Alzainati v. Holder

FILED
United States Court of Appeals
Tenth Circuit

June 17, 2009
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

FOR THE TENTH CIRCUIT

KHALED FM ALZAINATI,

Petitioner,
No. 07-9565
v.

ERIC H. HOLDER, JR., *
United States Attorney General,

Respondent.

APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
PETITION FOR REVIEW

Submitted on the briefs: **

Daniel F. Boyle, Denver, Colorado, for Petitioner.

Mark C. Walters, Assistant Director, Joanne E. Johnson, Attorney, Department of
Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for
Respondent.

Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.

*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Alberto R. Gonzales as the respondent in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
O’BRIEN, Circuit Judge.

Khaled FM Alzainati petitions for review of an order of the Board of

Immigration Appeals (BIA or Board) denying his motion to reopen. We dismiss

the petition in part for lack of jurisdiction and deny the petition in part.

Background

Alzainati is a native and citizen of Jordan. Accompanied by his wife and

two sons, he entered the United States in 1991 with a B-2 visitor visa authorizing

a six-month stay. He never left. A third son, Jawad, was born later that year; he

is a United States citizen.

In 2003, the Department of Homeland Security sought to remove Alzainati

for overstaying his visa. See 8 U.S.C. § 1227(a)(1)(B). He filed an application

for cancellation of removal and appeared before an immigration judge (IJ) in 2005

for a merits hearing. He conceded removability as charged but argued for

cancellation pursuant to 8 U.S.C. § 1229b(b)(1), which required him to show,

among other things, that his removal would cause “exceptional and extremely

unusual hardship” to a qualifying relative. Id. § 1229b(b)(1)(D) 1 Specifically,

1
The statute also requires an alien to establish ten years of continuous
physical presence in the United States, good moral character during that time, and
no conviction of enumerated offenses. See 8 U.S.C. § 1229b(b)(1)(A)-(C). The
IJ concluded Alzainati had met the first two of these requirements but made no
explicit finding as to the third. In any event, these additional requirements are
(continued...)

-2-
Alzainati contended Jawad, an excellent student, would have difficulty adapting

to life in Jordan because he lacked Arabic language skills, having missed the

eight or nine years of Arabic-language public education typical of students his

age. Also, as an English-speaking American citizen, he would likely encounter

anti-American sentiment. Alzainati also claimed if he was removed to Jordan, it

would be difficult to find eye care for Jawad’s nearsightedness and to obtain

medications for Jawad’s recurrent skin rashes. Even if such care and medications

were available, he said he would be unable to afford them because at his age (then

fifty-two), it would be difficult to find work.

The IJ denied relief, concluding Alzainati had not sustained his burden of

showing exceptional and extremely unusual hardship to Jawad. The IJ considered

the language-based difficulties Jawad might encounter if he accompanied his

father to Jordan to be typical of minors in similar situations, and there was no

evidence of Alzainati’s claimed inability to obtain or afford treatment for Jawad’s

medical conditions.

The BIA summarily affirmed the IJ’s decision. Alzainati did not petition

for review of the BIA’s decision. Instead, he filed a motion to remand, which the

BIA treated as a motion to reopen. 2 According to Alzainati, since the IJ’s

1
(...continued)
not at issue.
2
A motion styled as a request for remand remains, in substance, a motion to
(continued...)

-3-
decision and the BIA’s affirmance, Jawad had become depressed with suicidal

ideations and his grades had gone down. In support of the motion, he submitted a

psychologist’s assessment concluding, among other things, the prospect of his

father’s deportation had significantly increased a previously diagnosed

“adjustment disorder with anxiety and depressive features” such that Jawad was

“in need of ongoing mental health care, a medications consultation, and active

monitoring for suicidal ideation.” Admin. R. at 47-48. He also submitted

comparative documentation of Jawad’s academic performance before and after the

agency’s decisions.

The BIA considered most of the evidence new and previously unavailable,

but found it was “insufficient to establish that reopening was warranted” because

it was unlikely Alzainati would be able to establish the requisite level of hardship

required for cancellation. Id. at 2. According to the BIA the new evidence did

not indicate Jawad was “currently attending counseling sessions with a medical

professional or taking any medication for his condition.” Id. at 3. The new

evidence also “failed to establish that [Jawad’s] mental health needs could not be

adequately addressed by the health care system in Jordan.” Id. at 3. Accordingly,

2
(...continued)
reopen. In re L-V-K, 22 I. & N. Dec. 976, 978 (BIA 1999). A motion to reopen
seeks to present evidence that “is material and was not available and could not
have been discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1).

-4-
the BIA concluded Alzainati had not met the “heavy burden” necessary to prevail

on his motion and denied it. Id. This petition for review followed.

Discussion

The Attorney General concedes this court’s jurisdiction to consider a

constitutional claim or a question of law under 8 U.S.C. § 1252(a)(2)(D) (a

provision enacted by the REAL ID Act of 2005, Pub. L. No. 109-13, § 106,

119 Stat. 231, 310), but maintains any such claim or question lacks merit. He

also contends, citing 8 U.S.C. § 1252(a)(2)(B)(I), this court lacks jurisdiction

over Alzainati’s petition to the extent it challenges the BIA’s decision that the

“exceptional and extremely unusual hardship” required by § 1229b(b)(1)(D)

would unlikely be established if the motion to reopen were granted. We agree

with both points.

Our jurisdictional analysis begins with the underlying removal order.

Congress explicitly withdrew appellate review of decisions regarding, among

other things (and subject to the REAL ID Act exception), cancellation of removal

under § 1229b:

Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and
except as provided in subparagraph (D), and regardless of whether
the judgment, decision, or action is made in removal proceedings, no
court shall have jurisdiction to review--

-5-
 (I) any judgment regarding the granting of relief under
section 1182(h), 1182(I), 1229b, 1229c, or 1255 of this
title[.]

8 U.S.C. § 1252(a)(2)(B)(I) (emphasis added). Not all judgments regarding

cancellation under § 1229b are subject to the jurisdictional bar. See Sabido

Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005) (explaining that

§ 1252(a)(2)(B) “prohibit[s] review only of those ‘judgments’ [under § 1229b]

that are discretionary in nature”). But the IJ denied cancellation of removal

because Alzainati had not established that removal would result in exceptional

and extremely unusual hardship to Jawad. The BIA summarily affirmed. That

hardship determination involved an exercise of discretion insulated from our

review under § 1252(a)(2)(B)(I). See Morales Ventura v. Ashcroft, 348 F.3d

1259, 1262 (10th Cir. 2003). Apparently recognizing the limits of judicial

oversight, Alzainati did not petition for review of the BIA’s decision. Instead he

sought to remand (reopen) and has appealed from the denial.

We must decide if Alzainati can indirectly obtain judicial review of a

discretionary ruling that is not directly reviewable. With that in mind we look at

the BIA’s denial of the motion to reopen in light of the jurisdictional bar of

§ 1252(a)(2)(B)(I). 3 We have said the denial of a motion to reopen “is considered

3
The Attorney General relies on Perales-Cumpean v. Gonzales, 429 F.3d
977, 982 (10th Cir. 2005), for the proposition that § 1252(a)(2)(B)(I) precludes us
from “‘reviewing decisions under § 1229b that involve the exercise of the
agency’s discretion,’ except where a constitutional claim or question of law is
(continued...)

-6-
a final, separately appealable order.” Infanzon v. Ashcroft, 386 F.3d 1359, 1361

(10th Cir. 2004). In Infanzon, we also said “[o]nly where judicial review of the

underlying order is precluded is [review of the] denial of a subsequent motion to

reopen also precluded.” Id. at 1362. But in Infanzon, § 1252(a)(2)(B)(I) was not

at issue, as the underlying removal order concerned the denial of asylum and

withholding of removal, forms of relief not enumerated in that provision. Instead,

we considered the broader companion provision, § 1252(a)(2)(B)(ii), which bars

jurisdiction over any “decision or action of the Attorney General . . . the authority

for which is specified . . . to be in the discretion of the Attorney General.” We

concluded § 1252(a)(2)(B)(ii) did not deprive us of jurisdiction to review the

denial of a motion to reopen where the alien sought to submit pertinent evidence

not previously available, allegedly due to ineffective assistance of counsel. 4

3
(...continued)
raised.” Resp. Br. at 8. Perales-Cumpean, however, did not concern the denial of
a motion to reopen, so, while relevant, it does not sufficiently inform our
analysis. The Attorney General also relies on several cases from other circuits
holding a court lacks jurisdiction to review the denial of a motion to reopen where
the court lacked jurisdiction to review the underlying order of removal if the
removal decision involved a discretionary determination. See id. at 9, n.4. Our
ensuing discussion addresses the jurisdictional relationship between underlying
orders and motions to reopen.
4
We pause to note and clarify an apparent inconsistency in Infanzon. In
Infanzon, we first concluded that we lacked jurisdiction to review the denial of an
underlying removal order because the petition for review was untimely. 386 F.3d
at 1361. We next determined we had jurisdiction to review the denial of a motion
to reopen because such motions are “separately authorized by 8 U.S.C.
§ 1229a(c)(6) (describing requirements for motion to reopen), as further
(continued...)

-7-
 With respect to § 1252(a)(2)(B)(I) and motions to reopen, a proper

jurisdictional analysis must consider the basis for the denial of the motion to

reopen. The jurisdictional bar § 1252(a)(2)(B)(I) raises on judicial review of

discretionary decisions enumerated in that statute is, standing alone, an

insufficient basis to preclude review of the denial of a subsequent motion to

reopen. Rather, like a number of our sister circuits, we embrace a more narrow

holding. Because § 1252(a)(2)(B)(I) precludes our review of an “exceptional and

extremely unusual hardship” determination under § 1229b(b)(1)(D), it also

precludes our jurisdiction to review the BIA’s denial of a motion to reopen

because the alien still has failed to show the requisite hardship. See Parvez v.

Keisler, 506 F.3d 93, 96 (1st Cir. 2007); Fernandez v. Gonzales, 439 F.3d 592,

603 (9th Cir. 2006) 5; Martinez-Maldonado v. Gonzales, 437 F.3d 679, 682-83

4
(...continued)
explicated by 8 C.F.R. § 1003.2(c).” Id. We then stated, “Only where judicial
review of the underlying order is precluded is [review of the] denial of a
subsequent motion to reopen also precluded.” Id. at 1362. Thus it may appear we
violated this precept by exerting jurisdiction to review the denial of the motion to
reopen even though we lacked jurisdiction over the denial of the underlying
removal order because the petition for review was untimely. But we read
Infanzon as standing for the proposition that we lack jurisdiction over motions to
reopen when jurisdiction over the underlying removal order is precluded by
statute rather than by the failure to file a timely petition for review of the
underlying removal order. See id. (relying on cases holding that statutory
withdrawal of jurisdiction over underlying removal orders barred review of
motions to reopen). As we have explained, there was not a statutory bar in
Infanzon, but there is one here.
5
In Fernandez, the Ninth Circuit identified an exception to the jurisdictional
(continued...)

-8-
(7th Cir. 2006) 6; Obioha v. Gonzales, 431 F.3d 400, 405-08 (4th Cir. 2005); see

also Ruiz-Martinez v. Mukasey, 516 F.3d 102, 121-22 (2d Cir. 2008) (concerning

extreme hardship necessary for suspension of deportation, the statutory

predecessor to cancellation); Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir.

2001) (per curiam) (same, under the transitional rules).

In contrast to where the BIA denies a motion to reopen on the merits of a

previously-considered hardship issue, some other circuit courts have concluded

5
(...continued)
bar to review of the denial of a motion to reopen because the alien still has not
established hardship: “[w]here the relief sought is formally the same as was
previously denied but the evidence submitted with a motion to reopen is directed
at a different basis for providing the same relief,” that is, where the evidence is
“not cumulative.” 439 F.3d at 601. The court gave one example of such a
motion—where the new evidence pertains to “a newly-discovered, life-threatening
medical condition afflicting a qualifying relative.” Id. at 601-02. The court
rationalized this exception as a “safety valve that ensures that the agency at least
considers new information, even if its ultimate and unreviewable judgment denies
the relief sought.” Id. at 602 (quotation and ellipsis omitted). As we read this
exception, it is jurisdictionally indistinguishable from § 1252(a)(2)(D), the REAL
ID Act exception identified in § 1252(a)(2)(B)(I), which likewise permits us to
review a due process claim that the BIA failed to consider new evidence en route
to issuing an otherwise unreviewable, discretionary judgment. See Hanan v.
Mukasey, 519 F.3d 760, 764 (8th Cir. 2008) (“Because an allegation of wholesale
failure to consider evidence implicates due process, we have jurisdiction [under
the REAL ID Act] to review this constitutional question.”). We therefore decline
to apply the Fernandez exception in this case.
6
We note that the Seventh Circuit has since taken an even narrower view of
jurisdiction over review of decisions on motions to reopen, that
§ 1252(a)(2)(B)(ii) bars such review except “to the extent provided by
§ 1252(a)(2)(D).” Kucana v. Mukasey, 533 F.3d 534, (7th Cir. 2008), cert.
granted sub nom. Kucana v. Holder, 129 S. Ct. 2075 (Apr. 27, 2009). This view
is contrary to our holding in Infanzon, 386 F.3d at 1361, by which we are bound.

-9-
§ 1252(a)(2)(B)(I) does not preclude limited judicial review when the BIA denies

a motion to reopen a cancellation case on a procedural ground, such as the failure

to exercise an adequate opportunity to pursue the requested relief before the IJ,

Obioha, 431 F.3d at 407; filing a deficient motion to reopen, id.; or failing to

introduce previously unavailable, material evidence, Manzano-Garcia v.

Gonzales, 413 F.3d 462, 468-69 (5th Cir. 2005). This distinction further supports

the jurisdictional significance, for § 1252(a)(2)(B)(I) purposes, of the ground on

which the BIA bases its denial of a motion to reopen.

The proposition can be stated rather simply. If the BIA decides, in an

exercise of agency discretion, an alien has not produced sufficient evidence to

warrant a finding of exceptional and extremely unusual hardship, we cannot

review that decision. However, if, in deciding a motion to reopen, the BIA

refuses, contrary to established procedures, to consider new and pertinent

evidence, due process rights are implicated. Then we exercise limited jurisdiction

to review the propriety of the BIA’s failure to consider the evidence and, in an

appropriate case, can require consideration of the evidence. That does not mean

we can dictate, or even review, the merits of the subsequent decision, if it

considered all appropriate evidence. But if, in deciding a motion to reopen the

BIA credits and considers the new evidence submitted in support of the motion

and determines the alien would still not be entitled to a finding of exceptional and

extremely unusual hardship, we cannot review that merits decision even if it takes

-10-
the form of a denial of a motion to reopen. To hold otherwise would merely be a

time-consuming and expensive exercise in formalism. Requiring the agency to

hold a hearing “just for drill” is unnecessary and unwarranted. At most we can

require the agency to fairly consider appropriate evidence. We have no license to

dictate the method such consideration must take.

Applying the foregoing, we conclude that our jurisdiction to review the

BIA’s denial of Alzainati’s motion to reopen is constrained by § 1252(a)(2)(B)(i).

The BIA’s denial of the motion to reopen was, like the underlying order of

removal, based on the merits of the hardship issue, which is a discretionary

determination. Accordingly, § 1252(a)(2)(B)(I) precludes our review of the

BIA’s denial of the motion to reopen unless the exception identified in

§ 1252(a)(2)(B), namely, § 1252(a)(2)(D), applies. That section permits judicial

review of constitutional claims and questions of law. 7 It provides:

Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D).

7
We do not address whether § 1252(a)(2)(B)(I) precludes our jurisdiction to
review the BIA’s denial of a motion to reopen on the ground that the new
evidence is unlikely to establish extreme hardship where there has been no
underlying discretionary decision regarding cancellation.

-11-
 As we have construed this provision, we retain jurisdiction to review

constitutional claims and questions of law involving statutory construction. See

Diallo v. Gonzales, 447 F.3d 1274, 1281-82 (10th Cir. 2006). “However,

challenges directed solely at the agency’s discretionary and factual determinations

remain outside the scope of judicial review.” Id. at 1281. Our task, then, is to

determine whether Alzainati has raised constitutional claims or questions of law

within the meaning of § 1252(a)(2)(D), taking into consideration that “[a]n alien

does not present a colorable constitutional claim capable of avoiding the

jurisdictional bar by arguing that the evidence was incorrectly weighed,

insufficiently considered, or supports a different outcome.” Kechkar v. Gonzales,

500 F.3d 1080, 1084 (10th Cir. 2007). We review any valid constitutional claims

or questions of law de novo. Torres de la Cruz v. Maurer, 483 F.3d 1013, 1019

(10th Cir. 2007).

Although Alzainati listed five issues for review in his brief, 8 his arguments

are, for the most part, not specifically tied to them. The first point assumes the

new evidence is so alarming that, had it been available prior to the removal

8
Those issues are: (1) “Did the BIA err in failing to reopen and remand the
case for further evidence on hardship that would accrue to [Jawad]?”; (2) “Did the
Board fail to adequately consider evidence from a forensic psychologist that
[Jawad] [w]as depressed and suicidal about his father’s removal?”; (3) “Did the
BIA err in finding that [Jawad] would go to Jordan with his father, given that
there was no evidence in the records to support this assertion?”; (4) “Did the
Board follow precedent case law and statutory regulations in rendering their
decision?”; and (5) “Did the Board’s action violate the . . . right [of Alzainati and
Jawad] to procedural and substantive due process?” Pet’r’s Br. at 8.

-12-
hearing, the IJ likely would have found the requisite hardship. This, however, is

simply a weight-of-the-evidence argument, which does not state a colorable

constitutional claim, see Kechkar, 500 F.3d at 1084, but instead falls within the

jurisdictional bar of § 1252(a)(2)(B)(I). 9

As we read the remainder of Alzainati’s brief, he presents three other

contentions facially premised on due process. In considering those contentions,

we are mindful that “cancellation of removal is not a liberty or property interest.”

Torres de la Cruz, 483 F.3d at 1020. Thus, “[a]n alien in removal proceedings is

entitled only to the Fifth Amendment guarantee of fundamental fairness,” or in

other words, “only to procedural due process, which provides the opportunity to

be heard at a meaningful time and in a meaningful manner.” Schroeck v.

Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (quotations omitted). To prevail on

a due process claim, an alien must establish not only error, but prejudice.

Berrum-Garcia v. Comfort, 390 F.3d 1158, 1165 (10th Cir. 2004).

Alzainati first argues the BIA’s failure to consider or address Jawad’s

school records is a due process violation. We have jurisdiction under

§ 1252(a)(2)(D) to review the first aspect of this argument “[b]ecause an

allegation of wholesale failure to consider evidence implicates due process.”

9
Alzainati suggests he now has additional evidence of Jawad’s treatment but
no way to present it here. His path to relief, if any, does not run through this
court. See, e.g., 8 C.F.R. § 1003.2(c)(3)(iii) (permitting a second motion to
reopen if it is “[a]greed upon by all parties and jointly filed”).

-13-
Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008). While the BIA did not

expressly refer to the school records in its decision, it noted “the majority of the

documentation” was “new and previously unavailable.” Admin. R. at 2. Because

the new evidence consisted only of two exhibits—approximately twenty-seven

pages of school records and the psychologist’s three-page evaluation—the BIA’s

reference to “the majority of the documentation” allays any constitutional concern

we might have that the BIA wholly failed to consider the school records. The

second aspect of this argument, that the BIA violated due process by not

addressing the school records in its order, is just a quarrel about the level of detail

required in the BIA’s analysis, not a colorable due process claim. See Kechkar,

500 F.3d at 1080 (explaining that sufficiency-of-consideration arguments are not

constitutional claims); see also Mehilli v. Gonzales, 433 F.3d 86, 94 (1st Cir.

2005) (holding that an argument that an IJ failed to explicitly consider certain

evidence was properly viewed as a claim that substantial evidence did not support

the IJ’s credibility finding rather than as a constitutional challenge).

Next, Alzainati takes issue with the length of the BIA’s substantive

discussion (“a mere three (3) paragraphs,” Pet’r’s Br. at 16), contending it

amounts to a failure by the BIA to adequately articulate its reasoning and,

therefore, is an abuse of discretion. But Alzainati has not explained how the

length of the decision is determinative of its adequacy, much less of constitutional

-14-
adequacy required by fundamental fairness, and we fail to see the connection

here. Accordingly, he has not stated a colorable constitutional claim.

The third and final argument we discern lies in connection with the BIA’s

determination that Alzainati had not shown the mental health treatment available

in Jordan is inadequate. The argument posits: the BIA assumed Jawad would

accompany his father to Jordan upon Alzainati’s removal, and the assumption was

erroneous because Jawad is a United States citizen and entitled to remain in the

United States. This challenge to a factual assumption, however, cannot be recast

as a constitutional claim falling under the jurisdictional safe-harbor of

§ 1252(a)(2)(D). Jarbough v. Att‘y Gen. of U.S., 483 F.3d 184, 190 (3d Cir.

2007); see also Kechkar, 500 F.3d at 1084 (explaining that arguments “that the

evidence was incorrectly weighed, insufficiently considered, or supports a

different outcome” do not raise a colorable constitutional claim). Moreover, this

argument is disingenuous because Alzainati argued before the IJ that there was

inadequate health care in Jordan with respect to Jawad’s nearsightedness and skin

rashes, a position dependent on Jawad moving with him to Jordan. Thus, in

denying the motion to reopen, the BIA was within its rights to assume Jawad

would accompany his father to Jordan when it noted Alzainati’s failure to

demonstrate inadequate mental health care there. Further, the argument is

self-defeating—if Jawad remains in the United States, adequate mental health

care is available.

-15-
 Conclusion

For the reasons set forth above, the petition for review is dismissed in part

for lack of jurisdiction and denied in part.

-16-