IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60562
(Summary Calender)
ANTONIO RODRIGUEZ,
Petitioner,
v.
JOHN ASHCROFT, U. S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
May 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Petitioner Antonio Rodriguez petitions for review of an order
of the Board of Immigration Appeals (“BIA” or “the Board”) denying
his motion to reopen his application for suspension of deportation.
The Board concluded that Rodriguez had failed to adduce sufficient
new evidence to convince it to reverse its denial of his
application for suspension of deportation, which denial was
grounded on the Board’s determination that Rodriguez had failed to
establish the requisite “extreme hardship” element of INA § 244.
Because Congress has explicitly precluded us from reviewing such
discretionary decisions, we dismiss Rodriguez’s appeal.
I. Facts and Proceedings
Deportation proceedings were initiated against Rodriguez,
charging that he was deportable pursuant to then-Section
241(a)(1)(A) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1251(a)(1)(A), because he had procured his entry visa by
willfully misrepresenting a material fact in violation of INA §
212(a)(19), 8 U.S.C. § 1182(a)(19), and was excludable at entry.
Specifically, the Board found that Rodriguez had willfully
misrepresented his marital status and his U. S. address (and that
of his purported U.S. citizen-spouse), thereby falsely securing a
visa as an immediate relative of a United States citizen. An
Immigration Judge (“IJ”) found Rodriguez deportable as charged and
denied his application for suspension of deportation pursuant to
then-section 244 of the INA, 8 U.S.C. § 1254. The IJ concluded
that Rodriguez had failed to establish that he would suffer
“extreme hardship” should he be forced to leave this country and
return to his native Mexico. The IJ did, however, grant Rodriguez’s
request for voluntary departure.
On appeal the BIA affirmed the IJ’s decision. Rodriguez did
not appeal the Board’s decision at that juncture, but instead filed
a motion asking the Board to reconsider its decision denying his
application for suspension of deportation in light of new evidence.
The Board treated that motion as a motion to reopen and concluded
that the evidence proffered as new —— Rodriguez’s purchase of a
2
home —— was insufficient to change its decision. Rodriguez timely
appealed that Board decision.
II. Analysis
A. Standard of Review
We review a denial of a motion to reopen under a “highly
deferential abuse of discretion standard.”1 Before the Illegal
Immigration and Immigrant Responsibility Act (“IIRIRA”), we
reviewed for abuse of discretion the BIA’s denial of an application
for suspension of deportation on the ground that the alien has
failed to establish the requisite element of “extreme hardship”2
but our review of such questions has been abolished, as explained
in greater detail below.
B. Discussion
In his petition for review, Rodriguez raises two claims:
Whether the Board abused its discretion in affirming the IJ’s
conclusions that Rodriguez (1) willfully misrepresented a material
fact to gain entry into the United States (the “willful
misrepresentation” claim) and (2) failed to establish that he would
suffer “extreme hardship” if deported (the “extreme hardship”
claim).
Assuming without granting that, because the motion to reopen
1
Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
2
Ramos v. INS, 695 F.2d 181, 184 (1983).
3
was filed with the Board within the 30-day window of appealability3
and addressed the extreme hardship issue —— one issue underlying
the Board’s initial decision —— Rodriguez’s timely appeal of the
denial of his motion to reopen carries the substance of the extreme
hardship issue in its entirety.4 Petitioner essentially concedes,
however, that because he did not address the willful
misrepresentation issue in his motion to reopen and had not timely
appealed the Board’s initial decision (which did address that
issue), we may not here consider that claim.
Congress has expressly precluded our consideration of the
merits of Rodriguez’s claim that the BIA abused its discretion in
denying his application for suspension of deportation pursuant to
INA § 244 for his failure to establish that he would suffer extreme
hardship if deported to his native Mexico. IIRIRA § 309(c)(4)(E)
provides, in pertinent part, that “there shall be no appeal of any
discretionary decision under [INA] section . . . 244.” We have
previously held that denials of applications for suspension of
3
Section 309(c)(4)(C) of the Illegal Immigration and
Immigrant Responsibility Act (“IIRIRA”) provides that a petition
for review of a final order of exclusion or deportation entered
after October 30, 1996 but before April 1, 1997 must be filed no
more than 30 days after that order is entered. The filing with the
Board of a motion to reopen does not toll the running of this 30-
day period. Stone v. INS, 514 U.S. 386, 405-06 (1995).
4
Respondent contends that, at best, Rodriguez preserved for
appeal the limited issue whether the Board abused its discretion in
denying his motion to reopen on the ground that the new evidence
proffered was unlikely to affect its denial of his application for
suspension of deportation.
4
deportation “based on the [INA] § 244 element of ‘extreme hardship’
are discretionary decisions, which IIRIRA § 309(c) precludes us
from reviewing.”5
This provision not only interdicts our consideration of the
Board’s initial denial of Rodriguez’s application for suspension of
deportation but also his motion to reopen. Congress has divested
us of jurisdiction to review a denial of a motion to reopen when,
as here, the Board, in reaching that decision, addressed the
“merits of an alien's request for relief pursuant to” a provision
of the INA established as discretionary by § 309(c)(4)(E).6
Despite Petitioner’s contention to the contrary, this conclusion is
consistent with the Ninth Circuit’s holding in Arrozal v. INS7 that
§ 309(c)(4)(E) did not preclude review of a motion to reopen. We
see that case as clearly distinguishable because the merits of the
denial of the motion to reopen did not involve a decision by the
Board involving any of the discretionary provisions set forth in §
309(c)(4)(E); rather, it involved a deportation order under INA §
241(a)(2). It is axiomatic that if we are divested of jurisdiction
5
Moosa v. INS, 171 F.3d 994, 1012 (5th Cir. 1999).
6
Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999). Unlike
the instant situation, the denial of the motion to reopen appealed
in Stewart involved a decision pursuant to INA § 242B(e)(2)(A), not
one of the listed discretionary provisions in § 309(c)(4)(E). The
Fourth Circuit held that because that decision was not a
discretionary one, the court was not precluded from reviewing the
Board’s denial of the alien’s motion to reopen.
7
159 F.3d 429 (9th Cir. 1998).
5
to review an original determination by the Board that an alien has
failed to establish that he would suffer extreme hardship if
deported, we must also be divested of jurisdiction to review the
Board’s denial of a motion to reopen on the ground that the alien
has still failed to establish such hardship. To hold otherwise
would create a loophole that would thwart the clear intent of
Congress that the courts not review the discretionary decisions of
the BIA.
III. Conclusion
At most, Rodriguez preserved only his claim that the Board
abused its discretion in denying his application for suspension of
deportation on grounds of extreme hardship. As we are expressly
denied jurisdiction to hear that claim, we are constrained to deny
Rodriguez’s petition for review of the Board’s denial of his motion
to reopen grounded in the same contention of hardship.
Petition for Review DISMISSED.
6