Garcia-Avila v. Garland

Decision Date16 May 2022
Docket Number20-60406
PartiesLeonel Garcia-Avila, Petitioner, v. Merrick Garland, U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A216 585 072

Before King, Jones, and Duncan, Circuit Judges.


Leonel Garcia-Avila filed a motion to reopen and reconsider in relation to his immigration proceedings and the Immigration Judge's decision to deny Garcia-Avila cancellation of removal under either 8 U.S.C. § 1229b(b)(1) or § 1229b(b)(2). The Immigration Judge denied Garcia-Avila's motion, and the Board of Immigration Appeals affirmed that decision. He now challenges those decisions here through a petition for review. For the following reasons, the petition for review is DENIED.


Leonel Garcia-Avila is a native and citizen of Mexico who entered the United States in 2002 without having been admitted or paroled. He is married to a United States citizen with whom he has three children who are also United States citizens. In October 2018, Garcia-Avila pleaded no contest to a Class B misdemeanor for driving while intoxicated and was placed on probation for one year.

In November 2018, the district attorney's office moved to revoke Garcia-Avila's probation based on allegations that he had violated his probation by: (1) using cocaine, (2) registering a 0.018 blood alcohol level on the Smart Start Mobile Device that had been placed in his vehicle, and (3) failing to complete or register for various treatment programs, community service requirements, and panels. At his probation revocation hearing, Garcia-Avila admitted to some of the charged violations, his probation was revoked, and he was sentenced to six months in jail.

In April 2019, Garcia-Avila was served with a Notice to Appear at removal proceedings by the Department of Homeland Security and was charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing before the Immigration Judge ("IJ"), Garcia-Avila conceded removability and sought cancellation of removal on two grounds: cancellation of removal for certain non-permanent residents under 8 U.S.C § 1229b(b)(1) ("NPR cancellation")[1] and special cancellation of removal for battered spouses under the Violence Against Women Act (VAWA) as codified at 8 U.S.C. § 1229b(b)(2) ("VAWA cancellation").[2]

At the hearing, Garcia-Avila testified that he had three United States citizen children and a United States citizen wife who had abused him on two occasions in the past but was no longer abusive. He additionally testified to the hardship that he had faced in his past as well as the hardship both he and his family would suffer should he be returned to Mexico. Regarding his family, he testified that (1) his children would face emotional hardship if he was not around for them in the United States, (2) that his entire family would face financial hardship as he was the primary breadwinner and neither his wife nor elderly in-laws were able to earn enough money to support the family, and (3) that his wife and children would be unable to join him in Mexico due to issues with permits and fears about crime. Specifically as to himself, Garcia-Avila testified about the hardship he had faced during a difficult childhood before he left for the United States at age 17 (including being left by his parents and living with his abusive uncles) and the hardship he would face in the future should he be returned to Mexico, where he has little to no family ties. Garcia-Avila also presented several exhibits, including counselor's evaluations, letters, and drawings, supporting the hardship he and his family would face. During Garcia-Avila's testimony regarding his hardship, the IJ laid out the two differing hardship standards for NPR and VAWA cancellation, both in terms of the level of hardship required and the necessary affected individuals, and highlighted each as part of the "disputed issues" in the case.

In addition to testimony about hardship, Garcia-Avila testified about his DWI conviction and probation revocation; this testimony included an explanation that while he had tested positive for cocaine, that test resulted from taking two pain pills of which he did not know the type and for which he did not have a prescription.

At the conclusion of the hearing, the IJ stated that she would deny Garcia-Avila's applications for NPR cancellation and VAWA cancellation. She first addressed the good moral character prong, stating that "the court [could not] ignore the recency of [Garcia-Avila's] DWI conviction" and that his violations of the terms of his probation that led to revocation (including his explanation for the positive cocaine test that the IJ did not find credible) weighed against granting cancellation of removal. The IJ then stated: "Additionally, I don't find that there is extreme hardship to the children, and I don't find that there's exceptional and extremely unusual hardship to the spouse or the children in regards to special cancellation and regular cancellation of removal."

Once she had announced her decision, the IJ stated that she would "take about 45 minutes to write an oral decision that [she would] come back and dictate on the record . . . if [Garcia-Avila's] attorney decide[d] to appeal"; Garcia-Avila then requested voluntary departure. After a recess, the IJ granted Garcia-Avila voluntary departure, and he subsequently waived his right to appeal the IJ's ruling. Because the IJ granted voluntary departure and Garcia-Avila waived his right to appeal, she did not issue her proffered oral decision.

After Garcia-Avila departed from the United States, he filed a motion to reopen and reconsider the IJ's decision. The motion to reopen was based on new evidence related to his probation revocation. Specifically, Garcia-Avila pointed to a decision from the Texas Court of Appeals, Jacobs v. Texas, 594 S.W.3d 377, 382 (Tex. App.-San Antonio 2019, no pet.), which overturned the probation revocation of a different defendant after finding due process violations occurred during the hearing, which was conducted by the same judge who revoked Garcia-Avila's probation. Garcia-Avila additionally supported his motion with an article in the San Antonio Express-News detailing other instances where that judge revoked probation without sufficient evidence or due process during the hearing, as well as a letter from the Bexar County District Attorney's Office stating that it would have opposed revocation of Garcia-Avila's probation should the prosecutor have been able to sufficiently participate in the hearing.[3] In his motion, Garcia-Avila also requested that the IJ reconsider her decision, arguing that the IJ conflated the two different hardship standards for NPR cancellation and VAWA cancellation and did not fully consider the aggregate hardship to both Garcia-Avila's children and himself as required when considering VAWA cancellation.

The IJ denied Garcia-Avila's motion. She first declined to reopen the proceedings based on the new evidence, stating that while the evidence demonstrated that Garcia-Avila's "probation may have been wrongfully revoked," that did "not exonerate [him] from the alleged actions that lead [sic] to the revocation of his probation." The IJ also stated that "[i]n announcing its decision, the court primarily noted that it was unable to ignore the recency and serious nature of the respondent's driving while intoxicated conviction," which was unrelated to the later revocation of Garcia-Avila's probation. The IJ then declined to reconsider Garcia-Avila's case, noting that the IJ "explicitly stated on the record that even when considering the hardship to all of [Garcia-Avila's] children, [she] could not find extreme hardship." The IJ also stated that she had "made explicitly clear" that she "was using the VAWA hardship standard" and that the IJ had "duly considered the aggregate hardship to the respondent and his children . . . and concluded [Garcia-Avila's] burden had not been met."

The BIA affirmed the IJ's decision, basing its decision solely on the rationale given by the IJ for denying the motion to reconsider. The BIA stated that it "agree[d] that the [IJ] considered the hardship in the aggregate, under the proper standard for each application of relief" and noted that the IJ "cited the correct standards" for each form of relief considered. The BIA specifically found that Garcia-Avila "was given the opportunity to detail the hardship to his family" and that the IJ "explained the reasons for her denial to the respondent" after which Garcia-Avila waived his appeal. Therefore, the IJ "reasonably believed that the respondent was satisfied with her explanations, and did not issue a formal oral or written decision" and Garcia-Avila subsequently could point only to "the lack of detailed findings" to support his arguments and was unable to "point to any evidence that the [IJ] did not consider." Because the BIA affirmed on these grounds, it stated that it "need not reach the discretionary determination" of Garcia-Avila's cancellation of removal nor decide whether the new evidence related to his probation revocation could have changed that determination. Garcia-Avila timely filed a petition for review.


As an initial matter, we address our jurisdiction to consider this case. The landscape surrounding our jurisdiction over certain BIA decisions has recently been thrown into a state of flux by the Supreme Court's holding in Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020). Before that decision, we had consistently held that the jurisdictional bar found in 8 U.S.C. § 1252(a)(2)(B)(i), which strips federal courts of jurisdiction to review "any judgment regarding the granting of relief under ...

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