Garcia v. Holder Jr.

• Decision Date: 01 September 2010
• Docket Number: No. 07-71182.,07-71182.
• Citation: 621 F.3d 906
• Parties: Analilia Arenas de GARCIA and Gelasio Garcia, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

621 F.3d 906

Analilia Arenas de GARCIA and Gelasio Garcia, Petitioners,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-71182.

United States Court of Appeals,Ninth Circuit.

Argued Oct. 7, 2009.

Submitted Sept. 1, 2010.

Filed Sept. 1, 2010.

Murray David Hilts; Michael Joseph Codner, San Diego, CA, for petitioner Analilia Arenas de Garcia.

Murray David Hilts, San Diego, CA, for petitioner Gelasio Garcia.

Gregory G. Katsas, Acting Assistant Attorney General, Civil Division; James A. Hurley, Attorney, Office of Immigration Litigation; Anh-Thu P. Mai-Windle, Senior Litigation Counsel, Office of Immigration Litigation; Mark Christopher Walters, Assistant Director, Office of Immigration Litigation; Katherine Clark, Trial Attorney, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A098-571-168, A098-571-169.

Before HARRY PREGERSON, STEPHEN REINHARDT and KIM McLANE WARDLAW, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Analilia Arenas de Garcia and her husband, Gelasio Garcia (“the Garcias”), petition for review of a BIA decision denying their motion to reopen their removal proceedings. Some of the evidence that the Garcias submitted with their motion to reopen and with a subsequently filed “supplemental brief” in support of their motion, was cumulative of evidence that they had submitted during their hearing, and some was not. We hold that, pursuant to Fernandez v. Gonzales, 439 F.3d 592 (9th Cir.2006), we have jurisdiction to review the BIA's decision to the extent that it pertains to the Garcias' non-cumulative evidence. Id. at 603. However, we lack jurisdiction to review that decision insofar as it pertains to the cumulative evidence, except to the extent that the Garcias raise a question of law regarding the BIA's treatment of that evidence. See 8 U.S.C. § 1252(a)(2)(D) (preserving jurisdiction over questions of law raised in petitions for review of removal orders).

Reaching the merits of the Garcias' claims, we deny the petition in part and grant it in part. We hold that the BIA did not abuse its discretion in concluding that the Garcias' daughter's new medical condition did not warrant reopening. However, the BIA erred by failing to exercise its discretion to consider or decline to consider the Garcias' supplemental brief and the attached exhibit relating to a new medical condition allegedly incurred by Analilia's mother. Accordingly, we remand for further proceedings.

I. Factual and Procedural Background

Analilia Arenas De Garcia and Gelasio Garcia are natives and citizens of Mexico. They entered the United States in August 1989 and have lived in this country for more than twenty years. They are each the children of lawful permanent resident mothers and are together the parents of two U.S. citizen daughters, Vanessa, born in 1990, and Mariela, born in 1992.

In December 2004, the Garcias contacted a Department of Homeland Security office and requested cancellation of removal. The Garcias were not at the time in removal proceedings. Immigration officials subsequently initiated removal proceedings against them by serving them with Notices to Appear, alleging that they were removable as aliens present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing before an IJ, the Garcias conceded removability and sought cancellation of removal. See 8 U.S.C. § 1229b(b). To be eligible for cancellation, each had to show that, inter alia, his or her “removal would result in exceptional and extremely unusual hardship to [his or her] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” Id.

At their hearing, Analilia and Gelasio testified that they are very close to their U.S. citizen daughters. They explained that their family has never lived apart and that, if they were ordered removed, their daughters would go with them. They feared that their daughters, who have never been to Mexico apart from a single trip to Tijuana, would have trouble adjusting to life there. In particular, they were worried about the diminished educational opportunities that their daughters would face. In the United States, both girls were doing well in school and were on track to go to college. Analilia and Gelasio feared that the girls would have trouble succeeding academically in Mexico, because English was their best language, and neither could read or write in Spanish. Gelasio was also concerned about the family's economic prospects in Mexico. Here, both he and Analilia worked full time. With help from extended family, they were able to achieve a comfortable standard of living. In Mexico, Gelasio worked as a subsistence farmer, a job that would not allow him to provide well for his family.

Analilia and Gelasio also testified briefly about an eye condition afflicting Mariela, which had required her to undergo surgery about ten years earlier, and which necessitated trips to the doctor every six months to a year to replace her glasses. They further testified that Analilia cared for her lawful permanent resident mother, who lived with them, and who suffered from hypertension and high cholesterol. Finally, they testified that most of their extended family members, with whom they and their daughters were very close, lived in the United States.

On December 19, 2005, the IJ denied the Garcias' cancellation applications on the ground that they had failed to establish the requisite hardship to a qualifying relative. He acknowledged that Vanessa and Mariela would experience a lower standard of living and reduced educational opportunities in Mexico, but found that this hardship was not “exceptional and extremely unusual.” He was also “not able to find the requisite degree of hardship” to the Garcias' lawful permanent mothers.

The Garcias appealed to the BIA; their initial brief to the BIA, submitted on June 12, 2006, focused primarily on the alleged educational and cultural hardships that their daughters would face in Mexico. On August 25, 2006, the BIA adopted and affirmed the IJ's decision. On November 16, 2006, the Garcias filed a timely motion to reopen. They asserted that Mariela had developed “a severe keloid involving[her] right external ear,” which could not be safely treated in Mexico. ¹ As evidence, they submitted two doctors' notes diagnosing Mariela and referring her to treatment and an investigative news report documenting the risks of plastic surgery in Mexico. On December 18, 2006, the Garcias filed a “motion to accept supplemental brief” along with a document titled “supplemental brief in support of motion to reopen.” The supplemental brief asserted that Analilia's lawful permanent resident mother had “developed several new medical conditions” subsequent to the December 2005 hearing, namely, high cholesterol and a “pre-cancerous condition in her cervix.” Attached to the supplemental brief were two doctor's reports purporting to document these conditions, one relating to high cholesterol and the other to the alleged cervical condition. ² However, the high cholesterol condition was in fact cumulative of the high cholesterol condition testified to at the hearing.

On February 28, 2007, the BIA denied the Garcias' motion to reopen. It found that the evidence of Mariela's keloid condition was not “likely [to] change the outcome on the issue of whether the respondents have established exceptional and extremely unusual hardship.” It said nothing about the Garcias' supplemental brief or evidence. The Garcias timely petitioned this court for review.

II. Jurisdiction

The government asserts that 8 U.S.C. § 1252(a)(2)(B)(i) deprives us of jurisdiction to review the BIA's denial of the Garcia's motion to reopen. ³ That provision states:

Notwithstanding any other provision of law ... 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 ... 1229b [, the cancellation of removal provision]....

8 U.S.C. § 1252(a)(2)(B).

In Fernandez v. Gonzales, 439 F.3d 592 (9th Cir.2006), we addressed at length the question when a BIA decision on a motion to reopen constitutes a “judgment regarding the granting of relief under section ... 1229b” which, pursuant to § 1252(a)(2)(B)(i), we lack jurisdiction to review. The facts and procedural posture of Fernandez are in some respects similar to the facts and procedural posture of this case. Like the Garcias, Fernandez applied for cancellation based on the diminished educational opportunities and difficult cultural adjustments that her U.S. citizen children would face if she were removed. Fernandez, 439 F.3d at 595. The IJ denied her application, and the BIA affirmed. Id. Fernandez then filed a motion to reopen. She sought to introduce evidence of her children's further immersion in U.S. culture during the four years between her hearing and the BIA's decision on appeal. Id. The BIA denied the motion on the ground that it failed to establish prima facie eligibility for cancellation. Id.

We were required to decide in Fernandez whether the BIA's decision constituted a “judgment regarding the granting of relief under [the cancellation of removal provision]....” 8 U.S.C. § 1252(a)(2)(B)(i). We concluded that it did, because Fernandez's motion had essentially asked the BIA to revisit its prior judgment regarding her eligibility for cancellation. Id. at 603. We reasoned that, if we held that we had jurisdiction to review the BIA's denial of a motion to reopen that presented “essentially the same discretionary issue originally decided [at the IJ hearing and on appeal to the BIA],” petitioners could “make an end-run around the bar to review of their direct appeals simply by filing a motion to reopen.”...