Mendez-Garcia v. Lynch

Citation840 F.3d 655
Decision Date20 October 2016
Docket NumberNo. 15-71931, No. 13-72924,15-71931
Parties Alberto Mendez–Garcia, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent. Mario Rivera–Baltazar, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Michael Joseph Codner (argued), Law Offices of Michael J. Codner, San Diego, California; Murray D. Hilts, San Diego, California; for Petitioners.

Jane T. Schaffner (argued), Trial Attorney; Holly M. Smith and Janice K. Redfern, Senior Litigation Counsel; Linda S. Wernery, Assistant Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Barry G. Silverman, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.

Concurrence by Judge Watford

OPINION

IKUTA

, Circuit Judge:

Alberto Mendez–Garcia's application for cancellation of removal claimed that his removal would result in hardship to his son, who was a United States citizen under 21 years of age at the time of the application. See 8 U.S.C. § 1229b(b)(1)(D)

. Mario Rivera–Baltazar's application for cancellation of removal made the same claim with respect to his son, who was likewise a citizen who had not yet turned 21.1 While these applications were pending, the petitioners' sons turned 21 and no longer met the statutory definition of “child,” see 8 U.S.C. § 1101(b)(1). The Board of Immigration Appeals (BIA) held that because the petitioners' sons were no longer children, the petitioners had failed to show that their removal would result in a hardship to a qualifying relative, and therefore they were ineligible for cancellation of removal. Mendez–Garcia and Rivera–Baltazar petition for review of the BIA's denial of their applications. We have jurisdiction under 8 U.S.C. § 1252, and now deny their petitions for review.

I

We begin by describing the legal background. The Immigration and Nationality Act (INA) gives the Attorney General discretion to cancel the removal of an alien who is inadmissible or deportable from the United States. 8 U.S.C. § 1229b(b)(1)

. In order to be eligible for this relief, the alien must meet four statutory requirements, which include establishing “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).2 The INA defines “child” as “an unmarried person under twenty-one years of age” who additionally satisfies one of several criteria. Id. § 1101(b)(1).

Section 1229b(b)(1)(D)

does not directly identify the point in time when the alien's removal must result in a hardship to a qualifying relative. The section does not specify whether the alien's removal must result in a hardship at the time the alien receives a notice to appear, at the time the alien files the cancellation of removal application, at the time the immigration judge (IJ) adjudicates the application, or at some other time. The BIA has addressed this issue in two precedential decisions. See

Matter of Isidro–Zamorano , 25 I. & N. Dec. 829, 830–31 (BIA 2012) ; Matter of Bautista Gomez , 23 I. & N. Dec. 893, 894 (BIA 2006). Bautista Gomez involved an alien whose parents had become lawful permanent residents (and thus qualifying relatives for purposes of § 1229b(b)(1)(D) ) after the alien's application for cancellation of removal was initially denied. After her parents became lawful permanent residents, the alien filed a motion to reopen. The IJ had denied the motion because the alien did not have a qualifying relative at the time the alien received the notice to appear. Bautista Gomez , 23 I. & N. Dec. at 894. The BIA vacated the IJ's decision. It held that “an application for relief from removal is a continuing one,” so that both the issue of good moral character, § 1229b(b)(1)(B), and “the issue of qualifying relatives” should be determined “as of the time an application for cancellation of removal is finally decided.” Id. The BIA reasoned that [o]therwise, such factors as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative could not be used as the basis for a motion to reopen to file, or to seek further consideration of, an application for cancellation of removal.” Id. Because the alien's parents were qualifying relatives at the time the IJ adjudicated the alien's application for cancellation of removal, the alien met the requirement in § 1229b(b)(1)(D). Id .

The BIA subsequently applied this rule in a decision involving an alien who lost his qualifying relative before his application was adjudicated. See Isidro–Zamorano , 25 I. & N. Dec. at 830–31

. Isidro–Zamorano involved an alien whose application for cancellation of removal identified his son, a United States citizen, as his qualifying relative. The son was under 21 at the time the alien filed the application, but had turned 21 by the time the application was adjudicated. Noting its long-standing rule that an application for relief from removal is a continuing application, the BIA concluded that the alien “did not have a qualifying relative when the Immigration Judge adjudicated the application and therefore could not establish eligibility for relief.” Id. at 831

. Isidro–Zamorano recognized that the case presented “a difficult situation because [the alien] has lost his eligibility for relief” during the pendency of his application, while the alien in Bautista Gomez had acquired qualifying relatives during this period, and therefore benefitted from the BIA's interpretation of § 1229b(b)(1)(D). Id. at 831 & n.2. Nevertheless, the BIA concluded that it “must, of course, interpret the provision consistently” regardless whether the interpretation benefits or harms the alien's interests. Id. The BIA then reiterated its conclusion that the issue of qualifying relatives should be considered “at the time an application for cancellation of removal is decided,” because [o]therwise, factors arising subsequent to the filing of an application that may be favorable to the respondent's claim, such as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative, could not be considered in determining the existence of exceptional and extremely unusual hardship.” Id. at 830–31 ; see, e.g. , Bautista Gomez , 23 I. & N. Dec. at 894.

In addition to prescribing eligibility requirements for inadmissible or deportable aliens seeking cancellation of removal, see 8 U.S.C. § 1229b(b)

, the INA imposes an annual limit on the number of aliens who may receive cancellation relief. See 8 U.S.C. § 1229b(e)(1) ; see also 8 C.F.R. § 1240.21. Under the cap imposed by § 1229b(e)(1), the Attorney General may not cancel the removal and adjust the status under this section ... of more than 4,000 aliens in any fiscal year.”

Even when an alien otherwise qualifies for relief and the annual number of grants has not been exhausted, “the ultimate decision whether to grant relief ... rests with the Attorney General.” Romero–Torres v. Ashcroft , 327 F.3d 887, 889 (9th Cir. 2003)

.

II

We next turn to the facts of these consolidated cases.

A

Alberto Mendez–Garcia is a citizen of Mexico who illegally entered the United States in 1990. Except for a brief absence in August 1991, he has resided continuously in the United States since his entry. While in the United States, Mendez–Garcia had two children; the younger was born in California on March 12, 1992. The record establishes that Mendez–Garcia had a criminal record. In 1996, Mendez–Garcia was arrested following a domestic dispute with his wife, but was not charged. In May 2008, Mendez–Garcia was again arrested for a domestic dispute and pled nolo contendere to one count of domestic battery, see Cal. Penal Code § 243(e)(1)

, and one count of false imprisonment, see id. § 236. He was sentenced to 120 days in jail.

As a result of his conviction, Mendez–Garcia came to the attention of the Department of Homeland Security, which served him with a notice to appear on January 13, 2009. At an initial hearing on January 29, 2009, Mendez–Garcia requested that the hearing be postponed; the Immigration Court set a new hearing date in February. At the February hearing, Mendez–Garcia requested another postponement; the court set a third hearing date in March, which was rescheduled to April. Before this hearing, Mendez–Garcia moved to change venue from Phoenix, Arizona, to San Francisco, California. The motion was granted, and a hearing date was set for August 6, 2009.

Mendez–Garcia moved for a continuance until September 2009, and a hearing date was eventually set for October 1, 2009. At the hearing, the IJ set a December 30, 2009, deadline to apply for cancellation of removal and scheduled a merits hearing for January 19, 2011. Mendez–Garcia timely filed his application on December 16, 2009, but the merits hearing date was reset twice for reasons not explained in the record, first to February 6, 2012, and then to March 1, 2013.

At the scheduled hearing date in March 2013, the IJ held removal proceedings in Mendez–Garcia's case. After hearing testimony from Mendez–Garcia (who was represented by counsel) and reviewing the record, the IJ informed the attorneys that she had all the evidence she needed to make a decision, but because the annual limit on grants of cancellation of removal, see 8 U.S.C. § 1229b(e)(1)

, had already been reached for the fiscal year, she was required by regulation, see 8 C.F.R. § 1240.21(c)(1), to reserve her decision until additional grants became available, which would likely be in October 2013. The IJ noted that Mendez–Garcia's younger son, his one remaining qualifying...

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