Galeano-Romero v. Barr
| Decision Date | 04 August 2020 |
| Docket Number | No. 19-9585,19-9585 |
| Citation | 968 F.3d 1176 |
| Parties | Reniery Adalberto GALEANO-ROMERO, a/k/a Reniery Galeano-Romero, a/k/a Reniery Adalberto Galeano Romero, Petitioner, v. William P. BARR, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the briefs:* Alison Berry of the Law Office of Alison Berry, Esq., White Plains, New York, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; John S. Hogan, Assistant Director, and Rebecca Hoffberg Phillips, Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for Respondent.
Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
Reniery Adalberto Galeano-Romero seeks review of a Board of Immigration Appeals decision that denied both his application for cancellation of removal under 8 U.S.C. § 1229b(b)(1) and his motion to remand and reopen his case to raise a Convention Against Torture (CAT) claim. The Board acknowledged that his removal would result in hardship to his citizen spouse but concluded that the hardship would not be "exceptional and extremely unusual," leaving him ineligible for cancellation of removal. § 1229b(b)(1)(D). And the Board denied his motion to remand to present his CAT claim to an Immigration Judge (IJ), after noting that Galeano-Romero had referenced no previously unavailable and material evidence, a prerequisite to any such motion to reopen. 8 C.F.R. § 1003.2(c)(1). This timely petition for review followed, in which Galeano-Romero challenges both decisions.
We lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B) to consider his challenge to the Board's discretionary hardship decision, so we dismiss this portion of his petition for lack of jurisdiction.1 Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the portion of his petition pertaining to his motion to remand.
Since March 2001, when he arrived as a seven-year-old child from Honduras, Galeano-Romero has unlawfully resided in the United States.2 On November 22, 2016, after he was arrested and indicted in Texas for assault with a deadly weapon, the Department of Homeland Security served him with a notice to appear and took him into custody. On April 19, 2017, Galeano-Romero appeared with counsel before an IJ and conceded removability based on his unlawful presence in the country.3 He then informed the IJ that he intended to seek cancellation of removal under § 1229b(b)(1). But his eligibility for relief under this provision depended in part on the outcome of his pending criminal case. See § 1229b(b)(1)(C) (). So, with the government's consent, the IJ paused the removal proceedings to await the result of the state criminal case. On May 30, 2017, federal authorities turned over Galeano-Romero to Texas authorities for his criminal trial, and on June 7, 2017, the agency administratively closed the removal proceedings. Over a year later, on December 7, 2018, a Texas jury acquitted him of the criminal charge.
On January 8, 2019, the IJ re-calendared Galeano-Romero's removal proceedings. At a January 16, 2019 hearing, Galeano-Romero informed the IJ that his wife would be filing a "Form I–130"—a method by which an alien's relative petitions to change the alien's legal status—based on his 2017 marriage to long-term girlfriend, Amanda Martinez, an American citizen. R. at 674–75. But the IJ cut this short, advising that she lacked authority to adjust the status of an alien unlawfully present in the United States.4 So, with this path closed, Galeano-Romero renewed his request for "cancellation of removal[.]" R. at 677. On April 3, 2019, he filed an application for cancellation of removal, which the IJ considered during an April 18, 2019 hearing.
An IJ may cancel an alien's removal and grant lawful status if, in addition to three other requirements,5 the alien demonstrates "that removal would result in exceptional and extremely unusual hardship to the alien's [U.S. citizen] spouse[.]" 8 U.S.C. § 1229b(b)(1)(D). As evidence in support of this needed hardship, Galeano-Romero offered testimony from himself, his wife, and his mother-in-law. The testimony highlighted his wife's clinical depression, which coincided with his arrest and lengthy detention. Based on this testimony, and other evidence presented, the IJ agreed that Galeano-Romero's wife would suffer hardship from his removal but concluded that the hardship would not be "exceptional and extremely unusual[.]" R. at 538.
Galeano-Romero appealed this decision to the Board. And while the appeal was pending, he also filed with the Board a "Motion to Reopen and Remand Case to [the IJ] to Consider Respondent's Application for Withholding of Removal Under the United Nations Convention Against Torture." R. at 22 (). Responding to the first argument, the Board (in a single-member decision that applied de novo review) affirmed the IJ's conclusion that his spouse's hardship would not be "exceptional and extremely unusual." It concluded that while his spouse "will suffer some hardship upon her husband's removal to Honduras, such hardship is unfortunately a common occurrence when an alien is removed." R. at 4. And because "an applicant for cancellation of removal ... must demonstrate hardship to ... qualifying relatives that is ‘substantially different from, or beyond, that which would normally be expected’ from the removal of a close family member," Galeano-Romero had not shown the requisite hardship to his spouse. Id. (quoting Andazola-Rivas , 23 I. & N. Dec. 319, 321 (B.I.A. 2002) (en banc)). As for the second argument, the Board denied his motion to remand on the CAT issue for three independent reasons: (1) waiver, (2) failure to satisfy regulatory prerequisites for a motion to remand, and (3) failure to establish a prima facie case for relief under CAT.
We begin by determining "whether we have jurisdiction to review the issues raised by petitioner in his petition." Arambula-Medina v. Holder , 572 F.3d 824, 827–28 (10th Cir. 2009) (citation omitted). With the Immigration and Nationality Act (INA), Congress has decided that "no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b[.]" 8 U.S.C. § 1252(a)(2)(B)(i). Our court reads this provision as denying jurisdiction to review "the discretionary aspects of a decision concerning cancellation of removal" under § 1229b(b)(1). Arambula-Medina , 572 F.3d at 828 (citing Sabido Valdivia v. Gonzales , 423 F.3d 1144, 1148–49 (10th Cir. 2005) ). Such "discretionary aspects" include "any underlying factual determinations" as well as "the determination of whether the petitioner's removal from the United States ‘would result in exceptional and extremely unusual hardship’ to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D)." Id. (citation omitted); see also Alzainati v. Holder , 568 F.3d 844, 850 (10th Cir. 2009) ().
In the same section of the INA, Congress has enacted a "Limited Review Provision[.]" Guerrero-Lasprilla v. Barr , ––– U.S. ––––, 140 S. Ct. 1062, 1067, 206 L.Ed.2d 271 (2020) (discussing 8 U.S.C. § 1252(a)(2)(D) ). This provision provides courts jurisdiction to review "constitutional claims" and "questions of law," including those that arise in the circumstances specified at § 1229b(b)(1). See § 1252(a)(2)(D) ; § 1252(a)(2)(B)(i) (); Arambula-Medina , 572 F.3d at 828. So, because this appeal concerns the Board's denial of Galeano-Romero's application for cancellation of removal under § 1229b(b)(1), we lack jurisdiction unless Galeano-Romero's petition for review raises a question of law or a constitutional claim. He attempts to raise both. First, he attempts to raise a question of law under § 1252(a)(2)(D) by asserting that the Board misapplied its own precedent regarding what qualifies as "exceptional and extremely unusual hardship." Second, he attempts to raise a constitutional issue by contending that he was "denied a fundamentally fair deportation proceeding under the Due Process Clause of the Fifth Amendment[.]" Br. for Pet'r at 19 (emphasis removed). We consider each in turn.
A petitioner can raise a "question[ ] of law" under § 1252(a)(2)(D) in two ways: (1) by advancing a statutory-construction argument, Shepherd v. Holder , 678 F.3d 1171, 1179 (10th Cir. 2012), or (2) by disputing "the application of a legal standard to undisputed or established facts,"6 Guerrero-Lasprilla , 140 S. Ct. at 1068–69. Here, Galeano-Romero relies on the second method to invoke our jurisdiction.7 He argues that, after Guerrero-Lasprilla , his challenge to "the Board's misapplication of the legal standard [for exceptional and extremely unusual hardship] to the settled facts of this case" gives rise to a question of law under § 1252(a)(2)(D), overcoming § 1252(a)(2)(B) ’s jurisdictional bar. Suppl. Br. for Pet'r at 6 (). We disagree.
A petition for review does not raise a question of law by disputing the Board's appraisal of the degree of hardship likely to his wife.8 We lack jurisdiction to review the Board's discretionary decision, based on the facts of the case, whether an alien's spouse will suffer an exceptional and extremely unusual hardship. See, e.g. , Arambula-Medina , 572 F.3d at 828 (...
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...condition or whether it has significantly departed from its own standards are reviewable legal questions. Galeano-Romero v. Barr , 968 F.3d 1176, 1181–84 (10th Cir. 2020).6 Although we find facial merit in the Fourth and Sixth Circuit decisions, see Nepamuceno , 856 F. App'x at 643–44 ("As ......
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