Paty Merida Galicia de Saenz v. Matthew G. Whitaker

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 26, 2018
• Docket: 18-3494
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0638n.06

Case No. 18-3494

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED PATY LETICIA MERIDA GALICIA DE ) Dec 26, 2018 SAENZ; Y.P.S.M., ) DEBORAH S. HUNT, Clerk ) Petitioners, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MATTHEW G. WHITAKER, Acting ) APPEALS Attorney General, ) ) ) Respondent.

BEFORE: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.

SUTTON, Circuit Judge. Paty Leticia Merida Galicia de Saenz and her daughter,

Y.P.S.M., contest the Board of Immigration Appeals’ refusal to reopen their immigration

proceedings. Because the Board did not abuse its discretion, we deny their petition for review.

Merida and her minor daughter are citizens of Guatemala. They entered the United States

illegally in 2014. After the Department of Homeland Security initiated removal proceedings

against them, they conceded their removability but applied for asylum, withholding of removal,

and protection under the Convention Against Torture. Merida said she had been robbed by gang

members in Guatemala and feared returning home. Y.P.S.M.’s application relied solely on

Merida’s claims. The immigration judge denied their applications after a hearing. The next month,

petitioners jointly filed a motion to reopen. For the first time, they alleged that Merida’s brother- No. 18-3494, Merida Galicia De Saenz et al. v. Whitaker

in-law, Cesar, had sexually assaulted them both in 2012. They argued that this new evidence

showed that they faced persecution as “female family member[s] of [Cesar]” and that Y.P.S.M.

was at high risk due to “mental delays and/or epilepsy.” A.R. 54. The immigration judge denied

the motion, reasoning that Merida knew about the sexual assaults at the hearing and that petitioners

in any event failed to prove their prima facie eligibility for asylum. The Board of Immigration

Appeals agreed and dismissed petitioners’ appeal.

We review the Board’s decision as the final agency determination, looking to the

immigration judge’s opinion to the extent the Board adopted it. Al-Saka v. Sessions, 904 F.3d 427,

430 (6th Cir. 2018). We may reverse only if the Board abused its discretion by acting in a way

that was “arbitrary, irrational or contrary to law.” Daneshvar v. Ashcroft, 355 F.3d 615, 625–26

(6th Cir. 2004).

The Board may deny a motion to reopen immigration proceedings if, among other things:

(1) the alien failed to establish a prima facie case for substantive relief, or (2) the alien failed to

introduce material and previously unavailable evidence. INS v. Doherty, 502 U.S. 314, 323 (1992);

Trujillo Diaz v. Sessions, 880 F.3d 244, 249 (6th Cir. 2018). In rejecting petitioners’ motion, the

Board and the immigration judge relied on both grounds.

Because the second ground suffices to reject this petition, we need not look any further.

The Board may not grant a motion to reopen unless the alien presents material evidence that “was

not available and could not have been discovered or presented at the former hearing.” 8 C.F.R.

§ 1003.2(c)(1). The only new evidence was the alleged sexual assaults in 2012. Merida

acknowledged that she was aware of the sexual assaults at the time of the hearing, in 2017, but

chose not to tell her attorney out of fear that her husband would find out. She instead told her

attorney after the immigration judge denied her application. Because petitioners knew about this

2 No. 18-3494, Merida Galicia De Saenz et al. v. Whitaker

evidence at the time of their hearing, the Board did not abuse its discretion in refusing to grant

their motion to reopen. See Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir. 2005). Regrettably

for both applicants, that is just what the law requires.

Petitioners offer one argument to the contrary. They contend that the Eighth Amendment

requires courts to excuse minors like Y.P.S.M. from the requirement of introducing previously

unavailable material evidence when filing a motion to reopen. Removal from the United States is

a form of punishment, they say, and principles of proportionality demand that children not be

punished for their parents’ failure to report information known to the parents at immigration

hearings.

Two insurmountable obstacles meet this argument. The Eighth Amendment’s prohibition

against cruel and unusual punishments does not apply because “deportation does not constitute

punishment.” Elia v. Gonzales, 431 F.3d 268, 276 (6th Cir. 2005). Nothing in Padilla v. Kentucky

changed that longstanding rule. 559 U.S. 356, 365 (2010) (finding that although “deportation is a

particularly severe ‘penalty,’ . . . it is not, in a strict sense, a criminal sanction”); see also Sunday

v. Att’y Gen., 832 F.3d 211, 218–19 (3d Cir. 2016); Hinds v. Lynch, 790 F.3d 259, 266–68 (1st

Cir. 2015).

The Board also acted within its discretion by denying the motion based on Merida’s

knowledge of the sexual assaults at the time of the hearing. Y.P.S.M. was a rider on Merida’s

application, and she moved to reopen the proceedings jointly with Merida. Under those

circumstances, the Board’s decision to rely on the lead applicant’s admissions about the previous

availability of new evidence was not “arbitrary, irrational or contrary to law.”

We must deny the petition for review.