Costilla Barrios v. Garland

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 27, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
JUANA COSTILLA BARRIOS,
Petitioner,
v. No. 20-9587
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and ROSSMAN, Circuit Judges.
_________________________________
Petitioner Juana Costilla Barrios, a Mexican national, seeks review of a
Board of Immigration Appeals (BIA) decision affirming the denial of her application
for cancellation of removal. Because we lack jurisdiction to review either issue
Petitioner raises, we dismiss the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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I. Background
Petitioner is a native and citizen of Mexico. She entered the United States
illegally in 1992 at the age of sixteen. She has five children who were born here.
In 2013, the Department of Homeland Security charged Petitioner with being
removable. She conceded removability (as a noncitizen who was present without
being admitted or paroled) but applied for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1).1 She asserted her removal to Mexico would cause exceptional and
extremely unusual hardship to her five United States citizen children, all of whom, as
of 2013, were under the age of twenty-one.
In 2018, an immigration judge (IJ) held a hearing on her application. By that
time, only two of Petitioner’s children were under the age of twenty-one—her
youngest son was fourteen and her second youngest son was twenty.
The IJ denied Petitioner’s application at the end of the hearing. He first
explained that only the two youngest children could serve as qualifying relatives for
purposes of assessing the statutory hardship requirement because the “older children
have turned 21 since [Petitioner] filed her [cancellation] application and no longer
qualify as children as that term is defined in the Act.” R. at 81-82. He then
concluded Petitioner had not met her burden of showing that her removal would
cause exceptional and extremely unusual hardship to her two youngest sons.
1
To be eligible for cancellation of removal as a non-permanent resident,
Petitioner needed to show, inter alia, that her “removal would result in exceptional
and extremely unusual hardship” to a spouse, parent, or child, who is a United States
citizen. 8 U.S.C. § 1229b(b)(1)(D).
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Petitioner appealed to the BIA. She argued the IJ erred in making the hardship
determination with respect to her two youngest sons. In doing so, she contended that
her second youngest son should still be considered a qualifying relative for purposes
of her case on appeal even though he had, by that time, turned twenty-one. She did
not challenge the IJ’s conclusion that her three oldest children could not serve as
qualifying relatives because they had turned twenty-one prior to the hearing.
In a three-member panel decision, the BIA upheld the IJ’s hardship
determination. Although the BIA acknowledged the IJ made some “mistaken
statements,” it conducted a de novo review and concluded the statements would not
change the result of the case. Id. at 3. The BIA held that the “[IJ] properly
determined that the evidence did not meet [Petitioner’s] burden to establish
exceptional and extremely unusual hardship to her children if she departs the United
States.” Id. at 4. The BIA further explained:
The [IJ] found that [Petitioner’s] children were physically healthy, and
although she testified that her 20-year-old son has some learning disabilities
and her 14-year-old son has some problems with his feet, the [IJ] properly
determined that these factors were not of such a nature as to result in
exceptional and extremely unusual hardship to her children upon [her]
departure from the United States.
Id. The BIA also recounted Petitioner’s testimony “that she provides the main financial
support for her sons, although her 20-year-old son was employed and her 14-year-old son
receives financial support from his father and the state.” Id. And then the BIA explained
that “[t]he [IJ] recognized that there would be a loss of the same level of financial
support, but not of such a nature as to result in exceptional and extremely unusual
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hardship to [Petitioner’s] sons.” Id. The BIA considered Petitioner’s argument that her
older children are not in a position to take care of her younger children but explained that
“it is not apparent that they could not be of some support.” Id.
Although the BIA upheld the IJ’s hardship determination with respect to both
sons, it also appeared to alternatively uphold that determination with respect to
Petitioner’s youngest son alone. The BIA stated that Petitioner’s sole qualifying relative
was her fourteen-year-old son, noting that Petitioner’s second youngest son was no
longer a qualifying relative because he was now over the age of twenty-one. The BIA
recognized Petitioner’s argument that her second youngest son should continue to be a
qualifying relative but explained that she “ha[d] not cited to any law or precedent that
mandates such a result.” Id. at 4 n.1. It then acknowledged the stress to the youngest son
resulting from Petitioner’s removal “and the challenges of adapting to life in Mexico,
including any difficulty writing in Spanish,” but concluded that Petitioner “ha[d] not
pointed to evidence that these challenges rise to the level of exceptional and extremely
unusual hardship.” Id. at 4-5. The BIA therefore agreed with the IJ “that such difficulty
has not been shown to constitute exceptional and extremely unusual hardship.” Id. at 5.
Petitioner filed a timely petition for review of the BIA’s decision.2
2
Shortly after filing her petition for review, Petitioner filed a motion to reopen
with the BIA and a motion to abate her case in this court pending the BIA’s decision
on the motion to reopen. We granted the motion and abated the case on October 16,
2020. But when the BIA had taken no action on the motion to reopen after nine
months, we lifted the abatement on July 27, 2021.
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II. Discussion
“We begin by determining whether we have jurisdiction to review the issues
raised by petitioner in [her] petition.” Galeano-Romero v. Barr, 968 F.3d 1176, 1181
(10th Cir. 2020) (internal quotation marks omitted). Two jurisdictional principles are
relevant here. First, we only retain jurisdiction over a challenge to a final order of
removal “if . . . the alien has exhausted all administrative remedies available . . . as of
right.” 8 U.S.C. § 1252(d)(1); see also Torres de la Cruz v. Maurer, 483 F.3d 1013,
1017 (10th Cir. 2007) (explaining that “we have jurisdiction only over those claims
that were presented to the BIA”). Second, under the mootness doctrine, we lack
jurisdiction to review an issue if the resolution of that issue will not change the
outcome of the case. See Ghailani v. Sessions, 859 F.3d 1295, 1300 (10th Cir. 2017)
(“In cases involving mootness, the starting point for our analysis is the familiar
proposition that federal courts are without power to decide questions that cannot
affect the rights of litigants in the case before them.” (brackets and internal quotation
marks omitted)). “The mootness doctrine derives from the requirement of Art. III of
the Constitution under which the exercise of judicial power depends upon the
existence of a case or controversy.” Id. (internal quotation marks omitted).
Petitioner asserts the BIA erred by considering hardship to only one of her
qualifying relatives, and she raises two distinct issues related to this assertion. She
first challenges the BIA’s conclusion that her second youngest son was no longer a
qualifying relative because he turned twenty-one during her agency appeal. Pet’r’s
Br. at 5-6. She next argues the BIA erred in affirming the IJ’s conclusion that her
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three oldest children were no longer qualifying relatives. She contends the BIA
“should have—on account of egregious agency delay—considered hardship to those
of [her] children who were under twenty-one on the date she filed her application for
cancellation of removal.” Id. at 32 (boldface omitted).
We start with the second issue. Petitioner did not raise this issue in her appeal to
the BIA. See generally R. at 9-22 (arguing that the IJ erred in determining that her two
youngest sons would not suffer exceptional and extremely unusual hardship if she were
removed). “It is a fundamental principle of administrative law that an agency must have
the opportunity to rule on a challenger’s arguments before the challenger may bring those
arguments to court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010).
Because Petitioner did not raise this issue in her appeal to the BIA, she has not exhausted
her administrative remedies with respect to this issue for the purposes of this petition for
review of her final order of removal.3 We therefore lack jurisdiction to consider it. See
§ 1252(d)(1); see also Garcia-Carbajal, 625 F.3d at 1236 (“We lack authority to
entertain these arguments . . . because Mr. Garcia-Carbajal never pursued them before the
BIA and so failed to exhaust them administratively.”); Torres de la Cruz, 483 F.3d
3Petitioner explains that she presented a similar issue in her motion to reopen,
which she filed after her petition for review in this case. See Pet’r’s Br. at 17-18
(describing issue as “the agency violated her right to due process by repeatedly
delaying a final hearing in her case for so many years that her three oldest children
had aged out by the time the [IJ] finally held a hearing on the merits of her case in
2018”). But she concedes that her “prior counsel did not explicitly raise [that issue]
to the Board” in her appeal to the BIA. Id. at 18. If the BIA does not rule in her
favor on her motion to reopen, she may file a separate petition for review of that
decision.
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at 1018 (“The record makes clear that this issue was never presented to the BIA, which
divests us of jurisdiction.”).
As for the first issue, Petitioner asserts that the BIA “declined to consider” her
older son as a qualifying relative, Pet’r’s Br. at 17, and erred as a matter of law in
concluding he could no longer be a qualifying relative. In response, the government
argues that Petitioner “fails to acknowledge the Board’s two, alternative analyses of
the hardship element,” and, as a result, has “failed to demonstrate how her legal
challenge is tied to a live case or controversy that would justify an exercise of the
Court’s jurisdiction.” Resp. Br. at 20. Much of the BIA’s decision is spent
discussing and upholding the IJ’s determination that Petitioner failed to show
exceptional and unusual hardship to both her sons, not just her youngest son.
Compare R. at 4 (referring to her “children” and “sons” in three paragraphs and
discussing both her “20-year-old son” and her “14-year-old son” in two paragraphs in
the course of agreeing with the IJ’s hardship determination), with id. at 4-5
(referencing the hardship to Petitioner’s “son” in one paragraph). The government
therefore argues that Petitioner’s first issue is moot because the BIA has already
determined, based on its de novo review of the discretionary hardship issue, that
Petitioner failed to demonstrate the requisite hardship whether the qualifying
relatives are deemed to be both of her youngest children or just her youngest son
alone.
We agree with the government that Petitioner’s first issue is moot. Petitioner’s
legal challenge relates only to the portion of the BIA’s decision where it determined
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that her second youngest son could no longer be a qualifying relative and where it
discussed the hardship of her removal solely as it related to her youngest son. Thus,
even if we were to review Petitioner’s legal question and resolve it in her favor, she
would not be able to obtain relief because the BIA upheld the IJ’s determination that
she did not establish the requisite hardship after considering the articulated hardship
to both her sons—a determination that remains unchallenged. Any decision from this
court on Petitioner’s question of statutory interpretation about whether her second
youngest son could still be a qualifying relative would therefore be an impermissible
advisory opinion. See Pub. Serv. Co. of Colo. v. U.S. EPA, 225 F.3d 1144, 1148 n.4
(10th Cir. 2000) (“This court would violate Article III’s prohibition against advisory
opinions were it to . . . issue a mere statement that the [agency’s] interpretation and
application of the law was incorrect without ordering some related relief.”).
III. Conclusion
For the foregoing reasons, we dismiss the petition for review.
Entered for the Court
Jerome A. Holmes
Circuit Judge
8