Fernandez v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARICELA M. FERNANDEZ, DANELIA 
FERNANDEZ COVARRUBIAS, No. 02-72733
Petitioners, Agency Nos.
v.  A75-481-628
ALBERTO R. GONZALES, Attorney A75-481-629
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 13, 2005—San Francisco, California
Filed March 2, 2006
Before: Betty B. Fletcher, John R. Gibson,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
2109
FERNANDEZ v. GONZALES 2113
COUNSEL
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.
OPINION
BERZON, Circuit Judge:
Petitioner1 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 indi-
cates that Fernandez’s husband, whom she married in Mexico
in 1974, is a lawful permanent resident. At her removal hear-
ing in 1998, Fernandez applied for cancellation of removal
based on her qualifying relative children. The immigration
judge (IJ) denied the application after determining that Fer-
nandez had not shown that the children would be subject to
1
Shortly after this petition for review was filed, the court ordered Fer-
nandez’s adult daughter Danelia Fernandez Covarrubias, who was part of
the proceedings below, to file her own petition, which she did not. At oral
argument, pro bono counsel for petitioners informed us that Covarrubias
wishes to withdraw from this petition. We now formally dismiss Covarru-
bias as a party.
2114 FERNANDEZ v. GONZALES
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 can-
cellation 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 grant-
ing 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 educa-
tion 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 [Fernan-
dez] 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 Fer-
nandez “has health insurance which allegedly covers the
whole family,” the IJ noted, she “related . . . an average result
FERNANDEZ v. GONZALES 2115
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” result-
ing from 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 hus-
band — who did not submit evidence to the IJ — which men-
tions 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 pro-
ceedings on the basis of new evidence only “where
the new facts alleged, when coupled with the facts
already of record, satisfy us that it would be worth-
while to develop the issues further at a plenary hear-
ing 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:
2116 FERNANDEZ v. GONZALES
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 per-
suades 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 eligibil-
ity 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 com-
monly the case. It is not “exceptional and extremely
unusual.”
DISCUSSION
I. Jurisdiction
A. General Principles
[1] 8 U.S.C. § 1252(a)(2)(B)(i) states in relevant part: “Not-
withstanding 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.
[2] Section 1252(a)(2)(B)(i) “eliminates jurisdiction only
over decisions by the BIA that involve the exercise of discre-
FERNANDEZ v. GONZALES 2117
tion. . . . [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 discre-
tionary, 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, discretion-
ary 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
discretionary determinations appears in Medina-Morales v.
Ashcroft, 371 F.3d 520 (9th Cir. 2004). In that case, the peti-
tioner 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 with-
draw our jurisdiction to review the BIA’s denial of
Medina-Morales’ motion to reopen. Because
Medina-Morales abandoned his petition for adjust-
ment of status and instead accepted voluntary depar-
ture, the IJ never ruled on Medina-Morales’
2118 FERNANDEZ v. GONZALES
adjustment of status petition but instead granted his
request for voluntary departure. Medina-Morales
does not, therefore, appeal the denial of an adjust-
ment 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 motion to reopen “involve[d] a
‘judgment regarding the granting’ of voluntary
departure” within the meaning of § 1252(a)(2)(B)(i),
where the alien had been granted voluntary depar-
ture). Rather, Medina-Morales’ appeal “involves a
decision regarding the denial of a motion to reopen,”
Zazueta-Carrillo, 322 F.3d at 1169-70.
The denial of Medina-Morales’ motion to reopen
is a decision under 8 U.S.C. § 1182(a)(6)(A)(i), the
provision relied upon by the INS as the basis for his
removability. See Rodriguez-Lariz [v. INS, 282 F.3d
1218, 1223 (9th Cir. 2002)]. The BIA’s decision is
not, therefore, a judgment “regarding the granting of
relief under” 8 U.S.C. §§ 1182(h), 1182(i), 1229b,
1229c or 1255, the provisions listed in § 1252(a)(2)
(B)(i). We hold, accordingly, that § 1252(a)(2)(B)(i)
does not preclude our review of the discretionary
aspects of the BIA’s denial of Medina-Morales’
motion to reopen.
371 F.3d at 527 (emphasis added; footnotes omitted).
Fernandez contends that Medina-Morales rested, as had
Arrozal v. INS, 159 F.3d 429 (9th Cir. 1998), a case decided
under the Illegal Immigration Reform and Immigrant Respon-
sibility Act’s (“IIRIRA”)2 transitional rules, on the principle
that the denial of a motion to reopen is always a decision
made pursuant to the ground of removability applicable to an
2
Pub. L. No. 104-208, 110 Stat. 3009 (1996).
FERNANDEZ v. GONZALES 2119
alien, not a decision regarding the granting of the underlying
relief sought. Here, as in Medina-Morales, Fernandez’s
Notice to Appear was issued pursuant to INA section
212(a)(6)(A)(i), which is not covered by the jurisdiction-
stripping provision of § 1252(a)(2)(B)(i). Pursuant to this line
of reasoning, we would have jurisdiction to review the BIA’s
prima facie case determination concerning Fernandez’s hard-
ship showing, because it was not a decision regarding the
granting of cancellation of removal under section 240A.
In Medina-Morales, however, we did not conduct a
mechanical inquiry into the statutory ground of removability.
Instead, we asked whether the denial of the motion to reopen
“was a judgment regarding the granting of relief” under an
enumerated provision in § 1252(a)(2)(B)(i). 371 F.3d at 526.
As there had been no previous denial of an adjustment of sta-
tus application and Medina-Morales was not seeking reopen-
ing with regard to voluntary departure, the denial of his
motion to reopen was not a “judgment” regarding the granting
of either form of relief. Id. at 527. Had it been, Medina-
Morales stated clearly that “we [would be] without jurisdic-
tion to review the discretionary aspects of the BIA’s deci-
sion.” Id. Instead, the decision at issue in Medina-Morales
was a decision that the BIA would not exercise its discretion
to reopen the proceedings to consider on the merits a ground
for relief never considered before, and on which there had
consequently been no “judgment” made. Id. at 524-25.
Medina-Morales’s transitional rules predecessor, Arrozal,
is distinct from Fernandez’s case for similar reasons. Arrozal
sought “reopening so that she can request suspension of
deportation under § 244 of the Immigration and Naturaliza-
tion Act.” 159 F.3d at 431.3 She presented evidence of hard-
ship in her motion to reopen. Id. We held that
3
The stop-time rule, which prevents aliens from accumulating continu-
ous physical presence after the charging document is issued, was not
applicable in Arrozal. See generally Ram v. INS, 243 F.3d 510 (9th Cir.
2001).
2120 FERNANDEZ v. GONZALES
the BIA’s order denying [Arrozal] Yehdego’s
motion to reopen should be treated as an order under
§ 241(a)(2), the overstay section of the INA. But
§ 241 is not one of the INA sections listed in
§ 309(c)(4)(E) of the IIRIRA, the section that pre-
cludes an appeal from certain discretionary deci-
sions.
Hence, this court has jurisdiction under the
IIRIRA’s transitional rules to hear [Arrozal] Yehde-
go’s appeal from the BIA’s denial of her motion to
reopen.
Id. at 432. Arrozal thus decided the jurisdictional question by
looking at the ground of Arrozal’s deportability, not the
underlying relief she requested. But, once again, Arrozal was
requesting relief for the first time, so no prior discretionary
determination existed regarding the granting of the relief
sought. In Fernandez’s case, by contrast, there has been such
a discretionary determination — a “judgment” — made by the
IJ and summarily affirmed without opinion by the BIA.
[3] Out-of-circuit decisions applying § 1252(a)(2)(B)(i)
support a distinction between motions to reopen seeking con-
sideration of a form of relief not previously sought and those
seeking a redetermination regarding the denial of a form of
relief.4 In Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004), the
Sixth Circuit addressed the application of § 1252(a)(2)(B)(i)
to the BIA’s denial of a motion to remand “to seek relief, in
the form of adjustment of status, that was not available to [the
petitioner] at the time of his original hearing,” and held that
jurisdiction was not precluded by the statute. Id. at 945, 948.
Pilica emphasized that
4
Consistent with this distinction, the government recognized that we
would have had jurisdiction over the now-dismissed component of this
petition for review that pertained to Fernandez’s adult daughter Danelia
Fernandez Covarrubias, for whom the IJ never made a discretionary hard-
ship determination.
FERNANDEZ v. GONZALES 2121
it is clear that this Court lacks jurisdiction over the
Attorney General’s discretionary determination of
whether an alien should be granted adjustment of
status. Here, however, Petitioner does not appeal
from a discretionary determination denying him an
adjustment in status. Rather, he appeals from the
BIA’s denial of his motion in which he sought a
remand in order to permit him to apply for an adjust-
ment of status.
Id. at 945; see also Guerra-Soto v. Ashcroft, 397 F.3d 637,
640 (8th Cir. 2005) (“Guerra-Soto has not asked us to review
the BIA’s denial of discretionary relief. Her petition simply
asks us to review the BIA’s refusal to reopen a case which,
if it had been reopened, would have resulted in the Attorney
General deciding whether to grant a form of discretionary
relief.”); Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir.
2004) (exercising jurisdiction where “no . . . judgment
[regarding adjustment of status] has ever been made with
regard to Subhan” (citing Medina-Morales)).
Manzano-Garcia v. Gonzales, 413 F.3d 462 (5th Cir.
2005), was also a case in which the petitioners were applying
for new relief. The petitioners “had abandoned their request
for voluntary departure and . . . there was no adjustment of
status application yet submitted.” Id. at 467. Following
Medina-Morales, the Fifth Circuit held “that review of the
BIA’s denial of the Manzanos’ motion to reopen pursuant to
8 C.F.R. § 1003.2 is not barred by § 1252(a)(2)(B)(i) because
such denial was an affirmance of their removability under
§ 1182(a)(6)(A)(i), not an adverse determination of the merits
of Mr. Manzano’s requested adjustment of status under
§ 1255.” Id. at 469; see also Obioha v. Gonzales, 431 F.3d
400, 406 (4th Cir. 2005) (“[W]e interpret the gatekeeper pro-
vision’s language to preclude review only where the basis for
the discretionary decision addresses the merits of an enumer-
ated provision.”).
2122 FERNANDEZ v. GONZALES
[4] Fernandez asks us to review a denial of a motion to
reopen where the BIA denied the motion on the ground that
there was no basis for reconsidering an earlier denial of the
relief sought, and that earlier denial was based on an unre-
viewable ground, hardship. The cases discussed above
addressing Courts of Appeals’ jurisdiction to review the
denial of a motion to reopen concerning discretionary relief
where there was a refusal to reopen for the purpose of consid-
ering the granting of freshly-sought relief are not directly per-
tinent to that question. Where the denial of the motion to
reopen is of the former variety — as it was in this case — the
question whether a court would “have been precluded from
reviewing the original determination of the BIA [or the IJ],”
Manzano-Garcia, 413 F.3d at 467, becomes more pertinent,
as will appear.
B. Grounds for Denying a Motion to Reopen
[5] The BIA can deny a motion to reopen for various rea-
sons. As explained in INS v. Abudu, 485 U.S. 94 (1988):
There are at least three independent grounds on
which the BIA may deny a motion to reopen. First,
it may hold that the movant has not established a
prima facie case for the underlying substantive relief
sought. . . . Second, the BIA may hold that the
movant has not introduced previously unavailable,
material evidence . . . . Third, in cases in which the
ultimate grant of relief is discretionary . . . the BIA
may . . . simply determine that even if [the other
requirements] were met, the movant would not be
entitled to the discretionary grant of relief.
Id. at 104-05.5 At oral argument in this and a companion case
5
As we have “interpreted [§ 1252(a)(2)(B)(i)] to encompass all discre-
tionary decisions involved in the cancellation of removal context, includ-
ing the ultimate discretionary decision to deny relief,” Romero-Torres,
327 F.3d at 890, Abudu’s third category of discretionary denials is not
reviewable in the cancellation of removal context.
FERNANDEZ v. GONZALES 2123
regarding motions to reconsider, the government advocated a
statutory interpretation of § 1252(a)(2)(B)(i) under which we
would have jurisdiction over petitions for review where the
BIA relies on a procedural ground to deny a motion to reopen
or reconsider — Abudu’s second category — but not over
decisions in which the BIA determines that no prima facie
case was established with respect to a discretionary factor
already considered, Abudu’s first category.6 In advocating
reliance on the distinction between Abudu’s first two catego-
ries, counsel for the government contrasted Fernandez’s case
with those “based upon a regulatory or a statutory require-
ment that the evidence wasn’t new, that it wasn’t previously
available,” and contended that jurisdiction is lacking here
because the only question presented is “whether that new evi-
dence altered the [prior, underlying] discretionary determina-
tion” that Fernandez had not met the hardship standard. We
agree with the government’s position: Section 1252(a)(2)
(B)(i) permits the exercise of jurisdiction in cases in which the
BIA rules that a motion to reopen fails to satisfy procedural
standards such as the evidentiary requirements specified in 8
C.F.R. § 1003.2(c)(1),7 but bars jurisdiction where the ques-
6
The requirement that a motion to reopen establish a prima facie case
for relief is not regulatory, although 8 C.F.R. § 1003.2(a) does state that
“[t]he Board has discretion to deny a motion to reopen even if the party
moving has made out a prima facie case for relief.” The prima facie case
requirement was instead developed by the BIA in its case law. See INS v.
Wang, 450 U.S. 139, 141 (1981) (motions to reopen “will not be granted
‘when a prima facie case of eligibility for the relief sought has not been
established.’ Matter of Lam, 14 I. & N. Dec. 98 (BIA 1972). See Matter
of Sipus, 14 I. & N. Dec. 229 (BIA 1972).”); see also Abudu, 485 U.S. at
108 n.13 (collecting cases distinguishing between the prima facie case
requirement and regulatory requirements for motions to reopen). The stan-
dard for establishing a prima facie case is whether “the evidence reveals
a reasonable likelihood that the statutory requirements for relief have been
satisfied.” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003) (quoting In
re S-V-, 22 I. & N. Dec. 1306 (BIA 2000) (en banc)).
7
8 C.F.R. § 1003.2(c)(1) states in relevant part:
A motion to reopen proceedings shall state the new facts that will
be proven at a hearing to be held if the motion is granted and
2124 FERNANDEZ v. GONZALES
tion presented is essentially the same discretionary issue origi-
nally decided.
This distinction is supported by Prado v. Reno, 198 F.3d
286 (1st Cir. 1999), in which the First Circuit considered the
case of a petitioner who sought and was granted voluntary
departure before the IJ. “She did not at that time seek adjust-
ment of status based upon her marriage to a U.S. citizen, pre-
sumably because she had not yet procured the requisite
immediate relative visa.” Id. at 289. The BIA dismissed
Prado’s appeal from the IJ’s denial of her motion to reopen
for the purpose of adjusting status, on the ground that the
motion was untimely. The First Circuit concluded that
§ 1252(a)(2)(B)(i) did not bar its jurisdiction over the petition
challenging that timeliness decision, because “[t]he decision
as to which Prado seeks review is not a BIA judgment on
whether to adjust Prado’s status, which would be a ‘judgment
shall be supported by affidavits or other evidentiary material. A
motion to reopen proceedings for the purpose of submitting an
application for relief must be accompanied by the appropriate
application for relief and all supporting documentation. A motion
to reopen proceedings shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing; nor shall any motion to reopen for the purpose
of affording the alien an opportunity to apply for any form of dis-
cretionary relief be granted if it appears that the alien’s right to
apply for such relief was fully explained to him or her and an
opportunity to apply therefore was afforded at the former hearing,
unless the relief is sought on the basis of circumstances that have
arisen subsequent to the hearing.
This provision pertains to the facts available at the time of the original
hearing, not thereafter. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th
Cir. 2005) (“[B]oth the statute and the regulation indicate that the evidence
must not have been available to be presented ‘at the former hearing.’ 8
U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1). . . . The government’s
argument that the information was previously available because it became
available during the pendency of the appeal to the Board does not comport
with the statute and regulation.”).
FERNANDEZ v. GONZALES 2125
regarding the granting of relief under’ an enumerated section,
but is rather a decision not to reopen under 8 C.F.R. § 3.2.”
Id. at 290. Similarly, as the government recognizes, BIA deci-
sions applying the evidentiary requirements for motions to
reopen contained in 8 C.F.R. § 1003.2(c)(1) are reviewable.
[6] In this case, the government contends that we lack juris-
diction over the non-constitutional component of the petition
for review, because the BIA did not rely on a statutory or reg-
ulatory provision to deny Fernandez’s motion to reopen.
Instead, the BIA concluded that she did not establish a prima
facie case concerning hardship, a discretionary factor that
would be unreviewable if it were the basis of a BIA decision
on direct appeal. See Martinez-Rosas, 424 F.3d at 929-30. We
agree that this is the relevant distinction. Medina-Morales
emphasized that discretionary decisions are those “acts over
which a statute gives the Attorney General pure discretion
unguided by legal standards or statutory guidelines.” 371 F.3d
at 528 (emphasis added). Decisions by the BIA that apply the
procedural requirements of 8 C.F.R. § 1003.2(c)(1) are not
discretionary under this definition. If, by contrast, the BIA
determines that a motion to reopen proceedings in which there
has already been an unreviewable discretionary determination
concerning a statutory prerequisite to relief does not make out
a prima facie case for that relief, § 1252(a)(2)(B)(i) precludes
our visiting the merits, just as it would if the BIA had
affirmed the IJ on direct appeal. Otherwise, petitioners could
make an end-run around the bar to review of their direct
appeals simply by filing a motion to reopen.
Our conclusion that we lack jurisdiction to review the
BIA’s denials of motions to reopen for failure to establish a
prima facie case if a prior adverse discretionary determination
was made by the agency does not preclude this court from
reviewing denials of motions to reopen discretionary determi-
nations in other circumstances. Motions to reopen involving
the submission of an application for new relief and those
denied on procedural grounds have already been discussed.
2126 FERNANDEZ v. GONZALES
There is, in addition, another category of cases over which we
have jurisdiction, pursuant to the principle that applications
for new relief are distinct from motions to reevaluate a prior
denial of relief: Where the relief sought is formally the same
as was previously denied but the evidence submitted with a
motion to reopen is directed at a different basis for providing
the same relief, the circumstances can take the matter out of
the realm of § 1252(a)(2)(B)(i). This category covers cases in
which the newly-submitted evidence is not cumulative, and
thus directed at collaterally attacking the agency’s initial deci-
sion on the same basis as it was originally made, but does
seek the same type of discretionary relief as was originally
sought. The BIA’s consideration of such evidence in deciding
whether to reopen the case is reviewable for abuse of discre-
tion, as the petitioner is presenting a basis for relief that was
not previously denied in the exercise of the agency’s unre-
viewable discretion.
An example would be the submission of evidence, subse-
quent to a denial of cancellation of removal, concerning a
newly-discovered, life-threatening medical condition afflict-
ing a qualifying relative. If the BIA were to refuse to reopen
the removal proceedings to make a hardship determination on
this new basis, it would not be making a “judgment regarding
the granting [of cancellation of removal],” within the ambit of
§ 1252(a)(2)(B)(i), but rather making a decision, under the
removability provision at issue, whether to reopen for new
proceedings, just as in Medina-Morales and Arrozal. As this
court has “jurisdiction to determine whether jurisdiction
exists,” Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.
2000), determining on which side of this line — between
additional evidence concerning the same hardship ground and
evidence of an entirely new basis for finding hardship — can
be done on a case-by-case basis. The jurisdiction thus pre-
served with regard to motions to reopen seeking such new
relief is a “safety valve . . . that ensures that the agency at
least considers new information, even if its ultimate and unre-
viewable judgment denies the relief sought.” Prado, 198 F.3d
FERNANDEZ v. GONZALES 2127
at 291; see also Pilica, 388 F.3d at 948 (“The Court . . .
agrees with the reasoning in Prado regarding the importance
of a small safety valve in the form of court review to ensure
that the BIA lives by its rules and at least considers new infor-
mation. There is no indication that Congress intended to elim-
inate this safeguard.”).
Finally, in motion to reopen cases in which an independent
claim such as ineffective assistance of counsel is at issue, we
have jurisdiction to determine whether a petitioner was preju-
diced, an assessment that can depend in cancellation of
removal cases on hardship evaluations. See, e.g., Maravilla v.
Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (per curiam) (stat-
ing in a cancellation of removal case that “Petitioners must
demonstrate that counsel’s performance was so inadequate
that it may have affected the outcome of the proceedings”
(internal quotation marks and citation omitted)). At times,
therefore, we will weigh hardship factors in this indirect fash-
ion. In Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002),
for example, a transitional rules case, the petitioners con-
tended “that they were prevented from timely filing their
applications for suspension of deportation due to ineffective
assistance of counsel . . . .” Id. at 1220. While, technically, the
fact that no application for relief had ever been filed could
place this case in the category of those in which entirely new
relief is sought, it would not have made a difference to the
ineffective assistance of counsel claim if the applications had
been filed, but defectively. Either way, the prejudice analysis
would include an examination of hardship where appropriate.8
8
Our holdings in Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003), and
Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004), that
“[s]ince discretionary relief is a privilege created by Congress, denial of
such relief cannot violate a substantive interest protected by the Due Pro-
cess clause,” Munoz, 339 F.3d at 954 (emphasis added), are not to the con-
trary. For purposes of prejudice analysis, procedural due process and
ineffective assistance of counsel claims, which are predicated on the right
to a full and fair hearing, see Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000), are not affected by the nature of the relief sought, see Munoz, 339
F.3d at 955 (conducting an ineffective assistance of counsel analysis and
concluding that Munoz “fails to demonstrate either deficient performance
or the required prejudice”).
2128 FERNANDEZ v. GONZALES
In sum, we have jurisdiction over motions to reopen regard-
ing cases in which: (1) the agency has not made a prior discre-
tionary determination concerning the relief sought; (2) the
agency’s denial of a motion to reopen applies a procedural
statute, regulation, or rule, as opposed to determining that the
movant did not establish a prima facie case for relief that mer-
its reopening a prior decision denying relief on an unreview-
able discretionary ground; (3) the evidence submitted
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; and (4)
an independent claim such as ineffective assistance of counsel
is at issue. Section 1252(a)(2)(B)(i) bars jurisdiction, how-
ever, to review the denial of a motion to reopen that pertains
only to the merits basis for a previously-made discretionary
determination under one of the enumerated provisions, 8
U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, and 1255.
C. Application to this Case
[8] In Fernandez’s case, the BIA’s denial of her motion to
reopen was a discretionary determination, based on consider-
ation of the new evidence provided, that Fernandez still did
not, prima facie, meet the hardship requirement for cancella-
tion of removal. In relevant part, the BIA stated that
to show prima facie eligibility for cancellation of
removal . . . 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 “excep-
tional and extremely unusual.”
This decision did not rely on the evidentiary requirements of
8 C.F.R. § 1003.2(c)(1), or on any other procedural regula-
FERNANDEZ v. GONZALES 2129
tion, statute, or rule. Moreover, the evidence Fernandez pre-
sented was not so different in kind from what was before the
IJ as to constitute an application for new relief rather than a
request for reconsideration. The lion’s share of the documen-
tation was either cumulative or pertained to the inevitable pas-
sage of time between Fernandez’s removal hearing and the
BIA’s adjudication of her appeal. The new letter from Fernan-
dez’s husband does not alter the core of her claim, as it
addresses the same basic hardship grounds considered previ-
ously. Accordingly, the BIA’s decision was a “judgment
regarding the granting of relief under section . . . 240A,” and
we lack jurisdiction to review it under § 1252(a)(2)(B)(i). We
therefore dismiss this portion of the petition for review.
II. Due Process
[9] Fernandez contends that her due process right to a full
and fair hearing was violated by the BIA’s “de micromis
recounting of the [new] evidence” she submitted. We review
due process claims de novo. See Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002). The BIA specified that “there
is simply nothing in the record or the motion to reopen which
persuades us that [Fernandez’s qualifying] relatives will suf-
fer 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.” To the extent that Fernandez asserts that the BIA,
despite this statement, failed to consider some or all of her
evidence, she has not overcome the presumption that the BIA
did review the record. See Larita-Martinez v. INS, 220 F.3d
1092, 1095-96 (9th Cir. 2000) (“[E]ven though the Board did
not explicitly mention the supplemental evidence, it plainly
stated that it reviewed the ‘record of proceedings.’ ”).
[10] Fernandez also relies on our requirement that “the BIA
must issue a decision that fully explains the reasons for deny-
ing a motion to reopen. . . . [T]he BIA is obligated to consider
and address in its entirety the evidence submitted by a peti-
2130 FERNANDEZ v. GONZALES
tioner.” Mohammed v. Gonzales, 400 F.3d 785, 792-93 (9th
Cir. 2005); see also Stoyanov v. INS, 172 F.3d 731, 736 (9th
Cir. 1999) (“[T]he BIA must provide a reasoned analysis of
the legal basis for its holding, specifying as well the particular
facts on which that holding relies.”). Our conclusion that we
lack jurisdiction to review Fernandez’s claim regarding the
BIA’s determination that she did not make out a prima facie
case of hardship forecloses this argument. As we have already
determined that we are without jurisdiction to review the
BIA’s conclusion on the merits, the concerns expressed in
Mohammed and Stoyanov about our ability to review inade-
quately reasoned or cursory BIA decisions when jurisdiction
is present do not apply. See Mohammed, 400 F.3d at 793;
Stoyanov, 172 F.3d at 735.
Conclusion
For the reasons given, we dismiss the petition for review in
part for lack of jurisdiction and deny it in part.
PETITION FOR REVIEW DISMISSED in part;
DENIED in part.