Parada-Orellana v. Garland

• Decision Date: 06 August 2021
• Docket Number: No. 19-60645,19-60645
• Citation: 8 F.4th 355
• Parties: Mirian Margarita PARADA-ORELLANA, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

8 F.4th 355

Mirian Margarita PARADA-ORELLANA, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60645

United States Court of Appeals, Fifth Circuit.

FILED August 6, 2021

Timothy William Davis, Esq., Attorney, Baltimore, MD, for Petitioner.

Allison R. Frayer, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Lori Buff Warlick, Trial Attorney, U.S. Department of Justice, Civil Division, Raleigh, NC, for Respondent.

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Mirian Margarita Parada-Orellana moved the Immigration Court of Harlingen, Texas, to rescind her in absentia order of removal or, in the alternative, to reopen her removal proceedings to allow her to apply for cancellation of removal pursuant to the Immigration and Nationality Act (INA) § 240A(b). The Immigration Judge (IJ) denied her request, and she appealed to the Board of Immigration Appeals (BIA), which dismissed her appeal. She now petitions this court for review. We DENY the petition in part and DISMISS in part.

I.

Parada-Orellana is a native and citizen of El Salvador. She entered the United States on October 1, 2005. While crossing the border, Parada-Orellana was apprehended by border patrol agents. She was detained for three days.

On October 2, 2005, Parada-Orellana was served while in detention with a notice to appear (NTA). The NTA ordered her to appear before an IJ in Harlingen, Texas, at a date and time to be set. Immigration and Customs Enforcement (ICE) agents asked Parada-Orellana for the address where she would be living in the United States, but she only reported that she would be staying with her uncle in Houston, Texas. The agents advised Parada-Orellana that she needed to call and update her address with the immigration court when she obtained a stable address.

After being released, Parada-Orellana went to her uncle's house in Houston. According to Parada-Orellana, she gave all her "immigration papers" to her uncle's wife after his wife told her that it was "risky" to travel with them. Two months later, Parada-Orellana relocated to Maryland to live with a friend. She did not contact the immigration court to update her address. Parada-Orellana states this was because her uncle and his wife misplaced her "immigration papers."

Regardless, on March 9, 2006, the IJ called Parada-Orellana's name for a hearing. She was not present, so on March 20, 2006, the IJ ordered Parada-Orellana to be removed in absentia. The IJ noted that Parada-Orellana was advised that she was required by 8 U.S.C. § 1229(a)(1)(F) to provide ICE and the court with her address, which she did not do. The IJ concluded that because Parada-Orellana did not meet this requirement, under § 1229a(b)(5)(B), the court was not required to provide her with written notice of her hearing.

On April 5, 2010, ICE detained Parada-Orellana in Jessup, Maryland. According to Parada-Orellana, this is when she first became aware that the IJ had entered a deportation order. After she was released, she consulted with two lawyers but did not ultimately pursue any action to address the order.¹

On June 3, 2015, Parada-Orellana married Nelson Antonio Ferman Barrera (Ferman), a United States citizen she had been dating since 2006. According to Parada-Orellana, she helps Ferman run his business and manage his medical conditions (high cholesterol and asthma ). Parada-Orellana and Ferman do not have children together.

In June 2016, Ferman filed an I-130 petition for alien relative on behalf of Parada-Orellana, which was approved June 5, 2017. Parada-Orellana then requested that the Department of Homeland Security join in a motion to reopen her removal proceedings. That request was denied on June 22, 2018. On September 20, 2018, Parada-Orellana filed an opposed motion to reopen with the IJ, which she later supplemented with exhibits and briefing. In her motion, Parada-Orellana sought to rescind her in absentia order of removal or, in the alternative, to reopen her removal proceedings sua sponte to allow her to apply for cancellation of removal for certain non-permanent citizens pursuant to INA § 240A(b). The same day she filed her motion, she applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Along with her application, she submitted evidence of her relationship with her husband. She alleged that her husband would suffer exceptional and extremely unusual hardship without her support due to his health conditions.

The IJ denied the motion to reopen on January 28, 2019. First, the IJ found that Parada-Orellana was personally served with a NTA that expressly warned her of the requirement that she provide written notice of her full mailing address and any address or telephone number changes. The IJ then concluded that Parada-Orellana forfeited her right to receive notice of her hearing by failing to fulfill this requirement. The IJ also determined that because the motion to reopen was filed more than 180 days after the removal order was issued, the removal order could not be rescinded if Parada-Orellana did not show that her failure to appear was due to exceptional circumstances. The IJ stated that Parada-Orellana had not established that the 180-day deadline should be equitably tolled. The IJ noted that the record was unclear as to why Parada-Orellana filed her motion to reopen in 2018, eight years after she learned that that she had been ordered removed. And the IJ concluded that Parada-Orellana failed to demonstrate reasonable diligence in filing her motion to reopen with respect to the 180-day deadline.

Nonetheless, the IJ ultimately determined that Parada-Orellana was entitled to equitable tolling of the deadline for a motion to reopen to apply for cancellation of removal considering the Supreme Court's decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Reaching the merits, the IJ denied the motion to reopen, concluding that Parada-Orellana did not establish prima facie eligibility for the relief of cancellation of removal. Specifically, the IJ concluded that Parada-Orellana did not show that her husband would experience exceptional and extremely unusual hardship in the event of her removal.

Parada-Orellana appealed the IJ's decision to the BIA. The BIA dismissed the appeal on August 6, 2019. The BIA agreed with the IJ that Parada-Orellana failed to establish that the removal order should be rescinded because her lack of notice of her hearing. The BIA also agreed with the IJ that, although Parada-Orellana established eligibility for equitable tolling regarding the motion to reopen to apply for cancellation of removal, she did not establish prima facie eligibility for cancellation of removal. On September 3, 2019, Parada-Orellana filed a timely petition for review with this court. See 8 U.S.C. § 1252(a)(1), (b)(1), (b)(2).

II.

Parada-Orellana raises two issues in her petition for review.² First, she contends the BIA erred by failing to apply and follow its own precedent when it denied her motion to reopen. Second, she contends the BIA erred in concluding that she had not presented evidence of prima facie eligibility for cancellation of removal because she did not show that her husband would experience the requisite hardship in the event of her removal.

In response, the Government asserts this court lacks jurisdiction to review the BIA's prima facie determination pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), which precludes judicial review of any judgment regarding cancellation of removal under § 1229b. The Government does not contest that this court retains jurisdiction over questions of law, such as application of the appropriate legal standard. But the Government asserts that Parada-Orellana's claim in this regard—that the BIA failed to apply and follow its own precedent—is "simply [a] factual and discretionary dispute[ ] cloaked with legal language" that should likewise fall under the jurisdictional bar.

Parada-Orellana acknowledges § 1252(a)(2)(B)(i) ’s bar but counters that it does not prevent our review of her claims because she has never had a "full merits" hearing on her application for cancellation of removal. We address both issues raised by Parada-Orellana, including our jurisdiction or lack thereof, in turn.

A.

While we typically only review the final decision of the BIA, when the IJ's ruling plays into the BIA's decision, as it does in this case, we review both the IJ's and the BIA's decisions. Sealed Petitioner v. Sealed Respondent , 829 F.3d 379, 383 (5th Cir. 2016). This court reviews questions of law, such as the BIA's application of the appropriate legal standard, de novo. Rodriguez v. Holder , 585 F.3d 227, 233 (5th Cir. 2009). Otherwise, we review the BIA's denial of a motion to reopen under "a highly deferential abuse-of-discretion standard, regardless of the basis of the alien's request for relief." Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). This means we will "affirm the BIA's decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach." Id .

B.

Parada-Orellana first asserts that the BIA abused its discretion by failing to follow its own precedent and apply the correct legal standard to her motion to reopen. More specifically, she alleges the BIA "ignored its own case law regarding the standard for evaluating prima facie evidence of eligibility for relief in a motion to reopen that was announced in Matter of L-O-G- [, 21 I & N Dec. 413, 418-19 (BIA 1996) ]." According to Parada-Orellana, "remand is necessary so that the [BIA] can clarify the standard employed in evaluating [her] evidence for prima facie eligibility for relief ...." We disagree.

To begin, as we previously noted, whether the BIA applied the correct legal standard is a question of law over which this court has jurisdiction. Hakim v. Holder , 628 F.3d...