espino’s motion to reopen, the BIA concluded that his new evidence
failed to establish that his departure from the United States in December 2005 was for a period of
ninety days or less and that he therefore would not be eligible for cancellation of removal in
reopened proceedings. At the hearing on his application for cancellation of removal, Esparza-
Espino testified that he left the United States in December 2005 to spend Christmas with his family
in Mexico. Esparza-Espino testified that he returned to the United States in 2006 but could not
recall the month. In support of his motion to reopen, Esparza-Espino presented his daughter’s
foreign tourist form showing entry into Mexico on December 2, 2005, and his earnings statement
from Kralis Brothers Foods listing a hire date of April 1, 2006. Esparza-Espino also submitted his
own affidavit stating that he did not remember the specific date but that he returned to the United
States by the end of February 2006. According to a psychological assessment submitted by
Esparza-Espino, he told the psychologist that he returned to the United States a few weeks before
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his wife and daughter and recalled returning in late February 2006, “as approximately a month
passed before he found and began his new employment at Kralis Brothers.”
The record does not compel the conclusion that Esparza-Espino established that his
departure from the United States in December 2005 was for a period of ninety days or less. The
foreign tourist form substantiated a departure date of December 2, 2005. The first corroborative
evidence of Esparza-Espino’s presence in the United States following that departure date was the
earnings statement listing his hire date as April 1, 2006. This substantial record evidence
demonstrated a departure period in excess of ninety days. Esparza-Espino’s vague assertions that
he returned by the end of February 2006, without any corroboration of his presence in the United
States until April 1, 2006, are “insufficient to command reversal.” Gomez v. Sessions, 731 F.
App’x 501, 505 (6th Cir. 2018).
To the extent that Esparza-Espino challenges the BIA’s denial of his request to reopen his
removal proceedings sua sponte, we lack jurisdiction to review that decision. “[T]he BIA’s
exercise of its sua sponte authority ‘is committed to its unfettered discretion and therefore is not
subject to judicial review.’” Rais v. Holder, 768 F.3d 453, 463 (6th Cir. 2014) (quoting Barry v.
Mukasey, 524 F.3d 721, 723 (6th Cir. 2008)) (cleaned up).
Esparza-Espino has failed to demonstrate that the BIA abused its discretion in denying his
motion to reopen. Accordingly, we DENY Esparza-Espino’s petition for review.
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