Benjamin Slappendel v. Lorne Miller

United States Court of Appeals
For the Eighth Circuit
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No. 21-3770
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Jose Frederico Llanas-Trejo
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General for the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: May 11, 2022
Filed: November 16, 2022
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Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
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MELLOY, Circuit Judge.
Jose Frederico Llanas-Trejo moved for the BIA to reopen his cancellation of
removal proceedings so he could present new evidence of alleged “exceptional and
extremely unusual hardship” to his United States citizen children. See 8 U.S.C.
§ 1229b(b)(1)(D). The BIA denied his motion, finding he failed to demonstrate prima
facie eligibility for relief as to the good moral character and hardship requirements.

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The timing of various underlying decisions in the present case, the substantive
content of those rulings, and the timing of precedent later cited by the BIA merit
comment. Ultimately, however, we deny the petition for review.
I. Background
Llanas-Trejo entered the United States in 1996, was convicted for a DUI
offense in 1998, and was subsequently removed. He re-entered the United States
illegally in 1999. In 2012, he was again convicted for a DUI offense, and the
government initiated removal proceedings. In 2013, during an IJ hearing, he
conceded removability but sought cancellation of removal based on hardship to his
three United States citizen children. In June 2016, the IJ administratively closed the
removal proceedings pursuant to a grant of prosecutorial discretion.
The next month, in July 2016, Llanas-Trejo was again arrested for driving
under the influence. He was later convicted on a resulting DUI charge. As a result,
the government reopened his removal proceedings. IJ hearings took place in
September and October 2018 during which the government presented arguments to
contest the issue of hardship. The government, however, expressly informed the IJ
that it would not be presenting arguments as to whether the DUI offenses
demonstrated a lack of good moral character. The government’s concession
notwithstanding, Llanas-Trejo submitted evidence in the form of affidavits from his
employer, members of his church, and others attesting to his good moral character.
In an October 5, 2018 oral decision, the IJ made an express finding that Llanas-
Trejo satisfied the good moral character requirement. The IJ also found that his
removal would cause hardship to his United States citizen children but that such
hardship would not satisfy the applicable standard of exceptional and extremely
unusual hardship. Based on this hardship determination, the IJ denied relief.
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Llanas-Trejo timely appealed the IJ’s decision to the BIA, but briefing
progressed slowly. Separately, in August 2019, the Attorney General held in a
different case that multiple DUI convictions create a rebuttable presumption that an
applicant for a hardship-based cancellation of removal lacks good moral character.
See Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019). To overcome this
presumption, a petitioner must show “substantial relevant and credible contrary
evidence” to demonstrate “that the multiple convictions were an aberration.” Id. at
671. In his brief to the BIA on appeal, Llanas-Trejo referenced Castillo-Perez.
Unsurprisingly, having prevailed as to this issue before the IJ, he did not seek to
present additional evidence regarding good moral character. In its own briefing, the
government did not challenge the IJ’s finding that Llanas-Trejo had satisfied the good
moral character requirement.
In December 2020, the BIA dismissed Llanas-Trejo’s direct appeal, expressly
adopting and affirming “the Immigration Judge’s decision that the respondent did not
establish that his removal would result in exceptional and extremely unusual hardship
to his qualifying relatives, his three United States citizen children.” The BIA did not
address the separate good moral character requirement.
Llanas-Trejo did not appeal the December 2020 ruling, and it appeared that his
case was final. In early 2021, however, he filed the present motion asserting that his
wife and United States citizen daughter recently had been the victims of a hit-and-run
accident resulting in new evidence of hardship. At the time Llanas-Trejo filed his
motion to reopen, his United States citizen daughter was 19 years old and attending
the University of Minnesota. His other two United States citizen children were still
minors.
In response to Llanas-Trejo’s motion to reopen, the government filed a
resistance addressing the issue of hardship and expressly raising the issue of the
Castillo-Perez moral-character presumption. In reply, Llanas-Trejo submitted
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additional evidence of hardship. Most of the evidence Llanas-Trejo submitted
provided details as to his wife’s injuries and treatments. Evidence concerning his
daughter’s injuries was limited to a document from a state-court victims’ reparations
fund.
The BIA denied his motion to reopen on two grounds. First, the BIA noted that
Llanas-Trejo’s wife did not have an immigration status and therefore was not a
qualifying relative for whom hardship from removal could be considered. The BIA
expressly noted scant evidence of injury to Llanas-Trejo’s daughter. The BIA stated:
[W]e have not taken the majority of the respondent’s . . . submission into
consideration because it does not relate to a qualifying relative. Only
one document, a letter from the Crime Victim’s Reparations Board,
relates to the respondent’s daughter. The remaining documents relate
to the respondent’s wife, who does not have any legal status in the
United States and thus is not a qualifying relative.
The BIA did not comment as to the potential for Llanas-Trejo’s wife’s injuries to alter
the level of hardship likely to be experienced by his qualifying, United States citizen
children still under their mother’s care.
Second, the BIA cited Castillo-Perez and Llanas-Trejo’s two most recent DUIs,
concluding that he failed to rebut the Castillo-Perez presumption. The BIA expressly
noted that Llanas-Trejo did not submit evidence of good moral character in support
of his motion to reopen. The BIA, however, did not comment on the earlier
government concession, the initial record, or the IJ finding as to good moral
character.
Llanas-Trejo appeals the denial of his motion to reopen.
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II. Discussion
A. Jurisdiction
The government argues we lack jurisdiction to review the denial of Llanas-
Trejo’s motion to reopen. In asserting its argument, the government cites cases that
address courts’ limited jurisdiction to review denials of cancellation of removal.
See 8 U.S.C. § 1252(a)(2)(B).1 As to such cases, the Supreme Court recently resolved
a circuit split by adopting a broad interpretation of the statutory jurisdictional bar.
See Patel v. Garland, 142 S. Ct. 1614 (May 16, 2022) (holding that the jurisdictional
bar of subsection (i) applies to underlying factual determinations regarding eligibility
and not merely to the ultimate grant or denial of discretionary relief).
18 U.S.C. § 1252(a)(2) provides:
(B) Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and except
as provided in subparagraph (D), and regardless of whether the
judgment, decision, or action is made in removal proceedings, no court
shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security, other
than the granting of relief under section 1158(a) of this title.
. . .
(D) Nothing in subparagraph (B) ... shall be construed as precluding
review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in
accordance with this section.
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But, Llanas-Trejo did not appeal the underlying December 2020 denial of
cancellation of removal. Rather, he appealed the BIA’s subsequent denial of the
motion to reopen—the motion he filed later and with new evidence of his wife and
daughter’s injuries. We have jurisdiction to review the denial of the motion to reopen
for abuse of discretion. See Urrutia Roblez v. Barr, 940 F.3d 420, 422–23 (8th Cir.
2019) (discussing Kucana v. Holder, 558 U.S. 233 (2010), and stating, “Although 8
U.S.C. § 1252(a)(2)(B)(i) limits our jurisdiction to review the Attorney General’s
exercise of his statutory discretion to grant cancellation of removal, the Supreme
Court has confirmed that this statute did not remove the long-exercised judicial
authority to review the BIA’s denial of an alien’s motion to reopen under a deferential
abuse of discretion standard.”); see also Kucana, 558 U.S. at 242, 253 (stating that
a “motion to reopen is an important safeguard intended to ensure a proper and lawful
disposition of immigration proceedings” and concluding that “[a]ction on motions to
reopen, . . . remain subject to judicial review” (citations omitted)).
In fact, the Court in Patel carefully distinguished Kucana. See Patel, 142 S.
Ct. at 1624–25. The Court emphasized that Kucana addressed jurisdiction where the
Attorney General delegated discretion to the BIA but Patel addressed jurisdiction
where Congress delegated discretion to the Attorney General. See id. at 1625
(“Kucana’s discussion is inapposite. That opinion addressed whether the Attorney
General could unilaterally proscribe review of decisions ‘declared discretionary by
the Attorney General himself through regulation.’ In drawing the comparison
between [8 U.S.C. § 1252(a)(2)(B)] clauses (i) and (ii), we thus focused on the fact
that each form of relief identified in clause (i) was entrusted to the Attorney General’s
discretion by statute. We neither said nor implied anything about review of eligibility
decisions made in the course of exercising that statutory discretion.” (citations
omitted)).
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B. Abuse of Discretion Review
Although we may review the denial of a motion to reopen, such motions “are
disfavored because of the strong public interest in bringing litigation to a close and
because granting them can allow endless prolongation of . . . proceedings.” Salman
v. Holder, 687 F.3d 991, 996 (8th Cir. 2012) (quotation omitted). As such, we will
find “the BIA abuses its discretion . . . only when 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.” Rodriguez v. Barr, 952 F.3d 984,
991 (8th Cir. 2020) (citation omitted).
As noted, one basis the BIA provided for its denial of the motion was its refusal
to consider evidence of Llanas-Trejo’s wife’s injuries due to her lack of an
immigration status. Had this been the only basis articulated, we would find an abuse
of discretion even under this deferential standard. The material question on the issue
of hardship in a motion to reopen is whether the new evidence, if proven, would show
an “exceptional and extremely unusual hardship” to Llanas-Trejo’s United States
citizen children. See 8 U.S.C. § 1229b(b)(1)(D). The fact that the children’s injured
mother had no immigration status bears little relevance to the level of hardship the
children were likely to face. Upon Llanas-Trejo’s removal, she would have been their
sole care giver, and her ability to provide care appears to have been materially
diminished. The agency should have focused on the effect that removal would have
had on the United States citizen children in light of the injury to their mother. By
dismissing out of hand the evidence of the mother’s injury, the BIA “fail[ed] to
consider all factors . . . [and] distort[ed] important aspects of the claim.” Rodriguez,
952 F.3d at 991.
Regardless, a petitioner must demonstrate prima facie eligibility for relief as
to all required elements to have their file reopened. Njie v. Lynch, 808 F.3d 380, 385
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(8th Cir. 2015). And, we find no abuse of the BIA’s substantial discretion in the
alternative ruling that Llanas-Trejo failed to rebut the Castillo-Perez presumption.
The final DUI occurred approximately one month after an initial and informal
exercise of discretion in Llanas-Trejo’s favor: the administrative closure his file in
2016. The Attorney General stated in Castillo-Perez that a grant of relief in spite of
two DUIs would be “an unusual case in which [a petitioner] . . . establish[es] that the
multiple convictions were an aberration and can show good moral character.” 27
I&N Dec. at 671. To overcome this presumption, a petitioner must show “substantial
relevant and credible contrary evidence” to demonstrate “that the multiple convictions
were an aberration.” Id. at 671. Driving under the influence one month after the
suspension of his initial removal proceedings does not suggest the unusual showing
described in Castillo-Perez.
Llanas-Trejo argues that it was unfair for the BIA to rule on this basis given the
earlier government concession, the IJ finding, and the presence of at least some
evidence of good moral character within his underlying file. Our deferential standard
of review does not permit reliance on general pleas as to fairness, and we do not
believe this case demonstrates a “depart[ure] from established policies.” Rodriguez,
952 F.3d at 991. Llanas-Trejo acknowledged Castillo-Perez in his briefing on direct
appeal, the government raised the presumption in its briefing in response to the
motion to reopen, and Llanas-Trejo failed to supplement his motion with additional
rebuttal evidence or argument. Further, although the BIA on direct appeal stated
expressly that it was adopting the IJ’s finding as to a lack of sufficient hardship, the
BIA did not address the good moral character finding. Where the BIA denies relief
on appeal based on one element, its silence as to another does not serve as an implicit
and binding adoption of the IJ’s conclusion. See N’Diaye v. Barr, 931 F.3d 656, 664
(8th Cir. 2019) (agency may reconsider in the same case an issue not previously
addressed through a final judgment); Estrada-Rodriguez v. Lynch, 825 F.3d 397,
420–03 (8th Cir. 2016) (issue previously addressed by an IJ but not addressed by the
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BIA on review is not barred generally from further agency consideration by the law
of the case doctrine).
The BIA did not abuse its discretion in holding that Llanas-Trejo failed to
make a prima facie showing of good moral character with the filing of his motion to
reopen.
We deny the petition for relief and affirm the BIA’s judgment.
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