Alejandra Gallegos v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 20-3036
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Alejandra Gallegos
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: October 22, 2021
Filed: February 22, 2022
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Before ERICKSON, GRASZ, and STRAS, Circuit Judges.
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GRASZ, Circuit Judge.
Alejandra Gallegos petitions this court to review a decision made by the Board
of Immigration Appeals (“Board”) denying her motion to reopen removal
proceedings and to rescind an in absentia order of removal. Finding no exceptional
circumstances justifying Gallegos’s failure to appear at her removal proceedings, we
conclude the Board did not abuse its discretion and deny Gallegos’s petition for
review.

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I. Background
Gallegos is a citizen of Mexico who gained Lawful Permanent Resident
(“LPR”) status in the United States through her marriage to Juan Manuel Rios who
is a United States citizen. Department of Homeland Security (“DHS”) agents began
investigating Gallegos and Rios’s marriage after Gallegos petitioned to dissolve their
marriage. At the conclusion of the investigation, the agents believed Gallegos’s
marriage to Rios was fraudulent, and they initiated removal proceedings against
Gallegos.
DHS filed a Notice to Appear (“NTA”) with the immigration court on
February 28, 2019, charging Gallegos as removable: (1) under 8 U.S.C.
§ 1227(a)(1)(A) as an alien who was inadmissible at the time she adjusted her LPR
status because she procured admission through fraud or by willfully misrepresenting
a material fact in violation of 8 U.S.C. § 1182(a)(6)(C)(i); (2) under 8 U.S.C.
§ 1227(a)(1)(A) because she did not possess valid immigration documents when she
sought readmission into the United States as an LPR in violation of 8
U.S.C. § 1182(a)(7)(A)(i)(I); and (3) under 8 U.S.C. § 1227(a)(1)(G)(ii) for failing
or refusing to fulfill a marital agreement which was made for the purpose of
procuring admission as an immigrant.
Gallegos was provided with a copy of the NTA, which listed the date, time,
and location of her hearing before the immigration court. The immigration court
later mailed an amended NTA on March 31, 2019, informing Gallegos her hearing
was rescheduled for October 8, 2019. Gallegos, however, failed to appear at the
October 8, 2019, hearing. As a result, the immigration judge (“IJ”) ordered Gallegos
removed in absentia after finding DHS submitted evidence showing removability
was established as charged.

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Gallegos moved to reopen the removal proceedings and to rescind the in
absentia order of removal under 8 C.F.R. § 1003.23(b)(4)(ii). Gallegos argued that
exceptional circumstances prevented her from attending the removal hearing and
submitted a sworn statement in support of her motion. In the statement, Gallegos
admitted to receiving the amended NTA in March 2019, informing her of the new
October hearing date. Gallegos explained that she misplaced the NTA while
traveling and incorrectly remembered the hearing date as October 17, 2019.
Gallegos attributed this misplacement to mental health issues, claiming she was
treated for depression and anxiety in 2018 and was involuntarily hospitalized in
January 2018. Gallegos attached medical records to her motion showing her mental
health treatment. Those records, however, did not corroborate everything in her
sworn statement. For example, the records attached did not indicate Gallegos was
involuntarily hospitalized in January 2018—but they did show she received mental
health treatment in July 2017. The records also contained a therapist’s evaluation of
Gallegos from October 24, 2019.
The IJ denied Gallegos’s motion to reopen and rescind the in absentia order
of removal. In a short, handwritten order, the IJ held Gallegos’s depression did not
amount to an exceptional circumstance. The IJ further noted Gallegos’s 2017
treatment appeared irrelevant to her failure to attend the October 2019 hearing.1
Gallegos appealed to the Board arguing the IJ’s decision failed to explain its
reasoning for denying Gallegos’s motion and Gallegos did establish exceptional
circumstances. The Board ultimately affirmed the IJ’s holding and adequately
explained Gallegos failed to show that exceptional circumstances beyond her control
prevented her from attending the October 2019 hearing. The Board held Gallegos’s
1 The IJ also found the NTA did contain the time, place, and date of the
hearing. Gallegos argued the NTA failed to include the date and time of her hearing
in her motion to reopen and rescind the in absentia removal proceedings. Gallegos
has not challenged the IJ’s finding and does not raise this argument here.

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statement and the supporting medical documents did “not show that her mental
condition was causally related to her failure to appear at the October 8 hearing.”
Thus, the Board held Gallegos failed to establish reopening the removal proceedings
was warranted.
II. Analysis
Gallegos petitions this court arguing the Board erred in affirming the IJ’s
denial of her motion to reopen the removal proceedings and to rescind the in absentia
order of removal. We review the Board’s “denial of a motion to reopen for an abuse
of discretion.” Baker White v. Wilkinson, 990 F.3d 600, 605 (8th Cir. 2021). “The
[Board] abuses its discretion where it gives no rational explanation for its decision,
departs from its established policies without explanation, relies on impermissible
factors or legal error, or ignores or distorts the record evidence.” Patel v. Sessions,
868 F.3d 719, 725 (8th Cir. 2017) (quoting Guled v. Mukasey, 515 F.3d 872, 882
(8th Cir. 2008)). And when the Board addresses questions of law, we review those
legal determinations de novo. Id. at 723.
A. Exceptional Circumstances
Gallegos first argues the Board abused its discretion in affirming the IJ’s
determination that Gallegos failed to establish exceptional circumstances. An alien
who does not attend a removal proceeding must be removed in absentia when: (1)
the alien is shown by “clear, unequivocal, and convincing evidence” to be removable
and (2) the notice sent to the alien complied with the statutory requirements for
notice. 8 U.S.C. § 1229a(b)(5)(A). This order may be rescinded only if the
petitioner: (1) files a motion to reopen within 180 days after the date of the order of
removal demonstrating the failure to appear was because of exceptional
circumstances or (2) files a motion demonstrating the petitioner did not receive
notice of the removal proceedings or was in “Federal or State custody” preventing
him or her from attending the hearing. Id. § 1229a(b)(5)(C)(i)–(ii); accord

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Alvarado-Arenas v. Sessions, 851 F.3d 827, 829 (8th Cir. 2017). The term
“exceptional circumstances” under § 1229a(b)(5)(C)(i):
refers to exceptional circumstances (such as battery or extreme cruelty
to the alien or any child or parent of the alien, serious illness of the
alien, or serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances) beyond the
control of the alien.
Id. § 1229a(e)(1).
We conclude the Board did not abuse its discretion in determining Gallegos
failed to show exceptional circumstances prevented her from attending the October
2019 hearing. By statute, misplacing an NTA or misremembering the date of a
removal hearing is not an exceptional circumstance. See 8 U.S.C. § 1229a(e)(1); see
also 8 C.F.R. § 1003.23(b)(4)(ii). Gallegos attempts to fit her misplacement of the
NTA and her failure to recall the correct date into the statutory definition of
“exceptional circumstance” by attributing her actions to her mental illness. But
Gallegos does not claim the mental illness itself would have prevented her from
attending the hearing had she found the NTA sooner and confirmed the hearing date.
Thus, the Board did not abuse its discretion by determining Gallegos fails to show
that mental illness was causally related to her failure to appear at the October 2019
hearing so as to create an “exceptional circumstance” as defined by Congress.2
2 We also deny Gallegos’s motion to remand in light of Matter of S-L-H- & L-
B-L-, 28 I. & N. Dec. 318 (BIA 2021), which dealt with entirely different
circumstances. Given that the Board applied the correct standard to Gallego’s case,
there is no reason to remand.

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B. Due Process
Gallegos next argues the Board abused its discretion by failing to address her
argument that the IJ violated her due process rights by issuing a short, handwritten
order denying her motion to reopen. Contrary to Gallegos’s view, however, the
Board did address this argument. The Board found the argument unpersuasive,
stating the IJ “provided sufficient determinations for [the Board’s] review” and
addressed all issues “she raised in her motion to reopen regarding exceptional
circumstances.”
Moreover, the Board’s treatment of Gallegos’s arguments was legally
sufficient for our review. We have previously explained that it is unnecessary for
agencies “‘to list every possible positive and negative factor in its decision,’ or ‘to
write an exegesis on every contention.’” Omondi v. Holder, 674 F.3d 793, 800 (8th
Cir. 2012) (quoting Averianova v. Holder, 592 F.3d 931, 936 (8th Cir. 2010)).
Rather, “‘the Board is entitled to a presumption of regularity’ and does not have ‘to
mention every piece of evidence that it considered.’” Gomez Gutierrez v. Lynch,
811 F.3d 1053, 1061 (8th Cir. 2016) (quoting Doe v. Holder, 651 F.3d 824, 831 (8th
Cir. 2011)). We only require “reasons that are ‘specific’ enough that a reviewing
court can appreciate the reasoning behind the decision and perform the requisite
judicial review.” Singh v. Gonzales, 495 F.3d 553, 557 (8th Cir. 2007).
Here, the Board provided sufficient reasoning for our review. The Board
rejected Gallegos’s due process claim and concluded that the IJ’s order provided an
adequate basis for appellate review. This legal conclusion provides an adequate
basis for our review, and we see no due process violation.
C. Remaining Arguments
Gallegos’s petition further contains two arguments that are not properly
before us. First, Gallegos argues the Board erroneously engaged in factfinding.

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Indeed, the “Board may not ‘engage in factfinding,’ except to ‘take administrative
notice of facts that are not reasonably subject to dispute.’” Mencia-Medina v.
Garland, 6 F.4th 846, 848 (8th Cir. 2021) (quoting 8 C.F.R. § 1003.1(d)(3)(iv)(A)).
But to exhaust a claim that the Board engaged in improper factfinding, a petitioner
must move for the Board to reconsider its actions, thus presenting the issue to the
Board. Id. at 849. Otherwise, this court lacks jurisdiction because the Board has yet
to rule on the issue. Id. (citing Lasu v. Barr, 970 F.3d 960, 965 (8th Cir. 2020)). So,
because Gallegos’s argument of improper factfinding was never presented to the
Board, the issue is not properly before this court on Gallegos’s petition to review the
Board’s decision. See id.
Second, Gallegos argues the Board erred in dismissing her petition because
the DHS did not prove she was removable by clear, unequivocal, and convincing
evidence. But the motion at issue here is Gallegos’s motion to reopen the removal
proceedings and to rescind the in absentia order of removal. And under
§ 1229a(b)(5)(C), an order may be rescinded only if the alien demonstrates an
exceptional circumstance that prevented the alien from attending the hearing or by
establishing the alien did not receive notice. 8 U.S.C. § 1229a(b)(5)(C)(i)–(ii).
Thus, under the plain language of the statute, an order cannot be rescinded by
challenging the basis of the alien’s removal and the evidence supporting it. See
Alvarado-Arenas, 851 F.3d at 829 (affirming the Board’s refusal to reopen because
alien failed to satisfy “either of the two statutory bases for rescission of the removal
order”). After all, Gallegos is appealing the Board’s decision affirming the IJ’s
denial of her motion to reopen and rescind the in absentia order of removal—not the
removal order itself. Gallegos’s argument thus fails because she has not satisfied
either requirement allowing the court to reopen her case and rescind the in absentia
order of removal.

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III. Conclusion
In conclusion, the Board did not abuse its discretion in dismissing Gallegos’s
motion to reopen the removal proceedings and to rescind the in absentia order of
removal. For this reason, the petition for review is denied.
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