Garcia v. Barr

960 F.3d 893

Luis Eduardo Cuellar GARCIA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-3489

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 8, 2020

OPINION

THAPAR, Circuit Judge.

Luis Eduardo Cuellar Garcia sought asylum in the United States. The question here is who should have decided his fate: an immigration judge or the United States Citizenship and Immigration Services (USCIS). Garcia argues that the immigration judge lacked jurisdiction over his case. We disagree and deny his petition for review.

Garcia illegally entered the United States eight days before his eighteenth birthday. At that time, an immigration official found him to be an "unaccompanied alien child." 6 U.S.C. § 279(g)(2). Over a year later, Garcia applied for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had been threatened by gangs in his home country (El Salvador). And based on his purported status as an "unaccompanied alien child," he sought relief from the USCIS. But instead, an immigration judge took jurisdiction over his case, reasoning that Garcia was now nineteen years old and thus no longer a "child."

The immigration judge reviewed Garcia’s case and eventually denied his claims for relief. The Board of Immigration Appeals largely affirmed that ruling on the merits but remanded the case so that the immigration judge could determine whether to continue removal proceedings while Garcia pursued adjustment of status. The immigration judge denied the continuance. The Board affirmed.

Garcia then moved for a stay of removal pending this petition for review. But our court denied the stay. Garcia has since been removed from the country.

In his petition for review, Garcia challenges his immigration proceedings on three grounds: (1) that the immigration judge lacked jurisdiction over his case; (2) that the judge applied the wrong legal standard to his claim under the Convention Against Torture; and (3) that the judge wrongly denied his motion for a continuance. We review the legal questions presented in the petition de novo. See Hernandez v. Whitaker , 914 F.3d 430, 433 (6th Cir. 2019).

Jurisdiction. Garcia first challenges the immigration judge’s jurisdiction over his case. Specifically, he points to 8 U.S.C. § 1158(b)(3)(C), which provides that USCIS "shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 279(g) of Title 6 )." According to our circuit—as well as the statutory text—this provision requires that the alien be an "unaccompanied alien child" when he applies for asylum; it’s not enough that the alien was an "unaccompanied alien child" when he first entered the country. See Harmon v. Holder , 758 F.3d 728, 733–35 (6th Cir. 2014) ; see also Salmeron-Salmeron v. Spivey , 926 F.3d 1283, 1287–89 (11th Cir. 2019) ; Mazariegos-Diaz v. Lynch , 605 F. App'x 675, 675–76 (9th Cir. 2015) ; Cortez-Vasquez v. Holder , 440 F. App'x 295, 298 (5th Cir. 2011) (per curiam). Garcia was nineteen years old at the time of his asylum application, so the provision doesn’t seem to apply here. See 6 U.S.C. § 279(g)(2)(B) (defining an "unaccompanied alien child" as someone who "has not attained 18 years of age").

To be sure, our prior decision in Harmon didn’t address what would happen if the alien had been previously found to be an "unaccompanied alien child" at the time of his entry. See 758 F.3d at 734 & n.3. But that finding turns out to be irrelevant. Again, the statute requires that the asylum application be filed by an "unaccompanied alien child (as defined in [ 6 U.S.C. § 279(g) ] )." 8 U.S.C. § 1158(b)(3)(C) (emphasis added). And that statutory provision defines an "unaccompanied alien child" as someone who (1) "has no lawful immigration status in the United States," (2) "has not attained 18 years of age," and (3) has no "parent or legal guardian in the United States" who can provide physical custody and care. 6 U.S.C. § 279(g)(2). Nowhere does the statute ask whether an immigration official previously found the applicant to be an "unaccompanied alien child." Rather, it asks only whether the alien meets the statutory criteria at the time of his application. And like other judges, immigration judges have the power to determine their own jurisdiction. See, e.g. , Xiao v. Barr , 979 F.2d 151, 154–55 (9th Cir. 1992) ; In re Bulnes-Nolasco , 25 I. & N. Dec. 57, 59 (BIA 2009) ; cf. Landon v. Plasencia , 459 U.S. 21, 31, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Thus, the immigration judge properly exercised jurisdiction once he found that Garcia did not meet the statutory criteria at the time of his asylum application.

For what it’s worth, the Board of Immigration Appeals recently reached the same conclusion in a published decision. See In re M-A-C-O- , 27 I. & N. Dec. 477, 480 (BIA 2018). And the Departments of Homeland Security and of Health and Human Services have codified the same reading of the statute in two regulations—though the changes postdate the immigration proceedings in this case. See 8 C.F.R. § 236.3(d) ; 45 C.F.R. § 410.101 ; see also Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392, 44,426 –27, 44,454–55, 44,491 (Aug. 23, 2019) (explaining that the regulations implement the "plain language" of § 279(g)(2) ). But the statutory text more than speaks for itself.

Garcia points out that USCIS has a policy of exercising jurisdiction in cases like his own. See Memorandum from Ted Kim, Acting Chief, Asylum Division, U.S. Citizenship and Immigration Services, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children 2 (Mar. 28, 2013).¹ Taken at face value, this policy doesn’t help him since it doesn’t divest immigration judges of jurisdiction over any cases; it simply tells USCIS officials that they should also exercise jurisdiction over these cases. See id . ; see also J.O.P. v. U.S. Dep’t of Homeland Sec. , 409 F. Supp. 3d 367, 375 (D. Md. 2019) (explaining that, under the USCIS policy, immigration judges also exercise jurisdiction over these cases). In fact, the policy isn’t even binding legal authority. See, e.g. , Ortega-Cervantes v. Gonzales , 501 F.3d 1111, 1118–19 (9th Cir. 2007) ; In re Briones , 24 I. & N. Dec. 355, 365 n.7 (BIA 2007). So it’s hard to see how it could have affected the immigration judge’s jurisdiction over Garcia’s case.

But even if the policy purported to divest the immigration judge of jurisdiction, it wouldn’t matter. The relevant statute unambiguously grants "initial jurisdiction" to USCIS only when the alien is an "unaccompanied alien child" when he applies for asylum. 8 U.S.C. § 1158(b)(3)(C) ; Harmon , 758 F.3d at 734. And the statute unambiguously defines an "unaccompanied alien child" as someone who has not yet turned eighteen. 6 U.S.C. § 279(g)(2). Whatever the policy said, it couldn’t rewrite the plain terms of the statute. See Arangure v. Whitaker , 911 F.3d 333, 337–38 (6th Cir. 2018) ; see also Salmeron-Salmeron , 926 F.3d at 1289 n.6 (pointing out that the USCIS policy improperly allows the agency to "engage in a legal fiction" that conflicts with the "clear jurisdictional language of the statute").

In sum, the immigration judge properly exercised jurisdiction over Garcia’s case.

Convention Against Torture. Garcia next argues that the immigration judge applied the wrong legal standard to his claim under the Convention Against Torture. To prevail on this claim, Garcia must show that he would be in danger of being tortured if he returned to El Salvador. See Ali v. Reno , 237 F.3d 591, 596 (6th Cir. 2001). Torture includes acts inflicted by private parties "with the consent or acquiescence" of public officials. Singh v. Ashcroft , 398 F.3d 396, 404 (6th Cir. 2005) (quoting 8 C.F.R. § 208.18(a)(1) ). And based on this definition, our circuit has said that torture includes cases in which public officials show "willful blindness" to private torture. Amir v. Gonzales , 467 F.3d 921, 927 (6th Cir. 2006). In doing so, our circuit abrogated a prior Board of Immigration Appeals decision known as In re S-V- , 22 I. & N. Dec. 1306 (BIA 2000), which limited the term "torture" to willful acceptance, see Amir , 467 F.3d at 927.

Garcia says that the immigration judge failed to consider the "willful blindness" standard (and that the Board summarily adopted the same reasoning). But that’s simply not true. The immigration judge specifically noted that the Sixth Circuit "considers whether the government is engaged in willful blindness of the actions of those within its borders who are engaging in torturous conduct." AR 422 (citing Amir , 467 F.3d at 921 ). Garcia insists that the judge used other language in the decision that "harkens back" to the incorrect standard. Garcia Reply Br. at 23. Yet all he points to is a statement that an alien must show more than that the government is "unable to control" the torture. AR 422. And that’s a correct statement of the law. See Zaldana Menijar v. Lynch , 812 F.3d 491, 502 (6th Cir. 2015). Nor does it matter that the judge cited In re S-V- for other legal propositions. Indeed, our court has upheld a nearly identical rule statement (with citations to In re S-V- ) even though the rule statement didn’t expressly reference the "willful blindness" standard. See Nerghes v. Mukasey , 274 F. App'x 417, 423–25 (6th Cir. 2008). Since the rule statement here discussed the correct standard, it easily passes muster.

Continuance. Finally, Garcia argues that the immigration judge wrongly denied his motion for a continuance. But this claim became moot once Garcia was removed from the country. True, our circuit has said that an alien’s removal doesn’t necessarily moot his petition for review since a removal order can have collateral consequences for the alien. See, e.g. , Garcia-Flores v. Gonzales , 477 F.3d...