Parada-Orellana v. Garland

• Decision Date: 03 January 2022
• Docket Number: No. 19-60645,19-60645
• Citation: 21 F.4th 887
• Parties: Mirian Margarita PARADA-ORELLANA, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

21 F.4th 887

Mirian Margarita PARADA-ORELLANA, Petitioner,

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

No. 19-60645

United States Court of Appeals, Fifth Circuit.

FILED January 3, 2022

Timothy William Davis, Esq., Attorney, Baltimore, 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 Merrick Garland, U.S. Attorney General.

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

ON PETITION FOR REHEARING

Cory T. Wilson, Circuit Judge IT IS ORDERED that the petitioner's petition for panel rehearing is DENIED. Our prior panel opinion, Parada-Orellana v. Garland , 8 F.4th 355 (5th Cir. 2021), is WITHDRAWN and the following opinion is SUBSTITUTED therefor.

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.

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 of 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.

As an initial matter, in her opening brief, Parada-Orellana conceded that her argument regarding recission of her in absentia removal order and Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), was foreclosed by this court's decisions in Ramos-Portillo v. Barr , 919 F.3d 955, 961–62 (5th Cir. 2019) and Mauricio-Benitez v. Sessions , 908 F.3d 144, 148 (5th Cir. 2018). She specifically stated that the claim was "moot" and thus she was "not rais[ing] the claim." She did not provide any alternative analysis on this issue. Nonetheless, Parada-Orellana later attempted to withdraw her waiver of the issue, via a Rule 28(j) letter, in the light of Rodriguez v. Garland , 15 F.4th 351 (5th Cir. 2021). After the court requested supplemental briefing addressing Rodriguez , Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021), and Spagnol-Bastos v. Garland , 19 F.4th 802 (5th Cir. 2021), she again all but conceded that she failed to preserve this issue—if she did not affirmatively waive it—in her initial brief.

Because Parada-Orellana "failed to analyze the cancellation of removal theory in a meaningful way in h[er] opening brief, ... the argument is forfeited." Spagnol-Bastos , 19 F.4th at 808. "It is of no consequence that then-valid Fifth Circuit precedent foreclosed [her] ... argument at the time [s]he submitted h[er] opening brief because that argument was nonetheless available to h[er]. Indeed, two sister circuits had already rejected the two-step notice theory." Id. (citing Perez-Sanchez v. U.S. Att'y Gen. , 935 F.3d 1148, 1152–53 (11th Cir. 2019) ; Ortiz-Santiago v. Barr , 924 F.3d 956, 962 (7th Cir. 2019) ). We thus decline to address this issue further.

III.

Parada-Orellana preserves two issues in her petition for review. 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.

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