Rodriguez de Henriquez v. Barr
| Decision Date | 05 November 2019 |
| Docket Number | No. 18-2442,18-2442 |
| Parties | Guadalupe RODRIGUEZ DE HENRIQUEZ, et al. Petitioners v. William P. BARR, Attorney General of the United States Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kimberly Kay Hunter, KIM HUNTER & ASSOCIATES, Saint Paul, MN, Katherine M. Swenson, GREENE & ESPEL, Minneapolis, MN, for Petitioners.
Peter B. Berg, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN, Carl H. McIntyre, Ilana Joslyn Snyder, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC, Oil Oil, OIL, U.S. DEPARTMENT OF JUSTICE, Washington, DC, for Respondent.
Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
Petitioners Ronal Henriquez Argueta, his wife, and two of their children, citizens of Honduras, entered the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The immigration judge (IJ) denied relief after a hearing. The Henriquezes appealed to the Board of Immigration Appeals (BIA), which dismissed their appeal in December 2017. The Henriquezes then filed a motion to reopen or reconsider, which the BIA denied in June 2018. They now petition for review of the BIA’s denial of their motion to reconsider. We deny the petition for review.
A. Petitioners first argue the IJ lacked jurisdiction over their removal proceedings because the proceedings commenced with notices to appear that did not specify the date or time of their removal hearings. The argument is based on the Supreme Court’s recent decision in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). In Pereira, the Court held that a notice to appear "that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not trigger the stop-time rule" that governs applications for cancellation of removal under 8 U.S.C. § 1229(b)(1). Id. at 2110. We recently rejected petitioners’ argument, joining "the BIA and a unanimous chorus of other circuits" in concluding that the Attorney General’s regulations, which govern when jurisdiction vests, provide that a notice to appear "need only provide the time, place, and date of the initial removal hearing ‘where practicable.’ " Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019), quoting 8 C.F.R. § 1003.18(b). We are bound by this prior panel decision. Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).
B. Petitioners next argue the BIA abused its discretion in denying their motion to reconsider. A motion to reconsider addresses the merits of the BIA’s initial decision. It must be filed within thirty days, "specify[ ] the errors of fact or law in the prior Board decision," and "be supported by pertinent authority." 8 C.F.R. § 1003.2(b). The filing of a motion to reconsider does not toll the time for appeal of the underlying order. Stone v. I.N.S., 514 U.S. 386, 390, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Therefore, as petitioners did not file a timely petition for review of the final order of removal, our jurisdiction is limited to reviewing the order denying their motion to reconsider for abuse of discretion. See Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004).
In reviewing that order, "we may consider the validity of the underlying asylum decision without exercising jurisdiction over that decision or considering it on the merits."
Sukhov v. Gonzales, 403 F.3d 568, 571 (8th Cir. 2005). The distinction is significant because the abuse of discretion standard "is considerably more deferential." Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004), cert. denied, 544 U.S. 962, 125 S.Ct. 1741, 161 L.Ed.2d 604 (2005). "The BIA does not abuse its discretion if it refuses to reconsider the very arguments it has already rejected." Strato v. Ashcroft, 388 F.3d 651, 655 (8th Cir. 2004). Rather, the BIA "abuses its discretion where it gives no rational explanation for its decision, departs from its established policies without explanation, relies on impermissible factors or legal error, or ignores or distorts the record evidence." Mshihiri v. Holder, 753 F.3d 785, 789 (8th Cir. 2014) (citation omitted). "Any other level of review would encourage aliens to improperly prolong the removal process by filing motions to reconsider, instead of petitioning for immediate judicial review of an initial adverse decision." Esenwah, 378 F.3d at 765 (quotation omitted).
In their motion to reconsider, petitioners argued the BIA erred in not addressing their claim that the IJ failed to make a finding regarding past persecution; erred by accepting the IJ’s erroneous finding that Ronal’s membership in a particular social group (his family) was not "one central reason" for his persecution by Mara 18 gangsters; erred by "mischaracterizing and ignoring" facts such as the location of other family members and the significance of police reports regarding the gangsters’ threats and violence against Ronal and his brothers; and erred by "cherry picking" Ronal’s credible fear interview at the border. They further argued that the IJ erred in denying their CAT claim because substantial evidence does not support the finding that the government of Honduras is not unable or unwilling to control criminal gangs. In denying the motion, the BIA stated:
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