Mazariegos v. Lynch

• Decision Date: 24 June 2015
• Docket Number: No. 14–1431.,14–1431.
• Parties: Michael MAZARIEGOS, Petitioner, v. Loretta E. LYNCH, United States Attorney General,Respondent.
• Court: U.S. Court of Appeals — First Circuit

790 F.3d 280

Michael MAZARIEGOS, Petitioner

v.Loretta E. LYNCH, United States Attorney General^* Respondent.

No. 14–1431.

United States Court of Appeals, First Circuit.

June 24, 2015.

William E. Graves on brief for petitioner.

Terri J. Scadron, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Civil Division, Joyce R. Branda, Acting Assistant Attorney General, and Anthony W. Norwood, Senior Litigation Counsel, on brief for respondent.

Before LYNCH, SELYA, and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

Placed in removal proceedings after his arrest on state charges, Michael Jonathan Mazariegos sought to forestall his removal based on his marriage to a United States citizen and the hardship his removal would cause his family. He prevailed before an immigration judge (IJ), but lost when the government appealed to the Board of Immigration Appeals (BIA). Mazariegos did not seek review of that decision, but later petitioned the BIA to reopen the proceedings based on new evidence. The BIA denied the motion and Mazariegos petitions this court for review of that decision. After careful consideration, we deny the petition.

BACKGROUND

A. Arrival and Arrest

Mazariegos is a native and citizen of Guatemala who has lived in the United States since he was two years old, when he and his family entered on visitor visas.¹ In March 2008, at the age of nineteen, Mazariegos married a United States citizen, Lludelina Garcia, becoming a stepfather to her daughter. In light of the marriage, Mazariegos was approved a few months later for an I–130 immigrant visa petition. He applied for adjustment of status on the basis of the approved I–130.

The Department of Homeland Security (“DHS”) denied his application due to a pending criminal case. That case stemmed from an October 2008 arrest that resulted in charges of receiving stolen property and failure to stop for police in violation of Massachusetts law. According to the police report, Mazariegos was driving a Cadillac when a police officer attempted to pull him over. Instead of stopping, Mazariegos accelerated through a red light and continued driving. As the car approached a wooded area, it stopped suddenly, and Mazariegos and his passenger jumped out of the car and began to run. The officer apprehended both, at which time he observed that a window of the car was smashed out and that a car dealership invoice was visible. Mazariegos admitted sufficient facts to support a finding of guilt and the case was continued without a finding to October 2010.

B. Removal Proceedings

Meanwhile, in July 2009, DHS issued a Notice to Appear and placed Mazariegos in removal proceedings, charging him with removability under 8 U.S.C. § 1227(a)(1)(B) since he had remained in the United States longer than permitted and overstayed his visitor visa. Mazariegos, represented by counsel, appeared before the IJ where he admitted the factual allegations in the notice and conceded removability. Seeking relief from removal, he renewed his application for adjustment of status based on the approved I–130. Because his convictions rendered him inadmissible to the United States, and therefore ineligible for adjustment of status under 8 U.S.C. § 1255(a), Mazariegos also applied for a waiver under section 212(h) of the Immigration and Nationality Act, id. § 1182(h)(1)(B), claiming hardship to his lawfully admitted parents and citizen wife and step-daughter.

The IJ held a merits hearing. Mazariegos and his mother both testified, but his wife, who was estranged from Mazariegos at the time, did not. Mazariegos testified that he lived with his parents, had dropped out of high school at age sixteen and began working at his parents' auto body shop, and he now served as general manager of the shop and handled matters that required fluency in English. He has no memory of Guatemala and has not returned since his arrival to the United States at age two.

Mazariegos also described his criminal history. In 2000, when he was eleven, he unknowingly got into a stolen car. He was charged as a juvenile with receiving stolen property and, on his lawyer's advice, admitted responsibility for the offense. In 2004, at age fifteen, he was charged as a juvenile with rape, kidnapping, and indecent assault and battery on a child under fourteen. The charges were dismissed, and Mazariegos testified that he did not commit the crimes with which he was charged. In 2006, when he was seventeen, he was charged with driving without a license and without insurance, to which he pleaded guilty. Finally, in October 2008, at the age of nineteen, Mazariegos was charged with receiving stolen property and failure to stop for police, as noted earlier.

Mazariegos's mother also testified at the hearing. She indicated that she had moved to the United States in 1993, after her father was killed in Guatemala. She explained that Mazariegos's removal would cause hardship to her and her husband because Mazariegos functioned as the car repair shop's general manager and took “care of almost everything,” and the removal would be “really difficult” for her personally.

At the end of the hearing, the IJ issued an oral decision, holding that a favorable exercise of discretion was warranted and granting Mazariegos's waiver and adjustment of status applications. The IJ emphasized the extreme hardship Mazariegos's removal would cause his parents² and Mazariegos's positive equities: he was a longtime resident, an “intelligent and articulate young man,” active in his family business, not a user of drugs and alcohol, and a responsible husband and stepfather. While the IJ did take into account his lengthy criminal history, the judge attributed much of this to “youthful indiscretions and lack of judgment” and found that Mazariegos had learned from his mistakes.

C. Appeal to the BIA

Not happy with the decision, DHS appealed to the BIA, arguing that the IJ erred in exercising discretion to grant both the adjustment of status and waiver applications. The BIA agreed. It concluded that though it did not find any of the IJ's factual findings clearly erroneous, Mazariegos was not entitled to a discretionary section 212(h) waiver. Although the BIA thought this was a “close case,” it identified Mazariegos's “ongoing pattern of criminal behavior” as the “principal reason” for the denial. Mazariegos did not petition this court for review of the BIA's decision.³

D. Motion to Reopen

A few months later, Mazariegos (with new counsel) filed a motion with the BIA seeking to reopen his removal proceedings in light of two new pieces of evidence.⁴

First, Mazariegos presented an affidavit from his wife, Lludelina Garcia, who had declined to testify during the removal proceedings. In it, Garcia indicated that she and Mazariegos had reconciled, that he provided financial and emotional support for her and her daughter, that she regretted not attending the merits hearing, and that she was now willing to testify in support of his section 212(h) waiver.

Second, Mazariegos included an affidavit from his former attorney. In it, the attorney stated that he failed to advise Mazariegos that withholding of removal was an option and, in retrospect, that was a mistake. Mazariegos then included a Form I–589 application for withholding of removal, asylum, and protection under the Convention Against Torture (CAT), citing as grounds for relief the fact that a group of policemen in Guatemala killed his grandfather and other family members, and threatened his mother, forcing her to flee to the United States. Mazariegos indicated that since the policemen were never caught, he would fear for his life in Guatemala.

Based on the above evidence, Mazariegos asked the BIA to reopen proceedings and remand the case to the IJ. DHS opposed the motion.

The BIA sided with the government, issuing a written decision a few months later denying the motion to reopen. While the BIA acknowledged that Mazariegos's wife and stepchild were qualifying relatives for purposes of the section 212(h) waiver application, it was “not persuaded by the evidence before [it] that [Mazariegos] merits the 212(h) waiver as a matter of discretion in light of his criminal history.” With respect to the withholding of removal basis for reopening, the BIA held that the “record and motion ... lack evidence of conditions in Guatemala to support reopening for asylum, withholding of removal, or protection under the Convention Against Torture.” And though Mazariegos had submitted an affidavit from his former attorney, the BIA concluded that he had not complied with the procedural requirements for raising an ineffective assistance of counsel claim under the controlling case, Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), and in any event, did not show prejudice as a result of his attorney's alleged error, since he did not establish a prima facie case for withholding of removal. The BIA concluded by noting that Mazariegos's motion also did not warrant the court sua sponte reopening this matter as he did not “demonstrate that an exceptional situation is present ... especially in light of the negative discretionary factors.”

Mazariegos petitioned this court for review of the BIA's decision.

JURISDICTION

We start with a bone of contention. The government claims we lack jurisdiction to review (what it calls) a purely discretionary denial of a motion to reopen. The government misses the mark.

The law it cites indeed provides that courts cannot review the discretionary component of the Attorney General's section 212(h) waiver decision. See 8 U.S.C. § 1182(h) (providing that “[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection”); id. § 1252(a)(2)(B)(i) (barring review of “any judgment regarding the granting of relief” under section 1182(h), among others). However, we are not being asked to decide the propriety of a decision to grant or deny the waiver. Recall, Mazariegos...