Lopez-Beltran v. Attorney Gen. of Am.
| Decision Date | 01 March 2021 |
| Docket Number | No. 20-2472,No. 20-1420,20-1420,20-2472 |
| Parties | MARCOS LOPEZ-BELTRAN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
On Petition for Review of an Order of the Board of Immigration Appeals
Immigration Judge: Annie S. Garcy
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 1, 2021
Before: GREENAWAY, JR., KRAUSE, and BIBAS, CircuitJudges
Marcos Lopez-Beltran petitions for review of two orders issued by the Board of Immigration Appeals (BIA), the first summarily dismissing his appeal and the second denying his motion to reopen. We will deny both petitions.
Lopez-Beltran, a citizen of Mexico, entered the United States in 1988 when he was an infant, left three years later, then returned in 2007 when he was 18. In 2009, the Department of Homeland Security served him with a Notice to Appear (NTA) charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i), which authorizes removal of aliens unlawfully present in the United States. Through counsel, he conceded the charge. From 2009 until 2018, the Immigration Judge (IJ) administering the case granted several continuances while petitioner pursued different forms of relief, but in April 2018, the IJ denied petitioner's request for another continuance and entered an order of removal.1
Lopez-Beltran appealed to the BIA. The BIA summarily dismissed it because the notice of appeal did not lay out specific reasons for his challenge to the IJ's decision, and he failed to file a brief or explain why he did not. See BIA Dec. 12/6/19. Lopez-Beltran filed a timely, pro se petition for review in the Ninth Circuit, and it was transferred to this Court because removal proceedings occurred in New Jersey. The docketing of that petition opened C.A. No. 20-1420. In the meantime, Lopez-Beltran filed a timely motion to reopen in the BIA, which was denied. See BIA Dec. 6/15/20. Lopez-Beltranpetitioned for review of the BIA's order, which opened C.A. No. 20-2472. The two petitions are consolidated for disposition.
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1), which includes the power to review the denial of a motion to reopen in this circumstance. See Cruz v. Att'y Gen., 452 F.3d 240, 246 (3d Cir. 2006). We review the BIA's summary dismissal of an appeal as well as the denial of a motion to reopen removal proceedings for an abuse of discretion. See Uddin v. Att'y Gen., 870 F.3d 282, 288 (3d Cir. 2017); Alzaarir v. Att'y Gen., 639 F.3d 86, 89 (3d Cir. 2011). The BIA's discretionary decision will not be disturbed "unless it is found to be arbitrary, irrational, or contrary to law." Id. (citing Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)).
We conclude that the BIA did not abuse its discretion in summarily dismissing this appeal. To avoid summary dismissal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(A), the party bringing the agency appeal "must identify the reasons for the appeal in the Notice of Appeal . . . or in any attachments thereto." 8 C.F.R. § 1003.3(b). "The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged." Id. In addition, the regulations provide that the BIA may summarily dismiss an appeal when the alien "indicates on Form EOIR-26 . . . that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing." 8 C.F.R. § 1003.1(d)(2)(i)(E); see Zheng v. Gonzales, 422 F.3d 98, 105 (3d Cir. 2005).
Counsel filed a timely appeal on Lopez-Beltran's behalf in the BIA using the agency's standard appeal form, EOIR-26, which includes warnings about the potential for summary dismissal for not specifying the basis for the appeal or for not filing a brief after representing that one would be filed.2 In the section directing the appellant to identify the reasons for the appeal (question 6), counsel stated: "The Immigration Judge erred in denying the Respondent's motion to continue removal proceedings and ordering him removed from the United States." A.R. at 69. Below that, Lopez-Beltran's attorney checked the "Yes" box in response to question 8, "Do you intend to file a separate written brief or statement after filing this Notice of Appeal?" Id. Months later, the BIA sent petitioner's counsel the briefing schedule which also contained a warning about the consequence for failing to file a brief.3 Lopez-Beltran's counsel did not file a brief or statement in support of his appeal.
The BIA did not abuse its discretion for summarily dismissing for Petitioner's failure to specify the ground for his appeal, where, in his notice of appeal to the BIA,with notice of the potential consequences, Petitioner merely argued that the IJ erred. See Uddin, 870 F.3d at 288; 8 C.F.R. § 1003.1(d)(2)(i)(A); A.R. at 69. Petitioner himself does not now claim that his statement was adequate. As for the failure to file a brief, Lopez-Beltran concedes that "for reasons unknown to the Petitioner, his prior counsel failed to file a brief with the BIA." Petitioner's Informal Br. in No. 20-1420 (ECF No. 12) at 3. We cannot find an abuse of discretion where, contrary to the regulations, and despite the warnings contained in the Form EOIR-26 and the briefing notice, no brief was filed after one was promised. See Rioja v. Ashcroft, 317 F.3d 514, 515-16 (5th Cir. 2003) (per curiam); 8 C.F.R. § 1003.1(d)(2)(i)(E); A.R. at 64, 69.4
We also find that the BIA did not err by denying Lopez-Beltran's motion to reopen. The BIA may deny a motion to reopen if "(1) the alien has not established aprima facie case for the relief sought; (2) the alien has not introduced previously unavailable, material evidence; or (3) in the case of discretionary relief . . ., the alien would not be entitled to relief even if the motion was granted." Huang v. Att'y Gen. U.S., 620 F.3d 372, 389 (3d Cir. 2010) (citations and internal quotation marks omitted).5 In order to establish a prima facie case for cancellation of removal, Lopez-Beltran needed to provide objective evidence demonstrating "a 'reasonable likelihood' that he can establish [that he is entitled to relief]." Guo, 386 F.3d at 563 (quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)). The evidence provided "must be shown to have been unavailable and undiscoverable during the previous proceeding." Gen Lin v. Att'y Gen. U.S., 700 F.3d 683, 686 (3d Cir. 2012) (citing 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii)). When the BIA has denied reopening on prima facie case grounds, we will review the findings of fact for substantial evidence and the ultimate conclusion for an abuse of discretion. See Sevoian, 290 F.3d at 174. We keep in mind that the agency grants motions to reopen proceedings "only under compelling circumstances." Shardar v. Att'y Gen. U.S., 503 F.3d 308, 313 (3d Cir. 2007) (citation and quotation marks omitted).
In his motion to reopen, Lopez-Beltran argued that the NTA issued by DHS was defective and did not "stop time" for the purposes of his cancellation application, see Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018) (); Guadalupe v. Att'y Gen. U.S., 951 F.3d 161, 164 (3d Cir. 2020) ().6 The BIA stated that the Pereira argument "had merit," and, further, that Lopez-Beltran "does appear to have the continuous physical presence required for cancellation of removal." BIA Dec. 6/15/20 at 1. It also acknowledged that petitioner provided evidence that he had the necessary qualifying relatives for cancellation. Id. The flaw with petitioner's motion, according to the BIA, was that "he has not provided evidence of hardship, and thus, prima facie eligibility." Id. The BIA continued that "[t]herefore, the respondent has not submitted persuasive new or previously unavailable evidence that is sufficient to meet his 'heavy burden' of showing that it is likely that the result would change if the proceedings were reopened." Id.
While Lopez-Beltran generally stated on the cancellation form and in his motion to reopen that his family would suffer exceptional hardship, he did not discuss specifics or provide any objective, new evidence to support his assertions. See Gen Lin, 700 F.3d at 686; see also Guo, 386 F.3d at 563 n.7 () (citation and internal quotation marks omitted). Lopez-Beltran now argues that he stated in his application that his wife is not employed, receives state healthcare for low-income residents, that he makes approximately $490 per week, and that their joint assets total $650. See A.R. at 41, 43, 42. However, while he did provide those answers, he did not connect them to his exceptional hardship contention, demonstrate how these facts were new, nor provide any documentation or sworn statements in support. Upon review, we conclude that the BIA's ruling that Lopez-Beltran did not establish a prima facie case for cancellation of removal is supported by substantial evidence and was not an abuse of its discretion. See Sevoian, 290 F.3d at 174.
In light of the above, we will deny the petitions for review.7
*. This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
1. Lopez-Beltran unsuccessfully applied to secure relief under the Deferred Action for Childhood Arrivals (DACA) program. Lopez-Beltran then married an asylee who had applied for U.S. citizenship. Lopez-Beltran's wife filed a Form I-130, Petition for Alien Relative, on his behalf. An...
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