Maria Soledad Martinez-Tapia v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MARIA SOLEDAD MARTINEZ-TAPIA,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 20-9610
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY and HOLMES, Circuit Judges.
_________________________________
After an Immigration Judge (IJ) denied Maria Soledad Martinez-Tapia’s
application for cancellation of removal, she filed a motion to reopen her removal
proceedings to pursue a different form of relief. The IJ denied the motion to reopen.
While her appeal of that order was pending before the Board of Immigration Appeals
(BIA), she filed a motion to remand to the IJ to revisit the issue of her eligibility for
cancellation based on our decision in Martinez-Perez v. Barr, 947 F.3d 1273 (10th Cir.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 15, 2021
Christopher M. Wolpert
Clerk of Court
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2020). The BIA denied her motion to remand and affirmed the IJ’s denial of reopening.
Ms. Martinez-Tapia petitions for review of the denial of her motion to remand.
Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.
I. Background
Petitioner is a native and citizen of Mexico who entered the United States
illegally in 1993. In 2011, the Department of Homeland Security initiated removal
proceedings against her. In May 2013, Petitioner conceded removability and applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1). As pertinent here, the Attorney
General may grant cancellation of removal to a noncitizen who “establishes that removal
would result in exceptional and extremely unusual hardship to [her] . . . child, who is a
citizen of the United States.” Id. § 1229b(b)(1)(D). A “child” is “an unmarried
person under twenty-one years of age.” Petitioner’s qualifying relative was her
then-sixteen-year-old daughter.
The merits hearing was initially scheduled for November 2014, but Petitioner
moved for a continuance to accommodate a change in counsel. After the Immigration
Court re-set the hearing several more times for unknown reasons, the hearing was held in
February 2018—about one month before the daughter’s twenty-first birthday.
In June 2019, the IJ denied Petitioner’s application. The IJ explained that she
“would have granted” it after the hearing because Petitioner’s daughter was a qualifying
relative at that time and Petitioner met the other statutory requirements for cancellation.
R. at 210; see also R. at 213 (indicating that the IJ “intended to grant” Petitioner’s
application). But the IJ was unable to issue a decision granting relief when the
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evidentiary record closed because the annual cap on cancellation grants had already been
reached,1 and by the time a decision could be issued, Petitioner’s daughter had “aged
out.” R. at 214. The IJ concluded she “must deny” the application because Petitioner’s
lack of a qualifying child at the time of the decision meant she was ineligible for relief.
Id. In so concluding, the IJ relied on In re Isidro-Zamorano, 25 I. & N. Dec. 829
(B.I.A. 2012), in which the BIA held that a cancellation applicant who had a qualifying
child when the application was filed but whose child had aged out before it was
adjudicated lacked a qualifying relative and was therefore ineligible for cancellation.
Id. at 831-32; see also 8 U.S.C. § 1229b(e)(1) (“The awarding of [cancellation of
removal] shall be determined according to the date the order granting such relief
becomes final.”). The IJ found that, unlike in Isidro-Zamorano, where there had “been
no undue or unfair delay in the course of [the] proceedings,” 25 I. & N. Dec. at 832, the
delays that pushed the adjudication of Petitioner’s application past her daughter’s
twenty-first birthday were “out of [her] control,” R. at 210 n.1. Despite finding
Petitioner’s case “clearly distinct from” Isidro-Zamorano, however, the IJ denied
relief due to the lack of any “clear support under the law to find” Petitioner eligible
for cancellation when her application was adjudicated. R. at 210 n.1. We reject any
1 See 8 U.S.C. § 1229b(e)(1) (providing that “the Attorney General may not
cancel the removal and adjust the status . . . of a total of more than 4,000 aliens in
any fiscal year . . . regardless of when an alien applied for such cancellation and
adjustment”); 8 C.F.R. § 1240.21(c)(1) (providing that the Immigration Court and BIA
may grant applications for cancellation of removal “that meet the statutory requirements
for such relief and warrant a favorable exercise of discretion until the annual numerical
limitation has been reached in that fiscal year”).
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suggestion that the IJ’s decision constitutes a “reserved grant” of her cancellation
application when space became available. Pet’r’s Opening Br. at 2, 13.
Petitioner did not appeal the IJ’s denial of her cancellation application to the
BIA or file a petition for review of that order in this court. Instead, she filed a
motion to reopen with the IJ, seeking to apply for adjustment of status under 8 U.S.C.
§ 1255(a). The IJ denied the motion to reopen, concluding Petitioner was not eligible
for adjustment of status. 2 She appealed that order to the BIA.
While the appeal was pending, we decided Martinez-Perez v. Barr, 947 F.3d
1273 (10th Cir. 2020). The petitioner in Martinez-Perez had a qualifying daughter
when he filed his cancellation application, but she aged out before the hearing some
six years later. The IJ denied his application and the BIA dismissed his appeal,
concluding it lacked jurisdiction to grant relief because it was bound by
Isidro-Zamorano to deny cancellation when the applicant did not have a qualifying
relative at the time of the hearing. See id. at 1281, 1284. The BIA did not address
the petitioner’s argument that his right to procedural due process was violated
because improper administrative delay deprived him of a qualifying relative. In
reversing the BIA’s jurisdictional determination, we held that Isidro-Zamorano “left
open the possibility that, given a different set of facts, the BIA may interpret
§ 1229b(b)(1)(D) . . . in a way that would not penalize [the applicant] for the
2 In a supplemental brief, Petitioner also argued she was eligible for
cancellation because her daughter was a qualifying child at the time of the hearing.
The IJ did not address the arguments in the supplemental brief.
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Immigration Court’s delay.” Id. at 1281-82. We thus concluded the BIA erred in
failing to exercise its interpretive authority, and we remanded for consideration of the
petitioner’s due process argument. Id. at 1282.
Soon after we decided Martinez-Perez, Petitioner filed what she captioned as a
motion to remand in her reopening appeal, asking the BIA to remand her case to the
IJ to revisit the issue of her eligibility for cancellation of removal in light of
Martinez-Perez. The BIA denied the motion to remand. It found that the
administrative delays in her case were not improper and that she contributed to the
delay in the proceedings. It thus held that Petitioner failed to establish that her lack
of a qualifying relative when her application was adjudicated was the result of undue
administrative delay. In the same order, the BIA affirmed the IJ’s denial of
Petitioner’s motion to reopen and dismissed the appeal. Petitioner is not seeking
review of the portion of the order denying the motion to reopen, but rather review of
the portion of the order denying her motion to remand. Pet’r’s Opening Br. at 19.
II. Analysis
A. We Lack Jurisdiction to Review the Previous Order Denying Petitioner’s
Application for Cancellation of Removal
In her briefing, Petitioner indicates that her “request for a remand is the issue
being litigated in this petition for review.” Pet’r’s Opening Br. at 3. Yet the relief
she requests effectively asks us to reverse the IJ’s earlier decision—she asks us to
(1) hold that she met the cancellation requirements at the time of the hearing; (2) hold
that her daughter aging out after the hearing but before the IJ could issue a decision
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granting relief “did not render her statutorily ineligible for cancellation,” and
(3) “remand her proceedings to the agency for the issuance of a grant of cancellation
of removal.” Id. at 53-54. But Petitioner did not appeal the IJ’s cancellation decision
to the BIA, let alone file a petition for review in this court. Pet’r’s Opening Br. at 2.
Accordingly, we do not have jurisdiction to review the IJ’s decision that Petitioner
was ineligible for cancellation because she did not have a qualifying relative when her
application was adjudicated.3
B. The Motion for Remand Was a Motion to Reconsider the Previous
Ineligibility Determination
Remand is available in two contexts before the BIA—when a noncitizen seeks
reconsideration of a decision or when she seeks reopening of the proceedings.
Although these motions are often treated interchangeably, a request for
reconsideration is based on “errors of fact or law in the prior [] decision,” 8 C.F.R.
§ 1003.2(b)(1), whereas a request to reopen proceedings seeks an opportunity to
submit an application for relief based on new facts, id. § 1003.2(c)(1). Reopening is
unavailable unless the “evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.” Id.
3 Because we do not have jurisdiction to review the IJ’s denial of Petitioner’s
application for cancellation, we do not consider her arguments that the IJ should have
followed the agency’s procedure for reserving grants subject to the cap, then
releasing decisions when space becomes available. See Pet’r’s Opening Br. at 12-13,
31-32, 41-43, 48-49; Reply Br. at 3-4.
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Here, Petitioner requested remand not so she could pursue a new factual
ground for relief under the cancellation statute or to introduce previously unavailable,
material evidence. Rather, she sought remand so the IJ could reevaluate the prior
decision denying cancellation based on what Petitioner characterized as an
intervening change in the law. Thus, her motion to remand was really a motion
seeking reconsideration by the IJ of the previous ineligibility determination. 4 See
Sosa-Valenzuela v. Holder, 692 F.3d 1103, 1110 (10th Cir. 2012).
C. The BIA Did Not Abuse Its Discretion in Denying the Motion to
Reconsider
Generally, we have jurisdiction to review the BIA’s denial of a motion
to reconsider, and we apply an abuse of discretion standard in doing so.
Rodas-Orellana, 780 F.3d at 990, 993 n.11. But when we lack jurisdiction to review
the underlying order, we are precluded from reviewing an order denying a motion to
reconsider to the extent that it directly attacked the previous order. See Infanzon v.
Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). We have held, however, that this
rule does not strip us of jurisdiction to review the denial of a motion for
reconsideration where the only reason for lack of jurisdiction over the underlying
order is the failure to file a timely petition for review, not a statutory bar. See
Alzainati v. Holder, 568 F.3d 844, 848 n.4 (10th Cir. 2009).
4 We note that, construed as a motion for reconsideration of the June 21, 2019
removal order, Petitioner’s February 10, 2020 motion was untimely. See 8 U.S.C.
§ 1229a(c)(6)(B) (providing that a motion to reconsider must be filed within 30 days
of the final order of removal); 8 C.F.R. § 1003.2(b)(2) (same). But the BIA did not
deny the motion based on untimeliness.
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Here, Petitioner’s motion to reconsider challenged the underlying ineligibility
determination directly based on arguments she could have raised before the IJ denied
her application for cancellation—she could have argued at the hearing and in her
application that the IJ had the discretion under Isidro-Zamorano to fix her daughter’s
age at a date before the adjudication of her application. Under Infanzon, we are
precluded from reviewing those arguments because they directly attack the IJ’s
decision. But Petitioner’s motion to reconsider also cited Martinez-Perez, which was
decided after the IJ issued the removal order and clarified that under
§ 1229b(b)(1)(D) and Isidro-Zamorano, the agency had the discretion to do just that.
We are aware of no authority precluding our review of the BIA’s denial of a motion to
reconsider under these circumstances, but our review is limited to the BIA’s decision that
Martinez-Perez does not warrant reconsideration of her eligibility for cancellation.
“The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Rodas-Orellana,
780 F.3d at 990 (internal quotation marks omitted). It also abuses its discretion when
it makes a legal error. Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017).
We find no abuse of discretion here. The BIA articulated the correct legal
standard. It recognized that Isidro-Zamorano remained “controlling precedent” and
acknowledged that, based on our holding in Martinez-Perez, it had jurisdiction when
applying Isidro-Zamorano to “interpret . . . § 1229b(b)(1)(D) in a way that would not
penalize [Petitioner] for” undue administrative delays in her proceeding. R. at 17.
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Contrary to Petitioner’s contention, the BIA did not apply a categorical rule that any
delay attributable to the cap and Immigration Court backlog is insufficient to excuse
a cancellation applicant’s lack of a qualifying relative when her application is
adjudicated. Rather, the BIA considered the reasons for delay in Petitioner’s case
and determined that her circumstances did not warrant fixing her daughter’s age at a
time prior to the IJ’s adjudication of her application. True, the BIA found the
significant delays due to the cap and agency backlog were not improper, but it did not
hold that such delays are never improper. Instead, it concluded that because
Petitioner contributed to the delay, she failed to show that her lack of a qualifying
relative when her application as adjudicated was the result of undue administrative
delay.
Our holding in Martinez-Perez that the agency may fix the age of a
cancellation applicant’s child at a time before the application is adjudicated does not
mean that the agency is required to do so. And Petitioner’s disagreement with the
result of the BIA’s application of Martinez-Perez to her situation does not establish
that the BIA abused its discretion. We recognize that congestion in the Immigration
Court and the statutory cap on grants of removal makes this a frustrating endeavor.
But the BIA applied the right standard, did not depart from established policies, and
gave rational reasons for its decision. We thus find no abuse of discretion in its
denial of Petitioner’s motion to reconsider. See Rodas-Orellana, 780 F.3d at 990.
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III. Conclusion
We deny the petition for review.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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