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Caballero-Martinez v. Barr

United States Court of Appeals, Eighth Circuit

April 3, 2019

Carlos Caballero-Martinez Petitioner
v.
William P. Barr, Attorney General of the United States Respondent Carlos Caballero-Martinez Petitioner
v.
William P. Barr, Attorney General of the United States Respondent

          Submitted: December 11, 2018

          Petition for Review of an Order of the Board of Immigration Appeals

          Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

          SMITH, CHIEF JUDGE.

         Carlos Caballero-Martinez petitions for review of two orders from the Board of Immigration Appeals (BIA). The first order denied his motion to administratively close or remand to the immigration judge and the second order denied his motion to reopen and reconsider the first denial. We grant the petition for review and affirm in part and remand in part.

         I. Background

         A native and citizen of Mexico, Caballero-Martinez entered the United States illegally in 2000. He has four children, three of whom are United States citizens.

         In September 2011, the Department of Homeland Security (DHS) initiated removal proceedings against Caballero-Martinez. At his removal hearing, Caballero-Martinez admitted to being in the United States illegally. However, he requested cancellation of removal under 8 U.S.C. § 1229b. Section 1229b(b)(1)(D) allows for cancellation of removal if the "removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Caballero-Martinez claimed his children would suffer "exceptional and extremely unusual hardship" if he were removed.

         Immigration Judge (IJ) Paula Davis conducted Caballero-Martinez's removal hearing. However, IJ Davis retired before issuing a decision; the case was then assigned to IJ Glen Baker. IJ Baker reviewed the proceedings and IJ Davis's draft decision, and he adopted "the reasoning and conclusions therein." Pet'r's Add. at 20.

         In a February 2016 order, IJ Baker found Caballero-Martinez's "children [were] good students in school and [did] not have any learning problems or other mental health problems." Id. at 18. He noted that "[t]he principal hardship factor identified by [Caballero-Martinez] is difficulty in finding work in his hometown and that he would struggle [to] find a place for his family to live." Id. Though the IJ found Caballero-Martinez's hardship testimony credible, he ultimately held that Caballero-Martinez had "not provided evidence to establish that his qualifying relatives would suffer hardship that is substantially different from, or beyond that, which would normally be expected to result from deportation of an alien with close family members in the United States." Id. at 19.

         In March 2016, Caballero-Martinez appealed IJ Baker's order to the BIA. He again argued his children would suffer "exceptional and extremely unusual hardship" if he returned to Mexico; he also argued that, by allowing a judge who had not been present at his cancellation hearing to issue a decision in his case, the immigration court had violated his due process rights as well as the Immigration and Naturalization Act (INA) and its implementing regulations.

         While the appeal was still pending, Caballero-Martinez became the victim of a criminal assault. Based on this development, Caballero-Martinez applied to the United States Citizenship and Naturalization Services (USCIS) for a U Visa. The U Visa (Form I-918) is a type of non-immigrant visa available to crime victims who assist law enforcement. In November 2016, Caballero-Martinez filed a motion with the BIA to remand for a continuance, or, in the alternative, for administrative closure of removal proceedings, pending adjudication of his U Visa petition. Caballero-Martinez also contended the BIA should remand to allow the IJ to consider additional hardship evidence, claiming his children had begun performing poorly in school. DHS opposed the motion. USCIS did not issue a Form I-797 Notice of Action-i.e. a filing receipt for Caballero-Martinez's U Visa petition-until December 2016, after he filed his motion to remand.

         The BIA denied Caballero-Martinez's motion to remand or administratively close in April 2017 ("the April order"). The April order began by finding IJ Baker's decision was neither substantively nor procedurally unsound, citing regulations permitting the use of substitute IJs. The BIA then found Caballero-Martinez's additional hardship evidence was unlikely to alter the outcome of his case and thus declined to remand. The BIA also declined to administratively close or remand pending the U Visa petition's adjudication, explaining that Caballero-Martinez "ha[d] not put forward an adequate basis to temporarily remove his case from the Board's docket or, if remanded, from the Immigration Judge's active calendar." Id. at 9. The BIA noted in a footnote that Caballero-Martinez had not provided evidence, such as a "Notice of Action," that his application had been received by USCIS. The BIA also explained that "[t]he regulations provide exclusive jurisdiction over [U Visa] applications to the DHS and also specifically address U [V]isa 'petitioners' with final orders of removal. The filing of the application has no effect on the Government's authority to execute a final order . . . ." Id. (internal citation omitted). The order did not specify whether it was denying Caballero-Martinez's request on jurisdictional or evidentiary grounds.

         After receiving a filing receipt from USCIS, Caballero-Martinez moved the BIA to reopen and reconsider his case in May 2017. The BIA denied his request for reconsideration in December 2017 ("the December order"), explaining that Caballero-Martinez's "motion relies on evidence that he submitted on appeal and by motion." Id. at 3. The BIA also declined to reopen, reiterating that the hardship evidence presented as part of his November 2016 motion was not sufficient to change the outcome of the proceedings. Finally, the BIA reaffirmed its refusal to administratively close proceedings "based on [Caballero-Martinez's] intent to pursue a U visa application." Id. The BIA explained that in the April order, "we noted that [Caballero-Martinez] purported that he mailed the U [V]isa application to USCIS but he did not provide evidence that the application was received, such as by a Notice of Action (Form I-797). While [Caballero-Martinez] has now included receipt of his [U Visa] application, this does not alter the reasons for our denial of his request for administrative closure." Id. at 3-4.

         Caballero-Martinez now petitions this court for review of both the BIA's April and December orders. Caballero-Martinez argues the BIA's April order failed to address whether the use of a substitute IJ violated the INA or its implementing regulations. He also argues the BIA erred in its April order by applying the incorrect standard to his motion to remand for consideration of additional hardship evidence and by denying his motion to remand for a continuance pending the adjudication of his U Visa petition. Additionally, he ...


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