Jose Llanas-Trejo v. Merrick B. Garland, No. 21-3770 (8th Cir. 2022)
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Petitioner moved for the BIA to reopen his cancellation of removal proceedings so he could present new evidence of alleged “exceptional and extremely unusual hardship” to his United States citizen children. The BIA denied his motion, finding he failed to demonstrate prima facie eligibility for relief as to the good moral character and hardship requirements.
The Eighth Circuit denied Petitioner’s petition for review. The court explained that the material question on the issue of hardship in a motion to reopen is whether the new evidence, if proven, would show an “exceptional and extremely unusual hardship” to Petitioner’s United States citizen children. Further, the court explained that a petitioner must demonstrate prima facie eligibility for relief as to all required elements to have their file reopened. Here, the court found no abuse of the BIA’s substantial discretion in the alternative ruling that Petitioner failed to rebut the Castillo-Perez presumption. The final DUI occurred approximately one month after an initial and informal exercise of discretion in Petitioner’s favor: the administrative closure his file in 2016. To overcome this presumption, a petitioner must show “substantial relevant and credible contrary evidence” to demonstrate “that the multiple convictions were an aberration.” Driving under the influence one month after the suspension of his initial removal proceedings does not suggest the unusual showing described in Castillo-Perez.
Court Description: [Melloy, Author, with Erickson and Kobes, Circuit Judges] Petition for Review - Immigration. The court has jurisdiction to review the denial of a motion to reopen for abuse of discretion; in considering the petitioner's motion to reopen on the issue of hardship, the agency erred in its analysis of the evidence of an injury to the mother of the petitioner's children, as her injury was relevant to the issue of the hardship the children would suffer if petitioner was removed; however, the agency did not err in determining that petitioner had failed to demonstrate prima facie eligibility for relief as he failed to overcome the presumption that an applicant for hardship with multiple DUI convictions lacks good moral character - see Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019); as a result, the BIA did not abuse its discretion in holding petitioner failed to make a prima facie showing of good moral character with the filing of his motion to reopen.
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