Opinion

Garza Rios v. Garland

Court
Court of Appeals for the Fifth Circuit
Filed
Apr 9, 2021
Status
Unpublished
Nature of suit
Immigration
Cited by
0 cases
Authority
More cited than 15.2%

“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”

How later courts described this case

  • “Failure adequately to brief an issue on appeal constitutes waiver of that argument.”
  • dismissing for lack of jurisdiction where “the BIA declined to cancel removal as a matter of discretion”

Written by the judges who cited it.

The opinion

Case: 20-60713 Document: 00515815128 Page: 1 Date Filed: 04/09/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

___________ FILED

April 9, 2021

No. 20-60713 Lyle W. Cayce

___________ Clerk

Rigoberto Garza Rios,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

______________________________

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A078 995 835

______________________________

Before Higginbotham, Smith, and Oldham, Circuit Judges.

Per Curiam:*

Rigoberto Garza Rios petitions for review of the decision of the Board

of Immigration Appeals (“BIA”) dismissing his appeal of an immigration

judge’s (“IJ”) denial of his motion to reopen removal proceedings and cancel

removal. The Government moves to dismiss Garza Rios’s petition for lack of

jurisdiction or, alternatively, to summarily deny his petition. We grant the

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-60713 Document: 00515815128 Page: 2 Date Filed: 04/09/2021

No. 20-60713

Government’s motion and dismiss Garza Rios’s petition for lack of

jurisdiction in part and summarily deny the remainder.

In 2002, an IJ ordered Garza Rios removed at a hearing in which he

appeared. In 2018, Garza Rios filed a motion to reopen his removal

proceedings with the IJ. Garza Rios argued that he was eligible for

cancellation of removal and that the notice he received was insufficient under

Pereira v. Sessions1 to trigger the stop-time rule. The IJ denied his motion,

concluding that he had not established prima facie eligibility for cancellation

of removal. Garza Rios appealed. The BIA dismissed his appeal, finding his

motion to reopen untimely. Even assuming the motion was timely, the BIA

concluded Garza Rios failed to establish eligibility for cancellation of removal

because he did not put forth sufficient evidence that any qualifying relatives

would experience exceptional and extremely unusual hardship upon his

removal and because he was provided with sufficient notice to trigger the

stop-time rule.2

This Court applies “a highly deferential abuse-of-discretion standard

in reviewing the denial of a motion to reopen removal proceedings.” 3 We

must affirm the BIA’s decision as long as it is “not capricious, without

foundation in the evidence, or otherwise so irrational that it is arbitrary.” 4

Summary disposition is appropriate where “the position of one of the parties

1

138 S.Ct. 2105 (2018).

2

See 8 U.S.C. § 1229b(b)(1) (providing that a noncitizen is eligible for cancellation of removal if he

(1) has been physically present in the United States continuously for at least ten years prior to

applying for cancellation of removal, (2) has been a person of good moral character during this

period, (3) has not been convicted of any offense listed under 8 U.S.C. § 1182(a)(2) or

§§ 1227(a)(2)-(3), and (4) establishes that removal would result in exceptional and extremely

unusual hardship to a qualifying relative).

3

Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017).

4

Id. at 203-04 (quoting Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)).

2

Case: 20-60713 Document: 00515815128 Page: 3 Date Filed: 04/09/2021

No. 20-60713

is clearly right as a matter of law so that there can be no substantial question

as to the outcome of the case.”5

The Government argues this Court lacks jurisdiction to review the

BIA’s finding that Garza Rios provided insufficient evidence establishing

that his qualifying relatives would experience exceptional and extremely

unusual hardship upon removal. We agree. This Court lacks jurisdiction to

review denials of discretionary relief, including “any judgment regarding the

granting of relief under section . . . 1229b [cancellation of removal].” 6 The

BIA’s finding that Garza Rios failed to demonstrate the requisite hardship

was discretionary based on its evaluation of the evidence provided by him. 7

The jurisdictional bar applies, and so we dismiss this portion of Garza Rios’s

petition.

The Government next contends Garza Rios has waived any challenge

to the BIA’s untimeliness finding because he failed to contest the issue in his

opening brief. We agree with the Government here as well. “A motion to

reopen must be filed within 90 days of the date of entry of a final

administrative order of removal . . . .”8 Here, Garza Rios filed his motion to

reopen sixteen years later. In his opening brief, Garza Rios fails to address the

untimeliness of his motion to reopen and thus has waived any challenge to it. 9

5

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1161 (5th Cir. 1969).

6

8 U.S.C. § 1252(a)(2)(B)(i); see, e.g., Pierre-Paul v. Barr, 930 F.3d 684, 694 (5th Cir. 2019)

(dismissing for lack of jurisdiction where “the BIA declined to cancel removal as a matter of

discretion”).

7

See, e.g., Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004) (per curiam); Chhetri v. Holder, 560

F. App’x 396, 397 (5th Cir. 2014) (unpublished) (per curiam) (dismissing petition for lack of

jurisdiction where petitioner’s arguments “amount[ed] to nothing more than his disagreement

with the IJ’s and BIA’s weighing of the factors underlying the discretionary equities

determination”).

8

8 C.F.R. § 1003.23(b)(1). The 90-day period is subject to exceptions not applicable here.

9

See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure

adequately to brief an issue on appeal constitutes waiver of that argument.”).

3

Case: 20-60713 Document: 00515815128 Page: 4 Date Filed: 04/09/2021

No. 20-60713

Because Garza Rios’s motion to reopen is time-barred, we summarily deny

the remainder of his petition for review.10

Garza Rios’s petition is dismissed in part for lack of jurisdiction and

summarily denied in part.

10

Even if Garza Rios’s motion to reopen was timely, his argument that his notice to appear was

insufficient to trigger the stop-time rule because it did not include the time and date of his removal

hearing is foreclosed by this Circuit’s precedent. See Yanez-Pena v. Barr, 952 F.3d 239, 246 (5th

Cir. 2020) (concluding that a subsequent notice of hearing containing the time and date of a

removal hearing “‘perfects’ the deficient notice to appear, satisfies the notice requirements, and

triggers the ‘stop-time’ rule” (quoting Matter of Mendoza-Hernandez, 271 I&N Dec. 520, 535 (BIA

2019) (cleaned up)). We would therefore still summarily deny this claim in Garza Rios’s petition.

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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