Carlos Caballero-Martinez v. William P. Barr, 920 F.3d 543

Background

Caballero-Martinez, a Mexican national who entered the U.S. unlawfully in 2000, faced removal proceedings and sought cancellation of removal based on hardship to his U.S. citizen children under 8 U.S.C. § 1229b(b)(1)(D).
The original Immigration Judge (IJ) Davis conducted the hearing but retired before issuing a decision; substitute IJ Baker reviewed the record and adopted Davis’s reasoning, finding petitioner credible but denying cancellation for insufficient extraordinary hardship evidence.
While the appeal to the Board of Immigration Appeals (BIA) was pending, petitioner suffered an assault and filed a U Visa petition with USCIS; he asked the BIA to remand or administratively close proceedings pending U Visa adjudication and to allow additional hardship evidence.
The BIA denied the motion in April 2017, citing substitute-IJ regulations, the insufficiency of new hardship evidence to change the result, and the lack of proof (Form I-797 receipt) that the U Visa petition had been filed.
After obtaining the USCIS filing receipt, petitioner moved to reopen/reconsider; the BIA denied that motion in December 2017 with a terse explanation, again concluding the new evidence would not change the outcome and rejecting administrative closure pending the U Visa.
Petitioner petitioned for review. The court affirmed the April order in substance, upheld the Coelho likely-to-change-the-result standard for remand, but remanded the December order for clarification whether the BIA’s denial rested on evidentiary or jurisdictional grounds and why Sanchez-Sosa factors were not applied to the remand request.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Use of substitute IJ	Substitute IJ decision violated INA/regulations and due process because IJ Baker was not present at hearing	Regulations permit reassignment; BIA addressed statutory/regulatory basis and reliance on uncontested credibility	BIA did not err; substitute IJ use upheld
Standard for remand based on new hardship evidence	L-O-G requires remand when new evidence is potentially worthwhile; Coelho standard is abrogated	BIA should apply Coelho (likely-to-change-the-result) and decline remand if evidence unlikely to change outcome	Court held Coelho standard applies; L-O-G does not abrogate Coelho
Remand/continuance or administrative closure pending U Visa adjudication	Sanchez-Sosa creates rebuttable presumption favoring continuance/remand when petition filed and prima facie approvable; petitioner filed I-918	Gov: Sanchez-Sosa inapplicable because petitioner requested closure from BIA (not IJ) and BIA lacks jurisdiction over U Visas	April denial affirmed on alternative evidentiary ground (no filing receipt at the time); BIA erred to the extent it relied on lack of jurisdiction but overall denial was supportable given missing receipt
Denial to reopen after submitting USCIS receipt	Receipt should change analysis and warrant reopening/remand under Sanchez-Sosa	BIA: receipt does not alter reasons for denial; closure/remand still unwarranted	Court remanded the December order for BIA to clarify its reasons (whether jurisdictional or evidentiary) and why it did not apply Sanchez-Sosa factors to the remand request

Key Cases Cited

Njoroge v. Sessions, [citation="709 F. App'x 380"] (8th Cir.) (substitute IJ practice upheld where BIA decision did not rely on contested credibility)
Camacho v. Whitaker, 910 F.3d 378 (8th Cir. 2018) (BIA must announce decisions in terms sufficient for meaningful review)
Camarillo-Jose v. Holder, 676 F.3d 1140 (8th Cir. 2012) (standard for BIA statement of reasons)
Muiruri v. Lynch, 803 F.3d 984 (8th Cir. 2015) (deference to BIA statutory/regulatory interpretations)
Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010) (abuse-of-discretion review of denial of remand; BIA cannot refuse remand solely for lack of jurisdiction over a related USCIS application)
Nunez-Portillo v. Holder, 763 F.3d 974 (8th Cir. 2014) (discretionary hardship determinations are generally unreviewable)