Samuel Sustaita-Lopez v. Merrick B. Garland ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0062n.06
No. 21-4200
FILED
UNITED STATES COURT OF APPEALS Feb 09, 2024
FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk
)
SAMUEL SUSTAITA-LOPEZ,
)
Petitioner, ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
v. ) BOARD OF IMMIGRATION
) APPEALS
MERRICK B. GARLAND, Attorney General, )
Respondent. )
) OPINION
Before: SUTTON, Chief Judge; SUHRHEINRICH and MURPHY, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Petitioner Samuel Sustaita-Lopez seeks review of the
Board of Immigration Appeals’ decision affirming the immigration judge’s denial of his
application for cancellation of removal and denying his motion to remand. We deny the petition
for review.
I.
Sustaita-Lopez is a native and citizen of Mexico. He entered the United States in 1995 at
the age of seventeen and returned to Mexico in 1999. He reentered the United States in 2002. On
March 26, 2018, he received a notice to appear and was placed into removal proceedings under 8
U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being admitted or
inspected.
Sustaita-Lopez admitted the factual allegations in the notice to appear and conceded
removability. On July 1, 2018, he filed a cancellation of removal application based on the hardship
his removal would pose to his wife and children, who are all United States citizens. At the time
No. 21-4200, Sustaita-Lopez v. Garland
of the hearing, Xavier, Sustaita-Lopez’s stepson, was eighteen and in college on a scholarship;
Vanessa was twelve; and Samuel was thirteen. Sustaita-Lopez’s children do not speak Spanish.
Sustaita-Lopez operates a masonry business. His wife, Ariela, is a licensed social worker.
However, she does not work outside the home and homeschools their younger children. Ariela
testified that the family relies on Sustaita-Lopez for financial and emotional support. She indicated
that, were Sustaita-Lopez removed, Xavier would have to get a job and his grades might suffer as
a result. Xavier testified that he “would most likely have to drop out of college . . . and get a job”
to help out his family. Ariela explained that Samuel has severe allergies and Vanessa has suffered
from a recurring urinary tract infection and sees a urologist. Ariela herself suffers from numerous
medical conditions, including a family history of heart disease, GERD, a gastroesophageal-type
disease, high cholesterol, endometriosis, and depression.
The immigration judge issued an oral decision finding that (1) Sustaita-Lopez’s family
would remain in the United States if he were removed (despite a contrary statement in his
application); (2) the family’s medical conditions are manageable; (3) the financial hardship the
family would face is not exceptional; and (4) Sustaita-Lopez is eligible for an unlawful presence
waiver and would not have to wait the ten years to return.
First, the immigration judge found that Sustaita-Lopez’s family would not join him in
Mexico since Sustaita-Lopez himself testified that he couldn’t support them there, they don’t speak
Spanish, and the children would receive an inferior education. Next, noting that “[t]he medical
conditions are probably the most significant consideration here,” the judge found that the children
would remain on Medicaid and receive the same level of treatment they were currently receiving.
Furthermore, Vanessa’s urinary issues were resolved and Samuel’s allergies and asthma were
controlled by his medication such that he was doing well in school and able to participate in sports.
-2-
No. 21-4200, Sustaita-Lopez v. Garland
As for Ariela, the immigration judge noted that she had surgery for endometriosis and would
require a second procedure, but this was not “an immediate issue of substantial concern.” The
judge found that Ariela “has the ability” to control her heart condition, prediabetes, and high
cholesterol “with medication and medical treatment.” Ariela’s mental conditions (panic attacks,
depression, and anxiety), could also be treated, and Ariela “has the medical insurance.”
The immigration judge acknowledged financial hardship, but concluded Sustaita-Lopez, a
skilled mason, “has fairly transferable skills” if he moved to an area in Mexico with a substantial
infrastructure. And the recent announcement of the United States-Mexico-Canada Agreement
(USMCA) augured well for earning a reasonable wage in Mexico. The immigration judge also
suggested that Ariela, a licensed social worker, could return to work and put the children in public
schools. Last, the immigration judge found that Sustaita-Lopez was the beneficiary of an approved
immediate relative petition.
Sustaita-Lopez appealed the immigration judge’s decision to the Board and moved to
remand based on new evidence. The Board issued a separate opinion, agreeing with the
immigration judge’s findings and conclusion that Sustaita-Lopez failed to demonstrate that his
removal would cause an “exceptional and extremely unusual hardship” to a qualifying relative
under 8 U.S.C. § 1229b(b)(1). The Board considered Sustaita-Lopez’s new evidence, namely
(1) the birth of his daughter, Dalilah in March 2020; (2) the fact that Michigan schools were not
offering in-person instruction during the COVID crisis; and (3) Mexico’s poor handling of the
pandemic. The Board held that the new birth did not warrant remand because “the child was
conceived and born after the commencement of removal proceedings, and, indeed, after an
Immigration Judge had found [Sustaita-Lopez] removable and accepted his promise to voluntarily
depart the United States.” The Board took administrative notice of Michigan’s then-recent
-3-
No. 21-4200, Sustaita-Lopez v. Garland
decision to lift restrictions on in-person schooling. Finally the board concluded that the impact of
COVID in Mexico was “of only indirect relevance” to the family’s hardship because Sustaita-
Lopez was the only one relocating. The Board concluded that Sustaita-Lopez did not satisfy his
“heavy burden” of demonstrating that the new evidence would likely change the result in his case
and reinstated voluntary departure.
II.
Sustaita-Lopez appeals the Board’s dismissal of his appeal from the immigration judge’s
denial of his cancellation of removal as well as its denial of his motion to remand.
A.
To qualify for cancellation of removal, the applicant must (1) have been in the United
States for a continuous period of at least ten years; (2) be of good moral character; (3) not have
any convictions of specified crimes; and (4) establish that his removal will result in “exceptional
and extremely unusual hardship” to family members who are United States citizens or permanent
residents. 8 U.S.C. § 1229b(b)(1). At issue here is the fourth requirement. Establishing that
element requires Sustaita-Lopez to offer “evidence of harm to his spouse, parent, or
child substantially beyond that which ordinarily would be expected to result” from his removal.
Araujo-Padilla v. Garland, 854 F. App’x 646, 649 (6th Cir. 2021) (emphasis in original) (quoting
In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (B.I.A. 2001)); see also 8 U.S.C. § 1229a(c)(4)(A)
(placing burden of proof on applicant). The hardship standard requires the agency to consider the
individual and aggregate effects of “the age, health, and circumstances of the qualifying family
members, including how a lower standard of living or adverse country conditions . . . might affect
those relatives.” In re Gonzalez Recinas, 23 I & N. Dec. 467, 468 (B.I.A. 2002). However,
-4-
No. 21-4200, Sustaita-Lopez v. Garland
the latter two factors “generally will be insufficient in themselves” to meet that standard. Monreal-
Aguinaga, 23 I. & N. Dec. at 63–64.
We have jurisdiction to review the Board’s decision that the historical facts do not meet
the requisite level of the “hardship” standard to qualify for cancellation of removal under
§ 1229b(b)(1)(D). Singh v. Rosen, 984 F.3d 1142, 1154 (6th Cir. 2021); Hernandez v. Garland,
59 F.4th 762, 763, 766–67 (6th Cir. 2023) (discussing Singh). The appropriate standard of review
is still an open question though. In Singh, we identified but did not adopt three possible
standards—clear-error, substantial-evidence, or compelling evidence—because the petitioner did
not meet his burden under any standard. 984 F.3d at 1154; Hernandez, 59 F.4th at 771 (same).
We need not decide that question here either. See Singh, 984 F3d at 1154.
We review the final agency decision, the Board’s separate opinion affirming the
immigration judge. See Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We also review the
immigration judge’s decision to the extent the Board adopted its reasoning. Id.First, Sustaita-Lopez argues that the immigration judge and the Board considered the
hardship factors individually but not in the aggregate. The record belies that assertion. Only after
considering the Recinas factors—Ariela and the children’s medical conditions and access to
Medicaid, the children’s education, and “the financial disruption” and “emotional distress”
Sustaita-Lopez’s removal would cause—did the immigration judge conclude that “for all of these
reasons,” Sustaita-Lopez did not meet the onerous burden of establishing hardship. On review,
the Board acknowledged that Ariela and the children would experience a decline in their standard
of living, but agreed with the immigration judge that Sustaita-Lopez did not establish the
“[e]conomic detriment and emotional hardship from family separation” that would be considered
“exceptional and extremely unusual” under § 1229b(b)(1)(D). The Board identified several
-5-
No. 21-4200, Sustaita-Lopez v. Garland
reasons why: (1) both Ariela and Xavier could find jobs; (2) Ariela and the children could remain
on Medicaid; and (3) Sustaita-Lopez is the beneficiary of an approved immediate-relative visa
petition.
Second, Sustaita-Lopez contends that the agency incorrectly applied its own precedent.
We do not agree that the immigration judge’s ruling “stands in direct contradiction to” Recinas.
The applicant in that case met the hardship standard because she was a single mother with six
children and no family in her native country and she would have been unable to find adequate
employment or housing. Recinas, 23 I & N. Dec. at 471. Those facts “distinguish[ed] her case
from many other cancellation of removal claims.” Id. The facts in this case distinguish it from
Recinas. Ariela, Sustaita-Lopez, and Xavier are all capable of earning income to support the
family. And the family will have access to adequate medical care and public schools. In short,
the agency “consider[ed] the totality of the burden on the entire [Sustaita-Lopez] family,” see id.
at 472, and did not err in applying its precedent. We find no basis for reversal under any of the
enumerated standards of review.
Nor did the agency fail to appreciate Ariela’s medical conditions when assessing
financial hardship. As noted above, the immigration judge considered Ariela’s numerous
conditions—physical and mental—and concluded that they are manageable with treatment, and
that she has Medicaid coverage.1 In any event, Sustaita-Lopez did not make this argument to the
Board and has therefore forfeited it. See 8 U.S.C § 1252(d)(1); Santos-Zacaria v. Garland, 598
U.S. 411, 417–19 (2023).
1
Sustaita-Lopez claims that Hernandez supports his claim. There the immigration judge found that the petitioner’s
removal would cause exceptional and extremely unusual hardship where the wife’s health prevented her from working
and the petitioner, in addition to working, “cared for her and the household.” 59 F 4th at 765. Sustaita-Lopez is
wrong. For starters, the hardship determination was not at issue on appeal in Hernandez. Further, the facts of this
case, which we do not have jurisdiction to review, are different. Here the immigration judge held that Ariela has the
ability to care for her physical and mental conditions.
-6-
No. 21-4200, Sustaita-Lopez v. Garland
Third, Sustaita-Lopez claims that the Board legally erred in affirming the immigration
judge’s finding that he would qualify for a waiver under § 1182(a)(9)(B)(v) because his entry in
2002 was his second illegal presence for more than one year, which means that he is permanently
barred from reentry under § 1182(a)(9)(C)(i)(I) (making a noncitizen who enters the United States
without admission after accruing at least one year of unlawful presence inadmissible). The
immigration judge found that Sustaita-Lopez would be barred for under ten years. See 8 U.S.C.
§ 1182(a)(9)(B)(i)(I) & (II) (voluntary departure of noncitizen may trigger the three- or 10-year
bar to reentry for “unlawful presence”). But Sustaita-Lopez did not challenge the immigration
judge’s finding to the Board, so it is forfeited. Id. § 1252(d)(1); Santos-Zacaria 598 U.S. at 417-19.
The Board did not, as Sustaita-Lopez suggests, make a finding; it merely noted the immigration
judge’s determination.
Fourth, Sustaita-Lopez contends that the Board erred in affirming the immigration judge’s
decision because it “is rife with speculation, conjecture, and a mischaracterization of the record.”
None of his accusations bear weight. His attack on the immigration judge’s finding that Xavier’s
biological father owes Ariela “over $100,000” in child support (instead of stating that exact amount
is $156,000) is without merit, because as the Board held, “the precise extent of that delinquency
does not appreciably impact the hardship calculus in this case because it is unlikely to be affected
by [Sustaita-Lopez’s] removal.” That’s true. Ariela testified that she has never received any child
support from Xavier’s father. The immigration judge also did not “fail[] to meaningfully consider
how Ariela’s abandonment of her fulltime duties at home would be impacted by” her “litany of
medical conditions.” As discussed above, the immigration judge found that each of Ariela’s
physical and mental conditions are “treatable” and manageable, and that public schooling was a
workaround for home-schooling. (“The children could go back to public schools and be
-7-
No. 21-4200, Sustaita-Lopez v. Garland
homeschooled on the values at home.”). Nor did the immigration judge impermissibly “speculat[e]
respecting the USMCA.” The immigration judge noted that “wages in Mexico are substantially
below those in the United States” and that Sustaita-Lopez’s job prospects were uncertain and stated
simply that the approval of the USMCA “tend[ed] to suggest that” Sustaita-Lopez would “be able
to find something better than $9 a day work.”2 As the Board put it, “the judge’s reference to the
USMCA was nothing more than a recognition that [Sustaita-Lopez’s] job prospects in Mexico are
not necessarily as gloomy as he would have the court believe, given his experience as a skilled
mason and entrepreneur in the United States.” To the extent that Sustaita-Lopez claims the Board
“neglected the copious background evidence” establishing that he will face “poverty and serious
material deprivation at every level,” he forfeited the argument by failing to raise this argument on
administrative appeal. 8 U.S.C. § 1252(d)(1); Santos-Zacaria, 598 U.S. at 417–19. He also failed
to develop any argument on appeal, other than a blanket citation to the “Mexico 2017 Human
Rights Report.”
B.
To prevail on a motion to remand, a petitioner must show that the new evidence “would
likely change the result in the case.” Hernandez-Perez v. Whitaker, 911 F.3d 305, 320–21 (6th
Cir. 2018) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992)). This a “heavy
burden.” Id. at 320 (quotation omitted).
When reviewing the Board’s denial of a motion to remand, we look for abuse of discretion.
Precetaj v. Sessions, 907 F.3d 453, 457 (6th Cir. 2018). We review allegations of due process
violations de novo. Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998).
2
Sustaita-Lopez says nothing in the record supports this speculation and that he provided evidence to the contrary,
citing a “Synopsis on the [Mexican] Economy” from a government publication. He offers no explanation how the
document demonstrates that the immigration judge’s comment was speculation, and we cannot discern any.
-8-
No. 21-4200, Sustaita-Lopez v. Garland
First, Sustaita-Lopez asserts that he did not receive a meaningful review because the Board
took administrative notice of a website addressing Michigan’s in-schooling restrictions, which had
lifted after the remand motion was filed. But the Board may take administrative notice of
commonly known facts such as “[c]urrent events” or the “contents of official documents.”
8 C.F.R. § 1003.1(d)(3)(iv). See Vasha v. Gonzales, 410 F.3d 863, 874 n.5 (6th Cir. 2005) (noting
that we have upheld the practice); Koita v. Mukasey, 314 F. App’x 839, 844 (6th Cir. 2009)
(approving Board’s taking administrative notice of recent elections).3 It almost goes without
saying that the reopening of in-person instruction in public schools was an enormously important
event in the lives of Michigan citizens, properly communicated on a Michigan government
website. Nothing in the regulation suggests that only federal reports qualify. No due process
violation here.4
Next, Sustaita-Lopez criticizes the Board for “fail[ing] to provide a cumulative analysis of
the material new hardship”—the birth of his daughter Dalilah Sustaita on March 10, 2020—and
how it would add to “the complex web of existing hardship.” The record does not support this
assertion. The timing of the child’s conception, after the immigration judge had denied
cancellation and granted voluntary departure—was critical to the Board’s analysis. See Matter of
Correa, 19 I & N. Dec. 130, 134–35 (B.I.A. 1984) (noting that equities such as children that are
acquired after a final order of deportation “are entitled to less weight” than to children born before
removal proceedings began). The Board also observed that a counterfactual—a severely ill or
disabled child—“when viewed in conjunction with other factors,” might have necessitated remand.
3
The Board’s inability to make fact findings does not apply to a motion to remand. 8 U.S.C. § 1229a(c)(7)(B); 8
C.F.R. § 1003.2(c)(1).
4
Sustaita-Lopez’s argument that the Board provided an incorrect website address is without merit. The website
address is correct; but the information changed since the Board accessed it on October 20, 2021.
-9-
No. 21-4200, Sustaita-Lopez v. Garland
Coupled with its findings that Sustaita-Lopez’s other children could attend in-person public
schools, so that Ariela can earn income, it is clear that the Board carefully evaluated the new
evidence in light of all of the hardship findings. In short, Sustaita-Lopez failed to satisfy the
“heavy burden” of showing that his new evidence would likely alter the outcome here. The Board
did not abuse its discretion.
Sustaita-Lopez’s final contention—that the Board committed legal error by having his
remand motion reviewed by a single Board member instead of a three-member panel, and declining
to explain why, is without merit. See Murillo-Reyes v. Barr, 821 F. App’x 423, 427–28 (6th Cir.
2020).
III.
For the reasons set forth above, we deny the petition for review and affirm the Board’s
dismissal of Sustaita-Lopez’s motion to remand.
-10-