Jose Guerrero Tejado v. Eric H. Holder, Jr. , 776 F.3d 965 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3113
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Jose F. Guerrero Tejado
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., 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: October 7, 2014
Filed: January 29, 2015
[Published]
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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jose Guerrero Tejado ("Guerrero") seeks review of a final order from the Board
of Immigration Appeals (BIA) affirming an Immigration Judge's (IJ) denial of his
applications for cancellation of removal and asylum. We find that the IJ and the BIA
properly exercised their discretion in denying Guerrero's applications, and deny
Guerrero's petition for review.
I. Background
Guerrero, a Honduras native, entered the United States illegally in 1990. For
most of his stay in this country, Guerrero has misrepresented himself as a citizen of
El Salvador for the advantageous Temporary Protected Status (TPS) allowed to
Salvadorans.1 Guerrero was granted TPS status after submitting an application in
which he claimed to be a citizen of El Salvador. When Salvadorans' TPS status was
due to expire in 1995, Guerrero applied for asylum,2 again misrepresenting himself
as a Salvadoran by submitting a false Salvadoran birth certificate and alleging he
faced potential retribution from the Salvadoran government because he and his father
were members of a powerful guerilla unit in the 1980s. After he filed for asylum,
Guerrero submitted work authorization requests, which also misrepresented his
national origin. In 2001, Guerrero continued to misrepresent himself in an asylum
interview that reviewed his 1995 asylum application. The asylum officer, believing
Guerrero was Salvadoran, informed Guerrero of the Nicaraguan Adjustment and
Central American Relief Act (NACARA), which granted immigration benefits and
limits on removals to Salvadorans, among others. See Pub. L. 105-100, 111 Stat. 2160.
Guerrero did not correct the officer's mistaken belief that Guerrero was Salvadoran.
To his credit, Guerrero chose not to apply for NACARA benefits.
1
Salvadorans were granted TPS status pursuant to 8 U.S.C. § 1254a in January
1991. TPS designees can stay in the United States until the conditions in their country
are deemed to have improved, and they can obtain work authorization.
2
Guerrero testified before the IJ that he believed that misrepresenting his
nationality for purposes of gaining favorable immigration statuses was legal.
Guerrero's naivety should have been dispelled by the time he filed the application for
asylum because the lawyer that handled his previous immigration paperwork, Mr.
Salas, had been arrested in 1994 on charges of perpetrating fraudulent immigration
schemes.
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It was not until 2009, 19 years after his entry into this country, that Guerrero
revealed his true national origin, and then, not by choice. When Guerrero missed an
asylum interview in 2008, the Department of Homeland Security initiated removal
proceedings, alleging that Guerrero was present in the United States without
inspection and parole by an immigration officer in violation of § 212 of the
Immigration and Nationality Act. See 8 U.S.C. § 1182(a)(6)(A)(i). In his response,
Guerrero admitted his Honduran citizenship and conceded his removability, but he
nevertheless filed applications for cancellation of removal and asylum.
The IJ denied Guerrero's applications for cancellation of removal and asylum,
finding that he did not merit the favorable exercise of discretion required to obtain
these remedies. The IJ further concluded that Guerrero was not legally eligible. First,
the IJ exercised her discretion to deny both of Guerrero's applications. The IJ
supported her exercise of discretion by citing Guerrero's history of lying in
immigration matters, Guerrero's two driving while intoxicated convictions, and his
arrest for domestic assault. Second, the IJ determined that Guerrero was not legally
eligible for cancellation of removal because Guerrero did not meet his burden of
showing that his United States-citizen sons "would suffer exceptional and extremely
unusual hardship if [Guerrero] had to leave the United States." Rather, the IJ
concluded that Guerrero's sons would suffer "the normal hardships that would go
along with family members living in different locations." In addition, the IJ denied
Guerrero's application concluding that Guerrero lacked credibility based on Guerrero's
19 years of misrepresenting his national origin. The IJ further noted that even if
Guerrero had been credible, she would still have denied relief because Guerrero failed
to establish a well-reasoned fear of persecution based on his membership in a social
group. The BIA agreed with the IJ and affirmed her decision on all issues.
II. Discussion
Guerrero now appeals to this court, offering several theories of error below. We
need only address two: (1) whether this court has jurisdiction to review a discretionary
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denial of cancellation of removal, and (2) whether the BIA abused its discretion in
denying the application for asylum. The answer to both inquiries is no.
A. Denial of Cancellation of Removal
Cancellation of removal gives the government discretion to permit a deportable
alien to lawfully remain in the United States if they meet the requirements in 8 U.S.C.
§ 1229b(b). Under one provision, Guerrero must establish that his removal "would
result in exceptional and extremely unusual hardship to [Guerrero's] . . . child, who is
a citizen of the United States." 8 U.S.C. § 1229b(b)(1)(D). When this is established,
"the IJ makes a discretionary determination whether the alien merits the relief of
cancellation of removal." Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008) (citing
8 U.S.C. § 1229b(b)).
As a threshold matter, we lack jurisdiction to review "any judgment regarding
the granting of relief under section . . . 1229b." 8 U.S.C. § 1252(a)(2)(B)(i). Neither
can we review "any other decision or action of the Attorney General . . . the authority
for which is specified . . . to be in the discretion of the Attorney General." Id. at
§ 1252(a)(2)(B)(ii). Despite the discretionary nature of the relief Guerrero seeks, he
contends that his appeal fits within the exception to these rules, which allows us to
review "constitutional claims or questions of law" raised on appeal. Id. at
§ 1252(a)(2)(D). "We also possess jurisdiction to review the nondiscretionary
determinations underlying a denial of an application for cancellation of removal, such
as the predicate legal question whether the IJ properly applied the law to the facts in
determining an individual's eligibility." Gomez-Perez v. Holder, 569 F.3d 370, 372
(8th Cir. 2009) (quotations and citations omitted).
Guerrero presents two arguments to show his entitlement to cancellation of
removal: (1) that the IJ did not consider his son's psychological condition during a
previous separation, and (2) that the IJ erred in categorizing the hardship that his
family would face as "normal" because of a misapplication of BIA precedent.
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Concerning the first argument, Guerrero testified that his youngest son, Kevin, had
trouble adjusting without Guerrero present. Kevin has been diagnosed with
Adjustment Disorder with Mixed Disturbance of Emotions and Conduct making the
separation a greater hardship than normal.
Guerrero's first argument seeks reversal of the IJ's factual evaluation of his
claim. We lack the jurisdiction to do so. While Kevin's former condition is
unfortunate, the weight that the IJ gave to the impact of Kevin's separation from his
father remains outside our jurisdiction because it does not constitute a question of law.
Similarly, the applicant in Guled "argue[d] the IJ improperly weighed the factors in
the proper balancing test," yet we found that we lacked jurisdiction. 515 F.3d at 880;
see also Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011) (denying review when an
applicant challenged the BIA's consideration of certain factors because this practically
argued that the BIA improperly weighed the factors in the proper balancing test).
Practically, this amounts to a disagreement with "the discretionary conclusion of not
meriting a favorable exercise of discretion." Guled, 515 F.3d at 880. The amount of
weight given to particular facts is not a question of law, but it is exactly the type of
decision making that Congress intended to prevent the courts from reviewing.
Turning to Guerrero's second argument, Guerrero states that the IJ and the BIA
misapplied the legal standard for finding an "exceptional and extremely unusual
hardship." Specifically, Guerrero contends that the IJ failed "to meaningfully
distinguish between [his] case and Matter of Recinas, 23 I&N Dec. 467 (2002)." He
contends Recinas should have applied and been a basis for relief. This is a question
of law and within our jurisdictional ambit. See Gomez-Perez, 569 F.3d at 373 (finding
that the applicant's argument that an incorrect legal standard applied when the IJ and
the BIA "focus[ed] on the present circumstances of [the applicant's] children rather
than on the future hardships that they would face if he were removed" was a question
of law appropriate for review).
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In our view, Guerrero's case is materially distinguishable from Recinas.
Guerrero's United States-citizen children may remain in this country with their
mother. In addition, Guerrero's children are nearly adults, which mitigates the
economic burden of losing the financial support Guerrero currently provides. While
Guerrero argues that his children would suffer emotionally from his departure, we
agree with the IJ that this emotional hardship represents the normal hardship that
family members suffer when they live apart. Therefore, the IJ and the BIA did not err
in failing to apply Recinas to grant relief to Guerrero.
This holding alone is enough to defeat Guerrero's eligibility for cancellation of
removal. But, the IJ and the BIA also exercised their discretion to deny Guerrero's
application. Guerrero seeks review of that discretionary denial. We decline as "[w]e
lack jurisdiction to review the Attorney General's discretionary decision not to grant
cancellation of removal" pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), Hamilton v. Holder,
680 F.3d 1024, 1026 (8th Cir. 2012).
B. Denial of Asylum
Similar to cancellations of removal, the adjudication of asylum applications is
best understood in two parts: (1) determining eligibility; and (2) exercising discretion
to grant asylum. See Farbakhsh v. I.N.S., 20 F.3d 877, 881 (8th Cir. 1994); see also
Gulla v. Gonzales, 498 F.3d 911, 915 (9th Cir. 2007); Huang v. I.N.S., 436 F.3d 89,
94 (2d Cir. 2006). Eligibility depends on the applicant's ability to show that they are
a "refugee," meaning that they are a person outside of their country of origin "who is
unable or unwilling to return to, and is unable or unwilling to avail himself or herself
of the protection of, that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42). "An asylum applicant who meets
the[se] legal standard[s] . . . is only 'eligible for asylum,' which the Attorney General
. . . 'in his [or her] discretion' may grant." Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir.
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2008) (fifth alteration in original) (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
443 (1987)).
We review denials of asylum for an abuse of discretion. Hassan v. Gonzales,
484 F.3d 513, 516 (8th Cir. 2007). We will uphold an IJ's factual determinations as
long as they are "supported by reasonable, substantial, and probative evidence on the
record considered as a whole." Id. (citation omitted). This is a deferential standard,
"requiring a reviewing court to uphold a denial of asylum unless an alien demonstrates
that the evidence he presented was so compelling that no reasonable fact finder could
fail to find the requisite fear of persecution." Id. at 516 (quotation and citation
omitted). Additionally, the IJ's "findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B); see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
The IJ found that Guerrero could not establish his asylum eligibility because he
was not credible. Guerrero's testimony, the sole evidence presented to prove his "fear
of persecution," was thus discounted. After "[c]onsidering the totality of the
circumstances, and all relevant factors," an IJ can base such a credibility finding on
the inherent plausibility of the applicant's . . . account, the consistency
between the applicant's . . . written and oral statements . . . , the internal
consistency of each such statement, . . . and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). Further, "[w]hen the BIA has adopted and affirmed the
IJ's adverse credibility determination, we defer to those findings if 'supported by
specific, cogent reasons for disbelief.'" R.K.N. v. Holder, 701 F.3d 535, 538 (8th Cir.
2012) (quoting Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir. 2008)). Guerrero
deceived officials for 19 years concerning his national origin in several immigration
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applications and interviews. On these facts, the IJ and BIA justified their disbelief of
his testimony. To be sure, Guerrero's past untruthfulness does not mean he is not
telling the truth in his current applications. However, the statute makes clear that
falsehoods do not need to go to the heart of the applicant's claim in order to be
considered in evaluating credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii). As a result, we
find no error or abuse of discretion in the IJ's adverse credibility determination or the
BIA's affirmation thereof.
While this adverse credibility finding is enough to deny Guerrero's eligibility,
both the IJ and the BIA also considered the merits of his eligibility claims, finding that
Guerrero did not establish that he had a well-founded fear of persecution "on account
of . . . membership in a particular social group." Guerrero argued that he, if returned,
would be targeted by criminals and would be subject to assaults and robberies because
he would be perceived as wealthy because he lived in the United States for such a long
time. Being among those who are perceived as wealthy for having lived in this
country, however, is not a recognized social group subject to protection under asylum
law. See Matul-Hernandez v. Holder, 685 F.3d 707, 712 (8th Cir. 2012) (finding that
membership in a group of Guatemalans returning from the United States who would
be perceived as wealthy was not a recognized social group that had a well-founded
fear of persecution). The IJ and the BIA did not abuse their discretion in denying the
asylum application because Guerrero could not meet his burden of establishing his
eligibility for asylum.
III. Conclusion
For the foregoing reasons, we deny Guerrero's petition for review of the IJ's and
the BIA's denial of Guerrero's applications for cancellation of removal and asylum.
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