Carlos Caballero-Martinez v. William P. Barr

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2044
___________________________
Carlos Caballero-Martinez
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
___________________________
No. 18-1198
___________________________
Carlos Caballero-Martinez
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: December 11, 2018
Filed: April 3, 2019
____________
Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
____________
SMITH, Chief Judge.
Carlos Caballero-Martinez petitions for review of two orders from the Board
of Immigration Appeals (BIA). The first order denied his motion to administratively
close or remand to the immigration judge and the second order denied his motion to
reopen and reconsider the first denial. We grant the petition for review and affirm in
part and remand in part.
I. Background
A native and citizen of Mexico, Caballero-Martinez entered the United States
illegally in 2000. He has four children, three of whom are United States citizens.
In September 2011, the Department of Homeland Security (DHS) initiated
removal proceedings against Caballero-Martinez. At his removal hearing,
Caballero-Martinez admitted to being in the United States illegally. However, he
requested cancellation of removal under 8 U.S.C. § 1229b. Section 1229b(b)(1)(D)
allows for cancellation of removal if the “removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for permanent residence.”
Caballero-Martinez claimed his children would suffer “exceptional and extremely
unusual hardship” if he were removed.
Immigration Judge (IJ) Paula Davis conducted Caballero-Martinez’s removal
hearing. However, IJ Davis retired before issuing a decision; the case was then
-2-
assigned to IJ Glen Baker. IJ Baker reviewed the proceedings and IJ Davis’s draft
decision, and he adopted “the reasoning and conclusions therein.” Pet’r’s Add. at 20.
In a February 2016 order, IJ Baker found Caballero-Martinez’s “children
[were] good students in school and [did] not have any learning problems or other
mental health problems.” Id. at 18. He noted that “[t]he principal hardship factor
identified by [Caballero-Martinez] is difficulty in finding work in his hometown and
that he would struggle [to] find a place for his family to live.” Id. Though the IJ found
Caballero-Martinez’s hardship testimony credible, he ultimately held that
Caballero-Martinez had “not provided evidence to establish that his qualifying
relatives would suffer hardship that is substantially different from, or beyond that,
which would normally be expected to result from deportation of an alien with close
family members in the United States.” Id. at 19.
In March 2016, Caballero-Martinez appealed IJ Baker’s order to the BIA. He
again argued his children would suffer “exceptional and extremely unusual hardship”
if he returned to Mexico; he also argued that, by allowing a judge who had not been
present at his cancellation hearing to issue a decision in his case, the immigration
court had violated his due process rights as well as the Immigration and
Naturalization Act (INA) and its implementing regulations.
While the appeal was still pending, Caballero-Martinez became the victim of
a criminal assault. Based on this development, Caballero-Martinez applied to the
United States Citizenship and Naturalization Services (USCIS) for a U Visa. The
U Visa (Form I-918) is a type of non-immigrant visa available to crime victims who
assist law enforcement. In November 2016, Caballero-Martinez filed a motion with
the BIA to remand for a continuance, or, in the alternative, for administrative closure
of removal proceedings, pending adjudication of his U Visa petition.
Caballero-Martinez also contended the BIA should remand to allow the IJ to consider
additional hardship evidence, claiming his children had begun performing poorly in
-3-
school. DHS opposed the motion. USCIS did not issue a Form I-797 Notice of
Action—i.e. a filing receipt for Caballero-Martinez’s U Visa petition—until
December 2016, after he filed his motion to remand.
The BIA denied Caballero-Martinez’s motion to remand or administratively
close in April 2017 (“the April order”). The April order began by finding IJ Baker’s
decision was neither substantively nor procedurally unsound, citing regulations
permitting the use of substitute IJs. The BIA then found Caballero-Martinez’s
additional hardship evidence was unlikely to alter the outcome of his case and thus
declined to remand. The BIA also declined to administratively close or remand
pending the U Visa petition’s adjudication, explaining that Caballero-Martinez “ha[d]
not put forward an adequate basis to temporarily remove his case from the Board’s
docket or, if remanded, from the Immigration Judge’s active calendar.” Id. at 9. The
BIA noted in a footnote that Caballero-Martinez had not provided evidence, such as
a “Notice of Action,” that his application had been received by USCIS. The BIA also
explained that “[t]he regulations provide exclusive jurisdiction over [U Visa]
applications to the DHS and also specifically address U [V]isa ‘petitioners’ with final
orders of removal. The filing of the application has no effect on the Government’s
authority to execute a final order . . . .” Id. (internal citation omitted). The order did
not specify whether it was denying Caballero-Martinez’s request on jurisdictional or
evidentiary grounds.
After receiving a filing receipt from USCIS, Caballero-Martinez moved the
BIA to reopen and reconsider his case in May 2017. The BIA denied his request for
reconsideration in December 2017 (“the December order”), explaining that
Caballero-Martinez’s “motion relies on evidence that he submitted on appeal and by
motion.” Id. at 3. The BIA also declined to reopen, reiterating that the hardship
evidence presented as part of his November 2016 motion was not sufficient to change
the outcome of the proceedings. Finally, the BIA reaffirmed its refusal to
administratively close proceedings “based on [Caballero-Martinez’s] intent to pursue
-4-
a U visa application.” Id. The BIA explained that in the April order, “we noted that
[Caballero-Martinez] purported that he mailed the U [V]isa application to USCIS but
he did not provide evidence that the application was received, such as by a Notice of
Action (Form I-797). While [Caballero-Martinez] has now included receipt of his
[U Visa] application, this does not alter the reasons for our denial of his request for
administrative closure.” Id. at 3–4.
Caballero-Martinez now petitions this court for review of both the BIA’s April
and December orders. Caballero-Martinez argues the BIA’s April order failed to
address whether the use of a substitute IJ violated the INA or its implementing
regulations. He also argues the BIA erred in its April order by applying the incorrect
standard to his motion to remand for consideration of additional hardship evidence
and by denying his motion to remand for a continuance pending the adjudication of
his U Visa petition. Additionally, he argues the BIA erred in its December order by
declining to reopen and reconsider his case after he provided proof of his U Visa’s
filing.
II. Discussion
A. Use of a Substitute IJ
Caballero-Martinez argues the BIA failed to address whether using a substitute
IJ violated the INA or its implementing regulations in its April order; he claims the
BIA exclusively addressed his due process argument. We disagree and affirm the
BIA’s decision to allow the use of the substitute IJ.
We have previously upheld the use of substitute IJs in immigration cases. See
Njoroge v. Sessions, 709 F. App’x 380, 381 (8th Cir. 2017) (per curiam). In Njoroge,
the IJ who conducted the petitioner’s removal hearing retired before issuing a
decision, so the decision was issued by a substitute IJ. Id. at 380. Upon reviewing the
evidence, the substitute IJ determined the petitioner was not credible and denied his
asylum claim. Id. On appeal from a BIA order sustaining the substitute IJ’s denial,
-5-
petitioner contended “that several regulatory and statutory requirements were violated
by reason of the second IJ’s credibility determinations made in the absence of an
opportunity to observe [the petitioner’s] demeanor in a face-to-face setting.” Id. at
381. However, we held that “because it was the BIA’s decision that constituted the
final reviewable agency action, which did not rely on the credibility determination
when it analyzed the merits of [the petitioner’s] claims,” the petitioner’s rights had
not been violated. Id.
Caballero-Martinez attempts to distinguish Njoroge by arguing the BIA here
“explicitly affirmed the IJ’s factual findings,” Pet’r’s Br. at 27, while the BIA in
Njoroge did not rely on the IJ’s credibility determinations. Njoroge, 709 F. App’x at
381. Unlike in Njoroge, however, where the substitute IJ did not find petitioner
credible, IJ Baker did find Caballero-Martinez credible; ultimately, the IJ denied
relief not because Caballero-Martinez was insincere in alleging hardship, but because
his hardship evidence was insufficient. Here, Caballero-Martinez does not contest the
IJ’s credibility findings. Rather, he contests the IJ and the BIA’s weighing of the
evidence.
The April order indicates that the BIA did, in fact, consider
Caballero-Martinez’s hardship evidence; its ultimate agreement with the IJ’s
determination does not render its decision invalid. Because the BIA’s April order
relied on an uncontested credibility determination, our decision here does not conflict
with our decision in Njoroge. Rather, Njoroge supports the proposition that
immigration courts may use substitute IJs.
Furthermore, the use of a substitute IJ is supported by the INA’s implementing
regulations, which the BIA cited in the April order. The record therefore plainly
contradicts Caballero-Martinez’s claim that the BIA did not address his statutory or
regulatory arguments in its April order. In fact, the BIA thoroughly discussed the
-6-
statutory and regulatory bases for using a substitute IJ. Specifically, the BIA cited to
and quoted 8 C.F.R. § 1240.1(b) for support. Section 1240.1(b) provides that
[i]f an immigration judge becomes unavailable to complete his or her
duties, another immigration judge may be assigned to complete the case.
The new immigration judge shall familiarize himself or herself with the
record in the case and shall state for the record that he or she has done
so.
In denying cancellation, IJ Baker complied with the regulations. At the end of
his order, IJ Baker stated that he had reviewed the proceedings conducted by IJ Davis,
as well as her draft decision. Caballero-Martinez has presented no evidence that IJ
Baker did otherwise. Caballero-Martinez’s attempt to cast doubt on IJ Baker’s review
by noting that his order is erroneously captioned as an oral decision is likewise
unavailing. The order is a written decision regardless of its caption.
“[T]he BIA need not revisit in detail every issue raised concerning the original
order.” Camacho v. Whitaker, 910 F.3d 378, 381 (8th Cir. 2018). Rather, “the BIA’s
obligation is to ‘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. (quoting Camarillo-Jose v. Holder, 676 F.3d 1140, 1143 (8th
Cir. 2012)). The BIA’s substantial discussion of the statutory and regulatory bases for
using a substitute IJ were sufficient for our review purposes.
B. Additional Hardship Evidence
Caballero-Martinez also argues the BIA erred in not remanding his case to the
IJ after he submitted additional hardship evidence. In both its April and December
orders, the BIA denied remand on the basis that the additional hardship evidence was
unlikely to alter the outcome of the case, citing to Matter of Coelho, 20 I. & N. Dec.
464 (BIA 1992). Caballero-Martinez denies Coelho’s validity, claiming the BIA
-7-
abrogated Coelho in In re L-O-G, 21 I. & N. Dec. 413 (BIA 1996).
Caballero-Martinez argues that, per L-O-G, the BIA should remand when presented
with potentially worthwhile new evidence. He asks us to remand to the BIA with
instructions to apply his preferred, lower standard.
“[T]he BIA’s interpretation of immigration laws and regulations receives
substantial deference.” Muiruri v. Lynch, 803 F.3d 984, 986 (8th Cir. 2015). We have
repeatedly upheld the BIA’s application of the Coelho likely-to-change-the-result
standard, recognizing that “the BIA will remand only if the evidence is of such a
nature that the Board is satisfied that if proceedings before the IJ were reopened, with
all the attendant delays, the new evidence would likely change the result in the case.”
Clifton v. Holder, 598 F.3d 486, 492 (8th Cir. 2010) (emphasis added) (quoting Berte
v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005)); see also Lee v. Holder, 765 F.3d 851,
855 (8th Cir. 2014); Vargas v. Holder, 567 F.3d 387, 391 (8th Cir. 2009).
We specifically decline to interpret L-O-G as abrogating Coelho. Such an
interpretation would conflict with our prior cases and is contrary to the L-O-G
decision itself. The BIA in L-O-G explicitly distinguished Coelho, explaining that
where, as in Coelho, “the alien had already had an opportunity to fully present and
litigate his request for discretionary relief from deportation . . . . reopening should not
be granted unless the alien had met the ‘heavy burden’ of showing that the new
evidence presented ‘would likely change the result in the case.’” L-O-G, 21 I. & N.
Dec. at 419–20 (quoting Coelho, 20 I. & N. Dec. at 473). Caballero-Martinez “had
an opportunity to fully present and litigate his request for discretionary relief from
deportation” before the immigration court, so “reopening should not be granted unless
the alien ha[s] met ‘the heavy burden’ of showing that the new evidence presented
‘would likely change the result in the case.’” Id. at 420 (emphasis added) (quoting
Coelho, 20 I. & N. Dec. at 473).
-8-
Accordingly, we hold that the BIA applied the correct legal standard in
reviewing Caballero-Martinez’s request to submit additional hardship evidence.1
C. U Visa Petition
Caballero-Martinez’s final argument is that the BIA erred in its April order by
declining to remand or administratively close his case to await resolution of his
U Visa petition. He also claims the BIA erred in its December order by declining to
reopen and reconsider his case after he submitted proof that USCIS had received his
petition. Caballero-Martinez specifically argues that the BIA erroneously departed
from its established policy by declining to apply “‘a rebuttable presumption’ in favor
of delaying removal proceedings to await the adjudication of a U [V]isa,” Pet’r’s Br.
at 20, as articulated in Matter of Sanchez-Sosa, 25 I. & N. Dec. 807, 815 (BIA 2012).
“We review both the denial of a motion to remand and the denial of a motion
to reopen for abuse of discretion.” Clifton, 598 F.3d at 490. “The BIA abuses its
discretion if its decision is without rational explanation, departs from established
policies, invidiously discriminates against a particular race or group, or where the
agency fails to consider all factors presented by the alien or distorts important aspects
of the claim.” Id. at 490–91 (quoting Vargas, 567 F.3d at 391).
In Sanchez-Sosa, the BIA established a policy by articulating factors an IJ
should consider in determining whether to continue removal proceedings pending the
1
To the extent Caballero-Martinez challenges the BIA’s underlying
determination that the new evidence likely would not change the result of the case,
that determination is unreviewable by this court. An appellant who “question[s]
whether the BIA accurately assessed or, ultimately, gave due weight to the[]
[hardship] factors . . . attacks the BIA determination that the evidence failed to show
an extraordinary and extremely unusual hardship. This finding, however, is precisely
the discretionary determination that Congress shielded from our review.”
Nunez-Portillo v. Holder, 763 F.3d 974, 977 (8th Cir. 2014) (cleaned up).
-9-
adjudication of a U Visa application. I. & N. Dec. at 812. IJs may grant continuances
on the basis of pending U Visa petitions even though they do not have jurisdiction
over U Visa petitions. Id. at 812. According to Sanchez-Sosa, IJs should consider “(1)
the DHS’s response to the [alien’s] motion [to continue]; (2) whether the underlying
visa petition is prima facie approvable; and (3) the reason for the continuance and
other procedural factors.” Id. at 812–13. As part of proving the approvability of their
petition, aliens are also encouraged to provide “a receipt indicating that the petition
has been submitted to the USCIS.” Id. at 814. Where “the alien shows that he has
filed a completed application before the USCIS . . . and the petition appears to meet
the necessary criteria to be granted, then any delay not attributable to the alien ‘augurs
in favor of a continuance.’” Id. (quoting Matter of Hashmi, 24 I. & N. Dec. 785, 793
(BIA 2009). “As a general rule, there is a rebuttable presumption that an alien who
has filed a prima facie approvable application with the USCIS will warrant a
favorable exercise of discretion for a continuance for a reasonable period of time.”
Id. at 815. “On remand, the respondents should be given a final opportunity to
provide copies of and proof regarding the filing of their application with the USCIS
and to otherwise meet the criteria established in this decision for the Immigration
Judge’s consideration of their request for a continuance.” Id. at 816.
A recent unpublished BIA decision suggests that, when a respondent files a
motion to remand pending the adjudication of his U Visa application during the
pendency of his appeal, remand to the IJ is appropriate. See In Re: Jose Luis
Gutierrez-Rodriguez A.K.A. Jose Gutierrez, No. AXXX XX5 106 - ELO, 2016 WL
6519977, at *5 (DCBABR Sept. 26, 2016). In Gutierrez-Rodriguez, the BIA
remanded following respondent’s filing of a U Visa noting “that the Immigration
Judge should have the opportunity to develop the record with regard to these
considerations in issuing a new decision.” Id.
-10-
1. The April Order
In its April order, the BIA offered two rationales for denying
Caballero-Martinez’s request to await adjudication of his U Visa petition: Caballero-
Martinez’s failure to provide an “adequate basis” for pausing removal proceedings
and the BIA’s lack of jurisdiction over U Visa petitions. Pet’r’s Add. at 9. Though
Caballero-Martinez requested either remand or administrative closure in his motion,
the BIA’s April order characterized Caballero-Martinez as having only requested
administrative closure with respect to the U Visa petition. However, the BIA cited to
both Sanchez-Sosa—a remand case—and Matter of Avetisyan, 25 I. & N. Dec. 688,
696 (BIA 2012)—an administrative closure case—for support, suggesting the BIA
considered both grounds for relief.
On appeal, the government argues that both of the bases identified by the BIA
justified its decision not to remand. The government also specifically argues Sanchez-
Sosa—and its rebuttable presumption in favor of remand—do not apply here. The
government distinguishes Sanchez-Sosa procedurally, noting that respondent in that
case requested a continuance before the IJ, while Caballero-Martinez requested
administrative closure directly from the BIA. Therefore, according to the government,
the applicable precedent for the BIA was Avetisyan.
Addressing the facts of this case, the government’s views of the applicability
of Sanchez-Sosa and Avetisyan are inaccurate. The record indicates that
Caballero-Martinez requested either remand for a continuance or administrative
closure, pending the adjudication of his U Visa petition. Therefore, the government’s
argument that only Avetisyan controls is unpersuasive.2
2
Furthermore, Avetisyan’s continued validity has been called into question by
Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a recent decision by the
Attorney General essentially ending the practice of administrative closure. Caballero-
Martinez has indicated that he is waiving his administrative closure argument for the
purpose of this appeal. We agree that resolving the question of whether the BIA
properly denied administrative closure is not necessary to the resolution of this case.
-11-
We are likewise unconvinced by the government’s argument that Caballero-
Martinez’s requesting remand for a continuance from the BIA rather than a
continuance directly from the IJ prevents Sanchez-Sosa from controlling the result.
The criminal assault against Caballero-Martinez occurred after the IJ had already
issued his order. The assault—the event triggering his U Visa eligibility—occurred
too late to enable Caballero-Martinez to request a continuance before the IJ. We see
no distinguishing feature that would cause the principle stated in Sanchez-
Sosa—pausing removal proceedings pending the adjudication of a petition potentially
rendering removal inapplicable—to operate differently depending on whether the
triggering event occurs while the case is before the IJ or before the BIA.
The government’s reliance on the BIA’s lack of jurisdiction over U Visa
petitions as a basis for denying remand is shaky at best. In Clifton, we rejected the
argument that a lack of jurisdiction over the underlying petition justified denying
remand. 598 F.3d at 493. The question was whether “the BIA abuse[s] its discretion
by refusing to remand and reopen removal proceedings solely on the ground that the
BIA lacks jurisdiction over an application for adjustment of status that has been filed
with and pends before USCIS,” and we answered it in the affirmative. Id. The issues
here and in Clifton are sufficiently similar for us to hold that to the extent the BIA
declined to remand Caballero-Martinez’s case due to its lack of jurisdiction over his
U Visa application, it erred.
Nevertheless, the BIA did not err in denying Caballero-Martinez’s motion to
remand. Unlike in Clifton, the BIA did offer a rational and non-jurisdictional reason
for denying Cabellero-Martinez’s remand motion: his failure to provide the BIA with
evidence of his U Visa petition’s filing. It is unclear from the BIA’s language whether
other factors—such as DHS’s opposition to the motion—influenced the BIA’s
determination that Caballero-Martinez had not put forward an “adequate basis” for
remand. But Caballero-Martinez’s failure to submit a filing receipt renders the BIA’s
April order affirmable.
-12-
2. The December Order
The BIA suggested in its April order that it had denied Caballero-Martinez’s
motion because of his failure to provide proof of his U Visa petition’s filing. In
response, Caballero-Martinez submitted the required Notice of Action, along with a
motion to reopen and reconsider his request for remand or administrative closure.
However, the BIA denied the motion in the December order, noting that “[w]hile the
respondent has now included a receipt of his Form I-918 application, this does not
alter the reasons for our denial of his request for administrative closure.” Pet’r’s Add.
at 4. The BIA apparently construed Caballero-Martinez’s motion to reopen and
reconsider solely as requesting administrative closure, making no mention of remand
for a continuance and citing no remand-specific case law.
In offering such an abbreviated explanation, the BIA failed to offer a coherent,
“rational explanation” for its denial of Caballero-Martinez’s motion to reopen or
reconsider. Clifton, 598 F.3d at 490. In other words, the BIA did not “announce its
decision in terms sufficient to enable [us] to perceive that it has heard and thought
and not merely reacted.” Camacho, 910 F.3d at 381 (quoting Camarillo-Jose, 676
F.3d at 1143. The BIA did not specify its previous reasons for denial, leaving us to
infer these reasons from its previous order. Since the BIA cited both evidentiary and
jurisdictional concerns in April—i.e., no filing receipt, no authority over U Visa
petitions—yet declined to credit the filing receipt in December, we are left to
speculate whether the BIA’s “reasons for denial” in December were jurisdictional
rather than evidentiary.
Rather than speculate, we remand for clarification on two interconnected
issues. First, we ask the BIA to clarify its “reasons for denial” from the April
decision. As noted, the BIA suggested in its April order that it denied Caballero-
Martinez’s motion for both evidentiary and jurisdictional reasons. Footnoted
language implied the missing filing receipt was substantively decisive, but the
vagueness of the main text’s language—that Caballero-Martinez “ha[d] not put
-13-
forward an adequate basis to temporarily remove his case from the Board’s docket or,
if remanded, from the Immigration Judge’s active calendar”—leaves open the
possibility that his request was substantively inadequate in several respects but that
the BIA only chose to highlight the missing filing receipt. Pet’r’s Add. at 9. Reading
the April and December orders together, the reasons for the BIA’s decision not to
remand pending the U Visa’s adjudication are unclear.
Second, since Caballero-Martinez requested not only administrative closure but
also remand, we ask the BIA to explain its decision not to apply the Sanchez-Sosa
factors to Caballero-Martinez’s remand request in its December analysis. In short, we
ask the BIA to explain why it ultimately made no difference that Caballero-Martinez
included a U Visa filing receipt in his renewed motion when Sanchez-Sosa suggests
a completed application weighs in favor of pausing the removal process. 25 I. & N.
Dec. at 815.
III. Conclusion
The BIA’s April order is affirmed. The BIA’s December order is affirmed in
part and remanded in part for clarification consistent with the issue raised in this
opinion.
______________________________
-14-