Eusebio Lopez-Sarabia v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10582
Non-Argument Calendar
____________________
EUSEBIO LOPEZ-SARABIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-472-702
____________________
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 1 of 15

-- 1 of 15 --

2 Opinion of the Court 21-10582
Before WILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Eusebio Lopez-Sarabia, a Mexican citizen, petitions for re-
view of the Board of Immigration Appeals’s decision affirming the
immigration judge’s denials of cancellation of removal, termina-
tion of the proceedings under a claim-processing rule, and relief
under the Convention Against Torture. We deny the petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Lopez-Sarabia unlawfully entered the United States at an un-
known location on an unknown date. He testified that he last en-
tered the United States around September 2000. On March 11,
2008, and then again on June 8, 2015, he was arrested for driving
under the influence. The June 2015 arrest was also for driving with-
out a driver’s license. Lopez-Sarabia was ultimately found guilty of
all three offenses. He testified that he gave the false name “Macario
Cruz” to law enforcement during his arrests because he wanted to
remain undetected until his son Eusebio Lopez, Jr., a United States
citizen, could petition for him to have legal status in the United
States.
Lopez-Sarabia’s June 2015 arrest brought him to the atten-
tion of United States Immigration and Customs Enforcement
within the Department of Homeland Security. The department
started removal proceedings against him by filing a notice to appear
with the immigration judge. The notice ordered Lopez-Sarabia to
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 2 of 15

-- 2 of 15 --

21-10582 Opinion of the Court 3
appear before an immigration judge at a location “to be deter-
mined” on a date and time “[t]o be set.” The department charged
him with removability under the Immigration and Nationality
Act—specifically, 8 U.S.C. section 1182(a)(6)(A)(i) for being a non-
United States citizen “present in the United States without being
admitted or paroled” and 8 U.S.C. section 1182(a)(7)(A)(i)(I) for not
having a “valid entry document” at the time of admission.
At a July 29, 2015 removal hearing, Lopez-Sarabia admitted
the facts in the notice to appear, as well as the section
1182(a)(6)(A)(i) removability charge, but contested the section
1182(a)(7)(A)(i)(I) charge. The immigration judge sustained both
charges.
Lopez-Sarabia indicated that he would file an application for
cancellation of removal under 8 U.S.C. section 1229b(b)(1) and re-
lief under the Convention Against Torture. Lopez-Sarabia identi-
fied Lopez, Jr., then eighteen years old, as his qualifying relative for
cancellation of removal purposes.
See 8 U.S.C. § 1229b(b)(1)(D)
(requiring a removable noncitizen who seeks cancellation of re-
moval to show, among other things, that “removal would result in
exceptional and extremely unusual hardship to [his] spouse, parent,
or child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence”).
Lopez-Sarabia moved to terminate the removal proceedings
because he received a legally deficient notice to appear under
Pe-
reira v. Sessions, 138 S. Ct. 2105 (2018). He maintained that the
notice to appear did not comply with 8 U.S.C. section
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 3 of 15

-- 3 of 15 --

4 Opinion of the Court 21-10582
1229(a)(1)(G)(i) because it did not provide a date, time, or address
for his first hearing, and, because of the notice’s deficiencies, the
immigration judge lacked jurisdiction over the proceedings. The
immigration judge disagreed, explaining that
Pereira focused on
the narrow issue of whether a deficient notice to appear triggered
“the stop-time rule.” The immigration judge further reasoned that
the Supreme Court’s silence as to jurisdiction and its order to re-
mand strongly suggested that jurisdiction was proper.
Lopez-Sarabia provided testimony and documentation to
support his application for cancellation of removal and relief under
the Convention Against Torture.1 Lopez-Sarabia testified at length
about his wife Gabina Bravo-Roman and their son Lopez, Jr.
Lopez-Sarabia explained that his wife suffered from a mobility con-
dition because of a car accident and a bad hip operation and that
the condition required her to walk with a cane and to attend phys-
ical therapy, caused her extensive back pain, and had prevented her
from working for about three years. According to Lopez-Sarabia,
Lopez, Jr. was studying mechanical engineering at the University
of Florida on a scholarship, lived with Bravo-Roman and him, and
received emotional and, occasionally, financial support from him.
Lopez-Sarabia testified that if he were removed, Lopez, Jr. would
have to take care of Bravo-Roman instead of study, and Lopez-
1 Lopez-Sarabia also applied for asylum and withholding of removal, but he
expressly waived these claims in his petition for review. So we don’t discuss
them further.
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 4 of 15

-- 4 of 15 --

21-10582 Opinion of the Court 5
Sarabia wouldn’t be able to support his family financially because
he would earn a maximum of about four or five dollars a day in
Mexico. Lopez, Jr. corroborated this testimony, stating that given
Bravo-Roman’s poor health, he would not be able to depend on
her if Lopez-Sarabia were removed, that Lopez-Sarabia provided
him financial support, and that without this support, Lopez, Jr. did
not know how he would provide for himself while also attending
college.
Regarding taxes, Lopez-Sarabia testified that even though he
lived in the United States since 2000, he submitted tax returns only
for 2016; he didn’t submit tax returns for any other year “[b]ecause
[he] was getting paid in cash.” On advice of counsel, Lopez-Sarabia
exercised his right to remain silent and said no more about any past
tax returns, but because the removal proceedings were civil, not
criminal, the immigration judge drew a negative inference from his
silence.
Lopez-Sarabia also testified about why he was afraid to re-
turn to Mexico. He described four incidents that occurred in Mex-
ico and affected different members of his family. First, Lopez-Sara-
bia stated that when he was about seven or eight years old, some-
one wrongly accused his father of shooting someone else, which
led to his father’s arrest and, ultimately, acquittal. Second, Lopez-
Sarabia said that about eight years ago, armed gang members sur-
rounded his sister Ines Lopez to find out information about a rival
gang. Third, Lopez-Sarabia testified that his nephew Carlos Lopez
was killed by armed gang members. Lopez-Sarabia’s son Victor
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 5 of 15

-- 5 of 15 --

6 Opinion of the Court 21-10582
Lopez corroborated this testimony and added that Carlos Lopez
was killed “in the street” and “[n]o one [knew] the reason.”
And fourth, according to Lopez-Sarabia, a group of armed
men affiliated with the Mexican law enforcement organization La
Procuraduría General de la República went to his home and broke
down his door in 2004, when his family was living there without
him. Lopez-Sarabia stated that the men were executing a search
warrant for drugs, left when they didn’t find anything, and didn’t
return. Lopez-Sarabia further testified that Bravo-Roman put in a
claim with the city and the city ordered the organization to repair
the damage to the doors and that to his knowledge, there was no
active warrant against him in Mexico.
Victor Lopez, who was present during the search, elabo-
rated on it. He testified that in the early morning hours of a March
2004 day, about twenty La Procuraduría General de la República
agents wearing face coverings, bulletproof vests, military helmets,
and police attire violently entered the house, broke down the door
to his room, yelled at his family to get out, and pointed weapons at
Bravo-Roman and him. Victor Lopez said that the agents were
looking for drugs, weapons, and Lopez-Sarabia and left when they
didn’t find them.
When Lopez-Sarabia was asked why his family hadn’t
sought asylum when they first entered the United States, he
claimed ignorance of the law. Also, he stated that “[a]t the mo-
ment,” he did not know of any other family members who “had
issues in any way, shape[,] or form with the police or with the
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 6 of 15

-- 6 of 15 --

21-10582 Opinion of the Court 7
growing delinquency in Mexico.” And he testified that “[his] big-
gest concern [was] the criminality, the delinquency that exist[ed] in
[his] country, primarily where [he was] from,” and that “the only
thing” that made him afraid to return to Mexico was “[t]he delin-
quency and criminality.” Victor Lopez testified that he was con-
cerned about the violence in Mexico “[f]rom the drug cartels” and
“from the very police from there,” who sometimes randomly at-
tacked people “for fun.”
The immigration judge denied Lopez-Sarabia’s applications
and ordered him removed to Mexico. The immigration judge
found that Lopez-Sarabia established his continuous physical pres-
ence in the United States for ten years and that Lopez, Jr. would
suffer exceptional and extremely unusual hardship if Lopez-Sarabia
were removed. But the immigration judge determined that Lopez-
Sarabia didn’t warrant discretionary cancellation of removal be-
cause he failed to pay his taxes for years, because his second con-
viction for driving under the influence showed that he was not re-
habilitated and hadn’t accepted responsibility after his first, and be-
cause he provided a false name during the arrests to avoid detection
until Lopez, Jr. could petition for him.
As to the Convention Against Torture, the immigration
judge concluded that Lopez-Sarabia failed to show that the Mexi-
can government would torture him or acquiesce in his torture; in
fact, Mexico was in the process of fighting against crime and cor-
ruption. And as to post-conclusion voluntary departure, the immi-
gration judge found that Lopez-Sarabia could not pay the five
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 7 of 15

-- 7 of 15 --

8 Opinion of the Court 21-10582
hundred dollar bond and that the same factors that weighed against
cancellation of removal also weighed against voluntary departure.
Lopez-Sarabia appealed the immigration judge’s decision to
the board. Lopez-Sarabia contended that the immigration judge
correctly found him eligible for cancellation of removal under the
Act but incorrectly denied his applications “because he lacked good
moral character and as a matter of discretion.” He further argued
that, although his notice to appear was deficient under a claim-pro-
cessing, rather than jurisdictional, rule, the removal proceedings
should be terminated because they were based on a notice that vi-
olated the rule.
The board affirmed the immigration judge’s decision and
dismissed Lopez-Sarabia’s appeal. The board concluded that the
immigration judge had jurisdiction despite Lopez-Sarabia’s alleg-
edly deficient notice to appear. As to cancellation of removal, the
board concluded that because Lopez, Jr. turned twenty-one during
the pendency of the appeal, he was no longer a child and Lopez-
Sarabia no longer had any qualifying relative. The board added
that even if Lopez-Sarabia were eligible for cancellation of removal,
he was not entitled to it as a matter of discretion because his history
of not paying taxes, convictions for driving under the influence,
and use of a false name when arrested outweighed the equities in
his favor. And, as to the Convention Against Torture, the board
discerned no error in the immigration judge’s determination that
Lopez-Sarabia failed to establish that, more likely than not, the
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 8 of 15

-- 8 of 15 --

21-10582 Opinion of the Court 9
Mexican government would torture him or acquiesce in his torture
if he were removed.
STANDARD OF REVIEW
We review our subject matter jurisdiction de novo.
Ruiz v.
Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the board
agrees with the immigration judge’s determination on an issue, we
review both the board’s decision and the immigration judge’s deci-
sion on that issue.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009). We review the board’s factual findings under
the “highly deferential” substantial evidence standard, which re-
quires us to “accept administrative findings as conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.”
Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quo-
tations omitted);
accord Ruiz, 479 F.3d at 765 (“[We] must affirm
the [board]’s decision if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole. To
conclude the [board]’s decision should be reversed, we must find
that the record not only supports the conclusion, but compels it.”
(quotations omitted)).
DISCUSSION
Lopez-Sarabia raises three issues in his petition. First, he
contends that the board erred in concluding that he was no longer
eligible for cancellation of removal because Lopez, Jr. was no
longer a child under the Act when it decided his appeal and that we
have jurisdiction to address this question of law. Second, he argues
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 9 of 15

-- 9 of 15 --

10 Opinion of the Court 21-10582
that his removal proceedings should have been terminated because
his notice to appear violated a claim-processing rule by failing to
list the date, time, or address for his first hearing. And third, he
maintains that the board erred as to the Convention Against Tor-
ture because it “cherry-pick[ed]” the record to support its conclu-
sion that he likely wouldn’t be tortured upon his removal to Mex-
ico. According to Lopez-Sarabia, this conclusion was “erroneous,”
“unsupported by substantial evidence,” and “contradicted by much
of the record in this case which even details numerous acts of tor-
ture by Mexican officials themselves.” We discuss these three is-
sues in turn.
Cancellation of Removal
Lopez-Sarabia contends that the board erred in concluding
that he was no longer eligible under the Act for cancellation of re-
moval because Lopez, Jr. turned twenty-one during the pendency
of the appeal. What matters, Lopez-Sarabia says, is that Lopez, Jr.
was still a child at the time of the hearing. Lopez-Sarabia says that
we have jurisdiction to review the denial of cancellation of removal
because his statutory eligibility presents a question of law. He
seeks remand to the board so that it can decide whether the ex-
treme hardship that Lopez, Jr. would endure if Lopez-Sarabia were
removed outweighs Lopez-Sarabia’s negative factors.
Section 1252(a)(2)(B) states that “except as provided in [sec-
tion 1252(a)(2)(D)], . . . no court shall have jurisdiction to review
. . . any judgment regarding the granting of relief under section . . .
[1229b].” 8 U.S.C. § 1252(a)(2)(B)(i). Section 1252(a)(2)(D)
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 10 of 15

-- 10 of 15 --

21-10582 Opinion of the Court 11
provides: “Nothing in [section 1252(a)(2)(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 . . . .” 8 U.S.C. § 1252(a)(2)(D). Thus, we lack jurisdiction
to review a denial of discretionary cancellation of removal under
section 1229b unless the “review involves constitutional claims or
questions of law.”
Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1262
(11th Cir. 2020) (en banc),
aff’d sub nom. Patel v. Garland, 142
S. Ct. 1614 (2022). “[A] party may not dress up a claim with legal
or constitutional clothing to invoke our jurisdiction.”
Id. at 1272.
Whether an adult son qualifies as a child under section
1229b(b)(1)(D) is a question of law over which we have jurisdic-
tion.
See id. at 1282.
While the Act does not deprive us of subject matter jurisdic-
tion to determine whether Lopez, Jr. qualifies as a child because
our review of the denial of discretionary cancellation of removal
involves a question of law—the interpretation of the word “child”
in section 1229b(b)(1)(D)—we need not address Lopez-Sarabia’s ar-
gument or grant his request for remand because we already know
what the board would decide. It told us.
Independently of the qualifying relative issue affecting
Lopez-Sarabia’s statutory eligibility for cancellation of removal, the
board agreed with the immigration judge that Lopez-Sarabia didn’t
show that he was entitled to cancellation of removal because his
“adverse factors, including his convictions for driving under the in-
fluence . . . in 2008 and 2015, his history of not paying taxes, and
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 11 of 15

-- 11 of 15 --

12 Opinion of the Court 21-10582
evidence that he gave a false name when arrested, outweigh[ed] his
equities.” The board considered Lopez-Sarabia’s argument that
“his removal [would] result in hardship to his United States citizen
son,” Lopez, Jr., but it “[n]evertheless . . . uph[e]ld the [i]mmigra-
tion [j]udge’s conclusion that [Lopez-Sarabia’s] significant negative
factors . . . outweigh[ed] his equities.”
Because this discretionary determination was dispositive,
the board didn’t need to address Lopez-Sarabia’s statutory eligibil-
ity, and neither do we.
See Immigr. & Naturalization Serv. v. Baga-
masbad, 429 U.S. 24, 25 (1976) (“As a general rule[,] courts and
agencies are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”);
Farah v. U.S. Att’y
Gen., 12 F.4th 1312, 1326 (11th Cir. 2021) (explaining that “[t]he
[b]oard was not required to make an unnecessary determination”
about its jurisdiction).
Violation of the Claim-Processing Rule
Lopez-Sarabia maintains that his notice to appear was defi-
cient as to the time and place of his removal proceedings, in viola-
tion of the claim-processing rule set forth in section
1229(a)(1)(G)(i), and that his proceedings should be terminated be-
cause of this rule violation.
The requirement that the notice to appear show the time
and place of the proceedings is a claim-processing rule that does
not affect jurisdiction.
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d
1148, 1152–53 (11th Cir. 2019). We conduct “a harmlessness
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 12 of 15

-- 12 of 15 --

21-10582 Opinion of the Court 13
inquiry” into violations of this rule.
See id. at 1154. Lopez-Sarabia
does not explain how the violation harmed him, and we discern no
harm. Despite the clearly deficient notice, Lopez-Sarabia appeared
at his removal hearings. Indeed, he admitted the facts in the notice
and his removability under section 1182(a)(6)(A)(i) at a hearing
three years before he challenged the notice to appear as deficient.
Because the rule violation was harmless, the board did not
err in failing to terminate the proceedings due to the deficient no-
tice to appear.
The Convention Against Torture
Lopez-Sarabia argues that substantial evidence does not sup-
port the board’s determination that he was unlikely to be tortured
if he were removed to Mexico. He points to country conditions
evidence that Mexican officials generally—and La Procuraduría
General de la República agents specifically—tortured, and acqui-
esced in the torture of, suspects in their custody.
To obtain relief under the Convention Against Torture, an
applicant must “establish that it is more likely than not that he . . .
would be tortured if removed to the proposed country of re-
moval.” 8 C.F.R. § 1208.16(c)(2). “Torture involves, among other
elements, an act by which severe pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a gov-
ernment official or other person acting in an official capacity.”
Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1288 (11th Cir.
2021) (quotation omitted and alterations adopted). “A government
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 13 of 15

-- 13 of 15 --

14 Opinion of the Court 21-10582
official acquiesces to torture only if, prior to the activity constitut-
ing torture, he has awareness of such activity and thereafter
breaches his legal responsibility to intervene to prevent the activ-
ity.”
Id. (quotation omitted and alterations adopted). To establish
the likelihood of torture, the applicant may present “[e]vidence of
past torture inflicted upon the applicant,” “[e]vidence that the ap-
plicant could [or could not] relocate to a part of the country of re-
moval where he . . . is not likely to be tortured,” “[e]vidence of
gross, flagrant[,] or mass violations of human rights within the
country of removal, where applicable,” and “[o]ther relevant infor-
mation regarding conditions in the country of removal.” 8 C.F.R.
§ 208.16(c)(3)(i)–(iv).
The record contains evidence that the Mexican government
has taken steps to discourage torture. For example, Mexico en-
acted an anti-torture statute that human rights organizations “com-
mended” as “establishing an absolute prohibition on the use of tor-
ture in any circumstance.” Also, a special unit within the Mexican
attorney general’s office devoted to investigating torture had over
four thousand ongoing investigations as of June 30, 2017. And
Mexican courts ordered over seven hundred fifty criminal investi-
gations into allegations of torture between September 2016 and
June 2017. Where a government “actively, albeit not entirely suc-
cessfully, combats” torture, that government does not acquiesce in
torture.
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243
(11th Cir. 2004). Here, the record supports that Mexico has not
acquiesced in torture.
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 14 of 15

-- 14 of 15 --

21-10582 Opinion of the Court 15
Regarding the threat of torture to Lopez-Sarabia in particu-
lar, the evidence establishes that the Mexican government never
tortured him or even the members of his family who actually in-
teracted with the authorities. Instead, the most serious dangers—
for example, Carlos Lopez’s death and Ines Lopez’s confrontation
with gang members—occurred because of criminal, not govern-
mental, activity.
See id. (“That the police did not catch the culprits
does not mean that they acquiesced in the harm. Indeed, were we
to follow this reasoning, a person could obtain [Convention
Against Torture] relief merely because he was attacked by a gang
of neighborhood thugs whom the police were unable to appre-
hend. The [Convention Against Torture] does not extend so far.”).
And Lopez-Sarabia testified that his “biggest concern,” the “only
thing” frightening him, was the general crime in Mexico. This rec-
ord does not compel a conclusion contrary to the board’s.
See
Ruiz, 479 F.3d at 765.
PETITION DENIED.
USCA11 Case: 21-10582 Document: 24-1 Date Filed: 01/04/2023 Page: 15 of 15

-- 15 of 15 --