Alfredo Marquez-Martinez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 17, 2018
• Docket: 18-11099
• Status: Unpublished

Opinion

Case: 18-11099 Date Filed: 10/17/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11099 Non-Argument Calendar ________________________

Agency No. A205-131-502

ALFREDO MARQUEZ-MARTINEZ, a.k.a. Alfredomartinez Marquez, a.k.a. Alfredo Marquez-Marquez, a.k.a. Jesus Ochoa-Valenzuela, a.k.a. Alfredo Martinez Marquez,

Petitioner, versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(October 17, 2018)

Before MARCUS, NEWSOM, and HULL, Circuit Judges.

PER CURIAM: Case: 18-11099 Date Filed: 10/17/2018 Page: 2 of 10

Alfredo Marquez-Martinez seeks review of the Board of Immigration

Appeals’s final order affirming the Immigration Judge’s denial of his motion to

reopen his removal proceedings. On appeal, Marquez-Martinez argues that it was

an abuse of discretion for the IJ and BIA to deny his motion based on (1) his

“delay” in filing the (nevertheless timely) motion and (2) his prior attempts to

apply for cancellation of removal based on relationships with two other

individuals, even though the IJ specifically stated that he did not question the

legitimacy of Marquez-Martinez’s current marriage. Marquez-Martinez separately

contends that the BIA failed to give reasoned consideration to his arguments

because it failed to explain why either of the two proffered reasons should be held

against him. The Government argues in response that we lack subject matter

jurisdiction because the IJ denied the motion to reopen under its sua sponte

authority and, alternatively, that the denial of Marquez-Martinez’s motion to

reopen was not an abuse of discretion.

I

We address first our subject matter jurisdiction over Marquez-Martinez’s

appeal. We review de novo whether we have subject matter jurisdiction. Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

Under the Immigration and Nationality Act, this Court may review final

orders of removal. INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). This jurisdictional

2 Case: 18-11099 Date Filed: 10/17/2018 Page: 3 of 10

grant includes the authority to review orders denying motions to reopen. See Patel

v. U.S. Att’y Gen., 334 F.3d 1259, 1261 (11th Cir. 2003). In Lenis v. United States

Attorney General, however, this Court explained that “under the Administrative

Procedure Act, judicial review is not available when ‘agency action is committed

to agency discretion by law.’” 525 F.3d 1291, 1294 (11th Cir. 2008) (emphasis

added) (quoting 5 U.S.C. § 701(a)(2)). The Lenis Court concluded that it lacked

jurisdiction to review the BIA’s refusal to reopen immigration proceedings in

exercise of its sua sponte authority, because the INA did not provide any “standard

to govern the BIA’s exercise of its discretion” to sua sponte reopen immigration

proceedings. Id. at 1293; see also Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283–

84 (11th Cir. 2016), cert. denied sub nom. Butka v. Sessions, 138 S. Ct. 299 (2017).

But the Supreme Court has explained that this discretionary bar does not

apply to IJ and BIA decisions reviewing statutory (as opposed to sua sponte)

motions to reopen. Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015) (citing Kucana v.

Holder, 558 U.S. 233, 253 (2010)). Under the INA, an alien may file one

“statutory” motion to reopen his removal proceedings, which must (1) state the

new facts that will be proven at a hearing if the motion is granted and (2) be

supported by affidavits or other evidence. INA § 240(c)(7)(A)–(B), 8 U.S.C.

§ 1229a(c)(7)(A)–(B). A statutory motion to reopen also must be filed within 90

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days of a final order of removal. INA § 240(c)(7)(C)(i), 8 U.S.C.

§ 1229a(c)(7)(C)(i).

It is unclear from the face of Marquez-Martinez’s motion whether it is a

statutory motion to reopen or a motion for discretionary sua sponte reopening. The

Government contends that we do not have subject matter jurisdiction because the

IJ denied Marquez-Martinez’s motion to reopen “solely in the exercise of

discretion,” and thus we should treat the motion as a request for the IJ to exercise

his sua sponte authority to reopen. But Marquez-Martinez’s motion complies with

the requirements for a statutory motion to reopen—specifically, it states the new

facts to be proven (his marriage to his current wife, Joanna Garcia) and is

supported by evidentiary material. See INA § 240(c)(7)(B), 8 U.S.C.

§ 1229a(c)(7)(B). The motion was also timely filed on July 21, 2015—within 90

days of the May 27, 2015 order granting voluntary departure. See INA

§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i).

Because Marquez-Martinez’s motion complies with the statutory

requirements, we construe it as a statutory motion to reopen rather than a motion

for sua sponte reopening. See Mata, 135 S. Ct. at 2154–56 (construing an alien’s

motion to reopen—which met each requirement of a statutory motion per

INA § 240(c)(7)(b)—as a statutory motion to reopen rather than as a request for

the Court to exercise its sua sponte authority). Of course, the IJ and BIA may still

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choose to deny a statutory motion to reopen even when an alien has made out a

prima facie case of entitlement to relief. Bing Quan Lin v. U.S. Att’y Gen., 881

F.3d 860, 873 (11th Cir. 2018). But this does not divest us of jurisdiction to review

the denial of Marquez-Martinez’s motion. See Mata, 135 S. Ct. at 2154 (noting

that, when courts of appeal review a BIA denial of a statutory motion to reopen,

“the reason for the BIA’s denial makes no difference to the jurisdictional issue”);

see also Kucana, 558 U.S. at 244. Therefore, we have jurisdiction over this appeal.

II

We next address whether it was an abuse of discretion for the IJ and BIA to

cite only Marquez-Martinez’s delay in filing his (still timely) motion to reopen and

his two prior relationships as support for denying his motion. See Contreras-

Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1316 (11th Cir. 2006) (“We review the

denial of a motion to reopen for abuse of discretion.”). In so doing, we review the

BIA’s decision, except to the extent the BIA expressly adopts the IJ’s decision—in

which case we also review the IJ’s decision. Id.

When reviewing an agency decision for abuse of discretion, we evaluate

whether the agency’s exercise of its discretion was arbitrary or capricious. Abdi v.

U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005), overruled on other grounds

by Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013). The arbitrary-

and-capricious standard is “exceedingly deferential”—we are not authorized to

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substitute our judgment for an agency’s so long as its conclusions are rational.

Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)

(citations omitted). That being said, we may nonetheless find an agency action

arbitrary and capricious where an agency has “relied on factors which Congress

has not intended it to consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference

in view or the product of agency expertise.” Id. (citing Ala.–Tombigbee Rivers

Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 2007)).

Here, Marquez-Martinez has demonstrated that the denial of his motion to

reopen was arbitrary and capricious. As indicated by the BIA, the IJ’s decision

rested solely on two “negative” grounds: (1) Marquez-Martinez’s delay in filing

the motion to reopen and (2) Marquez-Martinez’s prior relationships. Neither the

IJ nor the BIA, however, provided any reason why these factors counted against

Marquez-Martinez—indeed, the IJ explicitly discounted the only reason for which

either factor could support a denial of Marquez-Martinez’s motion.

First, neither the IJ nor BIA explained how Marquez-Martinez’s “delay” in

filing is a negative factor when both acknowledged that the motion was still, in

fact, timely filed. See generally Mata, 135 S. Ct. at 2150 (recognizing that the BIA

may deny a statutory motion to reopen for untimeliness). Although the IJ

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determined that Marquez-Martinez “could have” filed his motion sooner, neither

the IJ nor the BIA addressed the facts that the motion had to be filed in person in

Atlanta, that the law required Marquez-Martinez to gather evidence to support his

motion, or (most significantly) that the motion was timely filed within six weeks of

his marriage. Nor did the IJ or BIA provide support for the premise that a timely-

but-not-timely-enough motion is a relevant factor in evaluating an alien’s statutory

motion to reopen. Under these circumstances, it is unclear why any supposed

delay in filing should be held against Marquez-Martinez.

Second, the IJ’s and BIA’s discussions of Marquez-Martinez’s prior

relationships do not illuminate why they constitute a “negative” factor. Certainly,

there are circumstances in which prior relationships would be relevant—indeed,

circumstances such as those in this case could give rise to questions about a

marriage’s legitimacy. Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1312–13

(11th Cir. 2013) (recognizing that the BIA may deny a motion to reopen based on a

finding that a petitioner’s marriage is not bona fide). The IJ could have reasoned,

for example, that Marquez-Martinez’s current marriage was likely illegitimate in

light of his earlier attempts to remain in the United States based on prior

relationships. But that is not what the IJ concluded. Instead, the IJ expressly

stated that he did not question the legitimacy of Marquez-Martinez’s current

marriage—but then counted Marquez-Martinez’s prior relationships against him

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anyway. Absent further explanation, it is unclear why the prior relationships

constituted a relevant negative factor in considering whether to grant the motion.

In sum, the BIA and IJ did not explain why the still-timely filing or prior

relationships were relevant factors in their decisions on Marquez-Martinez’s

motion, did not address Marquez-Martinez’s arguments about the reasons for his

delay or any of his proffered “positive” factors, and specifically disavowed the

only obvious reason that his prior relationships would have been relevant. While

our review of agency discretion is “exceedingly deferential,” it is not a rubber

stamp. Miccosukee Tribe, 566 F.3d at 1264. Accordingly, we hold that the IJ and

BIA’s denial of Marquez-Martinez’s motion to reopen was arbitrary and capricious

as it was based on irrelevant factors. 1 See id. (citing Kempthorne, 477 F.3d at

1254).

III

Finally, we address whether the BIA failed to give reasoned consideration to

Marquez-Martinez’s arguments. We review de novo whether an agency failed to

give an issue reasoned consideration. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799

(11th Cir. 2016).

1 We decline to address the Government’s argument regarding the weight of the “finality interest” because that factor was not part of either the IJ’s or the BIA’s decision. We also decline to address the Government’s contention that the IJ improperly extended the time for voluntary departure as the Government did not make this argument to either the IJ or the BIA. 8 Case: 18-11099 Date Filed: 10/17/2018 Page: 9 of 10

To determine whether an agency gave reasoned consideration, we examine

whether it “consider[ed] the issues raised and announce[d] its decision in terms

sufficient to enable a reviewing court to perceive that it has heard and thought and

not merely reacted.” Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011)

(citation omitted). The agency need not specifically address each claim made or

each piece of evidence presented, but it must consider all evidence that a petitioner

has submitted. Id. An agency fails to 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.” Jeune,

810 F.3d at 803.

Here, the BIA failed to give reasoned consideration to Marquez-Martinez’s

argument. Marquez-Martinez contended that the IJ’s decision to deny the motion

to reopen was unsupported because it relied on irrelevant factors, and he explained

why those factors appeared to be irrelevant. In response, the BIA merely stated

that the IJ “provide[d] reasons,” named the two reasons, and then stated that the IJ

“properly weighed the positive and negative discretionary factors in this case.”

Although the BIA is not required to address every argument a petitioner makes, its

failure to explain—at all—its rejection of Marquez-Martinez’s arguments

demonstrates that it did not give his claims reasoned consideration.

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IV

Because it was an abuse of discretion for the IJ and BIA to rely on irrelevant,

unexplained factors in considering Marquez-Martinez’s statutory motion to reopen,

and because the BIA did not give reasoned consideration to his claims, we GRANT

Marquez-Martinez’s petition, VACATE the BIA decision, and REMAND for

further proceedings consistent with this opinion.