FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANALILIA ARENAS DE GARCIA and
GELASIO GARCIA, No. 07-71182
Petitioners, Agency Nos.
v. A098-571-168
ERIC H. HOLDER Jr., Attorney A098-571-169
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued October 7, 2009
Submitted September 1, 2010
Pasadena, California
Filed September 1, 2010
Before: Harry Pregerson, Stephen Reinhardt and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt
13121
13124 DE GARCIA v. HOLDER
COUNSEL
Murray David Hilts; Michael Joseph Codner, San Diego, Cal-
ifornia, for petitioner Analilia Arenas de Garcia.
Murray David Hilts, San Diego, California, for petitioner
Gelasio Garcia.
Gregory G. Katsas, Acting Assistant Attorney General, Civil
Division; James A. Hurley, Attorney, Office of Immigration
Litigation; Anh-Thu P. Mai-Windle, Senior Litigation Coun-
sel, Office of Immigration Litigation; Mark Christopher Wal-
ters, Assistant Director, Office of Immigration Litigation;
Katherine Clark, Trial Attorney, Office of Immigration Liti-
gation, Washington, D.C., for the respondent.
OPINION
REINHARDT, Circuit Judge:
Analilia Arenas de Garcia and her husband, Gelasio Garcia
(“the Garcias”), petition for review of a BIA decision denying
their motion to reopen their removal proceedings. Some of the
evidence that the Garcias submitted with their motion to
reopen and with a subsequently filed “supplemental brief” in
support of their motion, was cumulative of evidence that they
had submitted during their hearing, and some was not. We
hold that, pursuant to Fernandez v. Gonzales, 439 F.3d 592
(9th Cir. 2006), we have jurisdiction to review the BIA’s deci-
sion to the extent that it pertains to the Garcias’ non-
cumulative evidence. Id. at 603. However, we lack jurisdic-
tion to review that decision insofar as it pertains to the cumu-
lative evidence, except to the extent that the Garcias raise a
question of law regarding the BIA’s treatment of that evi-
dence. See 8 U.S.C. § 1252(a)(2)(D) (preserving jurisdiction
over questions of law raised in petitions for review of removal
orders).
DE GARCIA v. HOLDER 13125
Reaching the merits of the Garcias’ claims, we deny the
petition in part and grant it in part. We hold that the BIA did
not abuse its discretion in concluding that the Garcias’ daugh-
ter’s new medical condition did not warrant reopening. How-
ever, the BIA erred by failing to exercise its discretion to
consider or decline to consider the Garcias’ supplemental
brief and the attached exhibit relating to a new medical condi-
tion allegedly incurred by Analilia’s mother. Accordingly, we
remand for further proceedings.
I. Factual and Procedural Background
Analilia Arenas De Garcia and Gelasio Garcia are natives
and citizens of Mexico. They entered the United States in
August 1989 and have lived in this country for more than
twenty years. They are each the children of lawful permanent
resident mothers and are together the parents of two U.S. citi-
zen daughters, Vanessa, born in 1990, and Mariela, born in
1992.
In December 2004, the Garcias contacted a Department of
Homeland Security office and requested cancellation of
removal. The Garcias were not at the time in removal pro-
ceedings. Immigration officials subsequently initiated
removal proceedings against them by serving them with
Notices to Appear, alleging that they were removable as
aliens present in the United States without being admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing before
an IJ, the Garcias conceded removability and sought cancella-
tion of removal. See 8 U.S.C. § 1229b(b). To be eligible for
cancellation, each had to show that, inter alia, his or her “re-
moval would result in exceptional and extremely unusual
hardship to [his or her] spouse, parent, or child, who is a citi-
zen of the United States or an alien lawfully admitted for per-
manent residence.” Id.
At their hearing, Analilia and Gelasio testified that they are
very close to their U.S. citizen daughters. They explained that
13126 DE GARCIA v. HOLDER
their family has never lived apart and that, if they were
ordered removed, their daughters would go with them. They
feared that their daughters, who have never been to Mexico
apart from a single trip to Tijuana, would have trouble adjust-
ing to life there. In particular, they were worried about the
diminished educational opportunities that their daughters
would face. In the United States, both girls were doing well
in school and were on track to go to college. Analilia and
Gelasio feared that the girls would have trouble succeeding
academically in Mexico, because English was their best lan-
guage, and neither could read or write in Spanish. Gelasio was
also concerned about the family’s economic prospects in
Mexico. Here, both he and Analilia worked full time. With
help from extended family, they were able to achieve a com-
fortable standard of living. In Mexico, Gelasio worked as a
subsistence farmer, a job that would not allow him to provide
well for his family.
Analilia and Gelasio also testified briefly about an eye con-
dition afflicting Mariela, which had required her to undergo
surgery about ten years earlier, and which necessitated trips
to the doctor every six months to a year to replace her glasses.
They further testified that Analilia cared for her lawful perma-
nent resident mother, who lived with them, and who suffered
from hypertension and high cholesterol. Finally, they testified
that most of their extended family members, with whom they
and their daughters were very close, lived in the United
States.
On December 19, 2005, the IJ denied the Garcias’ cancella-
tion applications on the ground that they had failed to estab-
lish the requisite hardship to a qualifying relative. He
acknowledged that Vanessa and Mariela would experience a
lower standard of living and reduced educational opportuni-
ties in Mexico, but found that this hardship was not “excep-
tional and extremely unusual.” He was also “not able to find
the requisite degree of hardship” to the Garcias’ lawful per-
manent mothers.
DE GARCIA v. HOLDER 13127
The Garcias appealed to the BIA; their initial brief to the
BIA, submitted on June 12, 2006, focused primarily on the
alleged educational and cultural hardships that their daughters
would face in Mexico. On August 25, 2006, the BIA adopted
and affirmed the IJ’s decision. On November 16, 2006, the
Garcias filed a timely motion to reopen. They asserted that
Mariela had developed “a severe keloid involving [her] right
external ear,” which could not be safely treated in Mexico.1
As evidence, they submitted two doctors’ notes diagnosing
Mariela and referring her to treatment and an investigative
news report documenting the risks of plastic surgery in Mex-
ico. On December 18, 2006, the Garcias filed a “motion to
accept supplemental brief” along with a document titled “sup-
plemental brief in support of motion to reopen.” The supple-
mental brief asserted that Analilia’s lawful permanent resident
mother had “developed several new medical conditions” sub-
sequent to the December 2005 hearing, namely, high cho-
lesterol and a “pre-cancerous condition in her cervix.”
Attached to the supplemental brief were two doctor’s reports
purporting to document these conditions, one relating to high
cholesterol and the other to the alleged cervical condition.2
However, the high cholesterol condition was in fact cumula-
tive of the high cholesterol condition testified to at the hear-
ing.
On February 28, 2007, the BIA denied the Garcias’ motion
to reopen. It found that the evidence of Mariela’s keloid con-
dition was not “likely [to] change the outcome on the issue of
whether the respondents have established exceptional and
extremely unusual hardship.” It said nothing about the Gar-
cias’ supplemental brief or evidence. The Garcias timely peti-
tioned this court for review.
1
A keloid is “a thick scar resulting from excessive growth of fibrous tis-
sue.” Merriam-Webster’s Medical Dictionary (2007).
2
The first doctor’s report, which discussed Analilia’s mother’s cho-
lesterol, may also contain evidence related to the condition of her cervix.
If so, that would in no way change anything in our analysis.
13128 DE GARCIA v. HOLDER
II. Jurisdiction
The government asserts that 8 U.S.C. § 1252(a)(2)(B)(i)
deprives us of jurisdiction to review the BIA’s denial of the
Garcia’s motion to reopen.3 That provision states:
Notwithstanding any other provision of law . . . and
except as provided in subparagraph (D), and regard-
less of whether the judgment, decision, or action is
made in removal proceedings, no court shall have
jurisdiction to review—
(i) any judgment regarding the granting of relief
under section . . . 1229b[, the cancellation of
removal provision] . . . .
8 U.S.C. § 1252(a)(2)(B).
In Fernandez v. Gonzalez, 439 F.3d 592 (9th Cir. 2006), we
addressed at length the question when a BIA decision on a
motion to reopen constitutes a “judgment regarding the grant-
ing of relief under section . . . 1229b” which, pursuant to
§ 1252(a)(2)(B)(i), we lack jurisdiction to review. The facts
and procedural posture of Fernandez are in some respects
similar to the facts and procedural posture of this case. Like
the Garcias, Fernandez applied for cancellation based on the
diminished educational opportunities and difficult cultural
adjustments that her U.S. citizen children would face if she
were removed. Fernandez, 439 F.3d at 595. The IJ denied her
application, and the BIA affirmed. Id. Fernandez then filed a
3
The Supreme Court recently issued an opinion interpreting clause (ii)
of § 1252(a)(2)(B). See Kucana v. Holder, 130 S.Ct. 827 (2010). The
Court held that § 1252(a)(2)(B)(ii) does not, as a general matter, preclude
jurisdiction over BIA decisions denying motions to reopen. In so holding,
the Court explicitly declined to reach the question we face here: whether
§ 1252(a)(2)(B)(i) precludes “review of a reopening denial . . . [in cases
in which the court] lack[s] jurisdiction over the alien’s underlying claim
for relief.” Id. at 839 n.17.
DE GARCIA v. HOLDER 13129
motion to reopen. She sought to introduce evidence of her
children’s further immersion in U.S. culture during the four
years between her hearing and the BIA’s decision on appeal.
Id. The BIA denied the motion on the ground that it failed to
establish prima facie eligibility for cancellation. Id.
[1] We were required to decide in Fernandez whether the
BIA’s decision constituted a “judgment regarding the granting
of relief under [the cancellation of removal provision] . . . .”
8 U.S.C. § 1252(a)(2)(B)(i). We concluded that it did, because
Fernandez’s motion had essentially asked the BIA to revisit
its prior judgment regarding her eligibility for cancellation. Id.
at 603. We reasoned that, if we held that we had jurisdiction
to review the BIA’s denial of a motion to reopen that pres-
ented “essentially the same discretionary issue originally
decided [at the IJ hearing and on appeal to the BIA],” peti-
tioners could “make an end-run around the bar to review of
their direct appeals simply by filing a motion to reopen.” Id.
at 600, 601.
[2] In deciding Fernandez, however, we made a distinction
that is key to the present case. We found it dispositive that
Fernandez’s motion sought to present evidence that was
cumulative of that which she had presented during her hear-
ing. In contrast, we stated that we would have had jurisdiction
to review the BIA’s decision if her motion had “address[ed]
a hardship ground so distinct from that considered previously
as to make the motion to reopen a request for new relief,
rather than for reconsideration of a prior denial.” Id. at 603.
In other words, we concluded that even if the relief ultimately
sought in a motion to reopen “is formally the same as [the
relief that] was previously denied,” id. at 601, and even if the
BIA denies the motion to reopen on the ground that it fails to
establish a prima facie case, we have jurisdiction to review
the BIA’s decision as long as the evidence submitted with the
motion is “different in kind” than the evidence that was pres-
ented during the hearing. Id. at 603; see also Negrete v.
Holder, 567 F.3d 419, 421-22 n.1 (9th Cir. 2009). In short, we
13130 DE GARCIA v. HOLDER
have jurisdiction where the relief is the same but the basis or
reason for it is different.
The government makes two arguments about the effect of
Fernandez on the case at hand. First, it argues that Fernan-
dez’s statements regarding motions to reopen based on non-
cumulative evidence are dicta and that we need not, and
should not, follow them. Second, it contends that even if those
statements are not dicta, we still lack jurisdiction over the
BIA’s denial of the Garcias’ motion to reopen because the
evidence that the Garcias sought to present was cumulative of
the evidence that they had presented before the BIA. We
reject both arguments.
[3] First, the relevant statements in Fernandez, discussed
above, are not dicta. “While we have used a number of verbal
formulations to describe ‘dictum,’ we treat reasoning central
to a panel’s decision as binding later panels.” Sanchez v.
Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008); see also
Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003)
(“[W]here a panel confronts an issue germane to the eventual
resolution of the case, and resolves it after reasoned consider-
ation in a published opinion, that ruling becomes the law of
the circuit, regardless of whether doing so is necessary in
some strict logical sense.”) (quoting United States v. Johnson,
256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of Koz-
inski, J.) (plurality)). The scope of this court’s jurisdiction
over motions to reopen that seek a type of discretionary relief
previously denied was the “central issue considered” in Fer-
nandez. Sanchez, 521 F.3d. at 1110. The distinction between
motions that are based on cumulative evidence and those that
are based on non-cumulative evidence was expressly adopted
by the court “after reasoned consideration,” Miranda B., 328
F.3d at 1186, in order “to support its result . . . .” Sanchez,
521 F.3d. at 1110. Accordingly, what we said in Fernandez
“cannot be ignored as dictum.” Id. We are thus bound to fol-
low the rule established in Fernandez: this court has jurisdic-
tion to review BIA decisions on motions to reopen that
DE GARCIA v. HOLDER 13131
present evidence that is “so distinct from that considered pre-
viously as to make the motion to reopen a request for new
relief, rather than for reconsideration of a prior denial.” Fer-
nandez, 439 F.3d at 603. We reaffirm that rule here.4
[4] Next, we conclude that, with the exception of the doc-
tor’s report regarding Analilia’s mother’s cholesterol prob-
lem, the evidence that the Garcias submitted or sought to
submit in connection with their motion to reopen and with a
subsequently submitted “supplemental brief” was non-
cumulative and different in kind from the evidence that they
had presented during their IJ hearing. They seek a favorable
hardship determination on two different grounds, neither of
which they raised at that hearing. As described supra, p.
13125-26, the Garcias’ hardship evidence at their IJ hearing
centered on the educational, cultural, and economic chal-
lenges that their daughters would face in Mexico. In contrast,
their motion to reopen claimed hardship to Mariela on a
wholly different basis: her “disfiguring” keloid and the lack
of safe medical facilities in Mexico for treatment. The keloid
was completely unrelated to and different in kind from Mar-
iela’s vision problem, which the Garcias had mentioned
briefly at their hearing. Similarly, at their IJ hearing, the Gar-
cias had alleged hardship to Analilia’s mother on the basis of
her high cholesterol. Their supplemental brief, accompanied
by a doctor’s report, purportedly presented a new, entirely
distinct medical affliction: a “pre-cancerous condition in her
cervix.” Mariela’s keloid and Analilia’s mother’s pre-
cancerous condition are not cumulative of the hardship evi-
dence offered during the hearing. Accordingly, under Fernan-
dez, we have jurisdiction to review the BIA’s decisions as to
4
We do not suggest that the legal question decided in Fernandez was a
simple or an easy one, or that an argument to the contrary would be frivo-
lous. We do hold, however, that Fernandez adopted a rule and did not
merely express its non-binding views. We also note that the rule Fernan-
dez adopted was based on a thorough and careful legal analysis of the stat-
utory language and relevant cases. See Fernandez, 439 F.3d 592. We need
not recite that analysis again here.
13132 DE GARCIA v. HOLDER
those two matters for an abuse of discretion, and not just for
an error of law.
III.
We turn now to the merits of the Garcias’ claim. A motion
to reopen must be based on evidence that is “material and
[that] was not available and could not have been discovered
or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
The motion will not be granted unless it establishes a prima
facie case for relief. See Fernandez, 439 F.3d at 600 n.6
(describing the origins of the prima facie case requirement).
A prima facie case is established when “the evidence reveals
a reasonable likelihood that the statutory requirements for
relief have been satisfied.” Ordonez v. INS, 345 F.3d 777, 785
(9th Cir. 2003).
The BIA denied the Garcias’ motion to reopen because it
did not “find that the evidence presented [regarding Mariela’s
medical condition] would likely change the outcome on the
issue of whether the respondents have established exceptional
and extremely unusual hardship sufficient to satisfy their bur-
den of proof for cancellation of removal.” We review the
BIA’s decision for abuse of discretion. Bhasin v. Gonzales,
423 F.3d 977, 983 (9th Cir. 2005).
The evidence that the Garcias submitted with their initial
motion to reopen consisted of three documents. The first was
a letter from Dr. Barry LoSasso diagnosing Mariela with “a
severe keloid involving the right external ear at a point where
[she] had a previous piercing and an infection following that
piercing.” Dr. LoSasso opined that the keloid would not “lend
itself to simple steroid injections” and recommended that
Mariela see a plastic surgeon “specializing in external ear
reconstruction in children born with deformities of the exter-
nal ear” who “could comment further about the problem and
any potential medical or surgical solutions.” The second doc-
ument was a consultation request form dated October 13,
DE GARCIA v. HOLDER 13133
2006. It refers Mariela for evaluation and treatment of a “dis-
figuring” and “severe” keloid on her right external ear. The
third was a San Antonio Express-News investigative report
about the risks of plastic surgery in Mexico. The article noted
that while some clinics “offer American-style standards,”
many are “backward operations run by physicians of ques-
tionable credentials.”
The Garcias argue that this evidence shows that, if they are
removed to Mexico, Mariela will have to undergo surgery
under unsanitary and inadequate clinical conditions, putting
her health in serious danger. The BIA disagreed, finding that:
According to the evidence presented, [Mariela’s]
condition is not life-threatening and removal of the
keloid is not mandated. Further, it appears that the
condition can likely be remedied, if desired, with
potential medical and non-surgical solutions. There
was no evidence presented to show that surgery is
the only remedy for the child’s condition which
apparently is usually handled with steroid injections.
Additionally, the evidence presented indicates that
there are well-equipped, clean surgical facilities with
accredited surgeons in Mexico wherein the child
may undergo surgery. Alternatively, should surgery
be recommended, no evidence was presented to
establish that the child could not return to the United
States to undergo the procedure.
[5] The BIA did not abuse its discretion in evaluating the
Garcia’s evidence or in finding that Mariela’s keloid condi-
tion was insufficient cause to warrant reopening the Garcias’
proceedings. Bhasin, 423 F.3d at 983. The “exceptional and
extremely unusual hardship” standard is a very demanding
one. Although the BIA might have concluded that Mariela’s
condition was such as to warrant reopening, it did not abuse
its discretion by concluding otherwise.
13134 DE GARCIA v. HOLDER
The Garcias next argue that the BIA committed legal error
by failing entirely to address the evidence of Analilia’s moth-
er’s medical condition, submitted in conjunction with their
supplemental brief. The supplemental brief and evidence were
submitted on December 18, 2006, approximately one month
after the Garcias filed their timely motion to reopen, and
approximately two months before the BIA issued its decision.
In a motion attached to the supplemental brief, the Garcias’
lawyer declared that the brief was late because “the relevant
documentation was provided to [his] office [by the Garcias]
after the filing of the motion to reopen.” In the brief itself, the
Garcias argued that reopening was warranted on account of
“new medical conditions” afflicting Analilia’s lawful perma-
nent resident mother. They attached two doctors’ reports pur-
porting to document those conditions. Although one of the
reports related to high cholesterol, a report that is merely
cumulative of the evidence testified to at the IJ hearing, the
second report purportedly documented a new condition as it
related to a screening for a potential “malignant neoplasm of
the cervix.”
[6] In its decision denying the Garcias’ motion to reopen,
the BIA failed entirely to address the supplemental brief and
the attached exhibit allegedly establishing a pre-cancerous
condition. The decision whether to consider the brief and the
exhibit was, as we have stated, within the BIA’s discretion.
See BIA Practice Manual 4.6(g) (setting forth rules regarding
the filing of supplemental briefs); see also 8 C.F.R.
§ 1003.2(a) (stating that the BIA has the discretion to reopen
a case to consider new evidence “at any time”). However, the
BIA was required to exercise that discretion. Its failure to do
so was legal error. See Sagaydak v. Gonzales, 405 F.3d at
1040. We must therefore remand for the purpose of directing
the BIA to exercise its discretion regarding the Garcias’ sup-
plemental brief and the evidence submitted along with it.
DENIED in part, GRANTED in part, and REMANDED for
exercise of discretion.
Each party shall bear its own costs on appeal.