Alvaro Apolinar v. William P. Barr
945 F.3d 1072
8th Cir.2019Background
- Alvaro Blas Apolinar, a Mexican national, entered the U.S. in 1998 without inspection and later worked in Missouri; he has two minor U.S. citizen children.
- DHS issued a Notice to Appear (NTA) in 2010 that omitted the hearing date/time; Blas Apolinar attended the March 10, 2011 hearing, admitted removability, and was granted voluntary departure.
- Proceedings were reopened so he could apply for cancellation of removal based on exceptional and extremely unusual hardship to his children; an IJ granted cancellation on June 14, 2017.
- DHS appealed to the BIA, which vacated the IJ’s grant and denied cancellation; Blas Apolinar petitioned for review in the Eighth Circuit.
- Blas Apolinar separately moved the BIA to reopen or reconsider in light of Pereira (arguing the defective NTA divested the immigration court of jurisdiction); the BIA denied the motion and he petitioned for review on that denial as well.
- The Eighth Circuit consolidated the petitions, dismissed the cancellation petition for lack of jurisdiction, and denied review of the motion-to-reopen denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA erred in denying cancellation of removal (hardship determination) | BIA misapplied precedent (In re Gonzales Recinas) and failed to aggregate economic, educational, and safety factors to find exceptional and extremely unusual hardship | The hardship determination is discretionary; BIA considered the IJ’s findings and properly concluded petitioner failed his burden | Dismissed for lack of jurisdiction — discretionary hardship findings are unreviewable absent a constitutional or legal question |
| Whether Pereira voids proceedings because NTA lacked date/time (motion to reopen) | Pereira requires NTA to include date/time; a defective NTA divests the immigration court of subject-matter jurisdiction, so removal order must be rescinded or case remanded | Pereira addressed the stop-time rule, not IJ jurisdiction; circuits and the BIA hold Pereira does not divest jurisdiction | Denied — BIA did not abuse discretion; Pereira does not strip immigration courts of jurisdiction |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (an NTA missing date/time does not trigger the stop-time rule)
- Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (Pereira does not affect IJ jurisdiction over removal proceedings)
- Solis v. Holder, 647 F.3d 831 (8th Cir. 2011) (courts lack jurisdiction to review discretionary hardship determinations for cancellation)
- Zacarias-Velasquez v. Mukasey, 509 F.3d 429 (8th Cir. 2007) (discretionary relief determinations are shielded from judicial review)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (Pereira does not divest immigration courts of jurisdiction)
- Martinez v. Lynch, 785 F.3d 1262 (8th Cir. 2015) (standard of review for BIA denial of motion to reopen is abuse of discretion)
- Rodriguez de Henriquez v. Barr, 942 F.3d 444 (8th Cir. 2019) (statutory NTA requirements do not determine when IJs obtain jurisdiction)