Reinaldo Cortez-Amador v. Attorney General United States of America

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 22-1249

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REINALDO CORTEZ-AMADOR,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

On Petition for Review of a

Decision of the Board of Immigrations Appeals

(Agency No. A209-898-885)

Immigration Judge: Jason L. Pope

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Submitted Under Third Circuit L.A.R. 34.1(a)

December 08, 2022

Before: SHWARTZ, MATEY, and FUENTES, Circuit

Judges

(Filed: April 25, 2023)

Pedro J. Familia

Laura S. Rodriguez

American Friends Service Committee

Immigrant Rights Program

570 Broad Street

Suite 1001

Newark, NJ 07102

Counsel for Petitioner

Lisa Morinelli

Tim Ramnitz

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

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OPINION OF THE COURT

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FUENTES, Circuit Judge.

Reinaldo Cortez-Amador petitions this Court for review

of a final order of removal of the Board of Immigration

Appeals (BIA), dismissing the appeal of an Immigration

Judge’s (IJ) decision denying Petitioner’s motion to terminate

removal proceedings and his applications for adjustment of

status, asylum and withholding of removal, and protection

under the Convention Against Torture (CAT). Because we

lack jurisdiction to review factual findings on an adjustment

2

application and the agency decisions do not reflect any error of

law or are otherwise supported by substantial evidence, we will

dismiss the petition in part and deny it in part.

FACTS AND PROCEDURAL HISTORY

Petitioner fled from Guatemala to the United States at

the age of 16 following his father’s murder by gang members.

He entered the United States in 2016 without inspection and

was placed by Immigration Authorities in his sister’s custody

in Trenton, New Jersey. In January 2020, United States

Citizenship and Immigration Services (“USCIS”) granted him

Special Immigrant Juvenile Status (“SIJS”), a classification

available to immigrants who are under 21 and were abandoned

by their parents. 1

1

As relevant here, the Immigration and Nationality Act

(“INA”) states that the following qualify as special

immigrants:

(J) an immigrant who is present in the United

States--

(i) who has been declared dependent on a

juvenile court located in the United States

or whom such a court has legally

committed to, or placed under the custody

of, an agency or department of a State, or

an individual or entity appointed by a

State or juvenile court located in the

United States, and whose reunification

with 1 or both of the immigrant’s parents

is not viable due to abuse, neglect,

3

Noncitizen children may receive SIJS only after

satisfying a set of rigorous, congressionally defined eligibility

criteria, including that a juvenile court has found it would not

be in the child’s best interest to return to their country of last

habitual residence and that the child is dependent on the court

or placed in the custody of the state or someone appointed by

the state. 2 The child must also receive approval from USCIS

and the consent of the Secretary of Homeland Security to

obtain the status. 3 A recipient of SIJS may pursue legal

permanent residency.

While Petitioner was awaiting his SIJS classification, in

August 2019, New Jersey charged Petitioner with sexual

assault on a child under the age of 13 and child endangerment.

Pursuant to a plea bargain, Petitioner pleaded guilty to non-

sexual child endangerment and admitted giving the alleged

victim a cigarette. He was sentenced to 364 days of

incarceration and 3 years of probation.

abandonment, or a similar basis found

under State law.

8 U.S.C. § 1101(a)(27).

2

8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c).

3

8 U.S.C. § 1101(a)(27)(J); Memorandum from Donald

Neufeld, Acting Assoc. Dir., Domestic Operations & Pearl

Chang, Acting Chief, Office of Policy & Strategy, USCIS,

Trafficking Victims Protection Reauthorization Act of 2008:

Special Immigrant Juvenile Status Provisions 3 (Mar. 24,

2009),https://www.uscis.gov/sites/default/files/USCIS/Laws/

Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf

[hereinafter USCIS Memorandum] (citing H.R. Rep. No. 105-

405, at 130 (1997) (Conf. Rep.)).

4

In March 2021, the Department of Homeland Security

issued a Notice to Appear alleging that Petitioner was

removable for being present in the United States without

admission or parole. Petitioner made three arguments in the

ensuing proceedings: (1) his SIJS exempts him from removal;

(2) he should be granted an adjustment of status; and (3) he is

entitled to asylum (8 U.S.C. § 1158), withholding of removal

(8 U.S.C. § 1231(b)(3)), and/or CAT protection because the

same group that killed his father would target him if he

returned to Guatemala.

After a hearing, the IJ (1) held that SIJS is not an

exemption from removal as an inadmissible noncitizen, (2)

exercised his discretion to deny adjustment of status after

balancing the equities, (3) denied asylum and withholding of

removal, and (4) denied CAT protection. The BIA affirmed on

the same grounds. First, the BIA agreed with the IJ that SIJS

parole applies for adjustment of status only, not removal,

pursuant to the plain language of 8 C.F.R. § 1245.1(a). In other

words, an approved SIJS petition does not categorically protect

the noncitizen recipient from removal. Second, the BIA

determined that the IJ properly exercised its discretion in

denying Petitioner’s application for adjustment of status

because he did not clearly err in considering the entire record

and determining that negative factors, namely, Petitioner’s

criminal history, outweighed evidence of Petitioner’s high

school graduation and church involvement. Third, the BIA

determined that the IJ properly denied asylum and withholding

of removal because the harm did not rise to the level of past

persecution, and Petitioner had no objectively reasonable fear

of future harm. Last, the BIA affirmed the denial of CAT relief

because the IJ correctly determined that Petitioner is not more

likely than not to be tortured if removed and did not

5

demonstrate that the government would acquiesce to such

treatment. Petitioner petitions for review. 4

DISCUSSION

The threshold determination in this case is whether a

SIJS recipient is subject to removal simply for presence in the

United States “without being admitted or paroled.” 5 As

explained here, Petitioner is removable and he has not

established an entitlement to asylum or withholding of

removal.

(1) Whether SIJS recipients are paroled for purposes

of removal.

The parties agree that Petitioner is a “special

immigrant,” as defined by 8 U.S.C. § 1101. Petitioner argues

that special immigrants such as himself are exempt from

removal under 8 U.S.C. § 1182(a)(6)(A)(i), which provides

that “[a]n alien present in the United States without being

admitted or paroled, or who arrives in the United States at any

time or place other than as designated by the Attorney General,

is inadmissible.”

4

Petitioner does not appeal the denial of CAT relief and

therefore has abandoned that claim. See Kost v. Kozakiewicz,

1 F.3d 176, 182 (3d Cir. 1993) (absent extraordinary

circumstances, failure to develop arguments in an opening

brief results in their waiver).

5

8 U.S.C. § 1182(a)(6)(A)(i).

6

Special immigrants receive certain accommodations

outlined in 8 U.S.C. § 1255, which governs applications for

adjustments of status:

(a) The status of an alien who was . . . paroled

into the United States [may be adjusted to legal

permanent resident] . . . if [certain requirements

are met, including that] the alien is . . . admissible

to the United States for permanent residence[.]

...

(h) In applying this section to a special

immigrant . . .

(1) such an immigrant shall be deemed,

for purposes of subsection

(a), to have been paroled into the United

States; and

(2) in determining the alien’s

admissibility as an immigrant—

(A) paragraph[] . . . (6)(A) . . . of

section 1182(a) of this title shall

not apply[.] 6

6

See 8 C.F.R. § 1245.1(a) (“A special immigrant described

under [8 U.S.C. § 1101(a)(27)(J)] shall be deemed, for the

purpose of applying the adjustment to status provisions of

section 245(a) of the Act, to have been paroled into the United

States, regardless of the actual method of entry into the United

States.”).

7

The plain language of 8 U.S.C. § 1255(h)(2) clearly states that

8 U.S.C. § 1182(a)(6)(A)(i)—which permits the removal of

immigrants present without admission or parole—does not

apply to a special immigrant. But the Government argues that

the preface to § 1255(h) limits the scope of subsection (h)(2)

to adjudicators “applying this section,” i.e., to applications for

status adjustment. Under this interpretation, § 1255(h) simply

allows SIJS recipients to adjust their status despite their illegal

entry. The parties dispute whether 8 U.S.C. § 1255(h)(2)

applies to determine admissibility for purposes of removal.

This Court reviews questions of law, including the BIA’s

interpretation of the INA, de novo, subject to Chevron

deference. 7

Section 1255(h) expressly states that a noncitizen with

SIJS shall be deemed to have been paroled for purposes of

subsection (a) of that section, i.e., for adjustment of status to a

legal permanent resident only. Under normal canons of

statutory construction, “courts should construe statutory

language to avoid interpretations that would render any phrase

superfluous.” 8 The plain language of this subsection applies

7

Because the text of 8 U.S.C. § 1255(h) is unambiguous, we

need not defer to BIA’s interpretation under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 158

(3d Cir. 2018).

8

U.S. v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005) (“It is a

cardinal principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void, or

insignificant,” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(internal quotation marks omitted)).

8

the “deemed to have been paroled” language only to subsection

(a) and no other provision of the INA. If we were to read the

statute as Petitioner suggests, “for purposes of subsection (a)”

would be rendered superfluous. 9 Conversely, if in § 1255(h)

Congress had intended a noncitizen with SIJS to be deemed

paroled for purposes of removal, it would have included

reference to removability or 8 U.S.C. § 1182. 10 Accordingly,

the plain language demonstrates that Petitioner is removable

despite his SIJS, 11 and the IJ and BIA properly considered

Petitioner’s arguments regarding adjustment of status,

withholding of removal, and CAT relief. 12

9

See Duncan v. Walker, 533 U.S. 167, 174 (2001) (refusing to

adopt statutory construction that would render statutory

language “insignificant.”).

10

See Aristy-Rosa v. Att’y Gen., 994 F.3d 112, 115 (3d Cir.

2021) (“[I]t is generally presumed that Congress acts

intentionally and purposely when it includes particular

language in one section of a statute but omits it in another[.]”

(internal quotation marks and citation omitted)).

11

This plain-text interpretation does not produce absurd

results. Aristy-Rosa, 994 F.3d at 116. Congress intended to

“enlarge[] the chance that [SIJS recipients] would be

successful in their applications for adjustment by exempting

them from a host of grounds that would otherwise render them

inadmissible.” Osorio-Martinez v. Att’y Gen., 893 F.3d 153,

171 (3d Cir. 2018). Thus, Congress could have rationally

decided that SIJS recipients should be given the opportunity to

apply for adjustment of status, while also contemplating that

they may be removed if their application is denied or for

another appropriate basis.

12

Osario-Martinez is distinguishable because the Court did not

hold SIJS recipients are exempt from removal due to

9

(2) Whether the BIA erred in denying the adjustment

of status application.

Petitioner next argues that remand is required for the

BIA to conduct a “distinct discretionary analysis specifically

tailored for adjustment of status.” 13 In opposition, the

Government argues that this Court lacks jurisdiction to

consider the agency’s discretionary denial of adjustment of

status. We lack jurisdiction to review factual findings on an

adjustment application. 14 Thus, the narrow question within our

jurisdiction is whether the agency made an error of law or

Petitioner makes a constitutional claim. 15

Petitioner’s argument distills to a contention that the

BIA failed to weigh some of his arguments and evidence in

making its determination. This Court has “consistently held”

that “arguments such as that an [IJ] or the BIA incorrectly

weighed evidence, failed to consider evidence or improperly

weighed equitable factors are not questions of law under [8

U.S.C.] § 1252(a)(2)(D).” 16 Thus, Petitioner’s claims do not

assert legal error or constitutional violations, and this Court

does not have jurisdiction to address them.

inadmissibility, but only that Congress intended to provide

SIJS recipients with an opportunity to pursue adjustment of

status.

13

Opening Br. at 30.

14

Patel v. Garland, 142 S. Ct. 1614, 1621-23, 1627 (2022).

15

Id.; Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005); see

8 U.S.C. § 1252(a)(2)(D).

16

Chiao Fang Ku v. Att’y Gen., 912 F.3d 133, 144 (3d Cir.

2019) (emphasis added).

10

(3) Whether the undisputed facts demonstrate past

persecution/likelihood of future harm for asylum

or withholding of removal.

Petitioner argues that the BIA applied the wrong

standard of review to the IJ’s findings, failed to consider the

threats and harm to Petitioner in the aggregate, and improperly

concluded that Petitioner could not establish a nexus between

persecution and his social group. The Government argues that

substantial evidence supports the BIA’s findings that Petitioner

failed to establish past persecution or a well-founded fear that

anyone in Guatemala would target him for harm. We agree

with the Government that substantial evidence supports the

BIA’s findings. 17

To make out a prima facie case for asylum, a petitioner

must show that he was persecuted, or had a well-founded fear

of persecution, “on account” of a statutorily protected ground,

including “race, religion, nationality, membership in a

particular social group, or political opinion.” 18 Withholding of

removal requires a higher risk of persecution—a clear

17

We review the BIA’s legal conclusions de novo while we

review its factual findings for substantial evidence. Guzman

Orellana v. Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020);

see I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481–82

(1992) (analyzing the causal connection between political

opinion and persecution as a factual question). The substantial

evidence standard requires us to defer to the factual findings of

the BIA as long as they are supported by evidence reasonably

grounded in the record. Guzman Orellana, 956 F.3d at 177.

18

8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13.

11

probability. 19 If a petitioner cannot meet his burden to

establish a risk of persecution for asylum, they automatically

fail on their withholding claim.

Persecution “connotes extreme behavior, including

threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.” 20

Substantial evidence supports the agency’s finding that the

relevant actions did not rise to the level of the extreme conduct

that constitutes persecution. 21 Petitioner testified that two

men, Jehu and Neri, threatened to kill him while he was

working with his cousin. His cousin was later killed by these

two men. Petitioner was not threatened again in the five

months prior to his departure to the United States. Although

threats in combination with physical harm to a petitioner’s

close associates can rise to the level of persecution, 22 Petitioner

did not connect the relevant threats to the harm that was caused

to his cousin, and he was not threatened thereafter. While the

same men killed Petitioner’s father, that occurred seven years

prior to Petitioner’s departure, and Petitioner had remained

19

Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir.

2008).

20

Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)

(internal quotation marks and citation omitted).

21

See Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.

2006) (explaining that threats constitute persecution only in “a

small category of cases, and only when the threats are so

menacing as to cause significant actual suffering or harm . . .

[or] are highly imminent and menacing in nature” (internal

quotation marks and citation omitted)).

22

Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 111 (3d Cir.

2020).

12

unharmed during the intervening years. Moreover, Petitioner’s

siblings remained in Guatemala unharmed after the deaths of

both their father and cousin. 23 Thus, Petitioner raises no

meritorious argument with respect to asylum or withholding of

removal.

CONCLUSION

For the foregoing reasons, we will dismiss the petition

in part and deny it in part.

23

Gomez-Zuluaga, 527 F.3d at 347 (finding a well-founded

fear of harm established where threats continue post-

departure); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).

13