Antonio Avila-Baeza v. William Barr, U. S. Atty Ge

Case: 19-60467 Document: 00515563736 Page: 1 Date Filed: 09/14/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 14, 2020
No. 19-60467 Lyle W. Cayce
Summary Calendar Clerk
Antonio Avila-Baeza,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 488 484
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Antonio Avila-Baeza, a native and citizen of Mexico, seeks review of
the dismissal by the Board of Immigration Appeals (BIA) of his appeal from
the denial of his application for cancellation of removal after reopening and
remand for consideration of newly submitted evidence. The immigration
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-60467 Document: 00515563736 Page: 2 Date Filed: 09/14/2020
No. 19-60467
judge (IJ) determined that the newly submitted evidence did not alter its
earlier determination that Avila-Baeza failed to show that his removal would
result in “exceptional and extremely unusual hardship” to his two qualifying
daughters under 8 U.S.C. § 1229b(b)(1)(D).
In his petition for review, Avila-Baeza argues that (1) the BIA and IJ
erred by failing to consider the future hardships that his qualifying family
members would experience as a result of his removal; (2) the BIA erred by
applying the wrong legal standard when evaluating his application for
cancellation of removal; and (3) the BIA erred by refusing to consider his
eligibility for voluntary departure. Although we lack jurisdiction under
8 U.S.C. § 1252(a)(2)(B)(i) to consider the BIA’s purely discretionary denial
of cancellation of removal, a challenge to “the application of a legal standard
to undisputed or established facts” is a legal question that may be reviewed
pursuant to § 1252(a)(2)(D). Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067
(2020).
On petition for review of a BIA decision, we review factual findings
for substantial evidence and questions of law de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Despite the de novo standard for
reviewing legal questions, we “afford substantial deference to the BIA’s
interpretation of immigration statutes unless there is compelling evidence
that the BIA’s interpretation is incorrect.” Arif v. Mukasey, 509 F.3d 677,
680 (5th Cir. 2007) (internal quotation marks and citation omitted). We
review the IJ’s decision to the extent that it affected the BIA’s decision.
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
Assuming without deciding that § 1229b(b)(1)(D)’s hardship inquiry
is future-oriented, the record shows that the IJ and BIA considered the future
hardships Avila-Baeza’s qualifying daughters would experience due to his
2
Case: 19-60467 Document: 00515563736 Page: 3 Date Filed: 09/14/2020
No. 19-60467
removal. Avila-Baeza’s contention to the contrary is not supported by the
record.
Avila-Baeza contends that the BIA erred by applying the higher
hardship standard for cancellation of removal espoused in In re Monreal-
Aguinaga, 23 I. & N. Dec. 56 (BIA 2001) (en banc), and In re Andazola-Rivas,
23 I. & N. Dec. 319 (BIA 2002) (en banc), instead of the more lenient
standard that was used to assess the hardship requirement for suspension of
deportation. “[T]the BIA’s interpretation of an ambiguous provision of a
statute that it administers” may be entitled to deference under Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Cantarero-
Lagos v. Barr, 924 F.3d 145, 149 (5th Cir. 2019). Although we have not yet
considered this issue, every other circuit that has addressed this question has
determined that the BIA’s interpretation of the hardship requirement for
cancellation of removal is entitled to deference. See Ocampo-Guaderrama v.
Holder, 501 F. App’x 795, 798-99 (10th Cir. 2012); Pareja v. Att’y Gen., 615
F.3d 180, 190-95 (3d Cir. 2010); Ramirez-Perez v. Ashcroft, 336 F.3d 1001,
1006-07 (9th Cir. 2003); Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331,
1333-34 (11th Cir. 2003), overruled on other grounds by Patel v. U.S. Att’y Gen.,
___ F.3d ___, No. 17-10636, 2020 WL 4873196, 1 (11th Cir. Aug. 19, 2020).
We find these decisions from our sister circuits persuasive and similarly defer
to the BIA’s interpretation regarding this issue. See Holguin-Mendoza v.
Lynch, 835 F.3d 508, 509 (5th Cir. 2016).
Finally, although the IJ initially granted Avila-Baeza’s request for
voluntary departure, the BIA did not reinstate the period of voluntary
departure in his first appeal because he failed to comply with 8 C.F.R.
§ 1240.26(c)(3)(ii) by submitting proof that he had posted the requisite bond.
When Avila-Baeza raised his eligibility for voluntary departure before the
BIA in his second appeal, the BIA remarked that he had neither sought nor
established his eligibility for voluntary departure after reopening. Avila-
3
Case: 19-60467 Document: 00515563736 Page: 4 Date Filed: 09/14/2020
No. 19-60467
Baeza has not refuted the BIA’s determination in this regard. Accordingly,
the petition for review is DENIED.
4