Castillo-Gutierrez v. Garland
43 F.4th 477
5th Cir.2022Background
- Castillo-Gutierrez, a Mexican citizen, entered the U.S. in 1990 and has lived here continuously except for a 1999 visit to Mexico; he lives in Minnesota with his wife and two children.
- DHS issued an NTA on Aug 21, 2014 that did not list the time or place of the initial hearing; an August 27 notice later set the hearing for Sept 2, 2014, which Castillo-Gutierrez attended and conceded removability.
- He applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), claiming his U.S.-citizen children would suffer exceptional and extremely unusual hardship if he were removed; his son has hemophilia and requires Factor VIII treatment intermittently.
- The IJ denied cancellation, finding Castillo-Gutierrez failed to prove good moral character and failed to show exceptional and extremely unusual hardship; Castillo-Gutierrez appealed to the BIA.
- The BIA affirmed the hardship decision, declined to reach good moral character, and found Castillo-Gutierrez had largely waived his NTA challenge but addressed and rejected it under intervening BIA precedent; he petitioned the Fifth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NTA was defective for failing to state time/place of hearing under Pereira/Niz-Chavez | Castillo-Gutierrez: NTA without time/place renders charging document defective and deprives IJ of jurisdiction under Pereira/Niz-Chavez | Government: Fifth Circuit precedent (Pierre-Paul, Maniar) treats regulations as defining charging-document content and allows subsequent hearing notices; any other arguments were unexhausted | Court: Exhausted Pereira-based claim rejected as foreclosed by binding Fifth Circuit precedent; unexhausted arguments dismissed for lack of administrative exhaustion |
| Whether the BIA's hardship determination under §1229b(b)(1)(D) is reviewable | Castillo-Gutierrez: BIA erred in finding no exceptional and extremely unusual hardship to his children | Government: The denial of discretionary relief is barred from judicial review under 8 U.S.C. §1252(a)(2)(B) | Court: Petition dismissed for lack of jurisdiction to review the BIA's discretionary hardship determination in light of Patel v. Garland |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court held NTAs lacking time/place do not satisfy §1229(a) for stop-time rule purposes)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (Supreme Court held §1229(a) requires a single document ‘‘notice to appear’’; successive documents cannot cure a defective original notice for statutory stop-time purposes)
- Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (held regulations, not §1229(a), govern what an NTA must contain to be a valid charging document; subsequent notices can cure defects)
- Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021) (reaffirmed Pierre-Paul’s regulatory-governance holding despite Niz-Chavez)
- Patel v. Garland, 142 S. Ct. 1614 (2022) (Supreme Court held §1252(a)(2)(B) bars review of authoritative discretionary decisions, including hardship determinations)
- Claudio v. Holder, 601 F.3d 316 (5th Cir. 2010) (procedural point that issues raised only in a notice of appeal but not brief are inadequately raised to the BIA)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (administrative exhaustion required; arguments not fairly presented to the BIA are unexhausted)