Oscar Gomez-Garcia v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11148
Non-Argument Calendar
____________________
OSCAR GOMEZ-GARCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A075-787-988
____________________
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2 Opinion of the Court 21-11148
Before L UCK , L AGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Oscar Gomez-Garcia, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals’ final order affirming
the immigration judge’s denial of his application for cancellation of
removal under the Immigration & Nationality Act and denying his
motion to remand. He argues that the Board abused its discretion
by denying his remand motion because it applied an incorrect legal
standard, engaged in impermissible factfinding, and failed to give
reasoned consideration to his arguments and evidence. He also
contends that the immigration judge and the Board violated his
children’s due process rights by creating a categorical rule requiring
a presumption in favor of parents’ wishes and imposing on children
the burden of proving that their deportation from the United States
was not in their best interest. Upon careful consideration, we deny
Gomez-Garcia’s petition.
I. Background
On August 9, 2013, the Department of Homeland Security
placed Gomez-Garcia into removal proceedings by filing a notice
to appear. Gomez-Garcia admitted removability and filed an appli-
cation for cancellation of removal as a defense. On October 16,
2017, he attended a hearing before an immigration judge where he
and his daughter testified as to why he should not be removed.
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21-11148 Opinion of the Court 3
Gomez-Garcia testified that his thirteen-year-old daughter,
Giselle, had difficulties communicating with her teachers and class-
mates at school, that she had not been treated for these issues, and
that they had been somewhat alleviated after he bought her a small
dog. His daughter also had trouble sleeping, had been bullied at
school, had grades that were “not that bad, but . . . not actually that
good either,” and had requested to be home schooled, although
her father had declined the request. Neither of Gomez-Garcia’s
children had ever lived in Mexico, and neither knew anyone there.
And while his daughter spoke some Spanish, his son spoke none.
Despite these facts, Gomez-Garcia repeatedly stated that his family
would follow him to Mexico if he was deported because no one
else in the United States could support them and because he
thought keeping the family together was important to their well-
being.
Giselle testified that she was bullied at school, that this had
caused her to get poor grades over the last year, that the bullying
sometimes extended outside of school, and that she had never met
any of her relatives in Mexico. She also testified that although she
would follow her father to Mexico, she did not want to, fearing that
she would be persecuted based on her American citizenship and
perceived wealth. Giselle was unsure as to whether her father
could protect her from these threats. Finally, she stated that she
spoke “pretty good” Spanish and wanted to learn more, and that
she would try speaking more Spanish and improving her grades if
she ended up completing her education in Mexico.
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4 Opinion of the Court 21-11148
On October 4, 2018, a different immigration judge issued a
decision denying Gomez-Garcia’s application. The decision found
that although Gomez-Garcia had no disqualifying convictions and
had established continuous physical presence and good moral char-
acter, he had failed to establish “that the hardships faced by [his]
children reach[] the exceptional and extremely unusual level as out-
lined in the Board’s precedents.” Gomez-Garcia appealed to the
Board and moved to remand the matter to the immigration judge
for consideration of previously unavailable mental health evalua-
tions of his children. The evaluations were based on interviews be-
ginning on October 16, 2017, the day of Gomez-Garcia’s hearing,
and recommended that the children continue receiving medical
treatment in Florida.
The Board adopted and affirmed the immigration judge’s
decision, concluding that he committed no clear error when ana-
lyzing the hardships to Gomez-Garcia’s qualifying relatives that
would result from his removal to Mexico. The Board also con-
cluded that remand was unwarranted because Gomez-Garcia had
failed to show that the proffered additional evidence was likely to
change the result in his case. The Board based its conclusions on
Gomez-Garcia’s failure to show that options for mental health
treatment were unavailable in Mexico, where it was undisputed
that the family would follow if he was deported. Gomez-Garcia
then petitioned this Court for review of the Board’s decision.
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21-11148 Opinion of the Court 5
II. Standards of Review
We review the Board’s decision as the final judgment unless
it expressly adopted the immigration judge’s decision.
Ayala v. U.S.
Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). When the Board
explicitly agrees with the findings of the immigration judge, we re-
view both decisions.
Id. at 948. We review Gomez-Garcia’s consti-
tutional due process claim and his allegation that the Board applied
the wrong legal standard
de novo, “giving deference to the Board’s
interpretation[] of the immigration laws and regulations . . . if it is
reasonable . . . [and] rel[ies] on existing [Board] or federal court
precedent.”
Tovar v. U.S. Att’y Gen., 646 F.3d 1300, 1303 (11th Cir.
2011) (internal citations omitted). We generally review claims that
the Board improperly denied a motion to remand, which we con-
strue below as a motion to reopen, for abuse of discretion.
Point
du Jour v. U.S. Att’y Gen., 960 F.3d 1348, 1349 (11th Cir. 2020).
III. Discussion
A. Gomez-Garcia’s Application for Cancellation of Removal
Gomez-Garcia first argues that the Board abused its discre-
tion by dismissing his motion to remand to the immigration judge
because it applied the incorrect legal standard, failed to give rea-
soned consideration to the evidence, and engaged in impermissible
fact-finding. We disagree.
As a threshold matter, we have jurisdiction to review this
aspect of Gomez-Garcia’s argument. Although we lack jurisdiction
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6 Opinion of the Court 21-11148
to review the denial of discretionary relief in immigration proceed-
ings, this Court retains jurisdiction to review constitutional chal-
lenges and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D). And an
argument that the Board applied an incorrect legal standard or
failed to give reasoned consideration to an issue is a question of
law.
Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). To
assert a constitutional or legal claim sufficient to establish jurisdic-
tion, a petitioner must allege a claim that is “colorable,” meaning
that it has “some possible validity.”
Arias v. U.S. Att’y Gen., 482
F.3d 1281, 1284 n.2 (11th Cir. 2007) (quoting
Mehilli v. Gonzales,
433 F.3d 86, 93–94 (1st Cir. 2005)).
Although Gomez-Garcia makes a conclusory allegation that
the Board applied the incorrect legal standard in evaluating his mo-
tion, the record does not support his argument. Courts generally
analyze the substance of a motion to remand to determine how it
should be treated on appeal.
Sow v. U.S. Att’y Gen., 949 F.3d 1312,
1317 (11th Cir. 2020). If such a motion seeks to introduce evidence
that had not been previously presented, it is generally treated as a
motion to reopen, the denial of which is reviewed for abuse of dis-
cretion.
Id. In a motion to reopen, the petitioner bears a heavy bur-
den and must present new evidence that would likely change the
outcome of the case if proceedings before the immigration judge
were reopened.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir.
2006). The Board may deny such a motion on any of three inde-
pendent grounds: “failure to establish a prima facie case for the re-
lief sought[;] failure to introduce previously unavailable, material
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21-11148 Opinion of the Court 7
evidence[;] and a determination that even if these requirements
were satisfied, the movant would not be entitled to the discretion-
ary grant of relief which he sought.”
I.N.S. v. Doherty, 502 U.S.
314, 323 (1992).
Instead of showing that the Board applied an incorrect legal
standard, the record shows that it considered Gomez-Garcia’s fail-
ure to show “that [the evaluations] would likely change the result
in his case” or offer any reasoning as to why the evaluations were
not previously submitted. The Board found Gomez-Garcia’s show-
ing especially lacking in the light of the fact that his attorney told
the immigration judge that Giselle was attending counseling dur-
ing the October 16, 2017, hearing, which was also the same day that
the children were first interviewed for purposes of producing the
mental health evaluations. These are the exact standards that the
Board should have applied to evaluate a motion to remand based
on evidence not previously presented, which Gomez-Garcia ad-
mits his motion was. The Board’s evaluation of Gomez-Garcia’s
motion on these grounds was not an error of law.
See Ali, 443 F.3d
at 813;
Doherty, 502 U.S. at 323.
Gomez-Garcia’s claims of impermissible fact-finding simi-
larly fail. Although the Board may not engage in independent fact-
finding during an appeal, we have recognized that evaluation of
evidence in the first instance is necessary when analyzing a motion
to remand or reopen based on evidence alleged to be new or pre-
viously unavailable.
See 8 C.F.R. § 1003.1(d)(3)(iv);
see also Ali, 443
F.3d at 813 (explaining that the Board may deny a motion to reopen
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8 Opinion of the Court 21-11148
if it is not satisfied that newly presented evidence would likely
change the outcome of the case). The Board considered Gomez-
Garcia’s failure to explain why the evaluations were never pre-
sented to the immigration judge or show that the treatment rec-
ommendations contained in the mental health evaluations could
not be complied with in Mexico. And the Board analyzed both fail-
ures in the context of Gomez-Garcia and Giselle’s undisputed tes-
timony before the immigration judge that the entire family would
move to Mexico if necessary. Neither move was contrary to law.
Finally, Gomez-Garcia’s claim that the Board failed to give
reasoned consideration to his arguments and evidence is meritless.
We have held that the Board need not specifically address each
claim or each piece of evidence presented by the petitioner, but in-
stead “must consider the issues raised and announce their decision
in terms sufficient to enable a reviewing court to perceive that they
have heard and thought and not merely reacted.”
Carrizo v. U.S.
Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011) (quotation marks
omitted). The Board 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 de-
cision which are unreasonable and do not respond to any argu-
ments in the record.
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375–
77 (11th Cir. 2006).
Gomez-Garcia contends that the Board failed to give rea-
soned consideration to the mental health evaluations because it
stated that their recommendation that “the family remain intact”
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21-11148 Opinion of the Court 9
would be fulfilled even in the case of his deportation because “the
family intends to travel to Mexico together.” To be sure, Gomez-
Garcia’s potential deportation was an important factor in his fam-
ily’s decision to follow him to Mexico. But he still thought that
keeping everyone together would be the best course of action for
the family. Thus, the Board did not misstate the record or provide
an unreasonable justification for its observation that deportation
would not have prevented implementation of the recommended
treatment for Gomez-Garcia’s children. Instead, he failed to carry
his “heavy burden” of proving that the mental health evaluations
were likely to change the result in his case before a new immigra-
tion judge on remand.
See Ali, 443 F.3d at 813;
Doherty, 502 U.S.
at 323.
The Board’s decision did not apply an incorrect legal stand-
ard, make improper findings of fact, or fail to give reasoned consid-
eration to Gomez-Garcia’s arguments and evidence. As such, its
denial of Gomez-Garcia’s motion to remand was not contrary to
law.
B. Gomez-Garcia’s Due Process Claim
Gomez-Garcia also argues that the Board violated his chil-
dren’s due process rights “by decreeing a categorical rule that the
INA invariably requires a presumption in favor of the parents’
wishes” that “imposes on the children of deportable aliens the bur-
den of proving that a compelling circumstance, unconscionable in
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10 Opinion of the Court 21-11148
its effect, necessitates that they should not be removed.” We disa-
gree for several reasons.
First, the children were not parties to Gomez-Garcia’s pro-
ceeding before the immigration judge or the Board. “It is a princi-
ple of general application in Anglo-American jurisprudence that
one is not bound by a judgment in personam in a litigation in which
he is not designated as a party or to which he has not been made a
party by service of process.”
Hansberry v. Lee, 311 U.S. 32, 40
(1940). Although the record shows that Gomez-Garcia’s children
would have followed him to Mexico if he was deported, the Board
compelled no such decision as a matter of law. The due process
rights of the children were not implicated by proceedings to which
they were not parties.
Second, Gomez-Garcia fails to identify where the immigra-
tion judge or the Board “decreed” the “categorical rule” that he as-
serts violated due process. “[A]n appellant's brief must include an
argument containing ‘appellant's contentions and the reasons for
them, with citations to the authorities and parts of the record on
which the appellant relies.’”
Singh v. U.S. Att’y Gen., 561 F.3d 1275,
1278 (11th Cir. 2009) (quoting F ED. R. APP . P. 28(a)(9)(A)). “Thus,
an appellant’s simply stating that an issue exists, without further
argument or discussion, constitutes abandonment of that issue.”
Id.
Because Gomez-Garcia has failed to take even the first step re-
quired to argue the merits of his claim—showing us anywhere in
the record the alleged pronouncement occurred—he has aban-
doned it.
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21-11148 Opinion of the Court 11
Finally, we have held that “failure to receive relief that is
purely discretionary in nature does not amount to a deprivation of
a liberty interest.”
Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th
Cir. 2011). As cancellation of removal and a motion to remand to
the immigration judge are both discretionary forms of relief,
Gomez-Garcia cannot raise a colorable due process claim.
See
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)
(explaining that the denial of a motion to reconsider and motion to
reopen are discretionary decisions that cannot support a due pro-
cess claim).
PETITION DENIED.
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