Gonzalez-Aguilar v. Garland

Case: 21-60867 Document: 00516577308 Page: 1 Date Filed: 12/13/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 21-60867 Fifth Circuit
Summary Calendar FILED
December 13, 2022
Lyle W. Cayce
Jose Omar Gonzalez-Aguilar, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A212 918 888
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Jose Omar Gonzalez-Aguilar petitions for review of an order by the
Board of Immigration Appeals. The order dismissed his appeal of an
immigration judge’s removal order. We DISMISS in part and DENY in
part.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-60867
FACTUAL AND PROCEDURAL BACKGROUND
Jose Omar Gonzalez-Aguilar, a native and citizen of Mexico, first
entered the United States without inspection in 1998 near Laredo, Texas. He
returned to Mexico briefly in 2010 following a Texas state conviction for
driving while intoxicated (“DWI”). He again entered the country without
inspection 15 days later. In 2017, after his second arrest for a DWI offense in
Texas alerted immigration officials of his presence, Gonzalez-Aguilar was
personally served with a Notice to Appear (“NTA”). He was charged with
removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the
United States without being admitted or paroled. The NTA ordered him to
appear in immigration court at a date and time “[t]o be set.” The
immigration court later mailed Gonzalez-Aguilar a Notice of Hearing
(“NOH”), scheduling his master hearing for October 25, 2017.
Gonzalez-Aguilar appeared without counsel at the scheduled hearing.
The immigration judge (“IJ”) continued the hearing to allow him to retain
counsel. At his next hearing, Gonzalez-Aguilar appeared with counsel,
admitted the allegations in the NTA, and conceded he was removable as
charged. He also stated his intention to file an application for cancellation of
removal. On December 27, 2017, he filed for cancellation of removal under
8 U.S.C. § 1229b(b)(1).
At the hearing on the application, Gonzalez-Aguilar’s attorney argued
jurisdiction never vested in the immigration court because Gonzalez-
Aguilar’s NTA failed to state the date and time of his removal hearing.
Gonzalez-Aguilar testified he lived in Dallas, Texas, and worked in
construction. He stated his wife was also undocumented but was not
currently in immigration proceedings. Gonzalez-Aguilar testified that he and
his wife had two children born in the United States: Cynthia, then age 13, and
Edgar, age 12.
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Gonzalez-Aguilar explained that his wife was the primary caretaker of
the children and did not work, though she previously had a job cleaning
houses. If he were removed to Mexico, his children would remain in the
United States with his wife. He confirmed, however, that his wife would not
make enough money cleaning houses to pay for the family’s expenses.
Therefore, if he were removed, the family would likely have to move into a
less expensive home or live with other family members. He added that his
sister, a United States citizen, would help support and care for his children.
When asked how he thought his removal would affect his two
children, Gonzalez-Aguilar testified “it would be bad for them” and “they
would do bad in school.” He noted that when he was in immigration
detention, his daughter “was not well at all” and did poorly in school.
The couple’s daughter, Cynthia, testified that if her father were
deported, she would stay in Texas with her mother. Cynthia testified that
when her father was in immigration detention, she could not focus in school
and her grades suffered. She had met with a counselor at her school during
this time. Cynthia also explained that her godparents sometimes helped care
for her and her brother while her mother was working.
Gonzalez-Aguilar also discussed his criminal history. He testified that
prior to his 2010 DWI conviction, he had only been stopped by the police and
ticketed for driving without a valid driver’s license or proof of insurance. He
admitted to his 2010 arrest and conviction for DWI and testified he had
successfully completed his sentence. Gonzalez-Aguilar also admitted to
being arrested again in 2017 for drinking and driving. He testified he was
ultimately convicted and sentenced to two years of probation.
On October 15, 2018, the IJ orally denied Gonzalez-Aguilar’s
application for cancellation of removal and his request to terminate the
removal proceedings based on Pereira. The IJ first found that Gonzalez-
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Aguilar’s defective NTA was cured by the subsequent NOH. As such, the IJ
had jurisdiction over the removal proceedings. Though the IJ found
Gonzalez-Aguilar to be a credible witness, the IJ ultimately denied
cancellation of removal, finding, among other things, he failed to show
removal would result in exceptional and extremely unusual hardship to his
children. The IJ also denied Gonzalez-Aguilar’s request for voluntary
departure and ordered him removed to Mexico.
Gonzalez-Aguilar appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). On October 14, 2021, the BIA dismissed his
appeal. The BIA rejected the claim that the IJ lacked jurisdiction. ROA.7-8.
The BIA also upheld the IJ’s finding that Gonzalez-Aguilar failed to show the
requisite hardship for cancellation of removal. Though the BIA considered
his claims that his children would suffer various negative impacts if he were
removed to Mexico, the BIA found Gonzalez-Aguilar had not identified a
hardship beyond the ordinary consequences of a non-citizen’s removal.
Finally, the BIA held Gonzalez-Aguilar abandoned certain issues for failure
to brief them.
Gonzalez-Aguilar timely filed a petition for review.
DISCUSSION
Generally, we have authority to review only the final decision of the
BIA, not that of the IJ. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
We “will evaluate the immigration judge’s underlying decision only if it
influenced the BIA’s opinion.” Hernandez-Castillo v. Sessions, 875 F.3d 199,
204 (5th Cir. 2017). We review the BIA’s conclusions of law de novo and
factual findings for substantial evidence. Barrios-Cantarero v. Holder, 772
F.3d 1019, 1021 (5th Cir. 2014). In Gonzalez-Aguilar’s case, the BIA adopted
the findings and conclusions of the IJ. Therefore, we will review both
decisions. See Wang, 569 F.3d at 536.
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There are three principal issues to resolve. First, did the IJ and the
BIA lack jurisdiction over the removal proceedings because the NTA did not
include the date and time of his hearing? Second, did the BIA err in finding
Gonzalez-Aguilar failed to show his United States citizen children would
suffer exceptional and extremely unusual hardship upon his removal? Third,
did the BIA err in concluding he abandoned his challenges to the IJ’s other
factual findings that were raised in his notice of appeal but not specifically
addressed in his brief?
I. Jurisdiction over removal proceedings
Gonzalez-Aguilar contends neither the IJ nor the BIA had jurisdiction
because his NTA failed to include the date and time of his merits hearing. As
the BIA found, Gonzalez-Aguilar’s argument is foreclosed under our
precedent. In 2019, we held that a defect in an NTA does not deprive an
immigration court of jurisdiction over removal proceedings. Pierre-Paul v.
Burr, 930 F.3d 684, 691–93 (5th Cir. 2019). Though the Supreme Court’s
subsequent decision in Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021)
abrogated Pierre-Paul in part, we have since confirmed that the jurisdictional
holding from Pierre-Paul remains “the law of [this] circuit.” Maniar v.
Garland, 998 F.3d 235, 242 n.2 (5th Cir. 2021). Accordingly, there is no
merit to Gonzalez-Aguilar’s argument that the IJ lacked jurisdiction over his
removal proceedings.
II. The BIA’s determination that Gonzalez-Aguilar did not establish
exceptional and extremely unusual hardship
Gonzalez-Aguilar argues the BIA erred in finding he failed to show
that his citizen children would suffer exceptional and extremely unusual
hardship upon his removal. The Government contends this court lacks
jurisdiction to consider factual challenges to the hardship determination,
citing the Supreme Court’s decision in Patel v. Garland, 142 S. Ct. 16145
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(2022). Instead, “the only reviewable issue before the [c]ourt is whether the
[BIA] erred in applying the facts as found by the [IJ] to conclude that
Gonzalez-Aguilar’s two children would not suffer exceptional and extremely
unusual hardship upon his removal.”
We have recently addressed this issue. We held that under Patel, the
hardship determination “is a discretionary and authoritative decision”
subject to the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) and therefore
“beyond our review.” Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th
Cir. 2022). Thus, we lack jurisdiction to consider any challenge Gonzalez-
Aguilar raised regarding his burden under Section 1229b(b)(1)(D), not just
his factual challenges to the hardship determination. See id.III. BIA’s determination that Gonzalez-Aguilar abandoned issues
Gonzalez-Aguilar argues the BIA erred in concluding he abandoned
any challenge to the IJ’s other factual findings that were listed in his notice
of appeal but not specifically addressed in his supporting brief. His notice of
appeal includes arguments that the IJ erred in: (1) denying his motion to
terminate the removal proceedings based on his Pereira jurisdictional
argument, (2) determining he failed to show his children would suffer
exceptional and extremely unusual hardship upon his removal, (3) ruling he
had not established 10 years of continuous physical presence in the United
States as required by Section 1229b(b)(1)(A), (4) finding he “did not merit a
finding of good moral character” and denying discretionary relief, and (5)
refusing to grant his request for voluntary departure.
In his brief before the BIA, though, Gonzalez-Aguilar discussed only
the IJ’s refusal to terminate the proceedings based on the purported lack of
jurisdiction and the IJ’s finding that he had not established the requisite
hardship to a qualifying relative.
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We need not reach the issue of forfeiture because the BIA’s hardship
determination was correct and is dispositive of his cancellation of removal
claim. Further, substantial evidence supports the BIA’s finding that
Gonzalez-Aguilar abandoned the issues he failed to address in his brief. See
Wang, 569 F.3d at 536–37. In fact, “once a petitioner elects in his notice of
appeal to file a brief, that brief becomes the operative document through
which any issues that a petitioner wishes to have considered must be raised.”
Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010). Since Gonzalez-
Aguilar’s brief did not address all issues listed in his notice of appeal, the BIA
did not err in finding he abandoned those issues. See id.The petition is DISMISSED in part and DENIED in part.
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