Petitioners Benito Castellanos Garcia and Zenaida Fentanes Munoz, natives of Mexico, sought asylum, withholding of removal, and cancellation of removal after an Immigration Judge denied their claims. The Immigration Judge acknowledged that the petitioners had not filed their asylum application within one year of entry but independently considered their testimony regarding changed circumstances, specifically a fear of returning to Mexico after their children were born. The Board of Immigration Appeals affirmed the denial, citing Matter of Burbano, but noted that the petitioners conceded ineligibility for asylum due to the one-year bar without addressing the merits of their changed circumstances argument. The petitioners then sought review in the Ninth Circuit, also challenging the denial of their motion to reopen proceedings.
The panel began by addressing the scope of review regarding the asylum claim. While the BIA's citation of Matter of Burbano typically requires the court to review the Immigration Judge's decision on the merits, the BIA here specifically noted that the petitioners conceded ineligibility for asylum without addressing the merits. The court concluded it did not need to decide if the issue was exhausted because the BIA correctly found the argument waived. Furthermore, the court found substantial evidence supported the Immigration Judge's conclusion that the petitioners failed to establish changed or extraordinary circumstances. The petitioners' youngest child was born in 2001, yet they applied for asylum in 2017; the court held that the proffered rationale could not support such a significant delay. Regarding withholding of removal, the court applied the substantial evidence standard. The petitioners proposed 'returning Mexicans who have lived in the United States' as a particular social group. The court affirmed the agency's finding that this group is too broad to be cognizable under existing precedent, noting that additional qualifiers did not meaningfully address the overbreadth. For cancellation of removal, the court reviewed the agency's determination of statutory eligibility requirements for substantial evidence. The petitioners' children were all above the age of majority, healthy, and academically successful. The court found substantial evidence supported the agency's conclusion that the record did not establish that removal would result in exceptional and extremely unusual hardship to their United States citizen children.
The petition for review is denied, meaning the Immigration Judge's and BIA's orders denying asylum, withholding of removal, and cancellation of removal remain in effect. The petitioners' claims for relief are effectively closed unless they can file a new motion to reopen based on changed circumstances that were not previously available, though the court noted the motion to reopen was properly denied because the petitioners failed to establish a prima facie case for the underlying relief. A temporary stay of removal remains in place until the mandate issues.
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