Teresa Najera Hernandez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13711 & No. 23-10475
Non-Argument Calendar
____________________
TERESA NAJERA HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
Agency No. A078-243-398
____________________
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2 Opinion of the Court 21-13711
Before G RANT, BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
In these consolidated petitions for review, Teresa Najera
Hernandez seeks review of (1) the Board of Immigration Appeals’s
order dismissing her appeal of an immigration judge’s decision
denying her application for asylum, withholding of removal, and
relief under the Convention Against Torture; and (2) the Board’s
order denying her motion to reopen. We deny both of the
petitions.
I.
In December of 2014, Teresa Najera Hernandez, a native
and citizen of Mexico, was paroled into the United States when she
attempted to enter without valid entry documents. At her first
hearing, with the assistance of Uriel Delgado, an attorney from the
law firm Kuck Baxter Immigration, LLC, she filed a Form I-589 to
apply for asylum and withholding of removal. On the form, she
also attempted to apply for relief under the Convention Against
Torture (CAT), explaining her fear of being tortured if returned to
Mexico and checking two boxes indicating that she sought CAT
relief, though she missed a third. The immigration judge
scheduled a hearing on the merits of her claims for March 29, 2019.
On the date of the hearing, Najera Hernandez appeared with
a different attorney, also from Kuck Baxter. The new attorney,
Jorge Gavilanes, explained that Mr. Delgado had learned two days
ago that he could not attend the hearing because of a scheduling
conflict with another case. Although Gavilanes had prepared for
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21-13711 Opinion of the Court 3
the hearing, he requested a brief continuance—about two weeks—
to permit Delgado to return because Najera Hernandez was
unhappy with Gavilanes’s representation. The immigration judge
denied the continuance, finding no good cause shown for a delay.
At the hearing, Najera Hernandez testified that she feared
for her safety if returned to Mexico. In September of 2014, she was
involved in a car accident, where the driver who rear-ended her
began verbally and physically berating her and threatening her life.
She believed that this man was a member of organized crime.
When police arrived at the scene, the man bribed an officer, who
issued a citation to Najera Hernandez and ignored her complaints
about the other driver’s threats. Later, her son was followed home
from school by two men in a white van, whom she believed were
attempting to kidnap him. She also saw two men sitting outside
her home on a few different days, and believed they were
monitoring her. She did not report either of these incidents to the
police.
After taking Najera Hernandez’s testimony, the
immigration judge denied her applications for relief and ordered
her removed to Mexico. Although the judge stated that it appeared
she was not seeking CAT relief, the judge addressed the issue
anyway, ruling against her eligibility for relief on the merits.
Najera Hernandez, now proceeding pro se, appealed to the Board,
which adopted and affirmed the immigration judge’s decision.
Now represented by new counsel from a different firm,
Najera Hernandez filed a timely motion to reopen with the Board.
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4 Opinion of the Court 21-13711
She principally argued that previously unavailable evidence
showed she faced an ongoing threat if returned to Mexico. She also
argued that the immigration judge had improperly infringed her
right to counsel of her choosing by denying a continuance, and that
the immigration judge had failed to give reasoned consideration to
her CAT claim. The Board denied the motion to reopen, finding
that Najera Hernandez’s new evidence was either cumulative to
evidence already in the record or non-material. It also found that
any error by the immigration judge with respect to denying a
continuance did not prejudice Najera Hernandez, and that the
immigration judge had given adequate consideration to her CAT
claim.
Najera Hernandez timely filed petitions for review from
both the Board’s order affirming the immigration judge’s denial of
relief and from its order declining to reopen.
II.
We review only the decision of the Board of Immigration
Appeals, except to the extent that the Board has expressly adopted
the immigration judge’s decision. Jeune v. U.S. Att’y Gen., 810 F.3d
792, 799 (11th Cir. 2016). Where the Board explicitly agrees with
the immigration judge’s findings, we review both the Board’s and
the immigration judge’s decisions as to those issues. Id. In deciding
whether to uphold the Board’s decision, we are limited to the
grounds upon which the Board relied. See Gonzalez v. U.S. Att’y
Gen., 820 F.3d 399, 403 (11th Cir. 2016).
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21-13711 Opinion of the Court 5
We review the Board’s factual findings for substantial
evidence and legal issues de novo. Zheng v. U.S. Att’y Gen., 451 F.3d
1287, 1289 (11th Cir. 2006). An argument that the Board failed to
give reasoned consideration to an issue is a question of law that we
review de novo. Jeune, 810 F.3d at 799.
We review the Board’s denial of a motion to reopen an
immigration petition for abuse of discretion. Jiang v. U.S. Att’y
Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Motions to reopen in
removal proceedings are particularly disfavored.” Id. Our review
is limited only to determining whether the Board exercised its
discretion in an arbitrary or capricious manner. Id.
III.
A.
Najera Hernandez’s first petition for review argues that the
immigration judge and the Board of Immigration Appeals, by
extension, failed to give her claim for CAT relief reasoned
consideration. The Board must give reasoned consideration to the
issues presented to it, meaning that its decision must show that it
has “considered the issues raised and announced its decision in
terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.” Jeune, 810 F.3d at 803
(alterations adopted) (quotation omitted). To be sure, the “Board
does not need to do much.” Ali v. U.S. Att’y Gen., 931 F.3d 1327,
1333 (11th Cir. 2019). It “need not address specifically each piece
of evidence the petitioner presented.” Id. (alteration adopted)
(quotation omitted). We have held that a Board decision that “lists
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6 Opinion of the Court 21-13711
the basic facts of the case, references the relevant regulatory and
statutory provisions on which the order is based, and accepts
several grounds on which the Immigration Judge properly denied
the motion” demonstrates reasoned consideration sufficient to
enable meaningful review. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d
860, 874–75 (11th Cir. 2018).
On the other hand, the Board does not give reasoned
consideration when it “misstates the contents of the record, fails to
adequately explain its rejection of logical conclusions, or provides
justifications for its decision which are unreasonable and which do
not respond to any arguments in the record.” Id. at 874 (quotation
omitted). Ultimately, for the Board’s decision to exhibit a lack of
reasoned consideration, it must “force[] us to doubt whether we
and the Board are, in substance, looking at the same case.” Ali, 931
F.3d at 1334.
The Board’s order affirming the immigration judge’s
decision expressly adopted the immigration’s judge’s reasoning.
The immigration judge’s analysis of Najera Hernandez’s CAT
claim was short, no doubt because the judge concluded that Najera
Hernandez had not intended to seek CAT relief.1 But it still
1 That conclusion was erroneous. Najera Hernandez indicated in at least three
separate places on her Form I-589 that she intended to apply for CAT relief
and explained why she feared torture if returned to Mexico. See 8 C.F.R.
§ 1208.13(c)(1) (providing that an applicant will be considered for relief under
CAT “if the applicant requests such consideration or if the evidence presented
by the alien indicates that the alien may be tortured in the country of
removal”).
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21-13711 Opinion of the Court 7
contained a decision on the merits and enough reasoning to enable
meaningful review. The judge explicitly stated that Najera
Hernandez “has not demonstrated that . . . she would more likely
than not be tortured in the future by or with the acquiescence of
the officials of the Mexican government.” Those findings were
preceded by a detailed description of Najera Hernandez’s evidence,
summarizing her past experiences in Mexico and the reasons she
claimed she will be targeted if she returns. Pointing to specific
contrary pieces of record evidence, the judge then described why
Najera Hernandez had not established either that she would be
targeted by organized crime in the future if she were to return to
Mexico, or that “the Mexican government is unwilling or unable to
protect her.” In other words, the judge made the necessary
findings to support the denial of relief, and explained why those
findings were supported by the record. That was enough.
In her reply brief, Najera Hernandez also challenges the
immigration judge’s finding on the merits that she was not entitled
to CAT relief as unsupported by substantial evidence. Issues raised
for the first time in a petitioner’s reply brief are forfeited. United
States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004). Najera
Hernandez’s initial brief does not squarely present a substantial
evidence challenge to the immigration judge’s denial of CAT relief.
Both the “statement of issues presented” and the “summary of
argument” reference only her argument that the judge’s decision
lacked reasoned consideration. The body of the brief argues only
that “remand is worthwhile” because a fuller consideration of
Najera Hernandez’s evidence, both old and new, will establish her
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8 Opinion of the Court 21-13711
“prima facie eligibility for CAT protection.” She did not argue that
the immigration judge’s denial on the merits was unsupported by
substantial evidence—any new argument to that end is thus
forfeited.
Nevertheless, even if Najera Hernandez had raised a
substantial evidence challenge, it would fail. In reviewing for
substantial evidence, we will affirm the Board’s decision if it is
“supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc) (quotation omitted). A finding
of fact will be reversed only when the record “compels” it, not just
because the record “may support a contrary conclusion.” Id.
Najera Hernandez has not shown that the agency’s decision
was not supported by substantial evidence. For the same reasons
that the immigration judge found that Najera Hernandez could not
establish a well-founded fear of persecution—a finding she does not
challenge in this Court—the agency reasonably concluded that she
could not show she would be tortured if returned to Mexico, an
even higher burden for an applicant to satisfy. See Lingeswaran v.
U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020). Same with the
judge’s determination that she had not shown that the government
of Mexico would acquiesce in any such torture—aside from the
police officer who initially responded to the accident, Najera
Hernandez did not formally report any of her concerns about
organized crime to any authority. While Najera Hernandez argues
the evidence could be weighed differently, a substantial evidence
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21-13711 Opinion of the Court 9
challenge succeeds only if the record compels a different conclusion,
a standard not met here.
B.
Najera Hernandez’s second petition for review argues that
the Board abused its discretion by declining to re-open after she
presented it with new evidence bearing on her eligibility for relief.
She also argues that the Board erred both by declining to find that
the immigration judge improperly denied her the right to counsel
of her choice and by failing to give reasoned consideration to the
issue.
A noncitizen seeking to reopen removal proceedings must
establish the existence of new or previously unavailable material
evidence that would likely affect the outcome of her case. 8 C.F.R.
§ 1003.23(b)(3). To establish that the changed conditions are
material, the noncitizen “must present evidence that demonstrates
that, if the proceedings were opened, the new evidence would
likely change the result in the case.” Jiang, 568 F.3d at 1256–57.
Here, the Board did not act arbitrarily and capriciously when
it found that the evidence Najera Hernandez submitted was either
nonmaterial or cumulative of evidence already in the record. The
Board reasonably concluded that the new allegations of danger she
submitted—statements from her neighbors that two men had
recently inquired about her whereabouts—did not provide enough
specificity to determine the affiliation of the individuals seeking her
or their intentions. And her updated country conditions evidence
did not paint a meaningfully different picture about the
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10 Opinion of the Court 21-13711
pervasiveness of organized crime in Mexico. We cannot say that
the Board abused its discretion when determining that, even if
these facts were added to the record, the outcome of the
proceedings would not have been any different.
Finally, the immigration judge’s denial of a continuance for
Najera Hernandez to proceed with her original counsel, Mr.
Delgado, does not provide this Court with a basis to vacate. The
sine qua non of a procedural due process claim is “substantial
prejudice.” Priva v. U.S. Att’y Gen., 34 F.4th 946, 954 (11th Cir.
2022). Under that standard, “the petitioner must demonstrate that,
in the absence of the alleged violations, the outcome of the
proceeding would have been different.” Id. at 955 (quotation
omitted). Najera Hernandez has not pointed to any evidence that
Mr. Gavilanes failed to elicit at the hearing, nor any reason why
Mr. Delgado would have been able to secure a different outcome.
She thus cannot show prejudice. The Board’s denial of her motion
to reopen adequately explained as much, so her reasoned
consideration challenge fails as well.
* * *
PETITIONS DENIED.
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