Veronica Cabanas-Flores v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1721
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VERONICA CABAÑAS-FLORES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
_____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(Agency Case No. A201-939-856)
Immigration Judge: Pallavi S. Shirole
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 17, 2023
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Before: CHAGARES, Chief Judge, MATEY, and FUENTES, Circuit Judges
(Filed: December 22, 2023)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
Veronica Cabañas-Flores1 petitions for review of a decision of the Board of
Immigration Appeals (BIA) that denied her motion for reconsideration. But the BIA did
not abuse its discretion, so we will deny the petition.
I.
Cabañas-Flores is a native and citizen of Mexico who has unlawfully resided in
the United States since 2006. In 2019, Cabañas-Flores was arrested for assaulting her six-
year-old daughter. Cabañas-Flores then entered a pretrial intervention program, which
was terminated by consent order. A year later, the Department of Homeland Security
(DHS) commenced removal proceedings against Cabañas-Flores, who admitted her
illegal entry but sought cancellation of removal and adjustment of status pursuant to 8
U.S.C. § 1229b(b).
The immigration judge (IJ) granted Cabañas-Flores’s application, finding that she
was eligible for cancellation of removal and “deserving of a favorable exercise of
discretion.” App. 24. The IJ noted Cabañas-Flores had only one prior criminal offense
and that she showed “remorse” for her recent actions. App. 22. Further, Cabañas-Flores
“maintained consistent employment and . . . filed her income taxes regularly.” App. 24.
Finally, the IJ found removal would cause exceptional and unusual hardship because her
1
Petitioner notes that her legal name is Cabañas-Flores, but her name also appears
in the record as Cabaña-Flores. The Clerk was previously directed to correct the spelling
for this Court’s record.
2
husband suffers from epileptic episodes and her children, who would likely go with her to
Mexico, do not speak Spanish fluently.
The BIA reversed the IJ and ordered removal because Cabañas-Flores “did not
establish that she warrants a favorable exercise of discretion for cancellation of removal.”
App. 30. The BIA cited Cabañas-Flores’s criminal history and noted she had fraudulently
obtained a Social Security number, only sporadically filed taxes, and showed little
rehabilitation after her arrest.
Cabañas-Flores moved to reconsider the BIA’s decision. The BIA denied her
motion, and this petition for review followed.2
II.
A motion for reconsideration “addresses errors of law or fact in the previous
order.” Santos-Zacaria v. Garland, 598 U.S. 411, 424 (2023) (internal quotations and
citations omitted). The decision to grant or deny a motion for reconsideration is within
the BIA’s discretion. Id. at 425 (citing 8 C.F.R. § 1003.2(a)); In re O-S-G-, 24 I. & N.
Dec. 56, 57 (B.I.A. 2006). Because the BIA did not abuse its discretion in denying
Cabañas-Flores’s motion for reconsideration, we will deny the petition for review.
2
The BIA had jurisdiction under 8 U.S.C. § 1229a and 8 C.F.R. § 1003.2, and we
have jurisdiction under 8 U.S.C. § 1252(a). We review the denial of a motion for
reconsideration for abuse of discretion, and the BIA’s decision will be disturbed only
when it is “arbitrary, irrational, or contrary to law.” Borges v. Gonzales, 402 F.3d 398,
404 (3d Cir. 2005) (quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)); Pllumi v.
Att’y Gen. of U.S., 642 F.3d 155, 158 (3d Cir. 2011). Because Cabañas-Flores did not
timely file a petition for review of the removal order, our review is limited to the BIA’s
denial of reconsideration. See Stone v. I.N.S., 514 U.S. 386, 406 (1995).
3
Under the Immigration and Nationality Act (INA), “[t]he Attorney General may
cancel removal of . . . an alien who is inadmissible or deportable from the United States.”
8 U.S.C. § 1229b(b). Cancellation requires an applicant first to satisfy four threshold
requirements—that she “(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding the date of such
application; (B) has been a person of good moral character during such period; (C) has
not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of
[the INA] . . .; and (D) establishes 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.” Id.
Once those threshold requirements are met, an applicant must also establish that
she merits a favorable exercise of discretion. See 8 U.S.C. § 1229a(c)(4) (“An alien
applying for relief or protection from removal has the burden of proof to establish that the
alien—(i) satisfies the applicable eligibility requirements; and (ii) with respect to any
form of relief that is granted in the exercise of discretion, that the alien merits a favorable
exercise of discretion.”); Patel v. Garland, 596 U.S. 328, 332 (2022) (“Because relief
from removal is always ‘a matter of grace,’ even an eligible noncitizen must persuade the
immigration judge that he merits a favorable exercise of discretion.”) (quoting I.N.S. v.
St. Cyr, 533 U.S. 289, 308 (2001)). This two-step test3 means that even if an applicant
meets the four threshold “eligibility requirements, the immigration judge has discretion to
3
Pareja v. Att’y Gen. of U.S., 615 F.3d 180, 185–86 (3d Cir. 2010).
4
(but is not required to) cancel removal . . .” Barton v. Barr, 140 S. Ct. 1442, 1445 (2020)
(emphasis added); Pereida v. Wilkinson, 141 S. Ct. 754, 759 (2021) (establishing all the
threshold requirements “yields no guarantees; it only renders an alien eligible to have his
removal order cancelled. The Attorney General may choose to grant or withhold that
relief in his discretion”). This statutory structure precludes both of Cabañas-Flores’s
arguments in her petition for review.4
First, Cabañas-Flores argues the BIA could not deny her application for
cancellation of removal because the IJ had found that she possessed good moral
character. But good moral character is a threshold eligibility factor, and thus a necessary
but not sufficient condition for the exercise of discretion. Cabañas-Flores must prove
both statutory eligibility, of which good moral character is one factor, as well as
entitlement to discretionary relief, a separate consideration. Pareja v. Att’y Gen. of U.S.,
615 F.3d 180, 185–86 (3d Cir. 2010). Because the BIA is “entitled to ‘weigh the evidence
in a manner different from that accorded by the [IJ],’” it could permissibly find Cabañas-
Flores had not established she merited a favorable exercise of discretion. Yusupov v. Att’y
Gen. of U.S., 650 F.3d 968, 980 (3d Cir. 2011) (quoting Matter of A–S–B–, 24 I. & N.
Dec. 493, 497 (B.I.A. 2008)).
4
Cabañas-Flores also argues that the BIA should have reconsidered in light of the
Supreme Court’s decision in Patel, 596 U.S. 328. But we agree with the BIA’s
determination that Patel, which held that “[f]ederal courts lack jurisdiction to review
facts found as part of discretionary-relief proceedings” under the INA, id. at 347, does
not apply to the facts and circumstances in the motion for reconsideration.
5
Second, Cabañas-Flores argues the BIA erred when it considered conduct outside
the ten-year period in 8 U.S.C. § 1229b(b) in deciding whether she merited a favorable
exercise of discretion. But the INA “imposes no limitations on the factors” that “may [be]
consider[ed] in determining who, among the class of eligible aliens, should be granted
relief.” I.N.S. v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996);5 see also Patel v. United
States Att’y Gen., 971 F.3d 1258, 1267–69 (11th Cir. 2020), aff’d sub nom. Patel v.
Garland, 596 U.S. 328 (2022). Rather, the BIA can “review the record as a whole” and
“‘balance the adverse factors evidencing the alien’s undesirability . . . with the social and
humane considerations presented in his (or her) behalf to determine whether the granting
of . . . relief appears in the best interest of this country.’” Matter of C-V-T-, 22 I. & N.
Dec. 7, 11 (B.I.A. 1998) (quoting Matter of Marin, 16 I. & N. Dec. 581, 584–85 (B.I.A.
1978)) (emphasis added); Matter of Castillo-Perez, 27 I. & N. Dec. 664, 670–71 (B.I.A.
2019) (identifying “factors that should be considered in deciding whether to grant
cancellation of removal,” but not limiting any factor to the ten-year good moral character
5
Though the Supreme Court in Yueh-Shaio Yang considered a different section of
the INA, it compared the two sections and noted that it had held in Jay v. Boyd, 351 U.S.
345, 354 (1956) that the decision to grant or deny suspension of deportation—the
predecessor to cancellation of removal—enjoys “unfettered discretion.” Yueh-Shaio
Yang, 519 U.S. at 30. A conclusion reinforced by the statutory text, since the
prerequisites for cancellation of removal do not have a uniform ten-year requirement. See
8 U.S.C. §1229b(b)(1)(A)–(C) (requiring physical presence in the United States and good
moral character for a continuous period of at least ten years before the application for
cancellation of removal, but not limiting conviction of certain offenses to that same
period). Though the BIA has enunciated certain factors pertinent to the exercise of
discretion, none are limited to the statutory ten-year period. Matter of C-V-T-, 22 I. & N.
Dec. 7, 11 (B.I.A. 1998) (citing Matter of Marin, 16 I. & N. Dec. 581, 584–85 (B.I.A.
1978)).
6
period). The BIA thus did not err in considering evidence older than ten years to inform
its discretionary decision.
***
For these reasons, we will deny the petition for review.
7