Roberto Bautista-Garcia v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 15-11457; 15-14333
Non-Argument Calendar
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Agency No. A206-528-865
ROBERTO BAUTISTA-GARCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 27, 2017)
Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges
PER CURIAM:
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Roberto Bautista-Garcia, an alien previously convicted of possession of a
controlled substance, filed two petitions for review challenging the Board of
Immigration Appeals’ (BIA) orders: (1) affirming the Immigration Judge’s (IJ)
denial of his claims for withholding of removal and Convention Against Torture
relief, and finding him ineligible for humanitarian asylum; and (2) denying his
motion to reopen removal proceedings both as untimely and alternatively on the
merits. We consolidated the petitions for purposes of appeal, and address each
petition in turn. After review, we deny the petition in part and dismiss in part.
I. HUMANITARIAN ASYLUM
In his first petition for review, Bautista-Garcia contends the BIA failed to
give reasoned consideration to his humanitarian asylum claim because it wholly
failed to address his claim that he would suffer “other serious harm” if returned to
Guatemala.
As an initial matter, Bautista-Garcia does not dispute his cocaine possession
conviction triggers the criminal alien bar. 8 U.S.C. §§ 1252(a)(2)(C),
1182(a)(2)(A)(i)(II) (stating we lack jurisdiction to review any final removal order
against an alien who is removable by reason of having committed a controlled
substance offense). If the criminal alien jurisdictional bar applies, we nonetheless
retain jurisdiction to consider constitutional challenges and questions of law arising
out of the alien’s removal proceedings. 8 U.S.C. § 1252(a)(2)(D).
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We have jurisdiction to review the legal question of whether the BIA gave
reasoned consideration to Bautista-Garcia’s arguments regarding humanitarian
asylum. See Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1231 (11th Cir.
2013) (explaining the question of whether the BIA gave reasoned consideration to
a petitioner’s claims is a question of law). However, to the extent he disputes the
BIA’s factual findings or the weight and significance the BIA gave to each piece of
evidence, we lack jurisdiction to review these types of challenges. Id. at 1232(stating the review of whether the agency gave reasoned consideration to a petition
does not provide us with jurisdiction to review whether sufficient evidence
supports the agency’s decision, and we still “lack jurisdiction to review petitions
that contest the weight and significance given [by the Board] to various pieces of
evidence” (quotations omitted)).
The BIA must consider all evidence that an applicant has submitted. Tan v.
U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006). Where the BIA has given
reasoned consideration to the petition, and made adequate findings, we will not
require the BIA address specifically each claim made by the petitioner or each
piece of evidence presented. Id. The BIA “must consider the issues raised and
announce its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.” Id. (quotations omitted).
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Humanitarian asylum allows the agency to grant asylum to an alien who
suffered past persecution even when the presumption of a well-founded fear of
future persecution has been rebutted by the government. See 8 C.F.R.
§ 1208.13(b)(1)(ii). An alien applicant may be granted humanitarian asylum if:
(A) The applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the severity
of past persecution; or
(B) The applicant has established that there is a reasonable possibility
that he or she may suffer other serious harm upon removal to that
country.
See id. § 1208.13(b)(1)(iii)(A), (B).
The BIA gave reasoned consideration to Bautista-Garcia’s claim for
humanitarian asylum because the BIA “consider[ed] the issues raised and
announce[d] its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and though and not merely reacted.” Tan, 446 F.3d at 1374. First,
while Bautista-Garcia’s brief to the BIA did cite both the “severity of past
persecution” and “other serious harm” provisions for humanitarian asylum relief,
his arguments were solely based on his past persecution and its severity and
effects, which the BIA addressed in its decision. Further, Bautista-Garcia points to
no specific argument or evidence the BIA overlooked or failed to address. The
BIA addressed the arguments presented in Bautista-Garcia’s brief regarding
humanitarian asylum. Perez-Guerrero, 717 F.3d 1231-33. Accordingly, we deny
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Bautista-Garcia’s petition for review as to this issue to the extent it alleges a failure
to give reasoned consideration, and dismiss it for lack of jurisdiction otherwise.
II. MOTION TO REOPEN
In his second petition for review, Bautista-Garcia contends that, although his
motion to reopen was untimely, he was entitled to equitable tolling due to his
diligence in pursuing his rights and the ineffective assistance of his counsel,
attorney Mei Chen.
We lack jurisdiction over Bautista-Garcia’s challenges to the BIA’s order
denying his motion to reopen. First, even if Bautista-Garcia’s ineffective
assistance of counsel claims qualified as constitutional claims under 8 U.S.C.
§ 1252(a)(2)(D), we lack jurisdiction to consider those claims because they are
unexhausted. See 8 U.S.C. § 1252(d)(1) (we may review a final order of removal
only if the alien has exhausted all administrative remedies available to the alien as
a matter of right); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251
(11th Cir. 2006) (we “lack jurisdiction to consider a claim raised in a petition for
review unless the petitioner has exhausted his administrative remedies with respect
thereto”). Although Bautista-Garcia asserts his current ineffective assistance of
counsel claims as to competency and his “other serious harm” humanitarian
asylum claim are exhausted because he raised the issue of ineffective assistance of
counsel in his motion to reopen, this only satisfies half of the exhaustion
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requirement. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016)
(stating “[a] petitioner has not exhausted a claim unless he has both raised the ‘core
issue’ before the BIA, and also set out any discrete arguments he relies on in
support of that claim” (internal citation omitted)). While Bautista-Garcia’s pro se
motion to reopen raised the issue of ineffective assistance of counsel, his present
discrete arguments, as to his competency and “other serious harm” challenge, were
not presented to the BIA, and therefore, are not exhausted. Id. In other words,
Bautista-Garcia exhausted an issue of ineffective assistance of counsel, but not the
same ineffective assistance issue he argues to us now.
Second, Bautista-Garcia has abandoned the ineffective assistance and newly
discovered evidence claims that he did exhaust before the BIA, as those arguments
are not included in his brief before us. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (noting when an applicant fails to offer argument
on an issue, that issue is abandoned).
Bautista-Garcia’s only exhausted argument regarding reopening is his
challenge to the BIA’s equitable tolling decision. But we lack jurisdiction to
review that argument even if it were a legal or constitutional issue not barred by
Bautista-Garcia’s criminal conviction. See Malu v. U.S. Att’y Gen., 764 F.3d 1282,
1290 (11th Cir. 2014) (holding we lack jurisdiction to review claims raised by an
immigration petitioner over which we would otherwise have jurisdiction, if a
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ruling in the petitioner’s favor would not affect the judgment rendered by the BIA).
Because Bautista-Garcia abandoned all of the ineffective assistance and newly
discovered elements claims that he argued justified reopening—that is, all of the
merits of his motion to reopen—any ruling in his favor on the equitable tolling
issue would not affect the BIA’s judgment. Thus, our review of Bautista-Garcia’s
equitable tolling claim could not change the BIA’s underlying decision as to the
merits of Bautista-Garcia’s motion to reopen, and such a review would amount to
nothing more than an advisory opinion that we lack jurisdiction to render. See
Malu, 764 F.3d at 1290. Accordingly, we dismiss Bautista-Garcia’s petition for
review with respect to the order denying his motion to reopen.
PETITIONS DENIED IN PART, DISMISSED IN PART.
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