Carlos Enrique Urrutia Robles v. Merrick B. GarlandCarlos Enrique Urrutia Robles v. Merrick B. Garland
Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
The Department of Homeland Security (DHS) placed Carlos Enrique Urrutia Robles in removal proceedings following his arrest for injuring a pedestrian while driving under the influence. Urrutia conceded removability and applied for exercise of the Attorney General‘s discretion to grant cancellation of removal. See
Urrutia petitioned for review of both BIA orders. We deniеd the petition, concluding that we lacked jurisdiction to overturn the BIA‘s initial discretionary decision, and that the BIA did not abuse its discretion in denying Urrutia‘s motion to reopen. Urrutia Robles v. Barr, 940 F.3d 420, 424 (8th Cir. 2019) (Urrutia I), cert. denied, 141 S. Ct. 1047 (2021). Nearly three months after we decided Urrutia I, Urrutia filed a second motion with the BIA to reopen the proceedings, arguing that newly discovered evidence warranted reopening and that his due diligence and extraordinary circumstances “should compel statutory tolling of the time and number limits” on motions to reopen. See
[w]e balanced the respondent‘s equities and negative fаctors before concluding that he did not warrant discretionary relief, given his repeated driving under the influence (“DUI“) offenses, including a 2017 accident resulting in a pedestrian suffering a traumatic brain injury and fractured leg.
Stating that it “considered both of [Urrutia‘s] filings in our decision,” the BIA concluded (i) Urrutia “has not demonstrated that an exception to the time and number limits applies“; (ii) because “the supplemental evidence is not likely to change the outcome of the proceedings, it does not warrant a new hearing“; and (iii) Urrutia “has not established an exceptional situation warranting sua sponte reopening” under
Motions to reopen removal proceedings are disfavored because there is a “strong public interest” in litigation finality. Urrutia I, 940 F.3d at 423, quoting Gebremaria v. Ashcroft, 378 F.3d 734, 737 (8th Cir. 2004). Reflecting that disfavor, Congress in the Immigration and Nationality Act has imposed both number and time limitations on motions to reopen: in a removal proceeding, a petitioner may file оne motion to reopen proceedings which generally must be filed within 90 days of the final administrative order of removal. See
Equitable
Urrutia‘s primary argument to this court is that, because the BIA‘s three-paragraph decision failed to assess or even acknowledge his core claim that the time and number limitations should be equitably tolled, “Eighth Circuit precedent requires remand,” citing Ortega-Marroquin v. Holder, 640 F.3d 814, 820 (8th Cir. 2011). But Urrutia misreads this decision. Ortega petitioned for review of a BIA decision vacating its prior sua sponte order granting Ortega‘s untimely motion to reopen as contrary to the “departure bar” regulation found in
Here, other than cоrrectly noting that Urrutia “has not demonstrated that an exception to the time and number limits applies,” the BIA did not address his claim that equitable tolling excuses his failure to comрly with those limits. But the BIA did not need to address the issue. There are at least three independent grounds on which the BIA may deny a motion to reopen -- failure to establish a prima facie case for the relief sought; failure to introduce previously unavailable, material evidence; or, “in cases in which the ultimate grant of relief is discretionary . . . thе BIA may leap ahead, as it were . . . and simply determine that even if [the first two concerns were met], the movant would not be entitled to the discretionary grant of relief.” INS v. Abudu, 485 U.S. 94, 104-05 (1988); see generally Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992).
Here, the BIA concluded that the supplemental evidence Urrutia offered in support of his second motion to reopen “is not likely to change the outcome of thе proceedings,”
In Robles I, we noted that we lacked jurisdiction to review the initial discretionary dеcision; we assumed without deciding we had jurisdiction to review the denial of Urrutia‘s first motion to reopen for abuse of discretion; and we denied the petition for review of thаt decision. We explained that Urrutia had urged the BIA to remand for consideration of “stronger evidence of rehabilitation to support his initial claim for discretionary relief,” and the BIA denied the motion because he “failed to satisfy his burden to show that this new evidence ‘would likely change the result in the case.‘” Id. at 423.
As the BIA concluded, the same anаlysis applies to Urrutia‘s second motion to reopen. In support of this motion, Urrutia offered further evidence he has been “rehabilitated” from his alcohol problems, including a state court order discharging him from probation and criminal supervision, and expert medical opinion that subjecting Urrutia‘s daughter to a third separation from her fаther “should be expected to result in dangerous levels of toxic stress.” This was cumulative evidence, not a completely new basis for seeking cancellation of removal, as Urrutia had argued rehabilitation and harm-to-his-children from the outset of the proceedings. See Urrutia I, 940 F.3d at 422. In denying the motion on this ground, the BIA followed its established policy by considering additional evidence and concluding it would not likely change the result in this case -- denial of discretionary cancellation-of-removal relief. See Vargas v. Holder, 567 F.3d 387, 390-91 (8th Cir. 2009). Urrutia arguеs the BIA failed to consider his statutory eligibility for relief, in other words, that he made a prima facie case for relief. But here, the BIA leaped ahead of the eligibility issue, consistent with Abudu, and determined that the evidence Urrutia presented did not entitle him to a discretionary grant of relief. The BIA “has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”
Urrutia further argues the BIA abusеd its discretion in declining to reopen proceedings sua sponte based on his showing of exceptional circumstances. We cannot consider this issue absent a “сolorable constitutional claim.” Vue v. Barr, 953 F.3d 1054, 1057 (8th Cir. 2020); see Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008) (en banc). Urrutia argues the BIA decision deprived him of a constitutionally protected liberty interest. This contention is without merit. See Baker White v. Wilkinson, 990 F.3d 600, 605 (8th Cir. 2021); Sanchez-Velasco v. Holder, 593 F.3d 733, 737 (8th Cir. 2010) (“aliens have no right to due process in the purely discretionary remedy of cancellation of removal“).
For the foregoing reasons, we deny the petition for review.