Estrada-Gutierrez v. U.S. Attorney Gen.
| Docket Number | 23-10150 |
| Decision Date | 30 May 2024 |
| Parties | JOSE BHANERJES ESTRADA-GUTIERREZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A094-408-817 Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
Jose Estrada-Gutierrez petitions for review of the Board of Immigration Appeals' ("BIA") final order (1) dismissing his appeal of the Immigration Judge's ("IJ") denial of his application for cancellation of removal pursuant to Immigration and Nationality Act ("INA") § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), and (2) denying his motion to remand. The BIA assumed Estrada-Gutierrez was statutorily eligible for cancellation of removal and concluded, as a matter of discretion, that cancellation was not warranted in his case. The BIA denied Estrada-Gutierrez's motion to remand because his new evidence would not change its discretionary decision to deny relief.
In his petition for review, Estrada-Gutierrez raises four claims three challenging the discretionary denial of cancellation of removal and one challenging the denial of his motion to remand. The government filed a motion to dismiss Estrada-Gutierrez's petition for lack of jurisdiction under INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). After careful review, we grant the government's motion as to one of Estrada-Gutierrez's claims but deny the motion as to his three other claims.
In April 1996, Estrada-Gutierrez, a citizen of El Salvador, illegally entered the United States through Laredo, Texas without being admitted or paroled.
In May 2015, the Department of Homeland Security served Estrada-Gutierrez with a Notice to Appear charging him with being removable (1) under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(a)(i), as an alien present in the United States without being admitted or paroled, and (2) under § 1182(a)(7)(A)(i)(I), as an immigrant who, at the time of his application for admission, did not have a valid entry document. At a May 2015 hearing, an IJ sustained both grounds for removability.
In May 2015, Estrada-Gutierrez filed an application for cancellation of removal and adjustment of status pursuant to 8 U.S.C. § 1229b(b)(1). Estrada-Gutierrez claimed that his removal would result in exceptional and unusual hardship to his two minor children who are U.S. citizens. Estrada-Gutierrez's application indicated he was married, his children would not accompany him if he was removed because El Salvador was too dangerous, and he had no life to give them there. Estrada-Gutierrez admitted to his arrests for driving under the influence ("DUI") in 2007 and 2008.
In later filings, Estrada-Gutierrez stated that he and his wife were divorced, he was paying his ex-wife child support, and he and another woman, Nancy Vega, had a child together who was a U.S. citizen. Estrada-Gutierrez's records showed his two Florida DUI convictions.
In October 2017, Estrada-Gutierrez testified at a merits hearing on his application for cancellation of removal. In April 2019, an IJ issued a decision denying Estrada-Gutierrez's application and ordered his removal to El Salvador. The IJ found Estrada-Gutierrez's testimony, though "not without issues," was credible and concluded that he was statutorily ineligible for relief because he had not shown that his children would face exceptional or extremely unusual hardship if he was removed.
Alternatively, even if Estrada-Gutierrez demonstrated the requisite hardship for statutory eligibility, the IJ, as an exercise of discretion, would deny cancellation relief. The IJ noted positive factors that weighed in Estrada-Gutierrez's favor, including his long residence in the United States, consistent work history, previous receipt of temporary protective status, and consistent child support payments. But the IJ concluded they were outweighed by negative factors, including that Estrada-Gutierrez entered the United States without inspection and had two DUI convictions, which showed a continuous disrespect for the country's laws.
In September 2021, Estrada-Gutierrez appealed to the BIA, arguing the IJ incorrectly determined he did not meet the hardship criteria, despite finding him credible, and that he was entitled to cancellation as an exercise of discretion because the IJ placed improper weight on his unlawful entry and DUI convictions.
In 2022, Estrada-Gutierrez also filed motion to remand with the BIA. Estrada-Gutierrez asked for a new hearing because Vega had suffered a stroke, was partially paralyzed, and was unable to care for their child on her own. He asserted that Vega, a citizen of Honduras, did not have legal status in the United States, and her removal would separate their family and put their child in danger. Estrada-Gutierrez argued this new evidence went "directly to the issue of whether" he could satisfy the hardship requirement and to the exercise of discretion.
In January 2023, the BIA dismissed Estrada-Gutierrez's appeal and denied his motion to remand. As to cancellation of removal under § 1229b(b)(1), the BIA expressly stated it did "not reach [Estrada-Gutierrez's] appellate arguments about his statutory eligibility." Instead, the BIA affirmed the IJ's alternative denial of cancellation relief as an exercise of discretion.
Citing Matter of Sotelo-Sotelo, 23 I. &N. Dec. 201, 204 (BIA 2001) (en banc), Matter of C-V-T-, 22 I. &N. Dec. 7, 11 (BIA 1998), and Matter of Marin, 16 I. &N. Dec. 581, 584-85 (BIA 1978), abrogated in part by Matter of Edwards, 20 I. &N. Dec. 191 (BIA 1990), the BIA recognized that both favorable and adverse factors must be weighed in determining whether an applicant adequately demonstrated that he warranted a favorable exercise of discretion.
The BIA also outlined the favorable and adverse factors as articulated in Matter of C-V-T-. The BIA explained that the IJ "properly" named many factors that weighed in Estrada-Gutierrez's favor but concluded that his two DUI convictions weighed against him. Although the dates of those convictions were outside the ten-year period to affect a finding of good moral character, they "remain[ed] a severe negative discretionary factor."
The BIA stressed that Congress allots only 4,000 possible awards of cancellations of removal each year. Citing Matter of Castillo-Perez, 27 I. &N. Dec. 664, 669 (A.G. 2019), the BIA stated that because of this high demand and low supply, IJs should award such relief "only to the most deserving candidates" and must conduct a "careful analysis" when a petitioner with multiple DUIs applies for this discretionary relief. (Quotation marks omitted.) The BIA acknowledged that all applicants for § 1229b(b)(1) cancellation would "have some negative immigration history," but reasoned that it would be "incongruous to ignore [Estrada-Gutierrez's] immigration history" and stated that his illegal entry into the United States without inspection was a negative factor in the analysis. Accordingly, the BIA determined, after careful consideration, that Estrada-Gutierrez's negative factors outweighed his positive factors, and thus, "a grant of cancellation of removal [was] not in the best interests of the United States."
As to Estrada-Gutierrez's motion to remand, the BIA outlined Estrada-Gutierrez's new evidence about Vega's medical condition, noting she was not a qualifying relative. While sympathetic to Estrada-Gutierrez's family, the BIA determined that "this development does not likely change our discretionary analysis." The BIA assumed Estrada-Gutierrez's new evidence demonstrated exceptional and extremely unusual hardship, but concluded he still would be denied relief as a matter of discretion. The BIA reinforced that "[e]ven if the aggregate hardship ha[d] increased in [his] case," Estrada-Gutierrez's "criminal record and other negative factors . . . continue[d] to outweigh the positive factors." The BIA emphasized that due to the nature of his multiple DUI convictions, Estrada-Gutierrez was not deserving of discretionary relief.
We review only the decision of the BIA, except to the extent that the BIA expressly adopts or explicitly agrees with the IJ's opinion. Ayala v. U.S. Att'y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We do not reach issues not considered by the BIA. Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
We review our own subject matter jurisdiction and any legal issues de novo. Jeune v. U.S. Att'y Gen., 810 F.3d 792, 799 (11th Cir. 2016). We review the BIA's denial of a motion to reopen for an abuse of discretion. Dacostagomez-Aguilar v. U.S. Att'y Gen., 40 F.4th 1312, 1315 (11th Cir. 2022), cert. dismissed, 143 S.Ct. 1102 (2023). When reviewing for an abuse of discretion, we will determine only whether the BIA exercised its discretion arbitrarily or capriciously. Ferreira v. U.S. Att'y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). "A mistake of law is, by definition, an abuse of discretion." Obasohan v. U.S. Att'y Gen., 479 F.3d 785, 788 (11th Cir. 2007) (quotation marks and brackets omitted), overruled on other grounds by Nijhawan v. Holder, 557 U.S. 29 (2009).
Estrada-Gutierrez applied for cancellation of removal under 8 U.S.C. § 1229b(b). Under § 1229b(b), the Attorney General has discretion to cancel removal if the alien applicant establishes that he: (1) has been physically present in the United States "for a continuous period of not less than 10 years immediately preceding the...
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