United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-3770 ___________________________ Jose Frederico Llanas-Trejo lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General for the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: May 11, 2022 Filed: November 16, 2022 ____________ Before ERICKSON, MELLOY, and KOBES, Circuit Judges. ____________ MELLOY, Circuit Judge. Jose Frederico Llanas-Trejo 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. See 8 U.S.C. § 1229b(b)(1)(D). 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 timing of various underlying decisions in the present case, the substantive content of those rulings, and the timing of precedent later cited by the BIA merit comment. Ultimately, however, we deny the petition for review. I. Background Llanas-Trejo entered the United States in 1996, was convicted for a DUI offense in 1998, and was subsequently removed. He re-entered the United States illegally in 1999. In 2012, he was again convicted for a DUI offense, and the government initiated removal proceedings. In 2013, during an IJ hearing, he conceded removability but sought cancellation of removal based on hardship to his three United States citizen children. In June 2016, the IJ administratively closed the removal proceedings pursuant to a grant of prosecutorial discretion. The next month, in July 2016, Llanas-Trejo was again arrested for driving under the influence. He was later convicted on a resulting DUI charge. As a result, the government reopened his removal proceedings. IJ hearings took place in September and October 2018 during which the government presented arguments to contest the issue of hardship. The government, however, expressly informed the IJ that it would not be presenting arguments as to whether the DUI offenses demonstrated a lack of good moral character. The government’s concession notwithstanding, Llanas-Trejo submitted evidence in the form of affidavits from his employer, members of his church, and others attesting to his good moral character. In an October 5, 2018 oral decision, the IJ made an express finding that Llanas- Trejo satisfied the good moral character requirement. The IJ also found that his removal would cause hardship to his United States citizen children but that such hardship would not satisfy the applicable standard of exceptional and extremely unusual hardship. Based on this hardship determination, the IJ denied relief. -2- Llanas-Trejo timely appealed the IJ’s decision to the BIA, but briefing progressed slowly. Separately, in August 2019, the Attorney General held in a different case that multiple DUI convictions create a rebuttable presumption that an applicant for a hardship-based cancellation of removal lacks good moral character. See Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019). To overcome this presumption, a petitioner must show “substantial relevant and credible contrary evidence” to demonstrate “that the multiple convictions were an aberration.” Id. at 671. …
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