NOT RECOMMENDED FOR PUBLICATION File Name: 22a0485n.06
No. 22-3067
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 30, 2022 DEBORAH S. HUNT, Clerk ) GABINO OSORIO MEDINA, ) Petitioner, ) ON PETITION FOR REVIEW OF ) AN ORDER OF THE BOARD OF v. ) IMMIGRATION APPEALS ) MERRICK B. GARLAND, Attorney General, ) OPINION Respondent. ) ) )
Before: MOORE, GIBBONS, and LARSEN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner Gabino Osorio Medina seeks
review of a final order from the Board of Immigration Appeals (“BIA”) affirming the Immigration
Judge’s (“IJ’s”) decision that Osorio Medina was barred from withholding of removal under both
the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”) and
denying his application for deferral of removal under the CAT. Osorio Medina asserts that the
BIA denied him due process by (1) denying his second motion for a briefing extension; and
(2) failing to adjudicate his motion to compel the Department of Homeland Security (“DHS”) to
produce mental-health records. For the reasons that follow, we DENY the petition for review.
I. BACKGROUND
Osorio Medina is a native and citizen of Mexico. Administrative Record (A.R.) at 266
(Appl. for Asylum & Withholding of Removal). Osorio Medina moved to Houston, Texas, in the
early 1970s with his parents and grandparents when he was approximately five years old. A.R. at No. 22-3067, Osorio Medina v. Garland
101–02 (Hr’g Tr. at 36–37). He entered the United States as a legal permanent resident. A.R. at
102 (Hr’g Tr. at 37). In 1994, Osorio Medina was convicted of aggravated assault in Harris
County, Texas, and was sentenced to ten years’ incarceration. A.R. at 171 (J. at 1). After his
release, Osorio Medina married a U.S. citizen, and they had a child, who is also a U.S. citizen.
A.R. at 424 (Marriage License); A.R. at 426 (Birth Certificate); A.R. at 472 (Reasonable Fear
Worksheet at 3). In 2008, an IJ entered an order of removal against him, and he was subsequently
removed to Mexico. A.R. at 289 (Order of IJ at 1); A.R. at 484 (Notice of Intent/Decision to
Reinstate Prior Order). He remained in Mexico for four to six months before returning to the
United States because he feared the violence in Mexico. A.R. at 124, 131 (Hr’g Tr. at 59, 66).
In 2013, Osorio Medina pleaded guilty to aggravated assault with a deadly weapon in
Harris County, Texas, and was sentenced to five years’ incarceration. A.R. at 168 (J. at 1). After
serving his sentence, Osorio Medina was taken into Immigration and Customs Enforcement
(“ICE”) custody. A.R. at 113 (Hr’g Tr. at 48). He pleaded guilty to illegal reentry in violation of
8 U.S.C. § 1326 and was sentenced to 71 months’ imprisonment. A.R. at 176, 178 (J. at 1, 3). At
that time, DHS gave Osorio Medina notice of its intent to reinstate the prior order of removal
entered against him in 2008. A.R. at 484 (Notice of Intent/Decision to Reinstate Prior Order).
Osorio Medina expressed a fear of persecution or torture were he to be returned to Mexico, and an
asylum officer found his fear to be credible, at which point the matter was referred to an IJ for
withholding-only proceedings. A.R. at 465 (Notice of Referral to IJ at 1).
On July 9, 2021, the IJ held a merits hearing on Osorio Medina’s applications for
withholding of removal under INA § 241(b)(3) and under the CAT, as well as deferral of removal
under the CAT. A.R. at 51 (IJ Order at 1). The IJ found Osorio Medina’s testimony to be credible
2 No. 22-3067, Osorio Medina v. Garland
but determined that his applications for withholding under both the INA and the CAT were barred
pursuant to INA § 241(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)(2) because his 2013 aggravated
assault with a deadly weapon conviction constituted a particularly serious crime. A.R. at 55–58
(IJ Order at 5–8). The IJ denied his application for deferral of removal, finding that he had “failed
to demonstrate that it is more likely than not that he would be tortured by, or with the acquiescence
of, Mexican government officials acting under color of law.” A.R. at 59 (IJ Order at 9).
Osorio Medina appealed the IJ’s order to the BIA. On September 15, 2021, Osorio Medina
moved pro se for an extension of time to file his brief, which was originally due on September 22,
2021. A.R. at 32 (Mot. to Extend Time). The BIA granted his request, but warned that “the Board
generally does not grant more than one extension per case” and that therefore “the parties should
assume no further extensions will be granted.” A.R. at 12 (Notice of Grant of Briefing Extension
Request). Osorio Medina subsequently retained counsel, who filed a second briefing extension
request on October 13, 2021, the same day that Osorio Medina’s brief was due. A.R. at 27, 29 (2d
Briefing Extension Request at 2, 4). The motion stated that counsel “immediately became
concerned about [Osorio Medina’s] mental health” after meeting with him. A.R. at 27 (2d Briefing
Extension Request at 2). The BIA denied this request on the grounds that it was untimely and that
it was a second request that did not show “extraordinary circumstances as to why a further
extension should be granted.” A.R. at 5 (Notice of Denial of Briefing Extension Request). Osorio
Medina also moved to compel DHS to produce any relevant evidence of his mental competency
in its possession. A.R. at 8 (Mot. to Require DHS Production at 2). The BIA affirmed and adopted
the IJ’s decision on all grounds. A.R. at 3 (BIA Op. at 1). In its opinion, the BIA also responded
to Osorio Medina’s motion to compel, stating that he “participated as a witness in his proceedings
3 No. 22-3067, Osorio Medina v. Garland
and was responsive to questioning” and that he had provided “[n]o evidence of mental health issues
impacting his ability to understand and participate in the proceedings.” A.R. at 4 (BIA Op. at 2).
Osorio Medina filed a timely petition for review in this court.
II. ANALYSIS
“[W]e review the BIA’s decision as the final agency determination.” Khalili v. Holder,
557 F.3d 429, 435 (6th Cir. 2009). To the extent that the BIA adopted the IJ’s reasoning, we also
review the IJ’s decision. Id. “We review de novo alleged due process violations in immigration
proceedings.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). In order to prevail
on a due-process challenge, a petitioner “must establish both ‘error and substantial prejudice.’” Id.
(quoting Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005)). We give “substantial deference”
to “the BIA’s interpretation of the INA and accompanying regulations,” which “will be upheld
unless the interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’” Khalili,
557 F.3d at 435 (quoting Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)).
Free access — add to your briefcase to read the full text and ask questions with AI
NOT RECOMMENDED FOR PUBLICATION File Name: 22a0485n.06
No. 22-3067
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 30, 2022 DEBORAH S. HUNT, Clerk ) GABINO OSORIO MEDINA, ) Petitioner, ) ON PETITION FOR REVIEW OF ) AN ORDER OF THE BOARD OF v. ) IMMIGRATION APPEALS ) MERRICK B. GARLAND, Attorney General, ) OPINION Respondent. ) ) )
Before: MOORE, GIBBONS, and LARSEN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner Gabino Osorio Medina seeks
review of a final order from the Board of Immigration Appeals (“BIA”) affirming the Immigration
Judge’s (“IJ’s”) decision that Osorio Medina was barred from withholding of removal under both
the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”) and
denying his application for deferral of removal under the CAT. Osorio Medina asserts that the
BIA denied him due process by (1) denying his second motion for a briefing extension; and
(2) failing to adjudicate his motion to compel the Department of Homeland Security (“DHS”) to
produce mental-health records. For the reasons that follow, we DENY the petition for review.
I. BACKGROUND
Osorio Medina is a native and citizen of Mexico. Administrative Record (A.R.) at 266
(Appl. for Asylum & Withholding of Removal). Osorio Medina moved to Houston, Texas, in the
early 1970s with his parents and grandparents when he was approximately five years old. A.R. at No. 22-3067, Osorio Medina v. Garland
101–02 (Hr’g Tr. at 36–37). He entered the United States as a legal permanent resident. A.R. at
102 (Hr’g Tr. at 37). In 1994, Osorio Medina was convicted of aggravated assault in Harris
County, Texas, and was sentenced to ten years’ incarceration. A.R. at 171 (J. at 1). After his
release, Osorio Medina married a U.S. citizen, and they had a child, who is also a U.S. citizen.
A.R. at 424 (Marriage License); A.R. at 426 (Birth Certificate); A.R. at 472 (Reasonable Fear
Worksheet at 3). In 2008, an IJ entered an order of removal against him, and he was subsequently
removed to Mexico. A.R. at 289 (Order of IJ at 1); A.R. at 484 (Notice of Intent/Decision to
Reinstate Prior Order). He remained in Mexico for four to six months before returning to the
United States because he feared the violence in Mexico. A.R. at 124, 131 (Hr’g Tr. at 59, 66).
In 2013, Osorio Medina pleaded guilty to aggravated assault with a deadly weapon in
Harris County, Texas, and was sentenced to five years’ incarceration. A.R. at 168 (J. at 1). After
serving his sentence, Osorio Medina was taken into Immigration and Customs Enforcement
(“ICE”) custody. A.R. at 113 (Hr’g Tr. at 48). He pleaded guilty to illegal reentry in violation of
8 U.S.C. § 1326 and was sentenced to 71 months’ imprisonment. A.R. at 176, 178 (J. at 1, 3). At
that time, DHS gave Osorio Medina notice of its intent to reinstate the prior order of removal
entered against him in 2008. A.R. at 484 (Notice of Intent/Decision to Reinstate Prior Order).
Osorio Medina expressed a fear of persecution or torture were he to be returned to Mexico, and an
asylum officer found his fear to be credible, at which point the matter was referred to an IJ for
withholding-only proceedings. A.R. at 465 (Notice of Referral to IJ at 1).
On July 9, 2021, the IJ held a merits hearing on Osorio Medina’s applications for
withholding of removal under INA § 241(b)(3) and under the CAT, as well as deferral of removal
under the CAT. A.R. at 51 (IJ Order at 1). The IJ found Osorio Medina’s testimony to be credible
2 No. 22-3067, Osorio Medina v. Garland
but determined that his applications for withholding under both the INA and the CAT were barred
pursuant to INA § 241(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)(2) because his 2013 aggravated
assault with a deadly weapon conviction constituted a particularly serious crime. A.R. at 55–58
(IJ Order at 5–8). The IJ denied his application for deferral of removal, finding that he had “failed
to demonstrate that it is more likely than not that he would be tortured by, or with the acquiescence
of, Mexican government officials acting under color of law.” A.R. at 59 (IJ Order at 9).
Osorio Medina appealed the IJ’s order to the BIA. On September 15, 2021, Osorio Medina
moved pro se for an extension of time to file his brief, which was originally due on September 22,
2021. A.R. at 32 (Mot. to Extend Time). The BIA granted his request, but warned that “the Board
generally does not grant more than one extension per case” and that therefore “the parties should
assume no further extensions will be granted.” A.R. at 12 (Notice of Grant of Briefing Extension
Request). Osorio Medina subsequently retained counsel, who filed a second briefing extension
request on October 13, 2021, the same day that Osorio Medina’s brief was due. A.R. at 27, 29 (2d
Briefing Extension Request at 2, 4). The motion stated that counsel “immediately became
concerned about [Osorio Medina’s] mental health” after meeting with him. A.R. at 27 (2d Briefing
Extension Request at 2). The BIA denied this request on the grounds that it was untimely and that
it was a second request that did not show “extraordinary circumstances as to why a further
extension should be granted.” A.R. at 5 (Notice of Denial of Briefing Extension Request). Osorio
Medina also moved to compel DHS to produce any relevant evidence of his mental competency
in its possession. A.R. at 8 (Mot. to Require DHS Production at 2). The BIA affirmed and adopted
the IJ’s decision on all grounds. A.R. at 3 (BIA Op. at 1). In its opinion, the BIA also responded
to Osorio Medina’s motion to compel, stating that he “participated as a witness in his proceedings
3 No. 22-3067, Osorio Medina v. Garland
and was responsive to questioning” and that he had provided “[n]o evidence of mental health issues
impacting his ability to understand and participate in the proceedings.” A.R. at 4 (BIA Op. at 2).
Osorio Medina filed a timely petition for review in this court.
II. ANALYSIS
“[W]e review the BIA’s decision as the final agency determination.” Khalili v. Holder,
557 F.3d 429, 435 (6th Cir. 2009). To the extent that the BIA adopted the IJ’s reasoning, we also
review the IJ’s decision. Id. “We review de novo alleged due process violations in immigration
proceedings.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). In order to prevail
on a due-process challenge, a petitioner “must establish both ‘error and substantial prejudice.’” Id.
(quoting Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005)). We give “substantial deference”
to “the BIA’s interpretation of the INA and accompanying regulations,” which “will be upheld
unless the interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’” Khalili,
557 F.3d at 435 (quoting Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)).
First, Osorio Medina claims that the BIA denied him due process by denying his second
motion for a briefing extension. Federal regulations in effect at the time of Osorio Medina’s BIA
appeal provide that, “[the BIA], upon written motion and a maximum of one time per case, may
extend the period for filing a brief . . . for good cause shown. If an extension is granted, it is
granted to both parties, and neither party may request a further extension.” 8 C.F.R. § 1003.3(c)(1)
(2021) (emphasis added). The BIA practice manual further explains that, if an immigrant is
detained, it is BIA policy “not to grant second briefing extension requests,” which are “granted
only in rare circumstances.” BIA Practice Manual § 4.7(c)(i)(B) (Oct. 5, 2020). The manual,
moreover, states that “[e]xtension requests must be received by the [BIA] by the brief’s original
4 No. 22-3067, Osorio Medina v. Garland
due date; however, requests filed the same day as a brief is due are particularly disfavored and
granted only in the most compelling of circumstances.” Id. § 4.7(c)(ii) (emphasis added).
In denying Osorio Medina’s request, the BIA acted in compliance with federal regulations
and its own guidelines. Because Osorio Medina had already requested one briefing extension,
federal regulations plainly foreclosed the BIA from granting a second extension. And under the
BIA’s guidelines, Osorio Medina’s second request was untimely, because it was filed on October
13, 2021, weeks after the original due date of September 22, 2021. Even if we set aside the plain
language of the BIA manual regarding timeliness, Osorio Medina would have had to show “the
most compelling of circumstances” for the BIA to grant an extension. Id. § 4.7(c)(ii). We cannot
say that he did.
Although Osorio Medina’s counsel expressed concern for his mental health, mental illness
is relevant in immigration proceedings insofar as it rises to the level of incompetency and impedes
“traditional standards of fundamental fairness.” Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA
2011); see also id. at 480 (noting that “there are many types of mental illness that, even though
serious, would not prevent a respondent from meaningfully participating in immigration
proceedings” and that therefore “a diagnosis of mental illness does not automatically equate to a
lack of competency”). As the BIA recognized, and our own review of the transcript of proceedings
before the IJ confirms, Osorio Medina participated fully as a witness, responded thoughtfully and
credibly to the IJ’s questions, and reviewed exhibits. A.R. at 4 (BIA Op. at 2); A.R. at 90–157
(Hr’g Tr. at 25–92). Counsel’s concerns regarding Osorio Medina’s mental health therefore did
not rise to the level of the most compelling of circumstances, because his mental health did not
5 No. 22-3067, Osorio Medina v. Garland
impact his ability to participate meaningfully in his immigration proceedings, nor was he denied
fundamental fairness as a result of his mental-health issues.
Next, Osorio Medina argues that the BIA denied him due process by failing to adjudicate
his motion to compel DHS to produce mental-health records. The BIA’s opinion, however,
addressed Osorio Medina’s motion to compel, determining that he “participated as a witness in his
proceedings and was responsive to questioning” and that he had provided “[n]o evidence of mental
health issues impacting his ability to understand and participate in the proceedings.” A.R. at 4
(BIA Op. at 2). To the extent that Osorio Medina challenges the BIA’s denial of his motion to
compel, we cannot say that the BIA violated his due-process rights. For the reasons stated above,
there is nothing to suggest that Osorio Medina’s mental health impacted the fairness of his
immigration proceedings, and therefore the BIA did not deny him due process by denying his
motion to compel.
Osorio Medina’s passing reference to Matter of B-Z-R-, 28 I. & N. Dec. 563 (BIA 2022),
in his brief does not change our analysis. The Attorney General held in Matter of B-Z-R- that
mental-health evidence should not be categorically disregarded in evaluating whether an individual
poses a danger to the community as part of the particularly serious crime analysis. Id. at 566. But
beyond a cursory reference to the Attorney General’s decision, Osorio Medina has failed to explain
why Matter of B-Z-R- merits a remand to the BIA in his case. In his brief, Osorio Medina does
not suggest any nexus between his mental-health issues and the 2013 conviction that the IJ
determined constituted a particularly serious crime. Osorio Medina presented no evidence of
mental-health issues in his proceedings, nor did he indicate while testifying about the 2013
conviction that his mental health was in any way related to the offense. A.R. at 106–13 (Hr’g Tr.
6 No. 22-3067, Osorio Medina v. Garland
at 41–48). His motions before the BIA also did not mention any such connection. A.R. at 27–28
(2d Briefing Extension Request at 2–3); A.R. at 8–9 (Mot. to Require DHS Production at 2–3).
Matter of B-Z-R- therefore does not alter our analysis of the BIA’s resolution of his motions or
require a remand to the BIA. We do, however, note that the government concedes that Osorio
Medina can file a motion to reopen with the BIA or an appropriate application with DHS in the
event that he uncovers evidence to support a claim for U.S. citizenship, a U visa, or any other type
of immigration relief or protection. Resp’t Br. at 37.
Finally, the government asks us to decide whether Osorio Medina has waived any potential
challenge to the BIA’s determinations that (1) he was barred from withholding of removal due to
his conviction for a particularly serious crime; and (2) he failed to establish a clear probability of
torture by or with the acquiescence of the Mexican government. But because Osorio Medina does
not appeal the BIA’s decision on those grounds, we need not address these issues.
III. CONCLUSION
For the foregoing reasons we DENY the petition for review.