Ignacio Trejo-Gamez v. Merrick B. Garland, No. 21-3329 (8th Cir. 2023)
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The BIA denied Petitioner’s request for cancellation of removal based on the failure to show “exceptional and extremely unusual hardship” to his United States-citizen children. The BIA granted voluntary departure to Mexico. Petitioner then discovered evidence of substandard attorney performance by his attorney before the IJ and filed a timely motion to reopen, alleging ineffective assistance of counsel. Petitioner also submitted evidence obtained between the final order and the motion to reopen, asserting that two of his children suffered from emotional- and mental-health issues that could not be adequately addressed in Mexico. The BIA denied the motion to reopen, holding that even if counsel had been unprepared before the IJ, different counsel represented Petitioner in the initial appeal to the BIA.
The Eighth Circuit affirmed. The court found no abuse of discretion. The court explained that here, considering all of the evidence presented, the BIA rationally determined that the addition of the later-submitted evidence of emotional- and mental health issues failed to establish exceptional and extremely unusual hardship. The evidence demonstrated neither that the health issues were severe nor that treatment would be unavailable in Mexico. The BIA also rationally determined there had been no showing of prejudice associated with the claim of attorney ineffectiveness. Further, on appeal, Petitioner failed to articulate how the initial counsel’s failures affected the outcome.
Court Description: [Melloy, Author, with Colloton and Gruender, Circuit Judges] Petition for Review - Immigration. The court has authority to review the agency's denial of a motion to reopen following the underlying denial of cancellation of removal - see Llanas-Trejo v. Garland, 53 F.4th 458, 461-62 (8th Cir. 2022); the agency did not abuse its discretion by denying the motion to reopen. Judge Colloton, concurring.
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