Zacarias-Garcia v. Garland
20-9654
| 10th Cir. | Jul 8, 2021Background
- Jose Alfredo Zacarias-Garcia, a Mexican national, entered the U.S. unlawfully in 1999 and was served with a notice to appear in 2011.
- He conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D), alleging hardship to his two children.
- A merits hearing was held on May 21, 2018; Zacarias-Garcia was the sole witness and testified about family, residence, and work history.
- The immigration judge denied cancellation, finding Zacarias-Garcia failed to show "exceptional and extremely unusual hardship" to qualifying relatives, and granted voluntary departure.
- On appeal to the BIA, Zacarias-Garcia argued the IJ wrongly decided the case and failed to consider hardship evidence; the BIA dismissed the appeal, noting he failed to file a brief and that the notice of appeal did not meaningfully challenge the IJ’s findings.
- In this court Zacarias-Garcia raised a new due-process claim about an allegedly untranscribed merits hearing (though the record contained a transcript) and, in a reply brief, reiterated the merits challenge to the IJ’s hardship finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due-process claim based on unavailable/improper transcript | Zacarias-Garcia: hearing was not properly transcribed, denying due process | Respondent: issue not raised before BIA; record contains transcript | Dismissed for lack of jurisdiction due to failure to exhaust administrative remedies; BIA could have addressed transcript issue |
| Merits challenge to denial of cancellation (hardship) | Zacarias-Garcia: IJ erred in assessing evidence and denying cancellation | Respondent: discretionary hardship determination is not a reviewable question of law; argument was raised too late (reply brief) | Court declined to reach merits: first‑time reply argument not considered and discretionary hardship finding is not reviewable; no jurisdiction |
Key Cases Cited
- Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010) (exhaustion requires presenting same legal theory to the BIA before judicial review)
- Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008) (BIA could remedy procedural defects including transcript issues)
- McKenzie v. U.S. Citizenship & Immigr. Servs., 761 F.3d 1149 (10th Cir. 2014) (courts ordinarily will not consider arguments raised first in a reply brief)
- Galeano-Romero v. Barr, 968 F.3d 1176 (10th Cir. 2020) (discretionary determinations of "exceptional and extremely unusual hardship" are not reviewable questions of law)