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Urrutia Robles v. Barr

United States Court of Appeals, Eighth Circuit

October 8, 2019

Carlos Enrique Urrutia Robles Petitioner
v.
William P. Barr, Attorney General of the United States Respondent

          Submitted: June 11, 2019

          Petition for Review of Orders of the Board of Immigration Appeals

          Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

          LOKEN, CIRCUIT JUDGE

         The Department of Homeland Security ("DHS") placed Carlos Enrique Urrutia Robles, a native and citizen of Mexico, in removal proceedings following his arrest for injuring a pedestrian while driving under the influence. Urrutia conceded removability and applied for cancellation of removal. See 8 U.S.C. § 1229b. The Immigration Judge ("IJ") granted relief, and DHS appealed. Reviewing the IJ's discretionary determination de novo, the Board of Immigration Appeals ("BIA") denied cancellation, ordered Urrutia removed to Mexico, and subsequently denied his timely motion to reopen proceedings. Urrutia petitions for review of both BIA orders. We deny the petitions for review.

         The Attorney General may grant discretionary cancellation of removal to a non-permanent resident if he has been continuously present in this country for ten years; has been a person of good moral character; has not been convicted of enumerated criminal offenses; and shows that his removal "would result in exceptional and extremely unusual hardship" to a qualifying relative. 8 U.S.C. § 1229b(b)(1). Congress has limited our jurisdiction to review the Attorney General's exercise of this discretionary authority, § 1252(a)(2)(B)(i), but we may review "constitutional claims or questions of law," § 1252(a)(2)(D). We lack jurisdiction if the petitioner seeking review has "attempted to create jurisdiction by cloaking an abuse of discretion argument in constitutional or legal garb." Hernandez-Garcia v. Holder, 765 F.3d 815, 816 (8th Cir. 2014) (quotation omitted).

         After a removal hearing, the IJ found that Urrutia satisfied the four eligibility requirements of § 1229b(b)(1). Turning to whether the attorney general's discretion should be exercised, the IJ noted that Urrutia has "significant negative factors," including two DUI convictions in 1996 and 2004, "continued issues with alcohol," and a pending DUI charge after he struck a pedestrian who suffered "significant traumatic brain injury." However, the IJ concluded that these negative factors were outweighed by positive factors, including that Urrutia "appears committed to resolving his problems with alcohol," and granted Urrutia § 1229b relief.

         DHS appealed to the BIA, arguing the IJ "erred by granting [Urrutia's] application for cancellation of removal as a matter of discretion." The BIA sustained the DHS appeal. After correctly stating the applicable standard of review, the BIA discussed in detail the positive and negative factors relevant to whether Urrutia warranted exercise of the Attorney General's discretion. Reviewing the IJ's exercise of discretion de novo, the BIA concluded that Urrutia's "repeated incidents of driving under the influence of alcohol and his lack of rehabilitation are simply too serious to warrant relief in the exercise of discretion." Urrutia filed a timely motion to reopen the proceedings, submitting new evidence that he completed alcohol rehabilitation programs and letters of support from rehabilitation supervisors. The BIA denied the motion to reopen, explaining that Urrutia's new evidence of "his resolve to live a sober life, is insufficient to overcome the recency and seriousness of his criminal record." Urrutia petitions for review of both adverse decisions.

         I. The BIA's Initial Decision.

         The Attorney General's procedural regulations provide that the BIA reviews "findings of fact determined by an immigration judge" for clear error but reviews "questions of law, discretion, and judgment and all other issues in appeals" de novo. 8 C.F.R § 1003.1(d)(3). This regulation instructs that the BIA "not engage in factfinding in the course of deciding appeals." § 1003.1(d)(3)(iv). Urrutia argues the BIA's initial decision violated this governing standard of review by reviewing the IJ's implicit "predictive finding" of future rehabilitation de novo and substituting the BIA's contrary findings regarding rehabilitation.

         This procedural regulation was adopted in September 2002 "to restrict the introduction and consideration of new evidence in proceedings before the BIA . . . not the reevaluation of evidence obtained by the IJ previously." Belortaja v. Gonzalez, 484 F.3d 619, 625 (2d Cir. 2007) (cleaned up); accord Lin v. Mukasey, 517 F.3d 685, 692 n.10 (4th Cir. 2008). "The regulation was not intended to restrict the BIA's powers of review, including its power to weigh and evaluate evidence introduced before the IJ." Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir. 2008).

         Here, the BIA in its initial decision did not reject the IJ's findings of fact, including what Urrutia describes as an implicit "predictive finding" that Urrutia "is committed to resolving his problems with alcohol." The IJ explicitly weighed Urrutia's efforts at rehabilitation as a positive factor in the exercise of discretion. Evaluating the same record, but placing greater weight on evidence not discussed in the IJ's decision, the BIA concluded Urrutia "has not shown that he has been rehabilitated" from his "serious history of driving under the influence of alcohol." Therefore, the BIA explained, his sporadic efforts to stop drinking did not outweigh his lengthy criminal history, including the recent incident in which he seriously injured a pedestrian. The BIA did not evaluate any evidence not in the record before the IJ. It simply weighed and evaluated that evidence and came to a different conclusion regarding exercise of the Attorney General's discretion, an issue the BIA reviews de novo under 8 C.F.R § 1003.1(d)(3). Thus, rather than presenting a colorable question of legal error, Urrutia "really challenges the discretionary conclusion of the BIA against him," a challenge that is beyond our jurisdiction. Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011), cert. denied, 565 U.S. 1114 (2012); see Wallace v. Gonzalez, 463 F.3d 135, 141 (2d Cir. 2006).

         II. Denial of the Motion to Reopen.

         The Attorney General's regulations grant the BIA discretion to grant a timely motion to reopen. 8 C.F.R. § 1003.2. Although 8 U.S.C. § 1252(a)(2)(B)(i) limits our jurisdiction to review the Attorney General's exercise of his statutory discretion to grant cancellation of removal, the Supreme Court has confirmed that this statute did not remove the long-exercised judicial authority to review the BIA's denial of an ...


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