439 F.3d 592 (9th Cir. 2006), 02-72733, Fernandez v. Gonzales

Docket Nº:02-72733.
Citation:439 F.3d 592
Party Name:Maricela M. FERNANDEZ, Danelia Fernandez Covarrubias, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
Case Date:March 02, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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439 F.3d 592 (9th Cir. 2006)

Maricela M. FERNANDEZ, Danelia Fernandez Covarrubias, Petitioners,

v.

Alberto R. GONZALES, Attorney General, Respondent.

No. 02-72733.

United States Court of Appeals, Ninth Circuit.

March 2, 2006

Argued and Submitted Sept. 13, 2005.

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[Copyrighted Material Omitted]

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Jonathan Sanders, Simpson Thacher & Bartlett LLP, Palo Alto, California, for the petitioners.

Shelley R. Goad, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. A75-481-628, A75-481-629.

Before: Betty B. Fletcher, John R. Gibson, [*] and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:

Petitioner 1 Maricela Fernandez came to the United States without inspection in 1985. She has two American citizen daughters, Stacey, age 15, and Amy, age 12. The record indicates that Fernandez's husband, whom she married in Mexico in 1974, is a lawful permanent resident. At her removal hearing in 1998, Fernandez applied for cancellation of removal based on her qualifying relative children. The

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immigration judge (IJ) denied the application after determining that Fernandez had not shown that the children would be subject to exceptional and extremely unusual hardship if Fernandez were removed. See 8 U.S.C. § 1229b(b)(1)(D).

On appeal, the Board of Immigration Appeals ("BIA"), applying its streamlining regulation, summarily affirmed without opinion the results of the IJ's decision. See 8 C.F.R. § 1003.1(e)(4). Fernandez filed a timely motion to reopen, attaching "additional evidence of hardship, loss of educational opportunities, and loss of acculturation since the time of the[] merits hearing over four years ago." The BIA denied the motion as "insufficient to show prima facie eligibility for cancellation of removal." Fernandez thereupon filed a timely petition for review of the BIA's decision.

We are asked to decide the extent of our jurisdiction over the petition for review, in light of the jurisdictional bar to review of "any [discretionary] judgment regarding the granting of [cancellation of removal]" contained in 8 U.S.C. § 1252(a)(2)(B)(i).

BACKGROUND

Fernandez testified at her removal hearing that her children would accompany her back to Mexico if she is removed. Stacey also testified, stating that she did not want to go to Mexico. The IJ's decision denying relief commented that "we're dealing with two minor children, ages seven and four. Stac[e]y appeared and it is very obvious that bilingual education has not made her fluent in English, nor has it produced results that show concepts in either Spanish or English The IJ noted that Fernandez's husband had work authorization in the United States and stated that "at no time does [Fernandez] have to take either [child] to any country if she chooses not to, since they have a home." The IJ added that "[e]xtended family members all live in Mexico," drawing on Fernandez's testimony about her seven siblings and mother. Although Fernandez "has health insurance which allegedly covers the whole family," the IJ noted, she "related ... an average result if, in fact, the children would have to leave the United States and would accompany her. However, she has ample family, specifically a spouse who works and who could take care of the two United States citizen children presumably."

The additional evidence included with the motion to reopen at issue focused on "four additional years of hardship" resulting fro the children's education and acculturation since the removal hearing. The additional evidence was generally cumulative with that presented at the removal hearing. Some was new, however, particularly a letter from Fernandez's husband -- who did not submit evidence to the IJ -- which mentions their three American citizen grandchildren. This letter states that, without Fernandez, "we will lose our home that we worked so hard to get for our children. My daughters will lose a good mother. I will not be able to provide a healthy family environment for my two youngest." The evidence submitted also includes school records for Fernandez's two children, as well as supporting affidavits from friends, Fernandez's pastor, and Stacey.

In denying the motion to reopen, the BIA first explained the legal standards it was applying:

A motion to reopen under 8 C.F.R. § 3.2(c) will not be granted unless the movant establishes a prima facie case of eligibility for the underlying relief sought. See INS v. Abudu, 485 U.S. 94 (1988). As a general rule, moreover, we will reopen removal proceedings on the basis of new e

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evidence only "where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening." ... The new evidence submitted by the respondents in connection with their motion to reopen does not satisfy these standards.

The Board then stated:

We have no doubt that the respondents' removal from the United States will be highly disruptive to the lives of their families, yet there is simply nothing in the record or the motion to reopen which persuades us that these relatives will suffer hardship that is substantially different from, or beyond, that which would normally be expected to result from the removal of aliens with close family members in the United States. Although the motion demonstrates that the respondents have qualifying relatives ... this fact alone is insufficient to show prima facie eligibility for cancellation of removal. In addition, there must be some indication that the relatives will suffer hardship in connection with the respondents' removal that is so excessive and uncommon as to be "exceptional and extremely unusual." While the motion to reopen demonstrates that the respondents' removal would be an occasion of sorrow and great inconvenience for those left behind, that is commonly the case. It is not "exceptional and extremely unusual."

DISCUSSION

I. Jurisdiction

A. General Principles

8 U.S.C. § 1252(a)(2)(B)(i) states in relevant part: "Notwithstanding any other provision of law (statutory or nonsta-tutory), ... except as provided in subparagraph (D)... no court shall have jurisdiction to review -- (i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245 [8 U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, or 1255]." Cancellation of removal is relief granted under the Immigration and Nationality Act's section 240A.

Section 1252(a)(2)(B)(i) "eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion.... [W]e retain jurisdiction over the BIA's determination of ... purely legal and hence non-discretionary question[s] ...." Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002). A hardship determination is ordinarily discretionary, and therefore unreviewable under § 1252(a)(2)(B)(i) in petitions for review of direct appeals to the BIA, unless the petition raises a cognizable legal or constitutional question concerning that determination. We so held in Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003), stating that we lack jurisdiction "to review the BIA's discretionary determination that an alien failed to satisfy the 'exceptional and extremely unusual hardship' requirement for cancellation of removal." Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID Act, Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005), that "we lack jurisdiction to review the IJ's subjective, discretionary determination that Martinez-Rosas did not demonstrate 'exceptional and extremely unusual hardship' under 8 U.S.C. § 1229b(b)(1)(D)"). The case before us involves the denial of a motion to reopen, however, not a BIA decision on direct appeal from an IJ, and therefore presents a distinct question.

Our most detailed analysis of § 1252(a)(2)(B)(i)'s effect on our jurisdiction to review motions to reopen that implicate

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discretionary determinations appears in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir. 2004). In that case, the petitioner withdrew his application for adjustment of status before the IJ, because his stepfather failed to appear at the removal hearing. He subsequently filed a motion to reopen with the IJ, accompanied by an affidavit from his stepfather explaining why he had not attended the hearing. Medina-Morales stated:

[W]e conclude that § 1252(a)(2)(B)(i) does not withdraw our jurisdiction to review the BIA's denial of Medina-Morales' motion to reopen. Because Medina-Morales abandoned his petition for adjustment of status and instead accepted voluntary departure, the IJ never ruled on Medina-Morales' adjustment of status petition but instead granted his request for voluntary departure. Medina-Morales does not, therefore, appeal the denial of an adjustment of status application under § 1255 or a denial of voluntary departure under § 1229c. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169 (9th Cir. 2003) (rejecting the government's argument that the denial of an alien's...

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