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opinion should not be published and is not precedent except under the limited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