Sergio Mencia-Medina v. Merrick B. Garland

United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1724 ___________________________ Sergio Naun Mencia-Medina, lllllllllllllllllllllPetitioner, v. Merrick B. Garland, Attorney General, lllllllllllllllllllllRespondent.* ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: February 17, 2021 Filed: July 29, 2021 ____________ Before COLLOTON, BENTON, and KELLY, Circuit Judges. ____________ COLLOTON, Circuit Judge. Sergio Mencia-Medina petitions for review of a decision by the Board of Immigration Appeals. The Board concluded that he was removable, and denied his * Attorney General Garland is automatically substituted as respondent under Federal Rule of Appellate Procedure 43(c)(2). request for a form of cancellation of removal available to children who have been battered by parents who are lawful permanent residents. See 8 U.S.C. § 1229b(b)(2). We deny the petition for review. I. Mencia-Medina is a native and citizen of Honduras. He entered the United States as a child with his mother in May 2001. Later that month, the former Immigration and Naturalization Service charged Mencia-Medina as removable because he was present in the country without admission. See 8 U.S.C. § 1182(a)(6)(A)(i). Mencia-Medina did not appear at the removal proceedings, and the immigration court in El Paso, Texas, ordered him removed in absentia in July 2001. Mencia-Medina and his mother traveled to New Jersey to live with his father. He presented evidence that his parents neglected and abused him. He was placed in foster care for a time, but returned to his parents. After his parents separated, Mencia-Medina moved to Minnesota with his mother, and she later became a lawful permanent resident. In 2015, Mencia-Medina fathered a child with a woman who is now his ex- girlfriend. He was charged with sexual misconduct because the woman was underage, but the charge was dismissed. In January 2016, while Mencia-Medina was visiting the home of his ex-girlfriend’s mother, the girl’s step-father allegedly attacked him. The two men fought, and Mencia-Medina retrieved a samurai sword from his car. Mencia-Medina then followed the step-father into the house, but ultimately gave up the sword without striking the man. Based on this incident, Mencia-Medina was convicted in Minnesota of making threats of violence. See Minn. Stat. § 609.713.1. -2- In early 2019, Mencia-Medina moved the immigration court in El Paso to vacate and reopen his 2001 in absentia removal order, and to transfer venue for the reopened proceedings to Minnesota. The court granted those motions. In the reopened proceedings, Mencia-Medina conceded that he was removable as charged, but applied for discretionary “special rule” cancellation of removal that is available to a child who has been battered by a permanent resident parent. See 8 U.S.C. § 1229b(b)(2). The immigration judge granted Mencia-Medina’s application for cancellation of removal. The Department of Homeland Security appealed that decision, and the Board reversed on the ground that Mencia-Medina did not deserve a favorable exercise of discretion. Mencia-Medina timely petitioned this court for review. II. A. Mencia-Medina first contends that the Board exceeded the permissible scope of review of the immigration judge’s decision …

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