Reinaldo Cortez-Amador v. Attorney General United States of America

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-1249
______________
REINALDO CORTEZ-AMADOR,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a
Decision of the Board of Immigrations Appeals
(Agency No. A209-898-885)
Immigration Judge: Jason L. Pope
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 08, 2022
Before: SHWARTZ, MATEY, and FUENTES, Circuit
Judges
(Filed: April 25, 2023)
Pedro J. Familia
Laura S. Rodriguez
American Friends Service Committee
Immigrant Rights Program
570 Broad Street
Suite 1001
Newark, NJ 07102
Counsel for Petitioner
Lisa Morinelli
Tim Ramnitz
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
OPINION OF THE COURT
______________
FUENTES, Circuit Judge.
Reinaldo Cortez-Amador petitions this Court for review
of a final order of removal of the Board of Immigration
Appeals (BIA), dismissing the appeal of an Immigration
Judge’s (IJ) decision denying Petitioner’s motion to terminate
removal proceedings and his applications for adjustment of
status, asylum and withholding of removal, and protection
under the Convention Against Torture (CAT). Because we
lack jurisdiction to review factual findings on an adjustment
2
application and the agency decisions do not reflect any error of
law or are otherwise supported by substantial evidence, we will
dismiss the petition in part and deny it in part.
FACTS AND PROCEDURAL HISTORY
Petitioner fled from Guatemala to the United States at
the age of 16 following his father’s murder by gang members.
He entered the United States in 2016 without inspection and
was placed by Immigration Authorities in his sister’s custody
in Trenton, New Jersey. In January 2020, United States
Citizenship and Immigration Services (“USCIS”) granted him
Special Immigrant Juvenile Status (“SIJS”), a classification
available to immigrants who are under 21 and were abandoned
by their parents. 1
1
As relevant here, the Immigration and Nationality Act
(“INA”) states that the following qualify as special
immigrants:
(J) an immigrant who is present in the United
States--
(i) who has been declared dependent on a
juvenile court located in the United States
or whom such a court has legally
committed to, or placed under the custody
of, an agency or department of a State, or
an individual or entity appointed by a
State or juvenile court located in the
United States, and whose reunification
with 1 or both of the immigrant’s parents
is not viable due to abuse, neglect,
3
Noncitizen children may receive SIJS only after
satisfying a set of rigorous, congressionally defined eligibility
criteria, including that a juvenile court has found it would not
be in the child’s best interest to return to their country of last
habitual residence and that the child is dependent on the court
or placed in the custody of the state or someone appointed by
the state. 2 The child must also receive approval from USCIS
and the consent of the Secretary of Homeland Security to
obtain the status. 3 A recipient of SIJS may pursue legal
permanent residency.
While Petitioner was awaiting his SIJS classification, in
August 2019, New Jersey charged Petitioner with sexual
assault on a child under the age of 13 and child endangerment.
Pursuant to a plea bargain, Petitioner pleaded guilty to non-
sexual child endangerment and admitted giving the alleged
victim a cigarette. He was sentenced to 364 days of
incarceration and 3 years of probation.
abandonment, or a similar basis found
under State law.
8 U.S.C. § 1101(a)(27).
2
8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c).
3
8 U.S.C. § 1101(a)(27)(J); Memorandum from Donald
Neufeld, Acting Assoc. Dir., Domestic Operations & Pearl
Chang, Acting Chief, Office of Policy & Strategy, USCIS,
Trafficking Victims Protection Reauthorization Act of 2008:
Special Immigrant Juvenile Status Provisions 3 (Mar. 24,
2009),https://www.uscis.gov/sites/default/files/USCIS/Laws/
Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf
[hereinafter USCIS Memorandum] (citing H.R. Rep. No. 105-
405, at 130 (1997) (Conf. Rep.)).
4
In March 2021, the Department of Homeland Security
issued a Notice to Appear alleging that Petitioner was
removable for being present in the United States without
admission or parole. Petitioner made three arguments in the
ensuing proceedings: (1) his SIJS exempts him from removal;
(2) he should be granted an adjustment of status; and (3) he is
entitled to asylum (8 U.S.C. § 1158), withholding of removal
(8 U.S.C. § 1231(b)(3)), and/or CAT protection because the
same group that killed his father would target him if he
returned to Guatemala.
After a hearing, the IJ (1) held that SIJS is not an
exemption from removal as an inadmissible noncitizen, (2)
exercised his discretion to deny adjustment of status after
balancing the equities, (3) denied asylum and withholding of
removal, and (4) denied CAT protection. The BIA affirmed on
the same grounds. First, the BIA agreed with the IJ that SIJS
parole applies for adjustment of status only, not removal,
pursuant to the plain language of 8 C.F.R. § 1245.1(a). In other
words, an approved SIJS petition does not categorically protect
the noncitizen recipient from removal. Second, the BIA
determined that the IJ properly exercised its discretion in
denying Petitioner’s application for adjustment of status
because he did not clearly err in considering the entire record
and determining that negative factors, namely, Petitioner’s
criminal history, outweighed evidence of Petitioner’s high
school graduation and church involvement. Third, the BIA
determined that the IJ properly denied asylum and withholding
of removal because the harm did not rise to the level of past
persecution, and Petitioner had no objectively reasonable fear
of future harm. Last, the BIA affirmed the denial of CAT relief
because the IJ correctly determined that Petitioner is not more
likely than not to be tortured if removed and did not
5
demonstrate that the government would acquiesce to such
treatment. Petitioner petitions for review. 4
DISCUSSION
The threshold determination in this case is whether a
SIJS recipient is subject to removal simply for presence in the
United States “without being admitted or paroled.” 5 As
explained here, Petitioner is removable and he has not
established an entitlement to asylum or withholding of
removal.
(1) Whether SIJS recipients are paroled for purposes
of removal.
The parties agree that Petitioner is a “special
immigrant,” as defined by 8 U.S.C. § 1101. Petitioner argues
that special immigrants such as himself are exempt from
removal under 8 U.S.C. § 1182(a)(6)(A)(i), which provides
that “[a]n alien present in the United States without being
admitted or paroled, or who arrives in the United States at any
time or place other than as designated by the Attorney General,
is inadmissible.”
4
Petitioner does not appeal the denial of CAT relief and
therefore has abandoned that claim. See Kost v. Kozakiewicz,
1 F.3d 176, 182 (3d Cir. 1993) (absent extraordinary
circumstances, failure to develop arguments in an opening
brief results in their waiver).
5
8 U.S.C. § 1182(a)(6)(A)(i).
6
Special immigrants receive certain accommodations
outlined in 8 U.S.C. § 1255, which governs applications for
adjustments of status:
(a) The status of an alien who was . . . paroled
into the United States [may be adjusted to legal
permanent resident] . . . if [certain requirements
are met, including that] the alien is . . . admissible
to the United States for permanent residence[.]
...
(h) In applying this section to a special
immigrant . . .
(1) such an immigrant shall be deemed,
for purposes of subsection
(a), to have been paroled into the United
States; and
(2) in determining the alien’s
admissibility as an immigrant—
(A) paragraph[] . . . (6)(A) . . . of
section 1182(a) of this title shall
not apply[.] 6
6
See 8 C.F.R. § 1245.1(a) (“A special immigrant described
under [8 U.S.C. § 1101(a)(27)(J)] shall be deemed, for the
purpose of applying the adjustment to status provisions of
section 245(a) of the Act, to have been paroled into the United
States, regardless of the actual method of entry into the United
States.”).
7
The plain language of 8 U.S.C. § 1255(h)(2) clearly states that
8 U.S.C. § 1182(a)(6)(A)(i)—which permits the removal of
immigrants present without admission or parole—does not
apply to a special immigrant. But the Government argues that
the preface to § 1255(h) limits the scope of subsection (h)(2)
to adjudicators “applying this section,” i.e., to applications for
status adjustment. Under this interpretation, § 1255(h) simply
allows SIJS recipients to adjust their status despite their illegal
entry. The parties dispute whether 8 U.S.C. § 1255(h)(2)
applies to determine admissibility for purposes of removal.
This Court reviews questions of law, including the BIA’s
interpretation of the INA, de novo, subject to Chevron
deference. 7
Section 1255(h) expressly states that a noncitizen with
SIJS shall be deemed to have been paroled for purposes of
subsection (a) of that section, i.e., for adjustment of status to a
legal permanent resident only. Under normal canons of
statutory construction, “courts should construe statutory
language to avoid interpretations that would render any phrase
superfluous.” 8 The plain language of this subsection applies
7
Because the text of 8 U.S.C. § 1255(h) is unambiguous, we
need not defer to BIA’s interpretation under Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 158
(3d Cir. 2018).
8
U.S. v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005) (“It is a
cardinal principle of statutory construction that a statute ought,
upon the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or
insignificant,” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(internal quotation marks omitted)).
8
the “deemed to have been paroled” language only to subsection
(a) and no other provision of the INA. If we were to read the
statute as Petitioner suggests, “for purposes of subsection (a)”
would be rendered superfluous. 9 Conversely, if in § 1255(h)
Congress had intended a noncitizen with SIJS to be deemed
paroled for purposes of removal, it would have included
reference to removability or 8 U.S.C. § 1182. 10 Accordingly,
the plain language demonstrates that Petitioner is removable
despite his SIJS, 11 and the IJ and BIA properly considered
Petitioner’s arguments regarding adjustment of status,
withholding of removal, and CAT relief. 12
9
See Duncan v. Walker, 533 U.S. 167, 174 (2001) (refusing to
adopt statutory construction that would render statutory
language “insignificant.”).
10
See Aristy-Rosa v. Att’y Gen., 994 F.3d 112, 115 (3d Cir.
2021) (“[I]t is generally presumed that Congress acts
intentionally and purposely when it includes particular
language in one section of a statute but omits it in another[.]”
(internal quotation marks and citation omitted)).
11
This plain-text interpretation does not produce absurd
results. Aristy-Rosa, 994 F.3d at 116. Congress intended to
“enlarge[] the chance that [SIJS recipients] would be
successful in their applications for adjustment by exempting
them from a host of grounds that would otherwise render them
inadmissible.” Osorio-Martinez v. Att’y Gen., 893 F.3d 153,
171 (3d Cir. 2018). Thus, Congress could have rationally
decided that SIJS recipients should be given the opportunity to
apply for adjustment of status, while also contemplating that
they may be removed if their application is denied or for
another appropriate basis.
12
Osario-Martinez is distinguishable because the Court did not
hold SIJS recipients are exempt from removal due to
9
(2) Whether the BIA erred in denying the adjustment
of status application.
Petitioner next argues that remand is required for the
BIA to conduct a “distinct discretionary analysis specifically
tailored for adjustment of status.” 13 In opposition, the
Government argues that this Court lacks jurisdiction to
consider the agency’s discretionary denial of adjustment of
status. We lack jurisdiction to review factual findings on an
adjustment application. 14 Thus, the narrow question within our
jurisdiction is whether the agency made an error of law or
Petitioner makes a constitutional claim. 15
Petitioner’s argument distills to a contention that the
BIA failed to weigh some of his arguments and evidence in
making its determination. This Court has “consistently held”
that “arguments such as that an [IJ] or the BIA incorrectly
weighed evidence, failed to consider evidence or improperly
weighed equitable factors are not questions of law under [8
U.S.C.] § 1252(a)(2)(D).” 16 Thus, Petitioner’s claims do not
assert legal error or constitutional violations, and this Court
does not have jurisdiction to address them.
inadmissibility, but only that Congress intended to provide
SIJS recipients with an opportunity to pursue adjustment of
status.
13
Opening Br. at 30.
14
Patel v. Garland, 142 S. Ct. 1614, 1621-23, 1627 (2022).
15
Id.; Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005); see
8 U.S.C. § 1252(a)(2)(D).
16
Chiao Fang Ku v. Att’y Gen., 912 F.3d 133, 144 (3d Cir.
2019) (emphasis added).
10
(3) Whether the undisputed facts demonstrate past
persecution/likelihood of future harm for asylum
or withholding of removal.
Petitioner argues that the BIA applied the wrong
standard of review to the IJ’s findings, failed to consider the
threats and harm to Petitioner in the aggregate, and improperly
concluded that Petitioner could not establish a nexus between
persecution and his social group. The Government argues that
substantial evidence supports the BIA’s findings that Petitioner
failed to establish past persecution or a well-founded fear that
anyone in Guatemala would target him for harm. We agree
with the Government that substantial evidence supports the
BIA’s findings. 17
To make out a prima facie case for asylum, a petitioner
must show that he was persecuted, or had a well-founded fear
of persecution, “on account” of a statutorily protected ground,
including “race, religion, nationality, membership in a
particular social group, or political opinion.” 18 Withholding of
removal requires a higher risk of persecution—a clear
17
We review the BIA’s legal conclusions de novo while we
review its factual findings for substantial evidence. Guzman
Orellana v. Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020);
see I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481–82
(1992) (analyzing the causal connection between political
opinion and persecution as a factual question). The substantial
evidence standard requires us to defer to the factual findings of
the BIA as long as they are supported by evidence reasonably
grounded in the record. Guzman Orellana, 956 F.3d at 177.
18
8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13.
11
probability. 19 If a petitioner cannot meet his burden to
establish a risk of persecution for asylum, they automatically
fail on their withholding claim.
Persecution “connotes extreme behavior, including
threats to life, confinement, torture, and economic restrictions
so severe that they constitute a threat to life or freedom.” 20
Substantial evidence supports the agency’s finding that the
relevant actions did not rise to the level of the extreme conduct
that constitutes persecution. 21 Petitioner testified that two
men, Jehu and Neri, threatened to kill him while he was
working with his cousin. His cousin was later killed by these
two men. Petitioner was not threatened again in the five
months prior to his departure to the United States. Although
threats in combination with physical harm to a petitioner’s
close associates can rise to the level of persecution, 22 Petitioner
did not connect the relevant threats to the harm that was caused
to his cousin, and he was not threatened thereafter. While the
same men killed Petitioner’s father, that occurred seven years
prior to Petitioner’s departure, and Petitioner had remained
19
Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir.
2008).
20
Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)
(internal quotation marks and citation omitted).
21
See Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.
2006) (explaining that threats constitute persecution only in “a
small category of cases, and only when the threats are so
menacing as to cause significant actual suffering or harm . . .
[or] are highly imminent and menacing in nature” (internal
quotation marks and citation omitted)).
22
Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 111 (3d Cir.
2020).
12
unharmed during the intervening years. Moreover, Petitioner’s
siblings remained in Guatemala unharmed after the deaths of
both their father and cousin. 23 Thus, Petitioner raises no
meritorious argument with respect to asylum or withholding of
removal.
CONCLUSION
For the foregoing reasons, we will dismiss the petition
in part and deny it in part.
23
Gomez-Zuluaga, 527 F.3d at 347 (finding a well-founded
fear of harm established where threats continue post-
departure); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
13