FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 30, 2014
Elisabeth A. Shumaker
Clerk of Court
JESUS ADAN RODRIGUEZ-REYES,
Petitioner,
v. No. 14-9502
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.
Jesus Adan Rodriguez-Reyes petitions for review of a Board of Immigration
Appeals (BIA) order denying his motion to reopen removal proceedings. We dismiss
the petition, in part, for lack of jurisdiction and deny the remainder of
Mr. Rodriguez-Reyes’s claims.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Mr. Rodriguez-Reyes is a native and citizen of Mexico who entered the United
States illegally in 1994. An Immigration Judge (IJ) denied his application for
cancellation of removal under 8 U.S.C. § 1229b(b)(1) because he failed to establish
“exceptional and extremely unusual hardship” to a qualifying relative, as required by
§ 1229b(b)(1)(D). The BIA agreed and dismissed his appeal. While acknowledging
that Mr. Rodriguez-Reyes’s removal to Mexico would result in hardship to his United
States citizen children, the BIA concluded that he failed to carry his burden to show
hardship “‘substantially beyond that which ordinarily would be expected to result
from the alien’s deportation.’” Admin. R. at 79 (quoting In re Monreal, 23 I. & N.
Dec. 56, 59 (BIA 2001)). The BIA dismissed Mr. Rodriguez-Reyes’s appeal on
August 30, 2013. He did not file a petition for review with this court within the next
30 days.
Mr. Rodriguez-Reyes instead filed a timely motion to reopen on September 23,
2013. He asked the BIA to reopen his proceedings and remand to the IJ based on
new evidence of hardship. Specifically, Mr. Rodriguez-Reyes indicated that he had
recently married a United States citizen, who had filed an I-130 Petition for Alien
Relative on his behalf. Mr. Rodriguez-Reyes nonetheless conceded there were
several barriers to his ability to adjust his status even if the I-130 Petition were
granted. As to new evidence of hardship, he noted that his wife was a qualifying
relative for purposes of cancellation of removal, and he described the effect his
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removal would have on her, both emotionally and financially. He also stated that his
son had recently failed to pass the fifth grade, and he explained how the employees of
his business in Utah would be affected by his removal.
The BIA denied Mr. Rodriguez-Reyes’s motion to reopen. It concluded he had
not offered any new evidence of hardship that warranted reopening. Regarding his
marriage to a United States citizen, the BIA said his evidence failed to establish the
requisite level of hardship for cancellation of removal. It held further that he had not
shown prima facie eligibility for adjustment of status based on his I-130 Petition.
Mr. Rodriguez-Reyes filed a petition for review of the BIA’s order denying his
motion to reopen.
II. Discussion
Mr. Rodriguez-Reyes argues that the agency (1) applied the wrong legal
standard in determining that he failed to show the requisite level of hardship for
cancellation of removal, (2) otherwise erred in making that hardship determination,
and (3) violated his due process rights in denying his motion to reopen. “The
decision to grant or deny a motion to reopen . . . is within the discretion of the
Board . . . .” 8 C.F.R. § 1003.2(a). Thus, we generally review the BIA’s denial of a
motion to reopen for an abuse of discretion. See Infanzon v. Ashcroft, 386 F.3d 1359,
1362 (10th Cir. 2004). The Attorney General contends that we lack jurisdiction to
review most Mr. Rodriguez-Reyes’s claims, and the remaining claims are without
merit. We agree.
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A. This Court has no Jurisdiction to Review the BIA’s Removal Order
First, we have no jurisdiction to review Mr. Rodriguez-Reyes’s claims related
to the BIA’s order affirming the IJ’s denial of his application for cancellation of
removal, because he failed to file a timely petition for review of that order. See id.
at 1361 (holding appellate court lacked jurisdiction to review BIA order affirming
IJ’s denial of asylum, because alien did not file petition for review within 30 days of
BIA order as required by 8 U.S.C. § 1252(b)(1)). We therefore dismiss the petition
for review to the extent that Mr. Rodriguez-Reyes’s first two contentions of error
relate to the BIA’s dismissal of his appeal, the IJ’s oral decision, or the preceding
hearing before the IJ.
B. This Court has no Jurisdiction to Review the BIA’s Hardship
Determination
Second, we lack jurisdiction to review the BIA’s discretionary determinations
under § 1229b regarding an alien’s application for cancellation of removal. See
8 U.S.C. § 1252(a)(2)(B)(i) (providing “no court shall have jurisdiction to review . . .
any judgment regarding the granting of relief under section . . . 1229b”). In
particular, “the hardship issue is [such] a matter of discretion. There is no algorithm
for determining when a hardship is ‘exceptional and extremely unusual.’ The
decision regarding when hardship has reached that level is a judgment call.” Morales
Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003).
Moreover, an alien cannot, by appealing the denial of a motion to reopen,
“indirectly obtain judicial review of a discretionary ruling that is not directly
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reviewable.” Alzainati v. Holder, 568 F.3d 844, 848, 850 (10th Cir. 2009).
Therefore,
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 it if takes
the form of a denial of a motion to reopen.
Id. at 850.
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.
Id.
Mr. Rodriguez-Reyes argues the BIA violated his due process rights by
denying him the opportunity to present evidence of his marriage and the hardship to
his wife that will result from his removal. He asserts that the BIA denied his motion
to reopen “without even considering the new circumstances in [his] life” and
“completely ignored” the significance of his recent marriage to a United States
citizen. Pet. Br. at 20. The record does not support these contentions.
The BIA explicitly referenced Mr. Rodriguez-Reyes’s new evidence related to
his marriage to a United States citizen, including an affidavit from his wife
describing the emotional and financial hardship she would experience upon his
removal. The BIA then concluded that he “ha[d] not made a prima facie showing
that such hardship would rise to the level of ‘exceptional and extremely unusual’
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hardship.” Admin. R. at 3. It stated further that Mr. Rodriguez-Reyes “ha[d] not
offered any new or previously unavailable evidence of hardship to any qualifying
relative to warrant reopening.” Id. (emphasis added). Finally, the BIA said that,
despite his wife’s filing of an I-130 Petition, Mr. Rodriguez-Reyes did not present
evidence that he was “prima facie eligible for adjustment of status . . . or for any
other relief from removal.” Id. We lack jurisdiction to review these determinations
because the BIA did not refuse to consider Mr. Rodriguez-Reyes’s evidence; rather,
it credited that evidence but found on the merits that it was insufficient to carry his
burden to make a prima facie showing of the requisite level of hardship or eligibility
for other relief. See Alzainati, 568 F.3d at 850. We therefore dismiss the petition for
review to the extent that Mr. Rodriguez-Reyes seeks review of the BIA’s hardship
determination in denying his motion to reopen.
C. Mr. Rodriguez-Reyes’s Other Claims Lack Merit
Notwithstanding the jurisdictional bar in § 1252(a)(2)(B)(i) that precludes our
review of the agency’s discretionary determinations under § 1229b, this court retains
jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D). We have construed “questions of law” to mean “a narrow category
of issues regarding statutory construction.” Diallo v. Gonzales, 447 F.3d 1274, 1282
(10th Cir. 2006).
Mr. Rodriguez-Reyes appears to assert a “question of law” by contending that
the BIA misconstrued the statutory standard of “exceptional and extremely unusual
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hardship” in § 1229b(b)(1)(D) in denying his application for cancellation of removal.
He notes that the BIA requires a showing of hardship that is “substantially beyond
that which ordinarily would be expected to result from the alien’s deportation.” In re
Monreal, 23 I. & N. Dec. at 59 (italics omitted). He argues that the IJ failed to apply
that standard, concluding instead that there was “no legal basis” to grant his
application under § 1229b, Admin. R. at 177, and that the BIA was “misled” by the
IJ’s holding, Pet. Br. at 15.1
As we have explained, we lack jurisdiction to review Mr. Rodriguez-Reyes’s
contentions related to the BIA’s affirmance of the IJ’s denial of cancellation of
removal because he did not file a timely petition for review of his removal order. But
we can review his assertion that the BIA continued to apply an erroneous statutory
standard in denying his motion to reopen. That claim has no merit. The BIA cited In
re Monreal, and Mr. Rodriguez-Reyes points to nothing in the BIA’s order indicating
or even suggesting that it did not apply the correct statutory standard.
Mr. Rodriguez-Reyes asserts a constitutional claim by contending that the BIA
deprived him of procedural due process in denying his motion to reopen. Although
the BIA’s refusal to consider new and pertinent evidence on a motion to reopen
implicates due process rights, Alzainati, 568 F.3d at 850, we have already rejected his
1
Regarding the IJ’s “no legal basis” conclusion, the BIA said that, “because the
respondent did not carry his burden of establishing exceptional and extremely
unusual hardship to a qualifying relative, which is a legal requirement for
cancellation of removal, there was ‘no legal basis’ for cancellation of removal.”
Admin. R. at 28.
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claim that the BIA did not consider his new evidence. But he also argues that the
BIA’s failure to remand to the IJ for further fact finding, including testimony about
the hardship his wife will experience if he is removed, was “a quintessential due
process violation because [he] was given no meaningful opportunity whatsoever to
make his case for cancellation of removal based on the newly available evidence of
his marriage.” Pet. Br. at 21.
This claim has no merit. As Mr. Rodriguez-Reyes acknowledges, an alien in
removal proceedings is entitled “only to procedural due process, which provides the
opportunity to be heard at a meaningful time and in a meaningful manner.”
Alzainati, 568 F.3d at 851 (internal quotation marks omitted). The process for
seeking to reopen removal proceedings “derives solely from regulations promulgated
by the Attorney General.” INS v. Doherty, 502 U.S. 314, 322 (1992). Under the
applicable regulation, a motion to reopen must “state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be supported by
affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1) (emphasis added).
Thus, it was Mr. Rodriguez-Reyes’s burden to submit sufficient evidence in support
of his motion to reopen to establish grounds for further fact finding before an IJ. The
BIA considered his new evidence and found it inadequate. He was not thereby
deprived of due process.
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The petition for review is dismissed in part and denied in part.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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