FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 14, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ERIK VASQUEZ-CASTILLO,
Petitioner,
v. No. 20-9591
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General, *
Respondent.
_________________________________
ORDER AND JUDGMENT **
_________________________________
Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
Petitioner Erik Vasquez-Castillo, a native and citizen of Mexico, seeks review
of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of a
decision by an immigration judge (IJ) that denied his application for an adjustment of
status and a waiver of inadmissibility. He asserts that the IJ improperly used a
heightened hardship standard to evaluate his application for a waiver of
*
On March 11, 2021, Merrick B. Garland became Attorney General of the United
States. Consequently, he has been substituted as Respondent. See Fed. R. App. P.
43(c)(2).
**
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
inadmissibility, and he claims that the IJ deprived him of due process by issuing a
decision without receiving his closing arguments.
We deny the petition for review. Petitioner’s first claim fails because he has
not adequately challenged the IJ’s discretionary ground for denying his waiver
application, an independently dispositive basis for denial that, in any event, we lack
jurisdiction to review under 8 U.S.C. § 1252(a)(2)(B). We do have jurisdiction under
§ 1252(a)(2)(D) to review the due-process claim, but this claim fails because
Petitioner has not shown that the IJ actually deprived him of an opportunity to submit
closing arguments, and even if the IJ had, Petitioner has not shown prejudice.
I. BACKGROUND
A. Adjustment of Status
Adjustment of status enables certain noncitizens who entered the United States
without inspection to obtain permanent-resident status in the United States. See
8 U.S.C. § 1255(i); 8 C.F.R. Part 1245. Two requirements for such adjustment are
that the noncitizen be eligible to receive an immigrant visa and be admissible to the
United States for permanent residence. 8 U.S.C. § 1255(i)(2). Even if the noncitizen
is not admissible, however—perhaps because he committed certain crimes, see id.
§ 1182(a)(2)—he may be eligible for a discretionary waiver of inadmissibility. See
id. § 1182(h); Matter of Mendez-Moralez, 21 I & N Dec. 296, 298–99 (BIA 1996).
One ground for eligibility is that his removal “would result in extreme hardship to
[his] United States citizen or lawfully resident spouse, parent, son, or daughter.”
8 U.S.C. § 1182(h)(1)(B). But if he has committed a “violent or dangerous crime[],”
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he can establish eligibility only by showing that denial of adjustment of status would
result in “exceptional and extremely unusual hardship.” 8 C.F.R. § 1212.7(d). Even
then, eligibility does not guarantee the grant of a waiver. The IJ has discretion to
deny a waiver to an eligible applicant. See id.; 8 U.S.C. § 1182(h)(2); Matter of C-A-
S-D-, 27 I. & N. Dec. 692, 699 (BIA 2019). The IJ exercises that discretion by
balancing “adverse factors, particularly those involving the alien’s criminal conduct,”
against those weighing in favor of granting a waiver. Id.
B. Petitioner’s Case
Petitioner was brought to the United States as a three-year-old child in 1996.
In 2009 the Department of Homeland Security (DHS) initiated removal proceedings
against Petitioner and his parents. The three admitted that they had entered the
United States illegally, without being admitted or paroled. Petitioner’s parents
sought cancellation of removal based on hardship to Petitioner’s younger sister, who
was a United States citizen, relief that an IJ eventually granted. The IJ then ruled that
no further action would be taken in Petitioner’s case at that time.
In 2016 Petitioner pleaded guilty in New Mexico state court to robbery,
residential burglary, commercial burglary, and larceny. He received a six-year
suspended sentence. In 2018 Petitioner was arrested by Immigration and Customs
Enforcement agents, and on motion by DHS the removal proceedings against him
were reopened. He apparently was then detained until his deportation.
In the removal proceedings Petitioner applied for an adjustment of status on
the ground that he is an “immediate relative of a U.S. citizen,” Certified
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Administrative Record (CAR) at 1169, and for a waiver of his criminal-history
ground of inadmissibility. The IJ held a hearing on Petitioner’s applications on
December 16, 2019. One issue at the hearing was whether Petitioner’s application
for a waiver of inadmissibility was subject to the “extreme hardship” standard found
in 8 U.S.C. § 1182(h)(1), or—because his convictions may have been for violent or
dangerous crimes—the “exceptional and extremely unusual hardship” standard found
in 8 C.F.R. § 1212.7(d). Rather than resolve the issue that day, the IJ took testimony
and scheduled an additional hearing for December 24, at which time he planned to
issue a decision. The IJ ordered closing briefs on the issue of the appropriate
hardship standard to be submitted by December 24. Petitioner never filed a closing
brief.
On December 20 the IJ rescheduled the follow-up hearing for January 8, 2020.
Apparently the January 8 hearing was also postponed, and on January 15, 2020, the IJ
issued a decision denying Petitioner’s applications for relief and ordering him
removed to Mexico. Deciding that Petitioner’s “robbery conviction was a violent or
dangerous crime,” the IJ applied the heightened exceptional-and-extremely-unusual
hardship standard to Petitioner’s waiver application and held that Petitioner had not
satisfied the standard. Id. at 160. The IJ then ruled that “even if . . . [Petitioner] had
established that his removal would result in exceptional or extremely unusual
hardship,” the IJ would still “decline[] to exercise [his] discretion in granting . . . a
waiver” because the balance of favorable and adverse factors weighed against
Petitioner. Id. at 161. Accordingly, the IJ ordered Petitioner removed to Mexico.
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Petitioner appealed to the BIA, but the BIA dismissed the appeal. It said that
the IJ had properly applied the heightened standard in 8 C.F.R. § 1212.7(d), and it
agreed with the IJ that Petitioner had “not establish[ed] the requisite exceptional and
extremely unusual hardship.” Id. at 5. The BIA also affirmed the IJ’s alternative
basis for denying the waiver, stating that “[Petitioner] has not carried his burden of
establishing that he warrants relief as a matter of discretion.” Id. at 6. Finally, the
BIA rejected Petitioner’s argument that he had been denied due process because he
was unable to present a closing argument to the IJ; the BIA observed that he “was
provided with the opportunity to fully present his claims before the [IJ],” and that he
had “not established that the absence of a closing statement” prejudiced him. Id.
II. DISCUSSION
We review the BIA’s decision as the final order of removal, although “when
seeking to understand the grounds provided by the BIA, we are not precluded from
consulting the IJ’s more complete explanation of those same grounds.” Uanreroro
v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “We consider any legal questions
de novo, and we review the agency’s findings of fact under the substantial evidence
standard.” Addo v. Barr, 982 F.3d 1263, 1268 (10th Cir. 2020) (internal quotation
marks omitted). “Under the substantial-evidence standard, the administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. (internal quotation marks omitted).
Petitioner raises two issues in his petition: first, whether the BIA improperly
affirmed the IJ’s application of the heightened hardship standard in 8 C.F.R.
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§ 1212.7(d) to Petitioner’s application for a waiver of inadmissibility; and second,
whether the BIA erred in concluding that Petitioner was not denied due process
during his removal proceedings.
A. Hardship Standard
Petitioner argues that his application for a waiver of inadmissibility was
improperly denied because of the errors by the IJ and BIA in assessing whether he
had established the requisite hardship. But he needed to make two showings to
obtain a waiver: (1) a hardship showing under 8 U.S.C. § 1182(h)(1)(B) or 8 C.F.R.
§ 1212.7(d), and (2) a showing that a waiver was merited as a matter of discretion
under § 1182(h) based on “balancing the adverse factors with the equities” in favor of
granting the waiver. Matter of C-A-S-D-, 27 I. & N. Dec. at 699; see id. (even if
hardship requirement is satisfied, a “waiver and adjustment of status may still be
denied in the exercise of discretion”); 8 U.S.C. § 1182(h); Schroeck v. Gonzales, 429
F.3d 947, 949 (10th Cir. 2005) (“Although adjustment of status and a waiver of
inadmissibility both have certain prerequisites that must be met, both forms of relief
are matters ultimately left to the agency’s discretion to decide.”). Petitioner’s
challenge to the BIA ruling founders on the second showing.
To begin with, Petitioner makes at most only a perfunctory statement (better
described as an observation than as an argument) regarding the second requirement. 1
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Petitioner’s full statement on this issue is as follows:
Lastly, the IJ and the BIA applied Section 1212.7(d) incorrectly because
it failed to consider Petitioner’s waiver beyond “exceptional and
extremely unusual hardship”. 8 C.F.R. Section 1212.7. The Petitioner
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Because arguments that are inadequately briefed are waived, see Kabba v. Mukasey,
530 F.3d 1239, 1248 (10th Cir. 2008) (“[B]ecause the issue was insufficiently raised
in the opening brief, . . . it has been waived.”), we need not review this ground of the
BIA’s decision.
Moreover, even had Petitioner adequately challenged the BIA’s affirmance of
the IJ’s discretionary denial of his waiver application, we would lack jurisdiction to
review such a denial. We generally have no jurisdiction to review a denial of relief
under § 1182(h) or a decision in which discretion is vested in the Attorney General
(ordinarily acting through the BIA or IJ), see 8 U.S.C. § 1252(a)(2)(B), except to
resolve a constitutional or legal question, see id. § 1252(a)(2)(D); Munis v. Holder,
720 F.3d 1293, 1295 (10th Cir. 2013) (“The agency’s discretionary denial of a waiver
of inadmissibility or adjustment of status is unreviewable in the absence of a legal or
constitutional question.”). Since Petitioner has failed to raise any discernible legal or
constitutional question with respect to the discretionary denial of his waiver
was denied the opportunity to brief the court regarding the heightened
standard but Petitioner briefed extensively his positive equities to the
BIA. However, the BIA held that it agreed with the IJ and held that the
Petitioner failed to carry his burden that he merited a positive exercise
of discretion, whether it applied the ordinary discretionary standards or
8 C.F.R. Section 1212.7(d). The BIA made a discretionary holding
without any consideration to whether Petitioner’s positive equities
constituted extraordinary circumstances for purposes of Section
1212.7(d). Therefore, the IJ and the BIA applied the incorrect standard
in this case. See Samuels v. Chertoff, 550 F.3d 252, 262 (2d Cir. 2008)
(exercising jurisdiction to consider whether the correct standard was
applied under Section 1212.7(d)).
Aplt. Br. at 23 (emphasis added).
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application under § 1182(h)(2), we have no jurisdiction to review that denial. See
Alzainati v. Holder, 568 F.3d 844, 850 (10th Cir. 2009) (“[C]hallenges directed
solely at the agency’s discretionary . . . determinations remain outside the scope of
judicial review.” (internal quotation marks omitted)); cf. Munis, 720 F.3d at 1295
(“[T]he hardship determination required for a waiver of inadmissibility under
§ 1182(h)(1)(B) is an unreviewable discretionary decision.”).
Because we cannot overturn the discretionary determination of the IJ and the
BIA, Petitioner’s challenge to the denial of the waiver of inadmissibility must be
rejected. The discretionary determination is independently dispositive of Petitioner’s
application for a waiver, see 8 U.S.C. § 1182(h); Matter of C-A-S-D-, 27 I. & N. Dec.
at 699, so we can deny Petitioner’s challenge to the waiver denial on that ground
alone, regardless of the correctness of the hardship determination, see Rodas-
Orellana v. Holder, 780 F.3d 982, 991–92 n.10 (10th Cir. 2015) (petitioner
contended that he had been persecuted because of his membership in a group that, in
his view, qualified as a “particular social group”; because court determined that the
group failed to satisfy one of the requirements for being a “particular social group,” it
had no need to consider whether a separate requirement was satisfied); Shook v. Bd.
of Cnty. Commissioners of Cnty. of El Paso, 543 F.3d 597, 613 n.7 (10th Cir. 2008)
(Gorsuch, J.) (“[W]here a district court’s disposition rests on alternative and adequate
grounds, a party who, in challenging that disposition, only argues that one alternative
is erroneous necessarily loses because the second alternative stands as an
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independent and adequate basis, regardless of the correctness of the first
alternative.”).
B. Due Process
Petitioner argues that he was deprived of due process because he “was
prevented from presenting his closing statement before the [IJ].” Aplt. Br. at 24.
Because this due-process claim raises a constitutional question, we have jurisdiction
to review it. See 8 U.S.C. § 1252(a)(2)(D). But it lacks merit.
“When facing removal, aliens are entitled . . . to procedural due process, which
provides the opportunity to be heard at a meaningful time and in a meaningful
manner.” Vladimirov v. Lynch, 805 F.3d 955, 962 (10th Cir. 2015) (brackets and
internal quotation marks omitted). To prevail on his due-process claim, Petitioner
must establish both that he was deprived of a fair procedure and that the deprivation
prejudiced him. See Alzainati, 568 F.3d at 851. He has established neither.
Petitioner asserts that the IJ directed him to submit his closing argument on
“the day of the [next] hearing,” Aplt. Br. at 25, but by rescheduling the hearing and
then issuing a decision without holding the hearing, the IJ denied Petitioner the
opportunity to present his arguments. The record shows, however, that the IJ
instructed Petitioner to submit his closing briefing “on the 24th [of December],” and
then stated “[c]ourt’s going to reconvene this matter at 8:30, December 24th, with the
understanding that [Petitioner’s counsel] would have delivered, by that point . . . your
brief.” CAR at 598; see Immigr. Ct. Prac. Man. Ch. 3.1(b)(ii)(B) (“For individual
calendar hearings involving detained aliens, filing deadlines are as specified by the
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Immigration Court.”). When the IJ rescheduled the December 24 hearing, there was
no mention of closing briefs or any indication that he also extended the deadline for
filing the written closing argument. Also, at no point after the IJ issued his
rescheduling order did Petitioner request an extension of the deadline for filing
written submissions. Petitioner has failed to establish that he was denied the
opportunity to submit a closing brief. The BIA properly ruled that Petitioner was not
denied procedural fairness.
Further, Petitioner has failed to establish that he was prejudiced by not
submitting a closing brief. He asserts that “the BIA is highly deferential to the IJ[].”
Aplt. Br. at 28. But the BIA reviews de novo any questions of law and IJ discretion
(although factual determinations are reviewed for clear error). See 8 C.F.R.
§§ 1003.1(d)(3)(i), (ii). Thus, Petitioner could have made any argument to the BIA
for its independent consideration that he could have included in a closing argument to
the IJ. See Sosa-Valenzuela v. Holder, 692 F.3d 1103, 1110 (10th Cir. 2012) (“[T]he
BIA has de novo authority to in effect place [itself] back in time and consider the
case as though a decision in the case on the record before [it] had never been
entered.” (further brackets and internal quotation marks omitted)). We have no
reason to believe that the BIA’s discretionary decision would have been any different
if the IJ had received a closing brief, even if he had been persuaded by it. In short,
Petitioner has failed to show either unfairness or prejudice.
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III. CONCLUSION
The petition for review is denied.
Entered for the Court
Harris L Hartz
Circuit Judge
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