Domingo-Mendez v. Garland
| Decision Date | 31 August 2022 |
| Docket Number | 21-1029 |
| Citation | 47 F.4th 51 |
| Parties | Jeremias Lucas DOMINGO-MENDEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
47 F.4th 51
Jeremias Lucas DOMINGO-MENDEZ, Petitioner,
v.
Merrick B. GARLAND,* Attorney General, Respondent.
No. 21-1029
United States Court of Appeals, First Circuit.
August 31, 2022
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.
KAYATTA, Circuit Judge.
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.
I.
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:
JUDGE TO [GOVERNMENT COUNSEL] MR. CZUGH
Is the question, if he goes back to Guatemala now, why couldn't he work as a chef?
MR. CZUGH to JUDGE
Correct.
MR. DOMINGO TO MR. CZUGH
Oh, yes. I, I could find work in a restaurant.
JUDGE TO MR. DOMINGO
So, could you find work in a restaurant today in Guatemala?
MR. DOMINGO TO JUDGE
Yes, yes. I think so.
Later, Domingo-Mendez's counsel again steered his testimony towards the subject of work:
MR. GALLO TO MR. DOMINGO...
Mr. Domingo-Mendez, do you know the difference between a chef and a cook?
MR. DOMINGO TO MR. GALLO
Yes.
MR. GALLO TO MR. DOMINGO
Okay. In the United States, are you a chef, or you're a -- or are you a cook?
MR. DOMINGO TO MR. GALLO
A cook.
MR. GALLO TO MR. DOMINGO
Okay. And because you're a cook in the United States, could you then be a chef in Guatemala?
MR. DOMINGO TO MR. GALLO
Perhaps.
MR. GALLO TO MR. DOMINGO
Okay. You said you were planting crops in Guatemala before you came to the United States. Is that correct?
MR. DOMINGO TO MR. GALLO
Yes.
MR. GALLO TO MR. DOMINGO
Do you know whether or not you would be able to support Celia, [and the children], planting crops in Guatemala?
MR. DOMINGO TO MR. GALLO
Yes. Well, I can there in a restaurant.
MR. GALLO TO MR. DOMINGO
Would you make the same amount of money in Guatemala, as you do in the
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