Rangel-Fuentes v. Garland

99 F.4th 1191

Cristina RANGEL-FUENTES, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.

No. 23-9511

United States Court of Appeals, Tenth Circuit

FILED April 23, 2024

Petition for Review of an Order from the Board of Immigration Appeals

Brian M. Lipshutz of Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C. (Kannon K. Shanmugam and Jennifer K. Corcoran of Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C.; Sandra Saltrese-Miller of The Saltrese Law Firm, Boulder, Colorado, with him on the briefs), for Petitioner.

Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Department of Justice (Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, with him on the briefs), Washington, D.C., for Respondent.

Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges.

MORITZ, Circuit Judge.

Cristina Rangel-Fuentes petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA), arguing that under 8 U.S.C. § 1229b(b)(1)(D), the age of a qualifying child for the purposes of the cancellation of removal should be fixed no later than the date the immigration judge closes the administrative record. In the alternative, Rangel argues that Tenth Circuit precedent requires remand so that the BIA may at least consider whether the particular facts of her case warrant fixing the age of her qualifying child at a date prior to the issuance of the immigration judge's final decision.

For the reasons discussed below, we hold that the BIA's interpretation of § 1229b(b)(1)(D) is reasonable and entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and that our prior precedent does not require remand for the exercise of the BIA's discretion. We thus deny the petition for review as to cancellation of removal. However, we agree with Rangel's separate argument that the BIA abused its discretion by treating her asylum appeal as waived, so we grant the petition for review in part and remand for the BIA to address the merits of Rangel's asylum appeal.

Background

Rangel is a 49-year-old citizen of Mexico. She most recently entered the United States in 1995 or 1996 without inspection and has remained here ever since. While in the United States, Rangel married and had three children, the youngest of whom, Fernando, was born on September 7, 1997.

The Department of Homeland Security charged Rangel with inadmissibility in early 2012, after state law enforcement arrested her for contempt of court following her failure to appear when a gym sued her over unpaid membership dues. See 8 U.S.C. § 1182(a)(6)(A)(i). Rangel conceded her inadmissibility, but she applied in 2014 for cancellation of her removal. In support, she argued that "removal would result in exceptional and extremely unusual hardship to [her] . . . child," her youngest son Fernando, who was 17 at the time. 8 U.S.C. § 1229b(b)(1)(D).

Later, in July 2017, Rangel filed an application for asylum in which she described two recent incidences of violence against her family members in Mexico: in late 2016, her female cousin had been murdered and her uncle had been kidnapped. Even though Rangel did not apply for asylum within one year of her arrival in the United States, she invoked the statutory exception for "changed circumstances which materially affect the applicant's eligibility for asylum." 8 U.S.C. § 1158(a)(2)(D).

At her July 2017 evidentiary hearing before the immigration judge, Rangel testified that when her removal proceedings commenced, Fernando began suffering from depression, which affected his appetite and sleep, led him to stop participating in sports, and caused his grades to drop. Rangel worried that if she were deported to Mexico, Fernando might try to take his own life. She also introduced a report from a clinical psychologist opining that Fernando could very likely experience a recurrence of depression upon Rangel's deportation.

Additionally, Rangel discussed her fears of experiencing violence in Mexico. She said that her brother, a car mechanic, was forced to repair the cars of individuals involved in organized crime. She also recounted how her cousin, who lived in Texas, had been stabbed to death while visiting Juarez in 2016, and how her uncle had been kidnapped in 2016 and was never seen again. Rangel felt that because she had spent so much time in the United States, people in Mexico would assume she had money and target her for kidnapping. She also introduced a letter from a municipal official in her hometown in Mexico describing the high safety risk Rangel and her family would face upon return.

The immigration judge declared the record closed in September 2017, when Fernando was twenty years old and thus a "child" for the purposes of cancellation of removal. See 8 U.S.C. § 1101(b)(1) (defining "child," as relevant here, to mean "an unmarried person under [21] years of age"). However, due to the yearly statutory cap on the number of cancellations of removal the Attorney General may grant and an accompanying regulation that directs judges to reserve cancellation rulings after the cap has been reached, the immigration judge did not issue a written opinion until September 2019. See 8 U.S.C. § 1229b(e)(1) (providing that "the Attorney General may not cancel the removal and adjust the status under this section . . . of a total of more than 4,000 aliens in any fiscal year"); 8 C.F.R. § 1240.21(c)(1) (explaining that "[w]hen grants are no longer available in a fiscal year, further decisions to grant such relief must be reserved until such time as a grant becomes available under the annual limitation in a subsequent fiscal year").

In issuing that opinion, the immigration judge concluded that Rangel was statutorily ineligible for cancellation of removal because Fernando no longer qualified as a child under the cancellation-of-removal statute. The immigration judge also denied Rangel's asylum application, ruling that Rangel waited too long to apply for asylum upon learning of her cousin's murder and that she could not show a well-founded fear of future persecution on account of her membership in a particular social group.

Rangel then appealed to the BIA, which rejected Rangel's argument that the immigration judge was required to fix Fernando's age at the time of the evidentiary hearing. The BIA also determined that Rangel had waived her argument with respect to the immigration judge's denial of her asylum application.¹

Rangel then filed this petition for review.²

Analysis

I. Cancellation of Removal

Rangel challenges the BIA's interpretation of 8 U.S.C. § 1229b(b)(1)(D). We review the BIA's legal determinations de novo. Villegas-Castro v. Garland, 19 F.4th 1241, 1244-45 (10th Cir. 2021).

"Section 1229b(b)(1)(D) provides, in pertinent part, that the Attorney General may cancel removal when an applicant establishes 'that removal would result in exceptional and extremely unusual hardship' to a relative, including a child 'who is a citizen of the United States.' " Martinez-Perez v. Barr, 947 F.3d 1273, 1280 (10th Cir. 2020) (quoting § 1229b(b)(1)(D)). As mentioned above, 8 U.S.C. § 1101(b)(1) defines a "child" as "an unmarried person under [21] years of age." But given the yearly statutory cap on removals and the regulation directing immigration judges to reserve ruling on pending applications for cancellation of removal after that cap has been reached, a qualifying child may turn 21 while an application is pending. See 8 U.S.C. § 1229b(e)(1) (setting cap); 8 C.F.R. § 1240.21(c)(1) (directing reservation of rulings); Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal, 82 Fed. Reg. 57336, 57337-38 (Dec. 5, 2017) (acknowledging that qualifying child may age out while a decision is reserved pending available removal spots). And the cancellation-of-removal statute does not account for this reality: "[§] 1229b(b)(1)(D) does not directly identify the point in time when the [noncitizen]'s removal must result in a hardship to a qualifying relative." Martinez-Perez, 947 F.3d at 1280 (alteration in original) (quoting Mendez-Garcia v. Lynch, 840 F.3d 655, 659 (9th Cir. 2016)).

Because of this omission, we held in Martinez-Perez that the statute was ambiguous on this point and that the BIA had the jurisdiction "to fill the statutory gap in reasonable fashion." Id. (quoting Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005)); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that the BIA has authority to interpret ambiguous statutes). At the time, however, we did not rule on the reasonableness of BIA's interpretation of § 1229b(b)(1)(D) because in that case, the BIA had simply disclaimed its authority to interpret the statute in the first place. Martinez-Perez, 947 F.3d at 1281. When confronted with Rangel's appeal in this case, however, the BIA did offer its own interpretation of the statute, reasoning that "an application for relief from removal is a 'continuing' application" and that under § 1229b(b)(1)(D), the age of a qualifying child is properly evaluated at the time the immigration judge issues an opinion. R. vol. 1, 4 (quoting In re Isidro-Zamorano, 25 I. & N. Dec. 829, 831 (B.I.A. 2012)).

We review this interpretation under the framework of Chevron deference. Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 ("[T]he BIA should be accorded Chevron deference as it gives ambiguous statutory terms 'concrete meaning through a process of case-by-case adjudication.' " (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987))). Under that framework, the relevant inquiry is not whether the BIA has correct...