Alvaro Apolinar v. William P. Barr ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2722
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Alvaro Blas Apolinar
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 19-1380
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Alvaro Blas Apolinar
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 14, 2019
Filed: December 27, 2019
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Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
In this consolidated appeal, Alvaro Blas Apolinar petitions for review of the
Board of Immigration Appeals’s (BIA) denial of his application for cancellation of
removal and denial of his motion to reopen or reconsider. We dismiss his petition for
review of his application for cancellation of removal for lack of jurisdiction. Having
jurisdiction under 8 U.S.C. § 1252(a), we deny his petition for review of his motion
to reopen or reconsider.
I.
Alvaro Blas Apolinar, a citizen of Mexico, entered the United States in 1998
without being inspected or admitted by an immigration officer. After arriving in the
country, he worked in Sedalia, Missouri for several years. He also has two minor
children who are United States citizens. In 2010, Blas Apolinar was placed in
removal proceedings when the Department of Homeland Security (DHS) filed a
Notice to Appear (NTA) with an immigration court. The NTA charged him with
removability for being present in the United States without admission or parole by an
immigration officer, but it did not provide the date and time of his hearing. Instead,
the NTA simply indicated that a hearing date and time would be set.
Blas Apolinar eventually received notice of a hearing scheduled for March 10,
2011, which he attended. At the hearing, he admitted the allegations contained in the
NTA and conceded removability. Although an Immigration Judge (IJ) granted his
request for voluntary departure, Blas Apolinar later moved to reopen the proceedings
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so that he could apply for cancellation of removal. The IJ granted this motion. On
September 9, 2011, Blas Apolinar filed his application for cancellation of removal on
the grounds that removal to Mexico would result in exceptional and extremely unusual
hardship for his children. Specifically, he asserted that his removal would result in his
family facing economic hardship, should they remain in the United States, as he is the
sole provider for his wife and children. He also argued that if his family were to
accompany him to Mexico, his children would face significant hardship because they
have limited Spanish language abilities, they would be unable to enjoy the same
educational opportunities as they have in the United States, and they could be at risk
due to the rampant crime and gang violence that is prevalent in the region of Mexico
where Blas Apolinar would return. Following a hearing on the application, an IJ
granted his application for cancellation of removal on June 14, 2017 after finding that
if Blas Apolinar’s children went to Mexico with him, they would suffer “exceptional
and extremely unusual” hardship. DHS appealed the IJ’s decision to the BIA, which
later sustained the appeal, vacated the IJ’s decision, and denied Blas Apolinar’s
application. Blas Apolinar then timely filed a petition for review in this Court.
On September 10, 2018, Blas Apolinar also filed a motion to reopen or
reconsider with the BIA. Specifically, he argued that, in light of the Supreme Court’s
decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the BIA should rescind the
removal order and terminate the case, or, alternatively, remand for additional fact
finding. The BIA denied his motion. Blas Apolinar timely filed a petition for review
of that decision in this Court, and both of his petitions were consolidated for appeal.
II.
We first consider Blas Apolinar’s argument that the BIA erred in denying his
application for cancellation of removal. Aliens in removal proceedings may, under
certain circumstances, be eligible for a “discretionary form of relief called cancellation
of removal.” Ali v. Barr, 924 F.3d 983, 985 (8th Cir. 2019). In order to qualify, Blas
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Apolinar must show: (1) continuous physical presence in the United States for at least
ten years; (2) good moral character; (3) that he has not been convicted of certain
crimes; and (4) that his “removal would result in exceptional and extremely unusual
hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1). For the purposes of this
appeal, the only issue is whether Blas Apolinar satisfied the last requirement—that his
removal would cause “exceptional and extremely unusual hardship” to his minor
children.
We generally lack jurisdiction to consider the agency’s discretionary
determination that an alien failed to show an “exceptional and extremely unusual
hardship” so as to qualify for cancellation of removal. See Solis v. Holder, 647 F.3d
831, 833 (8th Cir. 2011) (noting that this Court lacks jurisdiction over this issue); see
also 8 U.S.C. § 1252(a)(2)(B)(i) (“Notwithstanding any other provisions of law . . .
no court shall have jurisdiction to review any judgment regarding the granting of
[cancellation of removal] relief under section . . . 1229b.”). We do, however, have
jurisdiction to review a constitutional challenge or question of law related to this
determination. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . shall
be construed as precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals in accordance
with this section.”); Solis, 647 F.3d at 832 (“[T]his court has jurisdiction of
constitutional claims or questions of law raised upon a petition for review.” (internal
quotation marks omitted)). Such review is de novo. Ortega-Marroquin v. Holder, 640
F.3d 814, 818 (8th Cir. 2011).
First, Blas Apolinar asserts that the BIA failed to follow its own precedent in
In re Gonzales Recinas, 23 I. & N. Dec. 467 (BIA 2001), because the level of hardship
faced by Blas Apolinar is similar to that of the respondent in that case. He essentially
argues that the facts of Gonzales Recinas are similar enough to those in his case such
that the BIA should have accounted for the hardship factors in the same way in both
cases. Although framed as a legal question, this argument is actually a challenge to
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how the BIA weighed the relevant hardship factors in this case. We lack jurisdiction
to consider such a challenge. See Salas-Caballero v. Lynch, 786 F.3d 1077, 1078 (8th
Cir. 2015) (dismissing petition for lack of jurisdiction where alien argued that “the
BIA committed an error of law by improperly applying its prior decisions” in
determining whether removal would cause an exceptional and extremely unusual
hardship); Hamilton v. Holder, 680 F.3d 1024, 1027 (8th Cir. 2012) (“Since
[petitioner’s] hardship argument is essentially a challenge to the BIA’s weighing of
evidence, we lack jurisdiction to review it.”).
Second, Blas Apolinar argues that the BIA committed legal error in finding that
the economic hardship and educational factors, considered in isolation, were
insufficient to satisfy the “exceptional and extremely unusual hardship” requirement.
Instead, he asserts that these were relevant hardship factors that should have been
considered in the aggregate, not separately, and they should have been analyzed in
conjunction with other factors that are missing from the BIA’s analysis.
We do not agree with Blas Apolinar’s reading of the BIA’s opinion. It does not
appear that the BIA necessarily considered each hardship factor separately or ignored
certain findings made by the IJ—indeed, the opinion explicitly refers to the IJ’s
findings on the lack of educational opportunity, economic hardship, and prevalence
of criminal activity in Mexico, as well as the finding that Blas Apolinar’s children had
limited Spanish language abilities. Rather, the opinion concludes that, in light of all
of the evidence presented, Blas Apolinar failed to satisfy his burden in demonstrating
that his children would suffer an “exceptional and extremely unusual hardship” should
he be removed from the United States and should his children accompany him to
Mexico.
Accordingly, because Blas Apolinar has not raised a valid constitutional claim
or question of law concerning the BIA’s denial of his application for cancellation of
removal, we dismiss his petition for lack of jurisdiction. See 8 U.S.C.
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§ 1252(a)(2)(B)(i); see also Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th
Cir. 2007) (“We lack jurisdiction to review this finding because it is precisely the
discretionary determination that Congress shielded from our review.” (internal
quotation marks omitted)).
III.
We next consider whether the BIA erred in denying Blas Apolinar’s motion to
reopen or reconsider in light of Pereira. “We review the BIA’s denial of the motion
to reopen for abuse of discretion.” Martinez v. Lynch, 785 F.3d 1262, 1264 (8th Cir.
2015) (internal quotation marks omitted).
Blas Apolinar argues that the BIA erred in denying his motion to reopen or
reconsider on the grounds that the immigration court lacked subject matter jurisdiction
over his immigration proceedings. This is because his NTA lacked a specific date and
time for his removal hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i). He contends
that the Supreme Court’s recent decision in Pereira stands for the proposition that an
NTA that does not contain the date and time of his removal hearing divests the
immigration court of jurisdiction over the removal proceedings.
Blas Apolinar’s exact argument, however, has already been rejected by this
Court, “a unanimous chorus of other circuits,” and the BIA. Ali, 924 F.3d at 986
(collecting cases). This is because “Pereira had nothing to say about when an
immigration judge obtains jurisdiction over an alien’s removal proceedings.” Id.; see
Karingithi v. Whitaker, 913 F.3d 1158, 1160-61 (9th Cir. 2019) (holding that Pereira
does not stand for the proposition that a defective NTA divests an immigration court
of its jurisdiction). The Supreme Court in Pereira held that an NTA that lacked the
time and date of a hearing is insufficient to trigger the “stop-time” rule for purposes
of cancellation of removal relief. 138 S. Ct. at 2113-14. The relevant statutory
provision analyzed by Pereira—8 U.S.C. § 1229—sets forth various content
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requirements of an NTA, but it says nothing about when an immigration court is
vested with jurisdiction over removal proceedings. See also Rodriguez de Henriquez
v. Barr, 942 F.3d 444, 446 (8th Cir. 2019).
Accordingly, because it was not an abuse of discretion for the BIA to deny Blas
Apolinar’s motion to reopen or reconsider in light of Pereira, we deny the petition for
review.
IV.
For these reasons, we dismiss the petition for review of Blas Apolinar’s
application for cancellation of removal for lack of jurisdiction and deny his petition
for review of his motion to reopen or reconsider.
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