Jose Perez-Garcia v. Loretta E. Lynch , 829 F.3d 937 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2842
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Jose Guadalupe Perez-Garcia
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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National Immigration Project of the National Lawyers Guild
lllllllllllllllllllllAmicus on Behalf of Petitioner
___________________________
No. 15-1314
___________________________
Jose Guadalupe Perez-Garcia
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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National Immigration Project of the National Lawyers Guild
lllllllllllllllllllllAmicus on Behalf of Petitioner
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Petition for Review of an Order of the
DHS Homeland Security
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Submitted: March 15, 2016
Filed: July 19, 2016
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Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Jose Perez-Garcia petitions for review of orders of the Department of
Homeland Security (“DHS”) reinstating a removal order and denying Perez-Garcia’s
motion to reopen the reinstatement order. Regarding the reinstatement, Perez-Garcia
contends that because he was not subject to a prior order of removal, DHS did not
establish the necessary elements for reinstatement, that he was not given due process,
and that DHS’s selection of him for reinstatement as opposed to affording a new
removal hearing was arbitrary and capricious. Perez-Garcia argues that DHS erred
in denying his motion to reopen because he demonstrated that he was never subject
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to an order of removal, and at the least, a genuine issue of fact exists.1 We deny his
petitions.
I.
Perez-Garcia is a citizen and national of Mexico. He first entered the United
States without inspection in May 1996. In June 1998, he was issued a Notice to
Appear for removal proceedings in immigration court. On November 19, 1998, the
immigration judge granted Perez-Garcia voluntary departure in lieu of removal,
requiring Perez-Garcia to post a $5,000 bond. Under the voluntary departure order,
Perez-Garcia was required to leave the United States by March 19, 1999, in which
case he would be able to present evidence of his departure and reclaim the $5,000
bond. If Perez-Garcia failed to leave the United States by this time, his order would
automatically convert to a removal order and his bond would be breached. The
alternate order of removal became effective in the absence of evidence of compliance
with the grant of voluntary departure and the bond was in fact breached. Perez-
Garcia was apprehended by immigration officials in May 2000 and removed to
Mexico, pursuant to the November 19, 1998 order of removal.
Perez-Garcia returned to the United States at some point and remained until
2014. On July 30, 2014, he was detained by DHS. Perez-Garcia was provided with
an interpreter and informed that he could speak with an attorney. He made a sworn
statement, answered questions, and indicated he did not wish to make any additional
statements. He was issued a notice reinstating his prior order of removal.
1
Perez-Garcia also contends that this court should remand for a determination
of whether Perez-Garcia is an enforcement priority, because of policy changes that
occurred during this case. However, Perez-Garcia provides no precedent for such a
determination, and DHS has confirmed that Perez-Garcia, based on his individual
circumstances, is not subject to prosecutorial discretion.
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However, Perez-Garcia states that he left the United States and returned to
Mexico on March 19, 1999, in accordance with his grant of voluntary departure, and
was apprehended by DHS only after he had returned to the United States. He claims
that he did not recognize the significance of complying with the grant of voluntary
departure until hiring and speaking with counsel, following the July 30, 2014
reinstatement.
On August 5, 2014, Perez-Garcia filed a petition for review with this court
(Case No. 14-2842) challenging the reinstatement order and requesting a stay of
removal on the basis that he had not been subject to a prior order of removal because
he had indeed timely voluntarily departed the United States. On August 6, 2014,
Perez-Garcia filed a Motion to Reopen and Rescind the Reinstatement Order and an
Application for Stay of Deportation or Removal with DHS. We denied Perez-
Garcia’s motion for stay of removal on August 6, 2014, and DHS denied his
application for stay of removal on August 7, 2014. Perez-Garcia was removed to
Mexico on August 8, 2014, separating him from his United States citizen wife and
four United States citizen children. Perez-Garcia submitted, with his motion to
reopen the reinstatement order, his sworn declaration and a “Forma Migratoria
Estadistica” (“F.M.E.”), a form given to Mexican citizens when they arrive or depart
from a port of entry in Mexico. Both stated that he had timely departed to Mexico
under his grant of voluntary departure in March 1999. On October 23, 2014, Perez-
Garcia filed a supplemental Motion to Reopen and Rescind the July 30 Reinstatement
Order, providing additional documents.2 DHS denied Perez-Garcia’s motion to
reopen and rescind the reinstatement on January 28, 2015. On February 10, 2015,
Perez-Garcia filed a second petition for review before this court (Case No. 15-1314),
challenging DHS’s denial of his motion to reopen. These cases were consolidated for
review. 8 U.S.C. § 1252(b)(6). Both petitions are timely. See 8 U.S.C. § 1252(b)(1).
2
We grant Petitioner’s October 28, 2014 Unopposed Motion to Supplement the
Record in Case No. 14-2842.
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II.
In Case No. 14-2842, Perez-Garcia claims that DHS erred in reinstating his
prior removal order without sufficient evidence, without providing due process, and
without considering Perez-Garcia’s potential eligibility for relief. This court has
jurisdiction over petitions for review of reinstated orders of removal. Ochoa-Carrillo
v. Gonzales, 437 F.3d 842, 843 (8th Cir. 2006). DHS has the authority to issue a
reinstatement order without a hearing before an immigration judge when the
individual “has reentered the United States illegally after having been removed or
having departed voluntarily, under an order of removal.” 8 U.S.C. § 1231(a)(5).
DHS must establish by clear and convincing evidence (1) a prior order of removal;
(2) a subsequent departure from the United States under that order; and (3) an illegal
reentry. 8 C.F.R. § 241.8(a).
This court’s review only addresses those issues “establishing the agency’s right
to proceed under [8 U.S.C. § 1231(a)(5)]—the alien’s identity, the existence of a prior
removal order, and whether the alien has unlawfully reentered.” Molina Jerez v.
Holder, 625 F.3d 1058, 1062 (8th Cir. 2010). “Our review is limited to the agency’s
certified administrative record.” Ochoa-Carrillo, 437 F.3d at 843; see 8 U.S.C.
§ 1252(b)(4)(A). We review for substantial evidence, so we will not overturn DHS’s
factual findings unless “it would not be possible for any reasonable fact-finder to
come to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft,
360 F.3d 915, 918-19 (8th Cir. 2004); see 8 U.S.C. § 1252(b)(4)(B)
(“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”). If substantial evidence on the
administrative record as a whole supports DHS’s decision to reinstate Perez-Garcia’s
1998 order for removal, we must deny his petition. See Ochoa-Carrillo, 437 F.3d at
846. We have jurisdiction to hear Perez-Garcia’s due process claims as well. See id.
at 847.
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Perez-Garcia contends that DHS failed to meet its burden because he left
voluntarily and had only been subject to a grant of voluntary departure. Because
Perez-Garcia left voluntarily on March 19, 1999, he claims that he cannot have been
subject to an alternate order of removal. The government counters that when Perez-
Garcia was apprehended on July 30, 2014, DHS obtained the 1998 Order of
Voluntary Departure from the Immigration Judge, which stated that if Perez-Garcia
did not comply, “the following shall thereupon become immediately effective:
respondent shall be removed to Mexico.” DHS determined that because the order was
executed in May 2000, Perez-Garcia had failed to comply with the voluntary
departure order and was subject to an order of removal. DHS also verified that Perez-
Garcia was one and the same as the person subject to the 1998 removal order and that
he had reentered the United States since that time. A.R. 199-206, 209, 212-13.
Perez-Garcia was provided with an interpreter and an opportunity to consult an
attorney, but made no indication that he had complied with the 1998 order. Indeed,
the government points out that Perez-Garcia was presented with the Form I-871
stating that Perez-Garcia was an alien subject to removal, but Perez-Garcia still did
not claim compliance or submit any evidence of compliance during the reinstatement
proceeding. Instead, he chose not to make a statement. On this basis, we find that
substantial evidence supports DHS’s decision to reinstate Perez-Garcia’s prior order
of removal. See Ochoa-Carrillo, 437 F.3d at 846.
Perez-Garcia further contends that the reinstatement proceedings violated his
right to due process. “Although resident aliens have a right to due process in
immigration proceedings, the constitutional sufficiency of procedures provided in any
situation . . . varies with the circumstances.” Id. at 846-47 (internal quotation marks
omitted). Both parties agree that in order for Perez-Garcia to establish a due process
claim, he must show that had he received a hearing, he would not have been subject
to reinstatement. See Briones-Sanchez v. Heinauer, 319 F.3d 324, 327 (8th Cir.
2003) (citing United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995)
(“Actual prejudice exists where defects in the deportation proceedings may well have
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resulted in a deportation that would not otherwise have occurred.” (internal quotation
marks omitted))). But here, Perez-Garcia indicated that he did not wish to contest the
determinations on the Form I-871 in July 2014. Further, there is no indication that
Perez-Garcia challenged his removal in 2000. With this background, we cannot
conclude that had Perez-Garcia received a hearing, he would have provided evidence
of his alleged 1999 departure. Further, as discussed below, DHS did in fact consider
Perez-Garcia’s evidence of voluntary departure, including his statement and F.M.E.,
when it denied his motion to reopen and rescind, but did not find it convincing.
Perez-Garcia cannot establish the prejudice required to establish a due process
violation.
Finally, Perez-Garcia argues that DHS’s procedure in deciding to reinstate a
removal order rather than issue a notice to appear to Perez-Garcia was arbitrary and
capricious, because Perez-Garcia would be eligible for relief in removal proceedings.
However, we have held that the streamlined reinstatement procedures under 8 C.F.R.
§ 241.8 are a valid interpretation of the Immigration and Nationality Act. Ochoa-
Carrillo, 437 F.3d at 846. And we find persuasive the government’s argument that
8 U.S.C. § 1252(g) forecloses our review of the decision to reinstate rather than issue
notice to appear. 8 U.S.C. § 1252(g) (“[N]o court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.”). Accordingly, we deny Perez-Garcia’s
petition for review of his reinstatement.
III.
Next, in Case No. 15-1314, Perez-Garcia argues that DHS erroneously denied
his motion to reopen the reinstatement in light of evidence that Perez-Garcia had
voluntarily left the United States in compliance with his 1998 grant of voluntary
departure. Perez-Garcia claims that DHS erred in not accepting his F.M.E., not
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relying on his affidavit, and requiring him to provide United States government
forms. Alternatively, Perez-Garcia argues that this court could find a genuine issue
of material fact regarding whether Perez-Garcia timely departed, in which case we
must remand to the district court or transfer the matter to the Board of Immigration
Appeals. All parties agree that this court has jurisdiction to review DHS’s denial on
the merits of Perez-Garcia’s motion to reopen the reinstatement in this case.3
Decisions denying requests to reopen are reviewed for an abuse of discretion. Gitau
v. Mukasey, 520 F.3d 906, 908 (8th Cir. 2008). “An agency abuses its discretion
when it makes a decision without rational explanation, departs from established
policies, invidiously discriminates against a particular race or group, fails to consider
all factors presented by the alien, or distorts important aspects of the claim.” Id. Our
review is limited to the administrative record. 8 U.S.C. § 1252(b)(4)(A); Ochoa-
Carrillo, 437 F.3d at 843.4
A party who establishes that he complied with a grant of voluntary departure
is not subject to reinstatement of the prior order of removal. 8 C.F.R. § 1241.7;
8 C.F.R. § 241.8(a). Perez-Garcia claims he provided sufficient evidence establishing
that he complied with his grant of voluntary departure. With his petition to reopen,
Perez-Garcia provided his affidavit and a photocopy of an F.M.E. In its denial of
Perez-Garcia’s motion, DHS noted that Perez-Garcia breached his $5,000 departure
bond because he had not submitted any evidence verifying his departure in 1999; that
nothing suggests Perez-Garcia contested his removal in 2000 when he was
apprehended; and that when he was again apprehended in 2014, Perez-Garcia
indicated that he did not want to make a statement. DHS further noted that Perez-
3
Because the parties are in agreement that we have jurisdiction to review the
denial of the motion to reopen the reinstatement, and we deny Perez-Garcia’s petition,
we decline to address jurisdiction further.
4
Accordingly, we deny Perez-Garcia’s August 10, 2015 Motion to take Judicial
Notice in Case No. 14-2842.
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Garcia did not submit any United States documents verifying his voluntary departure,
that Perez-Garcia was unable to provide authentication of his photocopy of an F.M.E.,
and that DHS did not find Perez-Garcia’s own statement that he departed persuasive.
A.R. 2.
Perez-Garcia interprets regulations listing affidavits as a form of evidence,
which he contends are applicable to the review of motions to reopen, to mean that
Perez-Garcia’s affidavit must be relied upon and trusted. However, even if affidavits
can constitute reliable evidence in the review of motions to reopen a reinstatement,
it does not mean that DHS must find every affidavit to be reliable. In this case, Perez-
Garcia repeatedly failed to claim timely departure at junctures when such a claim
could have benefitted him greatly. Perez-Garcia did not make this claim when it
could have helped him reclaim his $5,000 bond in 1999 or avoid removal in 2000, or
when he was initially apprehended in 2014. Thus, it was not unreasonable for DHS,
in weighing the available information, to find Perez-Garcia’s affidavit not credible.
Next Perez-Garcia contends that DHS was required to accept and rely on his
copy of an F.M.E. He points to 8 C.F.R. § 1287.6(c), which states that a public
document from a country that is a signatory of the Convention Abolishing the
Requirement of Legislation for Foreign Public Document may be evidenced by an
official publication or by a copy properly certified under that convention. However,
this does not mean that a photocopy without certification must be accepted. And
DHS’s denial explains that the F.M.E. was considered and that DHS did request an
authenticated copy; DHS simply determined that without further authentication, the
F.M.E. was not persuasive. See Xiu Ling Chen v. Holder, 751 F.3d 876, 879-80 (8th
Cir. 2014) (acknowledging that documents can be authenticated through other means
than § 1287.6, but finding that the Board of Immigration Appeals was correct to find
specific documents not “genuine, authentic, and objectively reasonable evidence”
when they were not sufficiently authenticated in any manner).
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Finally, while DHS noted Perez-Garcia’s lack of United States government
forms documenting his departure in its denial, it did not intimate that such forms were
required. DHS examined the evidence provided and reached a rational decision.
Although Perez-Garcia requests remand for the development of further factual
findings, he cannot point us to a case in which a grant was given under similar
circumstances.
IV.
Perez-Garcia, the father and caregiver of four United States citizen children,
is a sympathetic petitioner. However, we cannot find that DHS erred in its
determinations. Both petitions are denied.
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