Mario Avendano-Elvira v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2775
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Mario Avendano-Elvira
Petitioner
v.
Merrick B. Garland,1 Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 14, 2021
Filed: July 30, 2021
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Mario Avendano-Elvira, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals (BIA) decision upholding the immigration
judge’s (IJ) decision denying his request for cancellation of removal. We deny his
petition for review.
1
Respondent Garland was automatically substituted for his predecessor
pursuant to Fed. R. App. P. 43(c)(2).
I.
Avendano-Elvira entered the United States in 2004 without being lawfully
admitted and lived in Missouri with his wife and two children. Avendano-Elvira
also worked in Missouri, serving as the sole financial provider for his family while
his wife worked in the home, helping the children with their speech disabilities. In
May 2015, the Department of Homeland Security charged Avendano-Elvira with
removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (which defines as inadmissible
a person present in the United States without being admitted or paroled) and issued
a Notice to Appear to him. He admitted the factual allegations against him and
conceded the charge contained in the Notice to Appear before requesting
cancellation of removal, citing the impact that his removal would have on his family,
particularly his two disabled children.
Avendano-Elvira appeared before IJ Paula Davis for his initial hearing, then
before IJ Susan Castro, who accepted his application for cancellation of removal,
and then before IJ Denise Brown for a merits hearing. Avendano-Elvira and his wife
testified at the merits hearing. His wife testified that if he were removed, she and
the children would remain in the United States to maintain her Deferred Action for
Childhood Arrivals, or “DACA,” status. When asked what effect Avendano-
Elvira’s removal would have on the family, she testified that the children would
experience significant behavioral changes and emotional hardship and that she
would be required to seek work outside of the home, preventing her from assisting
the children with their disabilities. Additionally, she testified that, even if employed,
she would not be able to afford the family’s expenses absent Avendano-Elvira’s
financial help. Avendano-Elvira also submitted letters from his sisters-in-law,
mother-in-law, father-in-law, a colleague, and a friend, all of whom corroborated his
good character.
IJ Nancy Paul issued a written decision denying Avendano-Elvira’s request
for cancellation of removal, explaining that IJ Brown was “no longer available to
complete the decision” but that IJ Paul had “familiarized [her]self with the complete
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record of proceeding” prior to issuing her decision. Avendano-Elvira appealed IJ
Paul’s decision to the BIA, contending that the substitution of IJ Paul violated his
due process rights and that IJ Paul erred by finding he had not established that a
qualifying family member would suffer “exceptional and extremely unusual
hardship” as a result of his removal. The BIA dismissed Avendano-Elvira’s appeal,
concluding that he failed to show the IJ’s substitution deprived him of due process
or that his removal would result in “exceptional and extremely unusual hardship to
any of his qualifying relatives.” Avendano-Elvira now petitions this Court for
review.
II.
The Immigration and Nationality Act provides that a noncitizen is
inadmissible to the United States if he is “present in the United States without being
admitted or paroled” or if he “arrives in the United States at any time or place other
than as designated by the Attorney General.” 8 U.S.C. § 1182(a)(6)(A)(i). The
Department of Homeland Security may charge such inadmissible persons with
removal. See id. § 1229a(a)(2) (citing 8 U.S.C. § 1182(a)). However, eligible
noncitizens may apply for cancellation of removal. See, e.g., Arroyo v. Garland,
994 F.3d 905, 910 (8th Cir. 2021) (citing 8 U.S.C. § 1229b(b)). To qualify for that
relief, Avendano-Elvira needed to 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.” Rodriguez v. Barr, 952
F.3d 984, 989 (8th Cir. 2020) (citing 8 U.S.C. § 1229b(b)(1)). The IJ determined,
and the BIA affirmed, that Avendano-Elvira had been continuously present in the
United States for at least ten years, was of good moral character, and had not
committed a disqualifying offense. However, the IJ and BIA both found that
Avendano-Elvira failed to show a qualifying relative (specifically, his children)
would suffer “exceptional and extremely unusual hardship” as a result of his
removal.
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Avendano-Elvira first presents a due process challenge, arguing that his Fifth
Amendment due process rights were violated when IJ Paul was substituted for IJ
Brown and rendered a decision without first making herself familiar with the record
as required by 8 C.F.R. § 1240.1(b) and without explaining why IJ Brown was
“unavailable” to render the decision. “The decision to grant cancellation of removal
is a discretionary act by the Attorney General that this [C]ourt may not review. We
may, however, review constitutional claims or questions of law.” Id. (citation
omitted). We review Avendano-Elvira’s due process claim de novo, “as the question
of whether an immigration hearing violates due process is a purely legal issue.”
Bracic v. Holder, 603 F.3d 1027, 1032 (8th Cir. 2010).
Section 1240.1(b) provides:
If an immigration judge becomes unavailable to complete his or her
duties, another immigration judge may be assigned to complete the
case. The new immigration judge shall familiarize himself or herself
with the record in the case and shall state for the record that he or she
has done so.
IJ Paul, when rendering her decision, complied with this regulation’s plain language,
stating:
This case was originally heard by [IJ Brown]. However, [IJ Brown] is
no longer available to complete the decision, and I, [IJ Paul], was
accordingly assigned to complete the case. As required by the
regulations, I have familiarized myself with the complete record of
proceeding prior to entering this decision.
Contrary to Avendano-Elvira’s argument on appeal, he was not entitled to a specific
IJ, see Hernandez v. Holder, 579 F.3d 864, 871-72 (8th Cir. 2009) (“[A noncitizen]
does not have a due process right to a particular immigration judge.”), vacated in
part on other grounds on reh’g, 606 F.3d 900 (8th Cir. 2010), and he does not direct
us to a case or statutory provision requiring an IJ to articulate why the former IJ is
no longer available. Instead, Avendano-Elvira has a due process right to an IJ who
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is “fair and impartial.” See id. at 871. In her decision, IJ Paul not only stated that
she had familiarized herself with the record but also elaborated on pertinent facts in
that record, such as the children’s speech disabilities and Avendano-Elvira’s wife’s
testimony that, in his absence, the children would suffer behavioral and emotional
difficulties. Avendano-Elvira fails to offer evidence that IJ Paul was not fair and
impartial or that IJ Paul had not familiarized herself with the record in this case.
Ultimately, we find that the substitution of IJ Paul for IJ Brown did not violate
Avendano-Elvira’s due process rights. 2
Imbedded within Avendano-Elvira’s due process claim is a claim that the BIA
erred in its fact finding and ultimate decision to affirm the IJ. Although he frames
this argument as part of the due process analysis, it is instead a claim challenging the
BIA’s discretionary decision to deny his request for cancellation of removal—a
claim which we do not have jurisdiction to consider. See Rodriguez, 952 F.3d at
989; see also Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011) (“Such a finding
that the evidence failed to prove that his removal would cause an exceptional and
extremely unusual hardship . . . . is precisely the discretionary determination that
Congress shielded from [this] [Court’s] review.” (first and second alterations in
original) (internal quotation marks omitted)). Therefore, we are without jurisdiction
to reach this argument.
2
This Court recently addressed a similar argument in Orpinel-Robledo v.
Garland, No. 20-2624 (8th Cir. July 19, 2021). There, the petitioner argued in part
that the substitution of an IJ (after the merits hearing and before the final decision)
violated the text of 8 U.S.C. § 1229a(a)(1), (c)(1)(A) because the phrase “the
immigration judge,” id. at (c)(1)(A) (emphasis added), requires a single immigration
judge to preside over cancellation of removal proceedings from beginning to end.
See Orpinel-Robledo, No. 20-2624, at 3. However, this Court explained that the
statute did not impose such a requirement and further, because the IJ had familiarized
herself with the record pursuant to 8 C.F.R. § 1240.1(b), the petitioner’s argument
failed. Although here Avendano-Elvira does not similarly rely on 8 U.S.C.
§ 1229a(a)(1), (c)(1)(A), we rely on Orpinel-Robledo when deciding that no right to
a particular IJ exists.
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III.
For the foregoing reasons, Avendano-Elvira’s petition for review is denied.
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