Estrada v. Garland
| Decision Date | 09 December 2022 |
| Docket Number | 21-70377 |
| Parties | BALDEMAR PEDROZA ESTRADA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
Submitted November 17, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-418-973
Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS [***] District Judge.
Baldemar Pedroza Estrada, a citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals (BIA) denying his motion to reopen.
For the following reasons, we hold that we have jurisdiction and grant the petition for review.
Pedroza Estrada originally sought cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1) on the basis that his removal to Mexico would result in "exceptional and extremely unusual hardship" to his two minor children, both United States citizens, because Pedroza Estrada is the children's sole financial provider. The immigration judge (IJ) found that Pedroza Estrada's children would experience only ordinary economic and emotional hardships from Pedroza Estrada's removal, and accordingly denied Pedroza Estrada's application. The BIA dismissed his appeal.
Pedroza Estrada timely filed a motion to reopen with the BIA based on materially changed circumstances affecting his eligibility for cancellation of removal, submitting newly developed mental health conditions in his minor children including that his minor child J. had begun struggling with suicidal thoughts. Pedroza Estrada argued that his removal would cause exceptional and extremely unusual hardship by exacerbating J.'s condition and increasing J.'s risk of suicide. The BIA denied the motion.
1. Pedroza Estrada first argues that his underlying removal order is void because his Notice to Appear (NTA) lacked the date and time of his hearing. Pedroza Estrada never raised these deficiencies in his NTA before the agency and has appealed only the BIA's denial of his motion to reopen rather than the underlying removal order. Nonetheless, he argues that the deficiencies go to a question of subject matter jurisdiction that cannot be waived. This argument is foreclosed by our en banc holding in United States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022), that "failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction."
2. The government argues that we lack jurisdiction to review the BIA's denial of Pedroza Estrada's motion to reopen because it relates to an application for cancellation of removal. While we ordinarily have jurisdiction to review the BIA's denial of a motion to reopen under 8 U.S.C. § 1252(a)(1), Mata v. Lynch, 576 U.S. 143, 147 (2015), pursuant to 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to review a "judgment regarding the granting of relief" under cancellation of removal. The statutory bar in 8 U.S.C. § 1252(a)(2)(B) does not apply, however, to a denial of a motion to reopen where the evidence submitted to the BIA in connection with the motion "addresses a hardship ground so distinct from that considered previously as to make the motion to reopen a request for new relief, rather than for reconsideration of a prior denial." Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir. 2006).
We have jurisdiction because Pedroza Estrada seeks to reopen his case on the basis of non-cumulative evidence of a new hardship that is different in kind from the evidence presented at the original hearing. See Garcia v. Holder, 621 F.3d 906, 911-12 (9th Cir. 2010). Whereas the original application asserted that the children would suffer extreme and unusual hardship from the removal of their financial provider and included no evidence of any mental health problems for either child, the motion to reopen includes specific evidence of newly developed mental health conditions. The agency's recognition in the original denial that the children would suffer ordinary emotional hardship from parental separation does not indicate that any claim was previously made or adjudicated for extreme and unusual hardship on the basis of the mental health conditions presented in the motion to reopen.
3. We review the denial of a motion to reopen for abuse of discretion. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). The BIA may not make credibility determinations on motions to reopen, and thus the specific "facts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable." Bhasin v. Gonzales, 423 F.3d 977, 986-87 (9th Cir. 2005) (citing Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)); see also Silva v. Garland, 993 F.3d 705, 718 (9th Cir. 2021). The BIA abuses its discretion when it fails to "weigh all relevant evidence, including affidavits or declarations." See Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1078-79 (9th Cir. 2010).
Here the BIA abused its discretion in its denial of Pedroza...
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