FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 28, 2015
Elisabeth A. Shumaker
Clerk of Court
ISRAEL JUAREZ-GONZALEZ,
a/k/a Pelon,
Petitioner,
No. 14-9558
v. (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, BALDOCK, and MORITZ, Circuit Judges.
Israel Juarez-Gonzalez petitions for review of the Board of Immigration
Appeals’ (BIA) denial of his second motion to reopen. We dismiss in part and deny
in part the petition for review.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. Juarez-Gonzalez, a native and citizen of Mexico, entered the United States
illegally in 1994. In 2011, the Department of Homeland Security sought his removal
as an alien present in the United States without being admitted or paroled. During a
hearing before an immigration judge (IJ), at which he was represented by counsel,
Mr. Juarez-Gonzalez conceded removability but requested cancellation of removal
and voluntary departure. After Mr. Juarez-Gonzalez testified at a subsequent
hearing, the IJ denied him cancellation of removal, but granted voluntary departure.
In denying cancellation of removal, the IJ found that Mr. Juarez-Gonzalez had
been continuously physically present in the United States for at least a ten year
period; he was a person of good moral character; and he had not been convicted of a
crime that made him ineligible for relief. See 8 U.S.C. § 1229b(b)(1)(A)-(C) (listing
first three factors alien must demonstrate to obtain cancellation of removal). But the
IJ concluded that he failed to establish that his removal would result in “exceptional
and extremely unusual hardship” to a qualifying relative, in this case
Mr. Juarez-Gonzalez’s three children who are United States citizens. See id.
§ 1229b(b)(1)(D). The IJ noted that Mr. Juarez-Gonzalez was primarily concerned
with his ability to meet his children’s special-education needs in Mexico. The IJ
found that “[w]hile the children would no doubt face certain obstacles in adjusting to
a new school system, there is no indication that this adjustment would rise to the
level of exceptional and extremely unusual hardship.” Admin. R. at 752.
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The BIA dismissed Mr. Juarez-Gonzalez’s appeal, agreeing with the IJ that he
failed to demonstrate exceptional and extremely unusual hardship. It noted that,
aside from a letter from a special educator, he had not submitted further documentary
evidence regarding his children’s special-education needs in school. The BIA
concluded, “The evidence shows that while his children have some special needs in
school they are not compelling special needs.” Id. at 618.
Mr. Juarez-Gonzalez filed a timely motion to reopen based on new evidence,
specifically Individual Education Program (IEP) documents in support of his claim
that his children have compelling special-education needs. He further represented in
his motion that his wife was applying for Deferred Action for Childhood Arrivals
(DACA). Mr. Juarez-Gonzalez asserted that his wife’s pending DACA application
called into question whether she and the children would accompany him to Mexico,
as she could not continue to pursue that relief if she left the United States.
The BIA denied the motion to reopen. It held that the newly submitted IEP
documents did not constitute new evidence because Mr. Juarez-Gonzalez failed to
demonstrate that these or similar documents could not reasonably have been
presented to the IJ. Additionally, because the IEP documents were substantially
similar to the record evidence, the BIA concluded that they were also not material
evidence. The BIA further held that Mr. Juarez-Gonzalez had not demonstrated a
material change in his children’s hardship based on a speculative claim that his wife
may be granted DACA.
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Mr. Juarez-Gonzalez retained new counsel and filed a second motion to
reopen. He asked the BIA to sua sponte reopen his case based on a claim of
ineffective assistance of counsel. He first argued that his former counsel was
ineffective in failing to obtain and present all of the available evidence of hardship to
his children based on their special-education needs. In addition, after representing
that his wife had been granted DACA, he claimed that his former counsel was also
ineffective in failing to inform the IJ that he was eligible for DACA and other relief.
The BIA denied Mr. Juarez-Gonzalez’s second motion to reopen. It found that
the motion was both untimely and number-barred. And because he failed to
demonstrate that he was prejudiced by his former counsel’s representation, the BIA
held that equitable tolling of the filing restrictions on motions to reopen was not
warranted in this case. It also declined to exercise its authority to reopen the case sua
sponte.
As to prejudice, the BIA found that the evidence indicated that
Mr. Juarez-Gonzalez’s oldest child was receiving special-education services,
specifically to improve his expressive English-language skills; the youngest child no
longer required special education; and there was no evidence regarding the nature
and degree of the middle child’s claimed disability. The BIA held that the
cumulative evidence regarding the children’s special-education needs did not satisfy
the exceptional and extremely unusual hardship requirement for cancellation of
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removal. Therefore, Mr. Juarez-Gonzalez had not shown that, but for his counsel’s
ineffective performance, the result of the case would likely have been different.
II. Petition For Review
In his petition for review, Mr. Juarez-Gonzalez argues that the BIA erred in
finding that he failed to show he was prejudiced by his former counsel’s
representation. He claims that counsel was ineffective in two respects: (1) failing to
present evidence of his children’s hardship and (2) failing to exhaust his
administrative remedy.
Regarding hardship, Mr. Juarez-Gonzalez asserts that his former counsel
initially failed to provide the IJ with complete documentation of his children’s
compelling special-education needs. Then, in his first motion to reopen, former
counsel failed to provide the IJ with evidence regarding special-education programs
in Mexico. Mr. Juarez-Gonzalez also contends that the BIA failed to consider the
additional evidence he submitted and did not weigh the hardship evidence in the
aggregate.
Regarding his failure to exhaust his administrative remedy,
Mr. Juarez-Gonzalez does not elaborate on his contention that his counsel was
ineffective. He states only that he requested consideration of his eligibility for
DACA and that the BIA has the authority to administratively close removal
proceedings under appropriate circumstances.
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III. Discussion
In general, an alien may file only one motion to reopen immigration
proceedings, and it “must be filed no later than 90 days after the date on which the
final administrative decision was rendered in the proceeding sought to be reopened.”
8 C.F.R. § 1003.2(c)(2). But the time and numerical limitations on motions to reopen
may be equitably tolled in circumstances of ineffective assistance of counsel. See
Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir. 2002). 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.” Id.
§ 1003.2(c)(1). “The decision to grant or deny a motion to reopen . . . is within the
discretion of the [BIA] . . . .” Id. § 1003.2(a). Thus, we 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).
We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s denial of a
motion to reopen as a “final, separately appealable order.” Infanzon, 386 F.3d at
1361. The Attorney General contends we nonetheless lack jurisdiction to review
some of Mr. Juarez-Gonzalez’s claims. We agree, and to the extent that he seeks
review of issues outside of this court’s jurisdiction, we dismiss his petition for
review.
We lack jurisdiction to review the BIA’s discretionary decision not to sua
sponte reopen proceedings in this case. Salgado-Toribio v. Holder, 713 F.3d 1267,
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1270-71 (10th Cir. 2013). We are also precluded from reviewing the BIA’s
discretionary determinations under § 1229b regarding applications 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”). Whether an alien has demonstrated exceptional and extremely unusual
hardship as required by § 1229b(b)(1)(D) is an unreviewable discretionary
determination. Alzainati v. Holder, 568 F.3d 844, 848 (10th Cir. 2009) (concluding
the “hardship determination involved an exercise of discretion insulated from our
review under [8 U.S.C.] § 1252(a)(2)(B)([i])”). We likewise lack “jurisdiction to
review the BIA’s denial of a motion to reopen because the alien still has failed to
show the requisite hardship.” Id. at 849.
We can review Mr. Juarez-Gonzalez’s claim that the BIA failed to consider his
new and pertinent evidence in denying his motion to reopen. See id. at 850. But that
claim has no merit: the BIA stated that it considered “the evidence of the children’s
educational needs at the time of the removal hearing and the evidence offered with
the motions.” Admin. R. at 8 (emphasis added).
Mr. Juarez-Gonzalez otherwise contends that the BIA abused its discretion in
holding that he was not prejudiced by his former counsel’s allegedly ineffective
assistance. But the BIA’s no-prejudice determination was predicated entirely on its
holding that the totality of the evidence—i.e., everything Mr. Juarez-Gonzalez
contended that his former counsel should have submitted to the IJ—still failed to
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satisfy the requisite level of hardship for cancellation of removal. The BIA therefore
concluded that Mr. Juarez-Gonzalez was not prejudiced because such evidence would
not have altered the outcome of his case. Thus, we cannot review the BIA’s
no-prejudice holding without also reviewing its hardship determination, which is an
unreviewable discretionary decision.1
Lastly, Mr. Juarez-Gonzalez contends that his counsel was ineffective in
failing to exhaust his administrative remedy and the BIA failed to consider other
administrative relief. Although we have jurisdiction to review these claims, he fails
to develop a sufficient argument to allow for meaningful appellate review. See U.S.
ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1175 (10th Cir. 2007)
(“We have long made clear that . . . conclusory and ill-developed arguments are
insufficient to permit us meaningful judicial review and will not be entertained.”) In
any event, Mr. Juarez-Gonzalez has not shown an abuse of discretion by the BIA.
The petition for review is dismissed in part for lack of jurisdiction and
otherwise denied.
Entered for the Court
Bobby R. Baldock
Circuit Judge
1
Despite the jurisdictional bar in § 1252(a)(2)(B)(i), we retain jurisdiction to
review constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(D).
See Alzainati, 568 F.3d at 850. But Mr. Juarez-Gonzalez does not respond to the
Attorney General’s argument that he has not raised a non-frivolous constitutional
claim or question of law.
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