Hernandez v. U.S. Attorney Gen.

1

TERESA NAJERA HERNANDEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

Nos. 21-13711, 23-10475

United States Court of Appeals, Eleventh Circuit

March 13, 2024

DO NOT PUBLISH

Petitions for Review of a Decision of the Board of Immigration Appeals Agency No. A078-243-398 Before GRANT, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM

In these consolidated petitions for review, Teresa Najera Hernandez seeks review of (1) the Board of Immigration Appeals's order dismissing her appeal of an immigration judge's decision denying her application for asylum withholding of removal, and relief under the Convention Against Torture; and (2) the Board's order denying her motion to reopen. We deny both of the petitions.

I.

In December of 2014, Teresa Najera Hernandez, a native and citizen of Mexico, was paroled into the United States when she attempted to enter without valid entry documents. At her first hearing, with the assistance of Uriel Delgado, an attorney from the law firm Kuck Baxter Immigration, LLC, she filed a Form I-589 to apply for asylum and withholding of removal. On the form, she also attempted to apply for relief under the Convention Against Torture (CAT), explaining her fear of being tortured if returned to Mexico and checking two boxes indicating that she sought CAT relief, though she missed a third. The immigration judge scheduled a hearing on the merits of her claims for March 29, 2019.

On the date of the hearing, Najera Hernandez appeared with a different attorney, also from Kuck Baxter. The new attorney Jorge Gavilanes, explained that Mr. Delgado had learned two days ago that he could not attend the hearing because of a scheduling conflict with another case. Although Gavilanes had prepared for the hearing, he requested a brief continuance-about two weeks- to permit Delgado to return because Najera Hernandez was unhappy with Gavilanes's representation. The immigration judge denied the continuance, finding no good cause shown for a delay.

At the hearing, Najera Hernandez testified that she feared for her safety if returned to Mexico. In September of 2014, she was involved in a car accident, where the driver who rear-ended her began verbally and physically berating her and threatening her life. She believed that this man was a member of organized crime. When police arrived at the scene, the man bribed an officer, who issued a citation to Najera Hernandez and ignored her complaints about the other driver's threats. Later, her son was followed home from school by two men in a white van, whom she believed were attempting to kidnap him. She also saw two men sitting outside her home on a few different days, and believed they were monitoring her. She did not report either of these incidents to the police.

After taking Najera Hernandez's testimony, the immigration judge denied her applications for relief and ordered her removed to Mexico. Although the judge stated that it appeared she was not seeking CAT relief, the judge addressed the issue anyway, ruling against her eligibility for relief on the merits. Najera Hernandez, now proceeding pro se, appealed to the Board, which adopted and affirmed the immigration judge's decision.

Now represented by new counsel from a different firm, Najera Hernandez filed a timely motion to reopen with the Board.

She principally argued that previously unavailable evidence showed she faced an ongoing threat if returned to Mexico. She also argued that the immigration judge had improperly infringed her right to counsel of her choosing by denying a continuance, and that the immigration judge had failed to give reasoned consideration to her CAT claim. The Board denied the motion to reopen, finding that Najera Hernandez's new evidence was either cumulative to evidence already in the record or non-material. It also found that any error by the immigration judge with respect to denying a continuance did not prejudice Najera Hernandez, and that the immigration judge had given adequate consideration to her CAT claim.

Najera Hernandez timely filed petitions for review from both the Board's order affirming the immigration judge's denial of relief and from its order declining to reopen.

II.

We review only the decision of the Board of Immigration Appeals, except to the extent that the Board has expressly adopted the immigration judge's decision. Jeune v. U.S. Att'y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Where the Board explicitly agrees with the immigration judge's findings, we review both the Board's and the immigration judge's decisions as to those issues. Id. In deciding whether to uphold the Board's decision, we are limited to the grounds upon which the Board relied. See Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016).

We review the Board's factual findings for substantial evidence and legal issues de novo. Zheng v. U.S. Att'y Gen., 451 F.3d 1287, 1289 (11th Cir. 2006). An argument that the Board failed to give reasoned consideration to an issue is a question of law that we review de novo. Jeune, 810 F.3d at 799.

We review the Board's denial of a motion to reopen an immigration petition for abuse of discretion. Jiang v. U.S. Att'y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). "Motions to reopen in removal proceedings are particularly disfavored." Id. Our review is limited only to determining whether the Board exercised its discretion in an arbitrary or capricious manner. Id.

III.

A.

Najera Hernandez's first petition for review argues that the immigration judge and the Board of Immigration Appeals, by extension, failed to give her claim for CAT relief reasoned consideration. The Board must give reasoned consideration to the issues presented to it, meaning that its decision must show that it has "considered the issues raised and announced its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Jeune, 810 F.3d at 803 (alterations adopted) (quotation omitted). To be sure, the "Board does not need to do much." Ali v. U.S. Att'y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). It "need not address specifically each piece of evidence the petitioner presented." Id. (alteration adopted) (quotation omitted). We have held that a Board decision that "lists the basic facts of the case, references the relevant regulatory and statutory provisions on which the order is based, and accepts several grounds on which the Immigration Judge properly denied the motion" demonstrates reasoned consideration sufficient to enable meaningful review. Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860, 874-75 (11th Cir. 2018).

On the other hand, the Board does not give reasoned consideration when it "misstates the contents of the record, fails to adequately explain its rejection of logical conclusions, or provides justifications for its decision which are unreasonable and which do not respond to any arguments in the record." Id. at 874 (quotation omitted). Ultimately, for the Board's decision to exhibit a lack of reasoned consideration, it must "force[] us to doubt whether we and the Board are, in substance, looking at the same case." Ali, 931 F.3d at 1334.

The Board's order affirming the immigration judge's decision expressly adopted the immigration's judge's reasoning. The immigration judge's analysis of Najera Hernandez's CAT claim was short, no doubt because the judge concluded that Najera Hernandez had not intended to seek CAT relief.^[1] But it still contained a decision on the merits and enough reasoning to enable meaningful review. The judge explicitly stated that Najera Hernandez "has not demonstrated that . . . she would more likely than not be tortured in the future by or with the acquiescence of the officials of the Mexican government." Those findings were preceded by a detailed description of Najera Hernandez's evidence, summarizing her past experiences in Mexico and the reasons she claimed she will be targeted if she returns. Pointing to specific contrary pieces of record evidence, the judge then described why Najera Hernandez had not established either that she would be targeted by organized crime in the future if she were to return to Mexico, or that "the Mexican government is unwilling or unable to protect her." In other words, the judge made the necessary findings to support the denial of relief, and explained why those findings were...