Roberto Bautista-Garcia v. U.S. Attorney General
680 F. App'x 886
| 11th Cir. | 2017Background
- Bautista-Garcia, an alien previously convicted of possession of a controlled substance, challenges BIA orders denying withholding of removal, CAT relief, and humanitarian asylum, and denies his motion to reopen.
- BIA denied humanitarian asylum, and also denied the motion to reopen as untimely and on the merits; petitions were consolidated for appeal.
- Criminal alien bar applies to Bautista-Garcia due to cocaine conviction, limiting review to constitutional questions and law under 8 U.S.C. § 1252(a)(2)(D).
- Court has jurisdiction to review whether the BIA gave reasoned consideration to humanitarian asylum claims, but not review of factual weight of evidence.
- BIA was found to have given reasoned consideration and to have addressed Bautista-Garcia’s arguments; no specific overlooked argument was identified.
- On the motion to reopen, Bautista-Garcia argues untimeliness should be equitably tolled due to diligence and ineffective assistance of counsel; court concludes it lacks jurisdiction and that the arguments were abandoned or not exhausted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did BIA give reasoned consideration to humanitarian asylum claims? | Bautista-Garcia contends BIA failed to address ‘other serious harm’. | BIA considered the issues and Bautista-Garcia’s arguments; no overlooked claim. | Yes; BIA gave reasoned consideration |
| Jurisdiction to review motion to reopen and exhaustion | Equitable tolling due to diligence and ineffective assistance merits review. | Claims are unexhausted or abandoned; review limited. | Lacks jurisdiction; petition dismissed |
| Effect of abandonment on exhaustion and equitable tolling claims | IAC and other serious harm claims exhausted before BIA. | Discrete arguments not presented; not exhausted. | Abandoned; no relief |
Key Cases Cited
- Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224 (11th Cir. 2013) (question of whether BIA gave reasoned consideration is a question of law)
- Tan v. U.S. Att’y Gen., 446 F.3d 1369 (11th Cir. 2006) (BIA must consider issues evidenced; reasoning sufficient for review)
- Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir. 2016) (exhaustion requires core issue and discrete arguments)
- Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir. 2006) (exhaustion requirement governs review of constitutional claims)
- Malu v. U.S. Att’y Gen., 764 F.3d 1282 (11th Cir. 2014) (review jurisdiction where success would not affect BIA judgment is improper)