Victor Galindo-Munoz v. William P. Barr

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0073n.06

Nos. 18-3338/19-3357

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT FILED

Feb 03, 2020

VICTOR GALINDO-MUNOZ, ) DEBORAH S. HUNT, Clerk

)

Petitioner, )

)

ON PETITION FOR REVIEW

v. )

FROM THE UNITED STATES

)

BOARD OF IMMIGRATION

WILLIAM P. BARR, Attorney General, )

APPEALS

)

Respondent. )

BEFORE: SUHRHEINRICH, STRANCH, and NALBANDIAN, Circuit Judges.

SUHRHEINRICH, Circuit Judge. Petitioner Victor Galindo-Munoz (“Galindo-Munoz”)

seeks review of a decision of the Board of Immigration Appeals (“Board”) dismissing his appeal

and denying his motion to remand in Appeal No. 18-3338. He also seeks review of the Board’s

decision denying his motion to reopen in Appeal No. 19-3357. We dismiss both petitions for

review.

I.

Galindo-Munoz originates from El Potosi, in the state of Durango, Mexico. Galindo-

Munoz entered the United States illegally in 1996. In April 2012 the Department of Homeland

Security (“DHS”) notified Galindo-Munoz of its intent to remove him from the United States

pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Galindo-Munoz conceded removability and sought

cancellation of removal under 8 U.S.C. § 1229b(b). DHS opposed cancellation.

Nos. 18-3338/19-3357, Galindo-Munoz v. Barr

Removal Proceedings. Galindo-Munoz testified in February 2016 that he has three

children—Galindo-Munoz (“Junior”), Juan, and Anna––who are U.S. citizens. The children were

12, 10, and 8 years of age at the time of the hearing. Juan and Anna are in good health, but Junior

was born with a cleft palate that requires surgeries and therapy, which are paid for by Medicaid.

Galindo-Munoz testified that his children would join him if he were removed and that Junior would

likely not have health insurance to continue his therapy. He did not know what, if any, treatment

options for Junior would be available in Mexico.

Galindo-Munoz is the domestic partner of the children’s mother, Anna Flores. Galindo-

Munoz stated that he and Flores have been in a relationship for fourteen years. In April 2012,

Galindo-Munoz was arrested for assaulting Flores and restricted by court order from contacting

her for six months. They lived separately for fifteen months. During this time, Galindo-Munoz

visited the children, who were living with their mother. Galindo-Munoz said that he and Flores

reconciled in September 2013. Flores did not testify at the hearing. Galindo-Munoz explained

that she was afraid to testify because of her immigration status and because she was at work. Flores

also did not submit an affidavit or letter verifying their reunion.

Galindo-Munoz testified that if he returned to Mexico, he would live in his hometown and

return to agricultural work, but that this would not allow him to support Junior’s medical needs.

Junior also testified. He stated that he has occasional pain and is doing well in school. Junior said

that he lived in the same house as his siblings and mom and dad. He testified that his mother

worked as a lawyer.

The Immigration Judge’s Findings. The immigration judge found that, “[o]verall,

[Galindo-Munoz’s] testimony was consistent, plausible, and persuasive.” Galindo-Munoz met the

ten-year continuous physical presence requirement and had no disqualifying criminal convictions.

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Nos. 18-3338/19-3357, Galindo-Munoz v. Barr

Nonetheless, the judge found that Galindo-Munoz failed to establish good moral character, or that

his removal would result in “exceptional and extremely unusual hardship” to his qualifying

relatives. As to good moral character, the immigration judge noted that although Galindo-Munoz’s

six-month “diversion” was not dispositive,

[t]his is essentially a question of proof. We have [Galindo-Munoz’s] self-

serving testimony that he has reconciled with the mother of his children, and they

live together. His son also testified that his parents live together. However, there

is only one person who could tell the Court if [Galindo-Munoz] and Ms. Flores

really got back together, and how long they were apart, and the actual circumstances

of their separation. That person is Ms. Flores. She chose to not testify, and there

is no affidavit or letter from her in the record, explaining the events that gave rise

to the separation and the incident that led to [Galindo-Munoz’s] conviction.

[Galindo-Munoz] did testify that he accused her of seeing another man while they

were separated. He admitted touching her during the incident, and there was

testimony that he threw a laptop. [Galindo-Munoz] also admitted that this

altercation took place in front of Ms. Flores’s fourteen-year-old son. Her testimony

would have gone far to show if he now is in better control of his temper, among

other issues.

As for exceptional and extremely unusual hardship, the immigration judge found that,

despite Junior’s cleft palate, “[o]n this record” Galindo-Munoz had failed to show that his removal

from the United States would be an extreme hardship to Junior for several reasons.

First, it was “not entirely clear” that Junior would actually accompany Galindo-Munoz to

Mexico. Galindo-Munoz gave inconsistent testimony on this point: In 2013, Galindo-Munoz

stated on his cancellation application that the children would not go with him. In 2016, Galindo-

Munoz testified that they would go with him because Galindo-Munoz wanted to keep the family

together. The immigration judge felt that Flores’s testimony “would have been extremely helpful”

to resolve this question, especially since Junior’s doctors are in the United States. Furthermore,

the immigration judge stressed that Galindo-Munoz did not offer any evidence that Junior would

be deprived of comparable medical care if he followed Galindo-Munoz to Mexico.

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Second, the record does not suggest that Junior would suffer exceptional and extremely

unusual hardship if Galindo-Munoz went to Mexico and Junior remained in the United States. To

the contrary, Galindo-Munoz testified that (1) Flores took Junior to his medical appointments

during the period of court-ordered separation, (2) Medicaid largely covered Junior’s medical bills,

and (3) Flores works to support the children.

Accordingly, the immigration judge denied Galindo-Munoz’s request for cancellation of

removal.

The Board’s Denial of Galindo-Munoz’s Appeal. Galindo-Munoz appealed to the Board.

He also filed a motion to reopen, asserting that he had new facts to show the hardship to Junior.

DHS filed a motion for summary affirmance. The Board dismissed the appeal, “agree[ing] with

the Immigration Judge that, even if credible, [Galindo-Munoz] did not meet his burden of

establishing good moral character during the last 10 years . . . .” The Board noted that Galindo-

Munoz “was found guilty . . . in the State of Arkansas of 3d degree misdemeanor criminal assault

on a family or household member, his children’s biological mother; the case was diverted and later

dismissed . . . .”

The Board also affirmed the immigration judge’s finding that Galindo-Munoz did not meet

his burden of establishing an exceptional and extremely unusual hardship to his children at the

time of the merits hearing. Id. at 88-90. Galindo-Munoz’s two younger children did not have any

medical problems or compelling learning needs. Id. at 89. Galindo-Munoz also “did not

sufficiently explain” why he did not have corroborating evidence from Flores, who also does not

have lawful status in this country and is a Mexican native as well, to support his claim that she and

the children would not remain in the United States. Id. Moreover, if the children remained in the

United States with Flores, they would continue receiving Medicaid. See id. Nor had Galindo-

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Munoz shown that his children could not receive or afford medical care in Mexico. Id. These

findings of fact were not clearly erroneous and defeated a showing of unusual hardship. Id. The

Board therefore affirmed the immigration judge’s finding that Galindo-Munoz was not entitled to

cancellation of removal. Id. Galindo-Munoz’s appeal of this decision is docketed as No. 18-3338.

The Board construed Galindo-Munoz’s motion to reopen to submit additional evidence as

a motion to remand and denied it, because the new evidence, a letter from Junior’s hospital

showing that he had scheduled dental appointments, did not establish the requisite hardship to a

qualifying relative. Id. at 89-90. Galindo-Munoz also did not demonstrate sufficient hardship

based on economic detriment. Although the primary provider for the children, Galindo-Munoz

did not show that he could not get a job in Mexico. And Flores works.

The Board’s Denial of Galindo-Munoz’s Motion to Reopen. Following the Board’s

decision, Galindo-Munoz filed another motion to reopen with the Board and submitted additional

evidence. The Board held that Galindo-Munoz had not satisfied the requirements of reopening

because Galindo-Munoz failed to attach a new application as required by 8 C.F.R. § 1103.2(c)(1)

and the additional evidence was neither material nor previously unavailable. The Board noted

specifically that the “new” information regarding Junior’s cleft palate, and need for more surgeries,

was previously available. Id. at 4.

The Board also determined that even with the additional evidence, Galindo-Munoz failed

to establish prima facie eligibility for cancellation of removal. Id. at 4. The Board reiterated that:

The medical issues experienced by his son were already considered by the

Immigration Judge, along with the other evidence both individually and

cumulatively. The medical issues are being addressed, and [Galindo-Munoz’s] son

is receiving medical care through the state of Arkansas. [Galindo-Munoz’s] partner

has not submitted a statement and did not previously testify or submit a statement.

The financial and emotional strain on [Galindo-Munoz’s family] are not

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substantially beyond that which would ordinarily be faced by children who are the

qualifying relatives upon removal of an alien.

Id. at 4 (citations omitted). Galindo-Munoz’s appeal of this decision is docketed as No. 19-3357.

II.

Because the Board issued its own decision, we treat it “as the final agency determination”

and review the immigration judge’s reasoning only to the extent the Board has adopted it. Khalili

v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). An alien is eligible for cancellation of removal if he

(1) had been continuously present in the United States during the ten-year period preceding the

application; (2) has been a person of good moral character during that time; (3) has not been

convicted of certain qualifying convictions, and (4) his removal would result in “exceptional and

extremely unusual hardship” to a qualifying relative such as a spouse or child who is a United

States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1).

No. 18-3338. The Board denied Galindo-Munoz’s cancellation of removal application

because he failed to (1) establish good moral character, and (2) demonstrate an exceptional and

extremely unusual hardship. This court generally lacks jurisdiction to review the agency’s

hardship determinations. See 8 U.S.C. § 1252(a)(2)(B)(i) (stating that “no court shall have

jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b”).1

As outlined above, the immigration judge considered the circumstances and concluded that the

hardship to Galindo-Munoz’s children upon his removal did not rise to the level of “exceptional

and extremely unusual.” Reviewing the immigration judge’s findings of fact for clear error, and

its discretionary determination de novo, the Board agreed. We therefore lack jurisdiction to review

1

This court recognizes two exceptions to that jurisdictional bar. See Aburto-Rocha v. Mukasey, 535 F.3d 500, 502

(6th Cir. 2008). First, we can review “constitutional claims or questions of law.” Id. (quoting 8 U.S.C § 1252(a)(2)(D)

Second, we have jurisdiction over non-discretionary decisions, even when they “underlie determinations that are

ultimately discretionary.” Id. (quoting Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004)). Galindo-Munoz

does not contend that either exception applies.

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the matter. See Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008) (noting that “the

BIA’s hardship decision is a discretionary one and that, as a result, it generally lies beyond our

jurisdiction”); see also Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. 2011) (“Review that

required a tallying of hardships would amount to second-guessing the agency’s weighing of

factors, an endeavor that we have repeatedly recognized as beyond our jurisdiction.”).

Furthermore, because the Board denied Galindo-Munoz’s motion to remand on the ground

that he failed to submit sufficient evidence to establish the requisite hardship to his children, we

lack jurisdiction to review the denial of that motion as well. See Ortiz-Cervantes v. Holder, 596

F. App’x 429, 433 (6th Cir. 2015). In any event, Galindo-Munoz has not challenged these

decisions on appeal. As a result, he has forfeited any challenge to the Board’s decision in No. 18-

3338. See Cruz-Samayoa v. Holder, 607 F.3d 1145, 1155 (6th Cir. 2010). We therefore dismiss

the petition for review.

No. 19-3357. The Board denied Galindo-Munoz’s motion to reopen because (1) he did not

meet the requirements for reopening since he failed to present previously unavailable and material

information and did not submit a new relief application, and (2) the limited additional evidence

provided did not demonstrate the requisite hardship under § 1229b(b)(1)(D).

Again, we lack jurisdiction to review the hardship question. Galindo-Munoz does not

argue that any exception to the jurisdictional bar applies. See Aburto-Rocha, 535 F.3d at 503.

Instead, he complains that the Board did not address his additional good character evidence and

did not make “any attempt to consider the medical issues in light of the new evidence” he provided.

But the Board indicated that the additional medical evidence did not raise a new hardship,

and when considered with the evidence of record, did not establish a prima facie case for

cancellation of removal. We “lack jurisdiction to review the denial of a motion to reopen or

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remand in a cancellation of removal case, unless the motion raised a new hardship ground not

decided in the original decision.” Hernandez-Perez v. Whitaker, 911 F.3d 305, 316 (6th Cir. 2018)

(holding that the court had jurisdiction over the petitioner’s motion to reopen because it described

a potential hardship to a different child than addressed in his original application). Contrary to

Galindo-Munoz’s suggestion, the Board was not required to explicitly address every document

submitted. See Stserba v. Holder, 646 F.3d 964, 978 (6th Cir. 2011). Finally, the Board’s failure

to address additional good-moral-character evidence was unnecessary because Galindo-Munoz’s

failure to establish the requisite hardship was dispositive of his eligibility for cancellation of

removal. See Reyes v. Holder, 410 F. App’x 935, 940 (6th Cir. 2011) (both good moral character

and an exceptional and extremely unusual hardship are required for cancellation of removal).

Given this conclusion, we need not, and therefore do not, reach the Board’s other ground

for denying the motion to reopen. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam)

(“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.”); Ortiz-Cervantes, 596 F. App’x at 433.

III.

For these reasons, we DISMISS the petitions for review in both appeals.

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