Alzainati v. Holder

• Decision Date: 17 June 2009
• Docket Number: No. 07-9565.,07-9565.
• Citation: 568 F.3d 844
• Parties: Khaled FM ALZAINATI, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

568 F.3d 844

Khaled FM ALZAINATI, Petitioner, v. Eric H. HOLDER, Jr.,^* United States Attorney General, Respondent.

No. 07-9565.

United States Court of Appeals, Tenth Circuit.

June 17, 2009.

Submitted on the briefs:^**

Daniel F. Boyle, Denver, CO, for Petitioner.

Mark C. Walters, Assistant Director, Joanne E. Johnson, Attorney, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before O'BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL, Circuit Judge.

O'BRIEN, Circuit Judge.

Khaled FM Alzainati petitions for review of an order of the Board of Immigration Appeals (BIA or Board) denying his motion to reopen. We dismiss the petition in part for lack of jurisdiction and deny the petition in part.

Background

Alzainati is a native and citizen of Jordan. Accompanied by his wife and two sons, he entered the United States in 1991 with a B-2 visitor visa authorizing a six-month stay. He never left. A third son, Jawad, was born later that year; he is a United States citizen.

In 2003, the Department of Homeland Security sought to remove Alzainati for overstaying his visa. See 8 U.S.C. § 1227(a)(1)(B). He filed an application for cancellation of removal and appeared before an immigration judge (IJ) in 2005 for a merits hearing. He conceded removability as charged but argued for cancellation pursuant to 8 U.S.C. § 1229b(b)(1), which required him to show, among other things, that his removal would cause "exceptional and extremely unusual hardship" to a qualifying relative. Id. § 1229b(b)(1)(D)¹ Specifically, Alzainati contended Jawad, an excellent student, would have difficulty adapting to life in Jordan because he lacked Arabic language skills, having missed the eight or nine years of Arabic-language public education typical of students his age. Also, as an English-speaking American citizen, he would likely encounter anti-American sentiment. Alzainati also claimed if he was removed to Jordan, it would be difficult to find eye care for Jawad's nearsightedness and to obtain medications for Jawad's recurrent skin rashes. Even if such care and medications were available, he said he would be unable to afford them because at his age (then fifty-two), it would be difficult to find work.

The IJ denied relief, concluding Alzainati had not sustained his burden of showing exceptional and extremely unusual hardship to Jawad. The IJ considered the language-based difficulties Jawad might encounter if he accompanied his father to Jordan to be typical of minors in similar situations, and there was no evidence of Alzainati's claimed inability to obtain or afford treatment for Jawad's medical conditions.

The BIA summarily affirmed the IJ's decision. Alzainati did not petition for review of the BIA's decision. Instead, he filed a motion to remand, which the BIA treated as a motion to reopen.² According to Alzainati, since the IJ's decision and the BIA's affirmance, Jawad had become depressed with suicidal ideations and his grades had gone down. In support of the motion, he submitted a psychologist's assessment concluding, among other things, the prospect of his father's deportation had significantly increased a previously diagnosed "adjustment disorder with anxiety and depressive features" such that Jawad was "in need of ongoing mental health care, a medications consultation, and active monitoring for suicidal ideation." Admin. R. at 47-48. He also submitted comparative documentation of Jawad's academic performance before and after the agency's decisions.

The BIA considered most of the evidence new and previously unavailable, but found it was "insufficient to establish that reopening was warranted" because it was unlikely Alzainati would be able to establish the requisite level of hardship required for cancellation. Id. at 2. According to the BIA the new evidence did not indicate Jawad was "currently attending counseling sessions with a medical professional or taking any medication for his condition." Id. at 3. The new evidence also "failed to establish that [Jawad's] mental health needs could not be adequately addressed by the health care system in Jordan." Id. at 3. Accordingly, the BIA concluded Alzainati had not met the "heavy burden" necessary to prevail on his motion and denied it. Id. This petition for review followed.

Discussion

The Attorney General concedes this court's jurisdiction to consider a constitutional claim or a question of law under 8 U.S.C. § 1252(a)(2)(D) (a provision enacted by the REAL ID Act of 2005, Pub.L. No. 109-13, § 106, 119 Stat. 231, 310), but maintains any such claim or question lacks merit. He also contends, citing 8 U.S.C. § 1252(a)(2)(B)(I), this court lacks jurisdiction over Alzainati's petition to the extent it challenges the BIA's decision that the "exceptional and extremely unusual hardship" required by § 1229b(b)(1)(D) would unlikely be established if the motion to reopen were granted. We agree with both points.

Our jurisdictional analysis begins with the underlying removal order. Congress explicitly withdrew appellate review of decisions regarding, among other things (and subject to the REAL ID Act exception), cancellation of removal under § 1229b:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review —

(I) any judgment regarding the granting of relief under section 1182(h), 1182(I), 1229b, 1229c, or 1255 of this title[.]

8 U.S.C. § 1252(a)(2)(B)(I) (emphasis added). Not all judgments regarding cancellation under § 1229b are subject to the jurisdictional bar. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005) (explaining that § 1252(a)(2)(B) "prohibit[s] review only of those `judgments' [under § 1229b] that are discretionary in nature"). But the IJ denied cancellation of removal because Alzainati had not established that removal would result in exceptional and extremely unusual hardship to Jawad. The BIA summarily affirmed. That hardship determination involved an exercise of discretion insulated from our review under § 1252(a)(2)(B)(I). See Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.2003). Apparently recognizing the limits of judicial oversight, Alzainati did not petition for review of the BIA's decision. Instead he sought to remand (reopen) and has appealed from the denial.

We must decide if Alzainati can indirectly obtain judicial review of a discretionary ruling that is not directly reviewable. With that in mind we look at the BIA's denial of the motion to reopen in light of the jurisdictional bar of § 1252(a)(2)(B)(I).³ We have said the denial of a motion to reopen "is considered a final, separately appealable order." Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.2004). In Infanzon, we also said "[o]nly where judicial review of the underlying order is precluded is [review of the] denial of a subsequent motion to reopen also precluded." Id. at 1362. But in Infanzon, § 1252(a)(2)(B)(I) was not at issue, as the underlying removal order concerned the denial of asylum and withholding of removal, forms of relief not enumerated in that provision. Instead, we considered the broader companion provision, § 1252(a)(2)(B)(ii), which bars jurisdiction over any "decision or action of the Attorney General ... the authority for which is specified ... to be in the discretion of the Attorney General." We concluded § 1252(a)(2)(B)(ii) did not deprive us of jurisdiction to review the denial of a motion to reopen where the alien sought to submit pertinent evidence not previously available, allegedly due to ineffective assistance of counsel.⁴

With respect to § 1252(a)(2)(B)(I) and motions to reopen, a proper jurisdictional analysis must consider the basis for the denial of the motion to reopen. The jurisdictional bar § 1252(a)(2)(B)(I) raises on judicial review of discretionary decisions enumerated in that statute is, standing alone, an insufficient basis to preclude review of the denial of a subsequent motion to reopen. Rather, like a number of our sister circuits, we embrace a more narrow holding. Because § 1252(a)(2)(B)(I) precludes our review of an "exceptional and extremely unusual hardship" determination under § 1229b(b)(1)(D), it also precludes our jurisdiction to review the BIA's denial of a motion to reopen because the alien still has failed to show the requisite hardship. See Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir.2007); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006)⁵; Martinez-Maldonado v. Gonzales, 437 F.3d 679, 682-83 (7th Cir.2006)⁶; Obioha v. Gonzales, 431 F.3d 400, 405-08 (4th Cir.2005); see also Ruiz-Martinez v. Mukasey, 516 F.3d 102, 121-22 (2d Cir.2008) (concerning extreme hardship necessary for suspension of deportation, the statutory predecessor to cancellation); Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir.2001) (per curiam) (same, under the transitional rules).

In contrast to where the BIA denies a motion to reopen on the merits of a previously-considered hardship issue, some other circuit courts have concluded § 1252(a)(2)(B)(I) does not preclude limited judicial review when the BIA denies a motion to reopen a cancellation case on a procedural ground, such as the failure to exercise an adequate opportunity to pursue the requested relief before the IJ, Obioha, 431 F.3d at 407; filing a deficient motion to reopen, id.; or failing to introduce previously unavailable, material evidence, Manzano-Garcia v. Gonzales, 413 F.3d 462, 468-69 (5th Cir.2005). This distinction further supports the jurisdictional significance, for § 1252(a)(2)(B)(I) purposes, of the ground on which the BIA bases its denial of a motion to reopen.

The proposition can...