Parada-Orellana v. Garland ( 2022 )

Case: 19-60645 Document: 00516151732 Page: 1 Date Filed: 01/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 3, 2022
No. 19-60645 Lyle W. Cayce
Clerk
Mirian Margarita Parada-Orellana,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 116 350
ON PETITION FOR REHEARING
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
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355 (5th Cir. 2021), is WITHDRAWN and the following opinion is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
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No. 19-60645
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
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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
1 According to Parada-Orellana, the lawyers advised her that it would be
“very difficult to obtain a legal status with an order of deportation” and that “if
[Parada-Orellana] presented [herself] to ICE again, [she] was going to be
deported.”
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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, 138 S. Ct. 2105 (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.
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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, 138 S. Ct. 2105 (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, 141 S. Ct. 1474 (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
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[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.
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.
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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 151, 155 (5th Cir. 2010); see also 8 U.S.C.
§ 1252(a)(2)(D). We acknowledge the Government’s contention that this
issue is a factual (and thus discretionary, and non-appealable) dispute
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disguised with legal language, but we conclude that Parada-Orellana’s
assertion is sufficient to require us to address the issue as a question of law.
For background, the BIA may deny a motion to reopen on one of three
grounds: (1) failure to establish a prima facie case for the underlying relief
sought, (2) failure to introduce previously unavailable, material evidence, or
(3) failure to establish entitlement to discretionary relief. I.N.S. v. Abudu,
485 U.S. 94, 104–05 (1988). Parada-Orellana’s appeal implicates Abudu’s
first ground for denying a motion to reopen—failure to establish a prima facie
case for the underlying relief sought. The underlying relief that Parada-
Orellana sought was cancellation of removal under 8 U.S.C. § 1229b(b)(1).
The BIA agreed with the IJ that Parada-Orellana had “not established
prima facie eligibility for cancellation of removal” under § 1229b(b)(1).
Section 1229b(b)(1) requires an applicant to establish, inter alia, “that
removal would result in exceptional and extremely unusual hardship” to the
applicant’s qualified family member, here, Parada-Orellana’s husband.
According to the BIA, Parada-Orellana failed to make this showing. More
specifically, the BIA concluded that she did not show “that her husband
could not obtain medical care, if she were removed, and emotional hardship,
without more, does not meet the standard for exceptional and extremely
unusual hardship.”
In her petition to this court, Parada-Orellana contends that the IJ and
the BIA held her to a higher standard than simply establishing prima facie
evidence of extreme and unusual hardship, as if she “had a full hearing on
the merits of her cancellation application.” She states that although the BIA
used the phrase “prima facie eligibility,” it did not actually apply the
standard set forth in Matter of L-O-G-, which requires that the BIA decide
whether there is a “reasonable likelihood that relief will be granted in the
exercise of discretion.” Matter of L-O-G-, 21 I. & N. Dec at 419.
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Parada-Orellana makes this assertion despite acknowledging that the
BIA opinion does not expound upon the standard of review beyond stating
that she must establish “prima facie eligibility” for relief. In other words,
Parada-Orellana does not point to any language in the BIA’s order that would
indicate that the BIA applied the incorrect standard. In fact, the record
reflects the opposite.
In her order, the IJ concluded that Parada-Orellana had “not shown
that there is a reasonable likelihood that she c[ould] demonstrate that her
removal to El Salvador would result in exceptional and extremely unusual
hardship to her husband.” (emphasis added). In reaching this conclusion,
the IJ cited In Re S-V-, 22 I. & N. Dec. 1306 (BIA 2000), a more recent case
that cited Matter of L-O-G- to support its use of the reasonable-likelihood
standard. And in its order dismissing Parada-Orellana’s appeal, the BIA
stated that it agreed with the IJ’s analysis and affirmed her decision.
The BIA’s failure expressly to denote the standard of review does not
make the BIA’s ruling incorrect. Indeed, failure to expound upon the law
and failure to apply the law (or failure to apply the law correctly) are not the
same. There is no requirement “that the BIA address evidentiary minutiae
or write any lengthy exegesis . . . .” Abdel-Masieh v. U.S. I.N.S., 73 F.3d 579,
585 (5th Cir. 1996) (citation omitted). Upon review of the record, we find no
indication that the BIA abused its discretion by applying an incorrect legal
standard. Accordingly, this issue lacks merit.
C.
Next, Parada-Orellana asserts that the BIA abused its discretion by
finding she had not presented prima facie evidence of eligibility for the relief
of cancellation of removal. As mentioned above, the Government counters
that this court lacks jurisdiction to review the BIA’s prima facie hardship
determination pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). But this court
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rejected that argument in Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021)
(“Section 1252(a)(2)(B) does not prevent us from reviewing . . . factual
findings [related to an application for cancellation of removal] to determine
whether they are supported by substantial evidence in the record because
factual findings are not discretionary.”). Nonetheless, the BIA did not abuse
its discretion by determining that Parada-Orellana “has not established
prima facie eligibility for cancellation of removal.”
As noted, “the BIA may deny a motion to reopen on at least three
independent grounds: (1) ‘[T]he movant has not established a prima facie
case for the underlying substantive relief sought,’ (2) ‘the movant has not
introduced previously unavailable, material evidence,’ and (3) the movant is
not entitled to a discretionary grant of relief where discretionary relief is
sought.” Mendias-Mendoza v. Sessions, 877 F.3d 223, 227 (5th Cir. 2017)
(quoting Abudu, 485 U.S. at 104–05). The BIA has “found that a respondent
demonstrates prima facie eligibility for relief where the evidence reveals a
reasonable likelihood that the statutory requirements for relief have been
satisfied.” In Re S-V-, 22 I. & N. Dec. 1306, 1308 (BIA 2000). Here, the BIA
concluded that Parada-Orellana did not meet this requirement.
To be eligible for cancellation of removal, an alien must show, among
other things, that she maintained a continuous presence in the United States
for the preceding 10 years and that her removal will cause “exceptional and
extremely unusual hardship” for, inter alia, her United States citizen spouse.
8 U.S.C. § 1229b(b)(1)(D). The record shows that Parada-Orellana’s
spouse, Ferman, suffers from high cholesterol and asthma, conditions that
require him to take medication and eat a healthy diet. The record does not
evidence that Ferman cannot feed himself, get his own medications, or
acquire assistance from someone other than Parada-Orellana with these
relatively minor tasks. Further, Parada-Orellana has not shown that any
emotional hardship that her husband would face would be “substantially
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different from, or beyond, that which would normally be expected from the
deportation of an alien with close family members here.” In Re Monreal-
Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001). Accordingly, the BIA did not
abuse its discretion in determining that Parada-Orellana did not make a prima
facie showing for cancellation of removal, and this issue lacks merit.
* * *
For the reasons stated herein, we DENY Parada-Orellana’s petition
for review.
PETITION DENIED.
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