Case: 20-60492 Document: 00516422007 Page: 1 Date Filed: 08/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 5, 2022
No. 20-60492
Lyle W. Cayce
Clerk
Jesus Humberto Castillo-Gutierrez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A202 079 809
Before Willett, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:
This immigration case presents two issues. The first issue is whether
Petitioner Jesus Humberto Castillo-Gutierrez (“Castillo-Gutierrez”) was
properly served a notice to appear. The second issue is whether there was
clear error in a finding that Castillo-Gutierrez’s removal to Mexico would not
cause exceptional and extremely unusual hardship to his children. We
address each issue in turn.
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No. 20-60492
I.
Castillo-Gutierrez is a citizen of Mexico. He entered the United
States in 1990 with a border-crossing card. With the exception of a visit to
Mexico in 1999, Castillo-Gutierrez has lived here ever since. He lives in
Glencoe, Minnesota with his wife and two children. On August 21, 2014,
DHS initiated this case by issuing Castillo-Gutierrez a notice to appear
(“NTA”). The NTA did not state a specific date or time for Castillo-
Gutierrez’s hearing, noting only that he was to appear before an immigration
judge “on a date to be set at a time to be set.” However, the NTA did state
that “[t]he alien was provided oral notice in the Spanish language of the time
and place of his or her hearing and of the consequences of failure to appear.”
On August 27, 2014, the hearing was set for a week later on September 2,
2014. Castillo-Gutierrez appeared at that hearing, conceded that he was
removable as charged, and stated that he would seek cancellation of removal.
Castillo-Gutierrez later filed an application for cancellation of removal in
which he argued that his children “[would] suffer extreme, unusual and
exceptional hardship if [he was] deported.”
An immigration judge (“IJ”) later held a hearing on Castillo-
Gutierrez’s application for cancellation of removal. At that hearing, Castillo-
Gutierrez testified that he was the father of two children: a sixteen-year-old
boy and a thirteen-year-old girl. Although his daughter is healthy, Castillo-
Gutierrez’s son suffers from hemophilia. The son goes to the doctor annually
“for check-ups and then whenever he needs it.” Castillo-Gutierrez’s son
uses a drug called “Factor VIII” about once a year to treat his hemophilia.
The last time his son was treated, Castillo-Gutierrez paid $3000 for this drug.
Castillo-Gutierrez testified that his children would not come with him to
Mexico were he removed. When asked who would pay for the son’s medicine
should Castillo-Gutierrez be removed to Mexico, Castillo-Gutierrez stated,
“I don’t know. The Government, I guess.” Castillo-Gutierrez further
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testified that he owned a couple of businesses, including a trucking company
and a rental property company.
After the hearing, an IJ found that Castillo-Gutierrez did not qualify
for cancellation of removal both because he had not proven by a
preponderance of the evidence that he had been a person of good moral
character for the previous ten years and because he had not met his burden
of proving that his children would suffer exceptional and extremely unusual
hardship if he were removed to Mexico. Castillo-Gutierrez promptly
appealed that order to the Board of Immigration Appeals (“BIA”). In his
notice of appeal, Castillo-Gutierrez argued that the NTA was defective under
recent Supreme Court precedent. Castillo-Gutierrez’s argument regarding
his NTA was limited to two sentences in his notice of appeal; he did not
further press the argument in his brief on appeal.
The BIA affirmed the IJ. Specifically, it agreed with the IJ that
Castillo-Gutierrez had not met his burden of proving that his children would
suffer exceptional and extremely unusual hardship as the result of his
removal. Because the BIA affirmed the IJ on this ground, it did not reach the
question of whether Castillo-Gutierrez met his burden of demonstrating that
he was of good moral character. The BIA also found that Castillo-Gutierrez
“seems to have waived” his argument that the NTA was defective because
he failed to brief the issue. Nonetheless, the BIA addressed the argument
and found it foreclosed by a recent BIA decision holding that an NTA that
does not list the time and date of a hearing is not defective if subsequent
notices provide such information. Castillo-Gutierrez filed a Petition for
Review with this court.
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II.
A. Notice to Appear
We first consider Castillo-Gutierrez’s argument that his NTA was
defective for failing to list the place and time of his removal hearing. Castillo-
Gutierrez raised this argument to the BIA only in his notice of appeal to the
BIA and did not reiterate it in his brief. The BIA correctly noted that raising
an argument solely in a notice of appeal but not in the merits brief is
inadequate. See Claudio v. Holder, 601 F.3d 316, 318–19 (5th Cir. 2010). But
the BIA still reached the merits of Castillo-Gutierrez’s argument, which it
characterized as a contention that “the Immigration Judge did not acquire
jurisdiction over these proceedings because [Castillo-Gutierrez’s] Notice to
Appear (NTA) was defective under Pereira v. Sessions, 138 S. Ct. 2105
(2018).” The BIA rejected this argument, holding that “even if we were to
consider this issue as properly before us, we note that such jurisdictional
argument is foreclosed by our intervening decision in Matter of Bermudez-
Cota, 27 I&N Dec. 441 (BIA 2018).” The BIA further explained that, as of
the date of its ruling, Bermudez-Cota foreclosed Castillo-Gutierrez’s
argument because it held that an NTA that does not specify the time and
place of an alien’s initial removal hearing is not deficient as long as a notice
of hearing is later sent to the alien specifying such information.
Although Castillo-Gutierrez failed to properly raise his argument that
his NTA was defective to the BIA by failing to brief it, we have held that “if
the BIA considers the merits of an issue that is not explicitly raised by the
petitioner, that issue is exhausted.” Dominguez v. Sessions, 708 F. App’x 808,
811 (5th Cir. 2017) (citing Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir.
2010)). Accordingly, we consider Castillo-Gutierrez’s argument exhausted
only insomuch as the BIA considered it on the merits. Any of the other
arguments that Castillo-Gutierrez presses before this court, including his
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contention that the NTA was invalid because it contained a “material
misrepresentation,” were never considered by the BIA and were certainly
not “fairly present[ed] to the BIA.” Omari v. Holder, 562 F.3d 314, 321 (5th
Cir. 2009). Those arguments are therefore unexhausted, and we lack
jurisdiction to consider them.
That leaves Castillo-Gutierrez with only his argument that “the
Immigration Judge did not acquire jurisdiction over these proceedings
because his Notice to Appeal (NTA) was defective under Pereira v. Sessions,
138 S. Ct. 2105 (2018).” This argument is foreclosed by circuit precedent.
In Pereira, the Supreme Court held that an NTA that fails to provide the time
and place of the removal proceedings (and therefore does not comply with
the requirements of § 1229(a)) does not stop the ten-year continuous
presence clock described in § 1229b(d)(1). 138 S. Ct. at 2109–10. The
Supreme Court expanded on Pereira’s reasoning in Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021). In Niz-Chavez, the Court analyzed § 1229b(d)(1) and
held that the statute required a “notice to appear” to be a single document
and that successive documents specifying the date and time of a hearing
could not cure a defective original notice and implicate the stop-time rule.
Between Pereira and Niz-Chavez, this court decided Pierre-Paul v.
Barr, 930 F.3d 684 (5th Cir. 2019). “In that case, we held in part that an
NTA constituted a valid charging document even without the time, date, or
place of the initial hearing and that even if such an NTA were not sufficient,
it could be cured by subsequent notices.” Garcia v. Garland, 28 F.4th 644,
647 (5th Cir. 2022). This was in part because the Pierre-Paul court held that
“the regulations, not 8 U.S.C. § 1229(a), govern what a notice to appear must
contain to constitute a valid charging document.” 930 F.3d at 693. The
regulations do not always require that a notice to appear contain the time,
date, or place of a hearing; rather they must only do so “where practicable.”
Id. at 690 (citing 8 C.F.R. § 1003.18(b)). We later held that while Niz-Chavez
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undermined Pierre-Paul’s holding that a deficient NTA could be cured by
separate notices, Niz-Chavez did not undermine Pierre-Paul’s holding that
the regulations, rather than the statute, govern what a notice to appear must
contain. See Maniar v. Garland, 998 F.3d 235, 242 n.2 (5th Cir. 2021); see
also Garcia, 28 F.4th at 647–49.1 This holding of Pierre-Paul, which was
reaffirmed in Maniar, is dispositive here and requires us to reject Castillo-
Gutierrez’s argument that his notice to appear was defective.
Castillo-Gutierrez recognizes that our case law is “averse” to his
arguments here. Accordingly, Castillo-Gutierrez spends much of his brief
arguing that our circuit precedent is simply wrong. But we may not revisit
that binding precedent, as “one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law, such as by a
statutory amendment, or the Supreme Court, or our en banc court.” United
States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014) (quoting Jacobs v. Nat’l
Drug Intel. Ctr., 584 F.3d 375, 378 (5th Cir. 2008)).
In sum, Castillo-Gutierrez’s only exhausted argument regarding his
NTA is foreclosed by the binding case law of this court. Accordingly, we will
dismiss the unexhausted portions of Castillo-Gutierrez’s petition regarding
his NTA and deny the exhausted portions of the petition regarding his NTA.
1
We have since expanded the reasoning of Pereira and Niz-Chavez to cases
involving in absentia removal. See Rodriguez v. Garland, 15 F.4th 351, 354–55 (5th Cir.
2021). But we recently held that Rodriguez’s holding does not apply where an alien does
not dispute that the separately received the subsequent notice of hearing. See Campos-
Chaves v. Garland, No. 20-60262, slip. op. at 2 (5th Cir. Aug. 3, 2022). Castillo-Gutierrez
makes no argument that he did not receive the subsequent notice of hearing, and therefore
cannot rely on Rodriguez here.
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B. Exceptional and Extremely Unusual Hardship
Next, we turn to Castillo-Gutierrez’s argument that the BIA erred in
determining that he had not met his burden to show that his removal would
cause exceptional and extremely unusual hardship for his children. Castillo-
Gutierrez seeks cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1).
In order to be eligible for cancellation of removal under that statute, Castillo-
Gutierrez must demonstrate, inter alia, “that removal would result in
exceptional and extremely unusual hardship to [his] spouse, parent, or child,
who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” § 1229b(b)(1)(D).
Before we may consider the merits of Castillo-Gutierrez’s arguments,
we must consider whether we have jurisdiction to review the BIA’s § 1229b
hardship determination. A separate statute, 8 U.S.C. § 1252(a)(2)(B),
prohibits us from reviewing certain BIA determinations. It states that “no
court shall have jurisdiction to review . . . any judgment regarding the
granting of relief under section . . . 1229b.” § 1252(a)(2)(B)(i). This bar is
subject to an important carveout, which tells us that nothing in the statute
“shall be construed as precluding review of constitutional claims or questions
of law.” § 1252(a)(2)(D).
A panel of this court previously held that the BIA’s hardship
determination is not subject to the jurisdictional bar in § 1252(a)(2)(B), both
because it falls within the statute’s carveout for “questions of law” and
because the jurisdictional bar applies only to “the adjudicator’s
‘discretionary authority to determine who among the eligible persons should
be granted discretionary relief.’” See Trejo v. Garland, 3 F.4th 760, 766–77
(5th Cir. 2021) (quoting Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1142
(9th Cir. 2002)). But the Supreme Court recently abrogated that decision in
Patel v. Garland, 142 S. Ct. 1614 (2022). In that case, the Supreme Court
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held that the § 1252(a)(2)(B) bar applies to “authoritative decisions.” Id. at
1622. Importantly here, the Patel majority pointed out that a determination
that a citizen would face exceptional and extremely unusual hardship due to
an alien’s removal is a discretionary and authoritative decision which even
the Government agreed would be barred by § 1252(a)(2)(B)(i),
notwithstanding § 1252(a)(2)(D). Id. Accordingly, Patel makes clear that the
BIA’s determination that a citizen would face exceptional and extremely
unusual hardship is an authoritative decision which falls within the scope of
§ 1252(a)(2)(B)(i) and is beyond our review.
III.
For the foregoing reasons, we DISMISS the petition for review for
lack of jurisdiction as to Castillo-Gutierrez’s unexhausted arguments and his
arguments regarding whether he met his burden under § 1229b(b)(1)(D).
We otherwise DENY the petition for review.
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