Perez-Garcia v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 22, 2023
• Docket: 22-9543
• Status: Unpublished

Opinion

Appellate Case: 22-9543 Document: 010110957167 Date Filed: 11/22/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 22, 2023 _________________________________ Christopher M. Wolpert Clerk of Court JESUS PEREZ-GARCIA,

Petitioner,

v. No. 22-9543 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges. _________________________________

Jesus Perez-Garcia petitions for review of a decision by the Board of

Immigration Appeals (BIA) affirming an order by an Immigration Judge (IJ) denying

his application for withholding of removal. We deny the petition in part and dismiss

it in part for lack of jurisdiction.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-9543 Document: 010110957167 Date Filed: 11/22/2023 Page: 2

BACKGROUND

Mr. Perez-Garcia is a native and citizen of Mexico. He entered the United

States without inspection. The Department of Homeland Security served him with a

Notice to Appear charging him with being removable under 8 U.S.C.

§ 1182(a)(6)(A)(i) as a noncitizen present in the United States without being admitted

or paroled. Mr. Perez-Garcia appeared before the IJ, conceded removability, and

requested cancellation of removal under 8 U.S.C. § 1229b(b)(1). In support of this

request, he submitted over 200 pages of documentary evidence, including the report

of a Licensed Clinical Social Worker.

The IJ issued an oral decision denying the request for cancellation of removal.

The IJ found that Mr. Perez-Garcia met three of the four requirements for

cancellation—continuous physical presence for at least ten years, good moral

character during that ten-year period, and lack of any disqualifying criminal

convictions, see § 1229b(b)(1)(A)–(C). But the IJ also found that he failed to

establish the fourth requirement, that his qualifying relatives would suffer hardship

“substantially beyond the ordinary hardship that would be expected when a close

family member leaves the United States.” R. at 64.

Mr. Perez-Garcia, through new counsel, filed an appeal with the BIA,

challenging the IJ’s finding regarding the degree of hardship his qualifying family

members would face from his removal from the United States. In his notice of appeal

to the BIA, Mr. Perez-Garcia indicated he was also appealing the denial of his

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application for cancellation of removal because “he was not represented well by his

previous counsel,” R. at 53, but he failed to further brief this point before the agency.

The BIA dismissed the appeal, “adopt[ing] and affirm[ing] the decision of the

[IJ].” R. at 3. As to the claims of ineffective assistance of counsel, the BIA

concluded that, “[b]ecause [Mr. Perez-Garcia] [did] not meaningfully present[] these

issues in the Notice of Appeal or pursue[] them in his appellate brief, [it] deem[ed]

them waived.” R. at 3, n.2. This petition for review, through a third attorney,

followed.

DISCUSSION

Because a single board member issued the BIA decision, we review it “as the

final agency determination and limit our review to issues specifically addressed

therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). “We consider

any legal questions de novo, and we review the agency’s findings of fact under the

substantial evidence standard. Under that test, our duty is to guarantee that factual

determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150

(10th Cir. 2004). “To obtain reversal of factual findings, a petitioner must show the

evidence he presented was so compelling that no reasonable factfinder could find as

the BIA did.” Gutierrez-Orozco v. Lynch, 810 F.3d 1243, 1245 (10th Cir. 2016)

(internal quotation marks omitted).

Mr. Perez-Garcia raises two issues in his petition for review. He argues that

(1) the BIA erred in denying his application for cancellation of removal “in light of

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ineffective assistance of counsel and due process violations,” Pet’r Opening Br. at 1,

and (2) the BIA erred in denying his application for cancellation of removal based

upon the evidence he presented to the IJ.

In connection with the first argument, Mr. Perez-Garcia asserts that (a) his

counsel before the IJ was ineffective for failing to call witnesses and to submit a

more thorough pre-hearing brief and (b) his counsel who assisted him before the BIA

was ineffective because of his failure to raise the issue of ineffective assistance of

prior counsel. But Mr. Perez-Garcia did not exhaust the claims involving his counsel

in the IJ proceedings by presenting them to the agency beyond a single sentence in

his notice of appeal to the BIA. The BIA therefore deemed these claims waived.

And in his petition for review, Mr. Perez-Garcia necessarily acknowledges the

inadequacy of his prior counsel’s briefing before the BIA in that it predicates his

second claim of ineffective assistance of counsel. So, the claims involving the IJ

counsel are barred from judicial review.

Under 8 U.S.C. § 1252(d)(1), we “may review a final order of removal only

if . . . the alien has exhausted all administrative remedies available to the alien as of

right . . . .” We had previously held a petitioner’s failure to exhaust claims before the

agency was a jurisdictional defect, see Torres de la Cruz v. Maurer, 483 F.3d 1013,

1017-18 (10th Cir. 2007), but in Santos-Zacaria v. Garland, 598 U.S. 411, 413

(2023), the Supreme Court held “§ 1252(d)(1) is not jurisdictional.” Even if not

jurisdictional, though, § 1252(d)(1) is still “mandatory,” id. at 421, and the

government invoked it here. See Resp. Br. at 11–14. And “[w]hen Congress uses

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mandatory language in an administrative exhaustion provision, a court may not

excuse a failure to exhaust.” United States v. Palomar-Santiago, 141 S. Ct. 1615,

1621 (2021) (internal quotation marks omitted).

Per Santos-Zacaria, § 1252(d)(1) does not preclude our review of

Mr. Perez-Garcia’s claims concerning ineffective assistance of counsel before the

BIA because even though he could have sought reconsideration before the BIA on the

basis of the alleged ineffectiveness of his prior counsel, he “need not request

. . . reconsideration of an unfavorable [BIA] determination[] in order to satisfy

§ 1252(d)(1)’s exhaustion requirement.” 598 U.S. at 413–14.

The reviewable aspect of Mr. Perez-Garcia’s ineffective-assistance-of-counsel

argument, though, fails on its merits. “[D]ue process is not equated automatically

with a right to counsel. The fifth amendment guarantee of due process speaks to

fundamental fairness; before we may intervene based upon a lack of representation,

petitioner must demonstrate prejudice which implicates the fundamental fairness of

the proceeding.” Michelson v. I.N.S., 897 F.2d 465, 468 (10th Cir. 1990) (internal

citation omitted). Mr. Perez-Garcia does not demonstrate prejudice which implicates

the fundamental fairness of his deportation proceeding. Instead, he details facts

supporting his underlying claim of extraordinary hardship, all of which he supports

with reference to documents that his first attorney submitted with his prehearing brief

before the IJ. See Pet’r Opening Br. at 16–18.

He asserts that “[a]t no point during the agency proceedings were the relevant

decision-makers presented fully with, and able to meaningfully consider, [this]

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evidence.” Id. at 16. But this assertion is untrue. The IJ acknowledged the evidence

to which Mr. Perez-Garcia refers. R. at 61 (“All the statements made in that form

EOIR 42B were considered. . . . [T]he supporting documents . . .were considered as

well. . . . There’s also a licensed clinical social worker’s report. . . . It was also

considered.”) And the BIA “adopt[ed] and affirm[ed] the decision of the [IJ].”

R. at 3.

“[O]ur general practice . . . is to take a lower tribunal at its word when it

declares that it has considered a matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173

(10th Cir. 2005). Mr. Perez-Garcia demonstrates no reason to depart from that

general practice here. Although he disagrees with the conclusions the IJ and BIA

reached based on the evidentiary record, he falls well short of showing the agency

failed to consider it, and he therefore has not shown prior counsel’s performance

resulted in prejudice implicating the fundamental fairness of his proceedings.

Independent of his ineffective-assistance-of-counsel arguments,

Mr. Perez-Garcia argues the BIA erred when it denied his application for cancellation

of removal.1 But we lack jurisdiction to consider this argument because it challenges

the agency’s discretionary function. Under § 1252(a)(2)(B)(i), “no court shall have

jurisdiction to review . . . any judgment regarding the granting of relief under . . .

§ 1229b.” “Our court reads this provision as denying jurisdiction to review the

1 Mr. Perez-Garcia’s two primary arguments in his petition for review are fundamentally inconsistent with one another: on one hand he faults prior counsel for not creating an adequate evidentiary record in support of his application for cancellation, but on the other he claims the IJ erred in not granting his application on the basis of that same record.

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discretionary aspects of a decision concerning cancellation of removal under

§ 1229b(b)(1).” Galeano-Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020)

(internal quotation marks omitted). Such discretionary aspects include “the

determination of whether the petitioner’s removal from the United States would

result in exceptional and extremely unusual hardship to a qualifying relative under

8 U.S.C. § 1229b(b)(1)(D).” Arambula-Medina v. Holder, 572 F.3d 824, 828

(10th Cir. 2009) (internal quotation marks omitted).

Although this court retains jurisdiction to consider “constitutional claims or

questions of law,” § 1252(a)(2)(D), Mr. Perez-Garcia’s petition does not present any

such claims or questions. Instead, the arguments he presents all, at bottom, call for

the court to displace the judgment of the BIA based on the evidence he presented.

But Mr. Perez-Garcia “does not present a colorable constitutional claim capable of

avoiding the jurisdictional bar by arguing that the evidence was incorrectly weighed,

insufficiently considered, or supports a different outcome.” Kechkar v. Gonzales,

500 F.3d 1080, 1084 (10th Cir. 2007).

CONCLUSION

We deny the petition for review in part and dismiss the petition for review in

remaining part.

Entered for the Court

Carolyn B. McHugh Circuit Judge