Domingo-Mendez v. Garland
| Decision Date | 31 August 2022 |
| Docket Number | 21-1029 |
| Parties | JEREMIAS LUCAS DOMINGO-MENDEZ, Petitioner, v. MERRICK B. GARLAND, [*] Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Petition for Review of an Order of the Board of Immigration Appeals
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.
Before Barron, Chief Judge, Lynch and Kayatta, Circuit Judges.
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.
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.
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 could not work as a chef, but after some apparent confusion about the pending question, the following exchange took place:
Finally, this exchange took place:
When Domingo-Mendez's partner, Mazariegos, took the stand, the IJ asked her about the foregoing testimony as follows:
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."
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-, 2 7 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.
In so concluding, the BIA recited some but by no means all of the evidence. In particular, it stated as follows:
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.
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...
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