Mario Avendano-Elvira v. Merrick B. Garland

United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-2775 ___________________________ Mario Avendano-Elvira Petitioner v. Merrick B. Garland,1 Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: April 14, 2021 Filed: July 21, 2021 ____________ Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges. ____________ SHEPHERD, Circuit Judge. Mario Avendano-Elvira, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (BIA) decision upholding the immigration judge’s (IJ) decision denying his request for cancellation of removal. We deny his petition for review. 1 Respondent Garland was automatically substituted for his predecessor pursuant to Fed. R. App. P. 43(c)(2). I. Avendano-Elvira entered the United States in 2004 without being lawfully admitted and lived in Missouri with his wife and two children. Avendano-Elvira also worked in Missouri, serving as the sole financial provider for his family while his wife worked in the home, helping the children with their speech disabilities. In May 2015, the Department of Homeland Security charged Avendano-Elvira with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (which defines as inadmissible a person present in the United States without being admitted or paroled) and issued a Notice to Appear to him. He admitted the factual allegations against him and conceded the charge contained in the Notice to Appear before requesting cancellation of removal, citing the impact that his removal would have on his family, particularly his two disabled children. Avendano-Elvira appeared before IJ Paula Davis for his initial hearing, then before IJ Susan Castro, who accepted his application for cancellation of removal, and then before IJ Denise Brown for a merits hearing. Avendano-Elvira and his wife testified at the merits hearing. His wife testified that if he were removed, she and the children would remain in the United States to maintain her Deferred Action for Childhood Arrivals, or “DACA,” status. When asked what effect Avendano- Elvira’s removal would have on the family, she testified that the children would experience significant behavioral changes and emotional hardship and that she would be required to seek work outside of the home, preventing her from assisting the children with their disabilities. Additionally, she testified that, even if employed, she would not be able to afford the family’s expenses absent Avendano-Elvira’s financial help. Avendano-Elvira also submitted letters from his sisters-in-law, mother-in-law, father-in-law, a colleague, and a friend, all of whom corroborated his good character. IJ Nancy Paul issued a written decision denying Avendano-Elvira’s request for cancellation of removal, explaining that IJ Brown was “no longer available to complete the decision” but that IJ Paul had “familiarized [her]self with the complete -2- record of proceeding” prior to issuing her decision. Avendano-Elvira appealed IJ Paul’s decision to the BIA, contending that the substitution of IJ Paul violated his due process rights and that IJ Paul erred by finding he had not established that a qualifying family member would suffer “exceptional and extremely unusual hardship” as a result of his removal. The …

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