German Cabrera Diaz v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 22-2817
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German Cabrera Diaz
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 14, 2023
Filed: July 13, 2023
[Unpublished]
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
German Cabrera Diaz petitions for review of the Board of Immigration
Appeals’s (“BIA”) denial of his motion to reopen his removal proceedings after he
failed to appear at his removal hearing. We deny the petition.

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A native and citizen of Mexico, Cabrera Diaz unlawfully entered the United
States at an undisclosed time and location. In 2011, Cabrera Diaz was convicted of
driving under the influence of alcohol in California. The Department of Homeland
Security (“DHS”) charged Cabrera Diaz with removability from the United States
under 8 U.S.C. § 1182(a)(6)(A)(i), alleging he was a noncitizen present in the United
States without being admitted or paroled. Cabrera Diaz conceded the charge of
removability and applied for cancellation of removal, adjustment of status,
withholding of removal, and protection under the Convention Against Torture. In
2019, after Cabrera Diaz moved to Hampton, Iowa, venue was changed from San
Francisco, California, to Omaha, Nebraska. DHS served notice of a January 2020
hearing on Cabrera Diaz’s attorney at the time. The attorney later moved to
withdraw, explaining that Cabrera Diaz no longer wanted his representation. Neither
Cabrera Diaz nor his attorney appeared at the hearing. As a courtesy, the
Immigration Judge called Cabrera Diaz’s attorney, who explained that he had
advised Cabrera Diaz of his obligation to attend the hearing and the consequences
he would face for not doing so. The Immigration Judge then ordered Cabrera Diaz
removed in absentia.
In May 2020, Cabrera Diaz, who was represented by new counsel, filed a
motion to reopen his removal proceedings. Cabrera Diaz asserted he had not
received notice of the January hearing, but he did not include an affidavit or any
other evidence supporting that assertion. Nonetheless, the Immigration Judge
accepted the motion and denied it on the merits, citing both Cabrera Diaz’s previous
attorney’s statements that Cabrera Diaz was aware of the hearing and the lack of
evidence to the contrary. On appeal to the BIA, Cabrera Diaz argued the
Immigration Judge’s finding that he did have notice, based in part on his previous
attorney’s credibility, was clearly erroneous. The BIA dismissed Cabrera Diaz’s
appeal. Cabrera Diaz petitioned this court for review of the BIA’s dismissal.
“We review for abuse of discretion the BIA’s denial of a motion to reopen.”
Alemu v. Mukasey, 509 F.3d 907, 909 (8th Cir. 2007). “The BIA abuses its discretion
where it gives no rational explanation for its decision; departs from its established

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policies without explanation; relies on impermissible factors or legal error; or
ignores or distorts the record evidence.” Id.
Cabrera Diaz fails to identify any aspect of the BIA’s decision that lacked
rational explanation, inexplicably departed from policy, relied on legal error, or
ignored record evidence. See id. Instead, Cabrera Diaz first argues the BIA abused
its discretion because it did not properly address his argument or evidence when
determining whether the Immigration Judge abused her discretion. Specifically,
Cabrera Diaz argues the Immigration Judge did so by accepting his motion to reopen
and denying it on the merits as opposed to rejecting it as a “defective” motion for
failing to comply with “format requirements” contained in the Immigration Court
Practice Manual. By purportedly “ignoring” this procedural argument, Cabrera Diaz
claims the BIA abused its discretion.
We reject this argument because it mischaracterizes the record. In his appeal
to the BIA, Cabrera Diaz only made passing reference to the Immigration Judge’s
authority to summarily reject Cabrera Diaz’s motion rather than accept the motion
and rule on the merits. And he did so only in advance of his argument the
Immigration Judge erred in relying on other evidence in the record to conclude
Cabrera Diaz had notice of the hearing. We do not fault the BIA for failing to
directly respond to an argument Cabrera Diaz failed to fully present on appeal. See
Gallegos v. Garland, 25 F.4th 1087, 1092 (8th Cir. 2022) (explaining it is
unnecessary for the BIA to “write an exegesis on every contention” so long as it
provides “sufficient reasoning for our review”). Further, the merits of Cabrera
Diaz’s procedural argument are dubious. Even assuming Cabrera Diaz’s motion to
reopen was “defective” and could have been rejected according to the Immigration
Court Practice Manual, that same manual expressly permitted the Immigration Judge
to accept a “defective” filing and rule on the merits of his motion.
Neither did the BIA otherwise abuse its discretion in addressing Cabrera
Diaz’s argument and evidence. Cabrera Diaz failed to present any evidence
supporting the contention he was unaware of the January 2020 hearing, only

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presenting his notice of hearing from 2017 in San Francisco. As the BIA noted,
Cabrera Diaz’s counsel was aware of the change in venue to Omaha, making that
evidence irrelevant. Under 8 U.S.C. § 1229a(b)(5)(A):
Any alien who, after written notice . . . has been provided to the alien
or the alien’s counsel of record, does not attend a proceeding under this
section, shall be ordered removed in absentia if the [Immigration and
Naturalization] Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided and that
the alien is removable[.]
We also reject Cabrera Diaz’s argument that the BIA improperly upheld the
denial of the motion to reopen under a different rationale than utilized by the
Immigration Judge. Although the BIA could have provided a more thorough
explanation as to why Cabrera Diaz had notice, both the BIA and the Immigration
Judge reasoned reopening was improper because Cabrera Diaz had notice through
his attorney at the time.
Accordingly, we deny the petition for review.
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