Sergio Gallardo-Davila v. Jefferson Sessions
680 F. App'x 624
| 9th Cir. | 2017Background
- Petitioner Sergio Gallardo-Davila, a Mexican national, sought cancellation of removal; the IJ denied relief and the BIA dismissed his appeal.
- Gallardo-Davila challenged the BIA’s hardship determination, alleging improper legal standard and factual findings.
- He also argued ineffective assistance of prior counsel and sought remand to apply for asylum based on new evidence.
- He raised a claim of being denied a fair hearing and sought referral to the court’s mediation program and favorable prosecutorial discretion.
- The BIA conducted a de novo review of hardship and declined to remand; the Ninth Circuit reviewed legal questions de novo and denial-of-remand for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for hardship determination | BIA used wrong (non-future-oriented) standard | BIA applied proper future-oriented standard | Held for BIA — correct future-oriented standard used |
| Factual findings by BIA | BIA engaged in improper factfinding | BIA’s findings supported by record | Held for BIA — contention unsupported by record |
| Remand for ineffective assistance of counsel | Prior counsel ineffective; request remand | No prejudice shown from alleged ineffective assistance | Denied — petitioner failed to show prejudice required to remand |
| Remand to apply for asylum/new evidence | New evidence would change outcome; request remand | New evidence unlikely to alter result | Denied — petitioner failed to show likely change of outcome |
| Fair hearing claim (exhaustion) | Hearing was unfair | Matter not exhausted before BIA | Dismissed for lack of jurisdiction due to non-exhaustion |
| Consideration of new evidence and prosecutorial discretion | Court should consider new evidence and exercise discretion | Judicial review limited to administrative record; lack jurisdiction over prosecutorial discretion | Court did not consider new evidence and declined jurisdiction over prosecutorial discretion; mediation request denied |
Key Cases Cited
- Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir.) (standard of review: de novo for legal questions, abuse of discretion for remand denials)
- Figueroa v. Mukasey, 543 F.3d 487 (9th Cir.) (articulates future-oriented hardship standard)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir.) (prejudice requirement for ineffective assistance claims)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir.) (standard for remand based on new evidence affecting outcome)
- Tijani v. Holder, 628 F.3d 1071 (9th Cir.) (exhaustion requirement bars jurisdiction over unexhausted claims)
- Dent v. Holder, 627 F.3d 365 (9th Cir.) (judicial review limited to administrative record)
- Vilchiz-Soto v. Holder, 688 F.3d 642 (9th Cir.) (courts lack jurisdiction to direct prosecutorial discretion)