Hernandez-Perez v. Whitaker, 18-3137

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 911 F.3d 305
• Docket Number: No. 18-3137,18-3137
• Parties: Leonel HERNANDEZ-PEREZ, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Decision Date: 14 December 2018

911 F.3d 305

Leonel HERNANDEZ-PEREZ, Petitioner,
v.
Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 18-3137

United States Court of Appeals, Sixth Circuit.

Argued: October 18, 2018
Decided and Filed: December 14, 2018

ARGUED: Christopher M. Kozoll, KOZOLL & ASSOCIATES IMMIGRATION LAW PLLC, Louisville, Kentucky, for Petitioner. Dawn S. Conrad, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Christopher M. Kozoll, KOZOLL & ASSOCIATES IMMIGRATION LAW PLLC, Louisville, Kentucky, for Petitioner. Michael C. Heyse, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GUY, WHITE, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

911 F.3d 309

Leonel Hernandez-Perez originally applied for cancellation of removal based on hardship that his removal would cause his U.S. citizen daughter, L. After that application was denied, he filed a motion to reopen removal proceedings based on hardship to his other U.S. citizen child, a boy named A.W. The BIA denied the motion to reopen for two reasons: (1) Hernandez-Perez had not established that the new evidence was previously unavailable, and (2) even if the evidence was considered, it did not establish prima facie eligibility for cancellation of removal. Because the first conclusion is not supported by the record and the second is not based on application of the appropriate legal standard, we GRANT the petition for review and REMAND to the BIA for further proceedings consistent with this opinion.

I. BACKGROUND

Hernandez-Perez, a Mexican citizen, has lived and worked in the United States since 2000. He and his wife, also a Mexican citizen, have one daughter, L., a 17-year-old U.S. citizen.¹ Hernandez-Perez's record over the 18 years he has lived in this country has not been perfect. The immigration judge who heard his case was "very concerned" about his criminal history, "although most of the offenses are misdemeanor traffic offenses." But the same judge commended Hernandez-Perez for maintaining steady employment and providing for his family despite a handicap to his right hand. Letters submitted to the immigration judge describe Hernandez-Perez as a good neighbor, a hard-working employee, a devoted father, and an active member of his church.

In 2011, Hernandez-Perez was placed in removal proceedings and applied for cancellation of removal. Cancellation of removal is a form of discretionary immigration relief available to a noncitizen who, among other requirements, "establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1)(D). At the merits hearing on his application, held in August 2015, Hernandez-Perez argued that, if he were removed, his daughter, L., would remain in the United States with her mother and so would face "permanent family separation." The immigration judge determined that Hernandez-Perez satisfied the other requirements for cancellation of removal but considered family separation to be "well within the range of ‘normal’ hardship experienced by any citizen [whose] father would be forced to return to Mexico." In November 2016, the immigration judge denied the application.

Hernandez-Perez alleges that his family circumstances changed after that decision was issued. He avers that he has been aware for some time that an eight-year-old U.S. citizen named A.W., whose mother is not his wife, might be his son. A.W. was not mentioned in the original application for cancellation of removal. According to Hernandez-Perez, A.W.'s grandparents—his

911 F.3d 310

legal guardians since 2014—foiled his efforts to build a relationship with the boy. Before his immigration court hearing, they told Hernandez-Perez that their daughter had lied to him about the possibility that A.W. was his child because she wanted money. Both grandparents, but especially A.W.'s grandmother, told Hernandez-Perez that if he pursued a relationship with A.W., "they would call the police and have [him] arrested for trespassing, and perhaps harassment." A.W.'s grandmother "even said that she had a gun, and would shoot [him] if [he] came near [A.W.]" The grandparents "would not consent to a DNA test, and did everything they could to foreclose a relationship between [Hernandez-Perez] and [A.W.]" Hernandez-Perez worried that if he "pushed too hard," they would "forever cut [him] out of [A.W.]'s life completely." But after A.W.'s grandmother died—the record does not reveal precisely when that occurred—all of that changed. In July 2017, A.W.'s grandfather called Hernandez-Perez and told him that A.W.'s mother had been incarcerated since January and that he was seriously ill and "no longer able to provide care for [A.W.]"

One week after that call, the BIA dismissed Hernandez-Perez's appeal from the immigration judge's decision. Hernandez-Perez does not contest that dismissal.

Hernandez-Perez had a DNA test performed about two weeks later, in early August 2017, which confirmed that he is A.W.'s father. He then filed a motion to reopen removal proceedings, this time requesting cancellation of removal because of hardship not to his daughter, L., but to his son, A.W. In the accompanying affidavit, Hernandez-Perez described his relationship with A.W., A.W.'s changed family circumstances, and his fear that, if he were deported, A.W. would "become a ward of the state." He also stated that A.W. "may have been neglected" by his mother, who has a history of drug abuse, giving as an example a day when he had to leave work to pick up A.W. because his mother was being arrested.

The BIA denied the motion to reopen, explaining that Hernandez-Perez had not established that the evidence about A.W. was previously unavailable and that, even if it were considered, the evidence did not establish prima facie eligibility for cancellation of removal. Hernandez-Perez petitions for review of that denial.

II. ANALYSIS

A. Jurisdiction

Each party raises a jurisdictional objection that must be resolved before considering the merits of the petition. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting the doctrine of "hypothetical jurisdiction" and requiring that jurisdiction be established "as a threshold matter").

1. Jurisdiction in Light of Pereira

In his reply brief, Hernandez-Perez argues that pursuant to a recent Supreme Court case, Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), jurisdiction never properly vested with the immigration judge—or, ultimately, with the BIA or this court.

The Government filed a motion to strike the portion of the reply brief raising this argument, arguing that this court does not normally entertain arguments raised for the first time in a reply brief. As a general matter, the Government is correct. See Tyson v. Sterling Rental, Inc. , 836 F.3d 571, 580 (6th Cir. 2016). Subject matter jurisdiction, however, "can never be forfeited or waived." Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs , 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009)

911 F.3d 311

(quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). The motion to strike is therefore denied.

At oral argument, counsel for Hernandez-Perez abandoned the jurisdictional argument, explaining that a panel of this court had decided the issue against his client the week before. (Oral Arg. at 1:35–1:53) Counsel appears to reference de la Paz-Zaragoza v. Sessions , No. 18-3221, 2018 U.S. App. LEXIS 28780 (6th Cir. Oct. 11, 2018) (order), an unpublished and nonbinding order that does not engage with Pereira 's text or holding. Id. at *1–2. Having been alerted to a possible jurisdictional flaw, and in the absence of binding authority resolving the question, "we must decide [the issue] for ourselves." Bd. of Trs. of Plumbers, Local Union No. 392 v. Humbert , 884 F.3d 624, 625 (6th Cir. 2018).

Federal immigration regulations provide that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court." 8 C.F.R. § 1003.14(a). In this case, the relevant charging document is a Notice to Appear (NTA). See id. § 1003.13 (listing an NTA as one type of charging document). The section of the Immigration and Nationality Act (INA) describing NTAs provides that each NTA should "specify[ ]," among other requirements, "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). Hernandez-Perez's NTA named the location of his removal proceedings but stated only that he was to appear "on a date to be set at a time to be set."² In a related context, Pereira held that an NTA "that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).’ " 138 S.Ct. at 2110 (quoting 8 U.S.C. § 1229b(d)(1)(A) ). The Pereira Court explained that "[f]ailing to specify integral information like...