Torres v. Garland
| Decision Date | 08 May 2023 |
| Docket Number | 22-60293 |
| Parties | Servando Torres, Petitioner, v. Merrick Garland, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206 551 258
Before RICHMAN, Chief Judge, and STEWART and DENNIS, Circuit Judges.
Servando Torres petitions this court for review of an order of the Board of Immigration Appeals ("BIA") dismissing his appeal of the decision of the Immigration Judge ("IJ") holding that he was ineligible for cancellation of removal. For the reasons that follow, we DISMISS in part and DENY in part Torres's petition for review.
Torres a native and citizen of Mexico, entered the United States in 2002. In 2014, after Torres was arrested in Texas for drug possession, the Department of Homeland Security issued a Notice to Appear that charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen who entered the United States without being admitted or paroled. In 2015 the immigration judge ("IJ") determined that he was removable as charged.
Torres filed an application for cancellation of removal and, alternatively, for voluntary departure. At a 2019 hearing before the IJ, Torres presented his own supporting testimony, as well as testimony from his teenage son, his mother, and his mother-in-law. Torres also provided documentary evidence, including his financial and criminal records; his children's personal, school, and medical records; and, letters from his friends and family.
Although the IJ concluded that Torres was "largely credible," it denied his application for cancellation of removal as a matter of discretion, reasoning that he failed to establish the requisite exceptional and extremely unusual hardship to his four U.S. citizen children or his lawful permanent resident ("LPR") mother. Additionally, the IJ determined that Torres had failed to prove that he had not been convicted of a disqualifying criminal offense. It further observed that he was statutorily ineligible as a person lacking good moral character due to his admission of drug possession. The IJ then granted Torres voluntary departure.
Torres appealed to the BIA arguing that the IJ erred in determining that he had failed to show that his U.S. citizen children would not suffer the requisite hardship and that he was not disqualified from relief due to his criminal history. He further asserted that his due process rights were violated in the proceedings before the BIA because the record was incomplete.
Specifically, he complained that his arguments on appeal were negatively impacted by the fact that the transcript of his merits hearing before the IJ used the word "indiscernible" in place of his, or witness testimony on his behalf, 71 times.
In April 2022, the BIA dismissed Torres's appeal and reinstated his period of voluntary departure. The BIA adopted and affirmed the IJ's decision that Torres had failed to demonstrate that his removal would result in the requisite hardship to his U.S. citizen children. The BIA also noted that Torres had waived any challenge to the IJ's finding that he had not established the requisite hardship to his LPR mother. Additionally, it declined to reach the IJ's alternative conclusions that Torres had failed to establish that he was of good moral character and that he did not have a disqualifying criminal offense. Finally, it rejected Torres's due process argument, reasoning that the record was sufficiently complete to enable meaningful appellate review. It further pointed out that Torres had failed to identify any relevant missing testimony or show substantial prejudice based on the incomplete transcript.
Torres filed this petition for review.
We have authority to review only the BIA's decision, but we can consider the IJ's decision to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018) (citation omitted). Factual findings are reviewed under the substantial evidence test. See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). "Under substantial evidence review, we may not reverse the BIA's factual determinations unless we find not only that the evidence supports a contrary conclusion, but that the evidence compels it." Id. (citations omitted) (emphasis in original). Questions of law, including whether this court has jurisdiction, are reviewed de novo. Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021). Constitutional challenges, such as due process challenges, are also reviewed de novo. Nkenglefac v. Garland, 34 F.4th 422, 427 (5th Cir. 2022) (citations omitted).
On appeal, Torres argues that the BIA erred in adopting the IJ's ruling regarding Torres's failure to prove "exceptional and extremely unusual hardship" to his qualifying relatives by improperly analyzing the hardship factors and failing to consider all of the factors in the aggregate. Torres further asserts that the BIA erred in holding that he was not substantially prejudiced by the incomplete transcript from the proceedings before the IJ. We address each argument in turn.
Cancellation of removal is a discretionary form of relief. See 8 U.S.C. § 1229b(b)(1). To be eligible for a discretionary grant of cancellation of removal, an applicant must meet certain requirements, including having no convictions for a crime of moral turpitude. See § 1229b(b)(1); § 1182(a)(2). The applicant must also show that his removal would result in "exceptional and extremely unusual hardship" to a qualifying relative, namely a spouse, parent, or child who is a citizen or LPR of the United States. Id. The hardship standard requires "a truly exceptional situation in which a qualifying relative would suffer consequences substantially beyond the ordinary hardship that would be expected when a close family member leaves this country." Trejo v. Garland, 3 F.4th 760, 775 (5th Cir. 2021) (internal quotation marks and citation omitted).
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), no court shall have jurisdiction to review the denial of certain types of discretionary relief, including cancellation of removal under § 1229b. Notwithstanding this provision, 8 U.S.C. § 1252(a)(2)(D) provides that jurisdiction is expressly retained for reviewing courts to address constitutional claims and questions of law.
Torres contends that he satisfied the requirements for cancellation of removal and that the BIA legally erred in adopting the IJ's ruling that he had failed to show that his U.S. citizen relatives would not suffer exceptional and extremely unusual hardship if he were removed. According to Torres, the BIA failed to properly consider the hardship factors as set forth in In re Gonzalez Recinas, 23 I &N Dec. 467, 471 (BIA 2002), and In re Monreal-Aguinaga, 23 I &N Dec. 56, 63 (BIA 2001). Specifically, he complains that the BIA's decision erroneously failed to properly consider the evidence he submitted in support of his application relating to: the adverse country conditions in Mexico and the negative effect they could have on his children, his inability to support his economically dependent children with a job in Mexico, his inability to obtain an immigrant visa in the near future, and his children's unfamiliarity with Mexico. Id.
We are deprived of jurisdiction to address these arguments, however, under 8 U.S.C. § 1252(a)(2)(B)(i). Relying on the Supreme Court's decision in Patel v. Garland, 142 S.Ct. 1614, 1622 (2022), this court in Castillo-Gutierrez v. Garland, recently held that the hardship determination for purposes of cancellation of removal "is a discretionary and authoritative decision" which "is beyond [this court's] review" under the jurisdictionstripping provision of § 1252(a)(2)(B)(i). 43 F.4th 477, 481 (5th Cir. 2022) ("Importantly here, the Patel majority pointed out that a determination that a citizen would face exceptional and extremely unusual hardship due to an alien's removal is a discretionary and authoritative decision which even the Government agreed would be barred by § 1252(a)(2)(B)(i), notwithstanding § 1252(a)(2)(D)."). Accordingly, we lack jurisdiction to consider Torres's challenge to the BIA's determination that he failed to show the necessary hardship for cancellation of removal. See Castillo-Gutierrez, 43 F.4th at 481.
We likewise lack jurisdiction to review Torres's argument that the BIA failed to properly consider the hardship factors set forth in In re Gonzalez Recinas, 23 I &N Dec. at 471, and In re Monreal-Aguinaga, 23 I &N Dec. at 63. See Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014) (); see also Jebril v. Garland, 855 Fed.Appx. 223, 224 (5th Cir. 2021) ().
Accordingly, we dismiss for lack of jurisdiction Torres's claim that the BIA erred in dismissing his appeal of the IJ's decision denying his application for cancellation of removal. See Castillo-Gutierrez, 43 F.4th at 481; Sattani, 749 F.3d at 372.
As previously stated, notwithstanding 8 U.S.C. § 1252(a)(2)(B)(i)'s jurisdiction-stripping provision § 1252(a)(2)(D) provides that...
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