Pazos-Toledano v. Garland
19-60516
| 5th Cir. | Jul 12, 2021Background
- Pazos-Toledano, a Mexican national, conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- At the IJ merits hearing the Government conceded good moral character and absence of disqualifying crimes; the remaining issues were 10 years of continuous physical presence and exceptional-and-extremely-unusual hardship to a qualifying U.S. relative.
- The IJ denied cancellation based solely on insufficient proof of 10 years’ continuous physical presence, finding testimonial inconsistencies and a lack of corroboration; presence was found only in 2007, 2009, 2010, and 2016.
- Pazos-Toledano appealed to the BIA and submitted new bank/tax records as a motion to remand; the BIA reviewed the IJ’s factual findings for clear error, denied remand, and dismissed the appeal.
- The BIA upheld the IJ’s requirement for reasonably available corroboration, found Pazos-Toledano failed to show the new evidence was unavailable at the hearing, and concluded the record rebutted the presumption of credibility.
- The Fifth Circuit denied the petition for review as to the BIA’s decision and dismissed claims the petitioner failed to exhaust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review applied by BIA to IJ factfinding | BIA should have reviewed IJ’s factfinding de novo | BIA correctly reviewed IJ factfinding for clear error | BIA properly applied "clearly erroneous" review to IJ factual findings |
| Whether testimony alone must be accepted absent an adverse-credibility finding | Pazos-Toledano: credible testimony (absent contrary evidence) must suffice to prove continuous presence | Government: other record inconsistencies and lack of corroboration can rebut testimony | BIA adequately rebutted presumption of credibility under Garland v. Ming Dai; no error |
| Requirement to provide corroboration and any procedural rules (Matter of L-A-C-) | Pazos-Toledano: IJ improperly discounted testimony without following BIA procedures | Respondent: issue was not raised before BIA (and would fail on merits) | Not exhausted; court dismissed this argument for lack of jurisdiction |
| Denial of motion to remand based on newly submitted bank/tax records | Pazos-Toledano: new documents warranted remand and could prove continuous presence | BIA: documents were reasonably available before the hearing; no basis to remand | BIA did not abuse discretion in denying remand; petition denied as to that decision |
Key Cases Cited
- Sealed Petitioner v. Sealed Respondent, 829 F.3d 379 (5th Cir. 2016) (review is of the BIA’s final decision)
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (appellate standards for reviewing IJ and BIA findings)
- Rueda v. Ashcroft, 380 F.3d 831 (5th Cir. 2004) (discretionary denials of cancellation largely not subject to review)
- Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003) (continuous-presence requirement is nondiscretionary)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (exhaustion requirement for arguments before the BIA)
- Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (BIA need not make an explicit finding to show the presumption of credibility was rebutted)