Case: 14-60802 Document: 00513500939 Page: 1 Date Filed: 05/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60802
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 11, 2016
ABEL CEJA-LUA,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of Orders of the
Board of Immigration Appeals
BIA No. A088 840 048
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Abel Ceja-Lua, a native and citizen of Mexico, petitions this court for
review of the decisions of the Board of Immigration Appeals (BIA) denying his
motion to reopen his removal proceedings in order to apply for cancellation of
removal pursuant to 8 U.S.C. § 1229b(b)(1) and denying his motion for
reconsideration of that denial. Ceja-Lua argues: that in denying his motions
to reopen and for reconsideration, the BIA failed to properly consider the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60802
evidence that he satisfied the § 1229b(b)(1)(D) requirement that his qualifying
relatives would suffer exceptional and extremely unusual hardship if he were
removed; that the BIA’s decisions implicate 5 U.S.C. § 706(2)(a) of the
Administrative Procedure Act (APA), which directs a reviewing court to set
aside agency action found to be arbitrary, capricious, an abuse of discretion, or
not in accordance with the law; and that the BIA’s decision denying
reconsideration lacked sufficient analysis and was thus procedurally
inadequate. The Government asserts that this court lacks jurisdiction to
review Ceja-Lua’s petition for review.
This court reviews its subject matter jurisdiction de novo. Garcia-
Melendez v. Ashcroft, 351 F.3d 657, 660 (5th Cir. 2003). Under 8 U.S.C.
§ 1252(a)(2)(B)(i), the BIA’s denial of discretionary relief in the form of
cancellation of removal under § 1229b(b)(1) is excluded from judicial review.
See Kucana v. Holder, 558 U.S. 233, 246-48 (2010). Contrary to Ceja-Lua’s
assertions, the Supreme Court’s recent decision in Mata v. Lynch, 135 S. Ct.
2150, 2154-56 (2015), invalidates neither the § 1252(a)(2)(B)(i) exceptions
acknowledged in Kucana, 558 U.S. at 246-48, nor this court’s jurisprudence
applying § 1252(a)(2)(B)(i) to bar judicial review over challenges to the denial
of cancellation of removal. See Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.
2007). This court lacks jurisdiction over such challenges whether the
petitioner is appealing from a final order of removal or from the denial of a
motion to reopen. See Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004).
Judicial review is not precluded, however, to the extent that the petition for
review raises constitutional claims or questions of law. See § 1252(a)(2)(D);
Garcia-Maldonado v. Gonzales, 491 F.3d 284, 287 (5th Cir. 2007).
Ceja-Lua’s argument that the BIA failed to properly consider the
evidence that his qualifying relatives would suffer the requisite hardship if he
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No. 14-60802
were removed constitutes a substantive challenge to the BIA’s hardship
determination, which is a factual question that falls squarely within the
jurisdictional bar of § 1252(a)(2)(B). See Sattani v. Holder, 749 F.3d 368, 372
(5th Cir. 2014). This result is not altered by Ceja-Lua’s characterization, as
questions of law, his contentions that the BIA applied an improper legal
standard and failed to follow precedent in making its hardship determination.
The BIA here applied the appropriate legal standard by imposing on Ceja-Lua
the heavy burden of proving that if his removal proceedings were reopened, the
new evidence would likely alter the outcome of his application for cancellation
of removal by establishing exceptional and extremely unusual hardship to his
qualifying relatives. See Matter of Coelho, 20 I&N Dec. 464, 472-73 (BIA 1992);
§ 1229b(b)(1)(D). A petitioner may not secure jurisdiction in this court by
simply framing as a legal issue his challenge to the BIA’s evaluation of the
evidence in order to cloak his request for review of a discretionary decision.
See Falek v. Gonzales, 475 F.3d 285, 289 & n.2 (5th Cir. 2007).
By asserting that the BIA violated § 706(2)(A) of the APA by failing to
meaningfully and rationally consider the new evidence and arguments
presented in his motions to reopen and reconsider, Ceja-Lua has raised a legal
question over which this court has jurisdiction under § 1252(a)(2)(D). See
Sealed Petitioner v. Sealed Respondent, 567 F. App’x 231, 235 (5th Cir. 2014). 1
However, Ceja-Lua’s APA claim will not be considered, as it was raised for the
first time in his reply brief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). In any event, § 706(2)(A) does not apply to the BIA’s individual
adjudications in immigration proceedings. Sealed Petitioner, 567 F. App’x at
1Although unpublished opinions issued on or after January 1, 1996, are not precedent,
they may nevertheless be persuasive. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th
Cir. 2006); 5TH CIR. R. 47.5.4.
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238; see Ardestani v. INS, 502 U.S. 129, 133-34 (1991); Rivera-Cruz v. INS, 948
F.2d 962, 967 n.5 (5th Cir. 1991).
It is unclear whether Ceja-Lua’s challenge to the procedural adequacy of
the BIA’s order denying his motion for reconsideration is a legal question over
which this court has jurisdiction under § 1252(a)(2)(D). Even assuming this
court has jurisdiction, however, Ceja-Lua’s claim lacks merit. This court will
review a BIA decision denying relief from removal “procedurally to ensure that
the complaining alien has received full and fair consideration of all
circumstances that give rise to his or her claims.” Abdel-Masieh v. INS, 73
F.3d 579, 581, 585 (5th Cir. 1996) (internal quotation marks and citation
omitted). Since a motion for reconsideration “urges an adjudicative body to re-
evaluate the record evidence only,” Zhao v. Gonzales, 404 F.3d 295, 301 (5th
Cir. 2005), the extent of explanation required in a legally sufficient order
denying such a motion is necessarily less than in an order denying the
underlying motion to reopen. By referencing its lengthier decision denying
Ceja-Lua’s motion to reopen, the BIA’s brief decision denying reconsideration
effectively “announce[d] its decision in terms sufficient to enable a reviewing
court to perceive that it ha[d] heard and thought and not merely reacted.” See
Efe v. Ashcroft, 293 F.3d 899, 903, 908 (5th Cir. 2002) (quotation marks and
citation omitted).
PETITION DISMISSED IN PART, DENIED IN PART.
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