Ignacio Trejo-Gamez v. Merrick B. Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3329
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Ignacio Trejo-Gamez
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 14, 2023
Filed: August 30, 2023
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
The BIA denied Ignacio Trejo-Gamez’s request for cancellation of removal
based on the failure to show “exceptional and extremely unusual hardship” to his
United States-citizen children. See 8 U.S.C. § 1229b(b)(1)(D). The BIA granted
voluntary departure to Mexico. Trejo-Gamez then discovered evidence of sub-
standard attorney performance by his attorney before the IJ and filed a timely motion
to reopen alleging ineffective assistance of counsel. Trejo-Gamez also submitted
evidence obtained between the final order and the motion to reopen asserting that
two of his children suffered from emotional- and mental-health issues that could not
be adequately addressed in Mexico.
The BIA denied the motion to reopen, holding that even if counsel had been
unprepared before the IJ, different counsel represented Trejo-Gamez in the initial
appeal to the BIA. The BIA also held Trejo-Gamez failed to show prejudice
concerning the claim of ineffective assistance. Finally, the BIA addressed the newly
submitted evidence of mental- and emotional-health issues as to two of the children.
The BIA held Trejo-Gamez failed to demonstrate the new evidence would alter the
prior conclusion that exceptional and extremely unusual hardship was lacking.
Relying on Patel v. Garland, 142 S. Ct. 1614 (2022), the government argues
we lack jurisdiction to review the BIA’s denial of the motion to reopen following
the underlying denial of cancellation of removal. We rejected a similar argument in
Llanas-Trejo v. Garland, holding review of such motions survives and a deferential
abuse-of-discretion standard applies. 53 F.4th 458, 461–62 (8th Cir. 2022)
(addressing the application of Patel and holding, “Although 8 U.S.C.
§ 1252(a)(2)(B)(i) limits our jurisdiction to review the Attorney General’s exercise
of his statutory discretion to grant cancellation of removal, the Supreme Court has
confirmed that this statute did not remove the long-exercised judicial authority to
review the BIA’s denial of an alien=s motion to reopen under a deferential abuse of
discretion standard.” (quoting Urrutia Robles v. Barr, 940 F.3d 420, 423 (8th Cir.
2019))).
We find no abuse of discretion. “[T]he BIA abuses its discretion . . . only
when its decision is without rational explanation, departs from established policies,
invidiously discriminates against a particular race or group, or where the agency fails
to consider all factors presented by the alien or distorts important aspects of the
claim.” Rodriguez v. Barr, 952 F.3d 984, 991 (8th Cir. 2020) (citation omitted).
Here, considering all of the evidence presented, the BIA rationally determined that
the addition of the later-submitted evidence of emotional- and mental-health issues
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failed to establish exceptional and extremely unusual hardship. The evidence
demonstrated neither that the health issues were severe nor that treatment would be
unavailable in Mexico. The BIA also rationally determined there had been no
showing of prejudice associated with the claim of attorney ineffectiveness. On
appeal, Trejo-Gamez failed to articulate how initial counsel’s failures affected the
outcome below.
Finding no abuse of discretion, we affirm the judgment of the BIA.
COLLOTON, Circuit Judge, concurring.
I concur based on binding circuit precedent of Llanas-Trejo v. Garland, 53
F.4th 458 (8th Cir. 2022), but the court’s assertion of jurisdiction is doubtful. In
Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court addressed the effect of
a jurisdictional provision, 8 U.S.C. § 1252(a)(2)(B)(ii), that was not at issue in
Llanas-Trejo or in this case. The Court in Kucana also specifically declined to
“reach the question whether review of a reopening denial would be precluded if the
court would lack jurisdiction over the alien’s underlying claim for relief.” Id. at 250
n.17. Llanas-Trejo presented that very question: the petitioner sought to reopen
proceedings on a claim for cancellation of removal over which this court lacks
jurisdiction. Yet Llanas-Trejo treated Kucana as though it controlled the open
question, and asserted jurisdiction to review the denial of the motion to reopen. 53
F.4th at 462 (relying on Kucana). As a result, the law of this circuit contains an
anomaly: an alien who presents his evidence in support of cancellation of removal
through a motion to reopen receives greater judicial review than an alien who
presents his evidence in an original application for cancellation of removal.
This court lacks jurisdiction to review “any judgment regarding the granting
of relief” under the statutory section on cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B)(i). This jurisdiction-stripping provision applies to any authoritative
decision relating to the granting of cancellation of removal. Patel v. Garland, 142
S. Ct. 1614, 1621-22 (2022). Neither Llanas-Trejo nor the opinion in this case
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explains satisfactorily how a decision denying a motion to reopen a proceeding in
which an alien seeks a grant of cancellation of removal is not a judgment regarding
the granting of cancellation of removal. At least two circuits have held that a court
of appeals lacks jurisdiction in this situation. Ochoa v. Garland, 71 F.4th 717, 723-
24 (9th Cir. 2023) (disagreeing with Llanas-Trejo); Perez v. Garland, 67 F.4th 254,
257 (5th Cir. 2023) (“[W]here a final order of removal is shielded from judicial
review, . . ., so, too, is the BIA’s refusal to reopen that order.”) (internal quotation
omitted). In my view, those courts have reached the better conclusion.
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