Appellate Jurisdiction Over Motions to Reopen to Consider Discretionary Relief
On August 6, 2021, the Fifth Circuit Court of Appeals published a decision in which it determined that a prima facie (i.e. on the face or surface of the record) discretionary decision by an Immigration Judge and the Board of Immigration Appeals (“BIA”) relating to cancellation of removal under section 240A(b) of the Immigration and Nationality Act, as amended (“the Act”) is “tantamount to a discretionary decision on the merits” and deprives an appellate court of jurisdiction based on section 242(a)(2)(B)(i) of the Act. Mirian Margarita Parada-Orellana v. Merrick Garland, at p. 11 (5th Cir. August 6, 2021) No. 19-60645.
The procedural history, facts of record, holding and rationale in Mirian Margarita Parada-Orellana v. Merrick Garland, (5th Cir. August 6, 2021) No. 19-60645 are as follows:
Case History
The Petitioner moved the Immigration Court to rescind her in absentia order of removal or, in the alternative, to reopen her removal proceedings to allow her to apply for cancellation of removal pursuant to section 240A(b) of the Act.
The Immigration Judge denied her request, and she appealed to the Board of Immigration Appeals (“BIA”), which dismissed her appeal.
The Petitioner filed a Petition for Review.
Facts
The Petitioner is a native and citizen of El Salvador who entered the United States on October 1, 2005.
The Petitioner was apprehended by border patrol agents and was detained for three days.
While in detention, on October 2, 2005, the Petitioner was personally served with a notice to appear (“NTA”).
The NTA ordered her to appear before an Immigration Judge in Harlingen, Texas, at a date and time to be set.
Immigration and Customs Enforcement (“ICE”) agents asked the Petitioner for the address where she would be living in the United States, but she only reported that she would be staying with her uncle in Houston, Texas. The agents advised the Petitioner that she needed to call and update her address with the immigration court when she obtained a stable address.
After being released, the Petitioner went to her uncle’s house in Houston. According to the Petitioner, she gave all her “immigration papers” to her uncle’s wife.
Two months later, the Petitioner relocated to Maryland to live with a friend.
However, she did not contact the immigration court to update her address. The Petitioner stated this was because her uncle and his wife misplaced her “immigration papers.”
On March 9, 2006, the Petitioner did not appear for her scheduled hearing.
On March 20, 2006, the Immigration Judge ordered the Petitioner removed in absentia.
On April 5, 2010, ICE detained the Petitioner in Maryland. According to the Petitioner, this is when she first became aware that the Immigration Judge had issued a deportation order.
After she was released, she consulted with two lawyers but ultimately (based on the lawyers’ opinions that she would be deported) did not pursue any action to address the order.
On June 3, 2015, the Petitioner married a United States citizen. According to the Petitioner, she helps her husband run his business and manage his medical conditions.
In June 2016, the Petitioner’s spouse filed an I-130 petition for alien relative on her behalf, which was approved on June 5, 2017.
On September 20, 2018, the Petitioner filed a motion to reopen with the Immigration Judge. In her motion, the Petitioner sought to rescind her in absentia order of removal or, in the alternative, to reopen her removal proceedings sua sponte to allow her to apply for cancellation of removal for certain non-permanent citizens pursuant to section 240A(b) of the Act. On the same day she filed her motion, she applied for cancellation of removal under section 240A(b)(1) of the Act.
The Immigration Judge denied the Petitioner’s motion to rescind the in absentia order for failure of the Petitioner to demonstrate reasonable diligence in filing her motion to reopen with respect to the 180-day deadline. See section 240(b)(5)(C)(i) of the Act.
The Immigration Judge, however, considered the merits of the Petitioner’s motion to reopen, but denied the motion to reopen upon concluding that the Petitioner did not establish prima facie (i.e. on the face or surface of the record) eligibility for cancellation of removal. Specifically, the Immigration Judge concluded that the Petitioner did not establish that her husband would experience exceptional and extremely unusual hardship in the event of her removal.
The Petitioner appealed the Immigration Judge’s decision.
On August 6, 2019, the BIA agreed with the Immigration Judge that the Petitioner did not establish prima facie eligibility for cancellation of removal and dismissed her appeal.
Held
Petition for Review DENIED in part and DISMISSED in part (for lack of jurisdiction)
Rationale
The Petitioner launched two challenges to the denial of her motion to reopen to apply for cancellation of removal under section 240A(b) of the Act:
1. The Immigration Judge and the BIA had held her to a higher standard than simply establishing prima facie evidence of extreme and unusual hardship by not applying the criteria set forth in Matter of L-O-G-, 21 I. & N. Dec 413, at 419 (BIA 1996) in which the BIA had concluded that it must determine if there is a “reasonable likelihood that relief will be granted in the exercise of discretion.”
2. The BIA abused its discretion by finding she had not presented prima facie evidence of eligibility for the relief of cancellation of removal.
For its part, the Government asserted that:
1. As a matter of record, the Immigration Judge and BIA properly applied the criteria set forth in Matter of L-O-G-.
2. An Appellate Court lacks jurisdiction to review the BIA’s prima facie hardship determination pursuant to section 242(a)(2)(B)(i) of the Act.
The Fifth Circuit Court of Appeal first looked to the United States Supreme Court to establish a background for reviewing controversies relating to motions to reopen. See I.N.S. v. Abudu, 485 U.S. 94 (1988). Specifically, the Fifth Circuit Court of Appeal observed that the BIA may deny a motion to reopen on one of three grounds: (1) failure to establish a prima facie case for the underlying relief sought, (2) failure to introduce previously unavailable, material evidence, or (3) failure to establish entitlement to discretionary relief. I.N.S. v. Abudu, at 104–05.
In particular, the Fifth Circuit Court of Appeal noted that the Immigration Judge and BIA had denied the Petitioner’s motion to reopen based on the first ground (i.e. failure to establish a prima facie case for the underlying relief sought by filing the motion to reopen).
For the sake of clarity, the pertinent language of section 242(a)(2)(B)(i) of the Act is as follows:
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 any judgment regarding the granting of relief under section . . . 240A . . . of this title. [emphasis added]
The Fifth Circuit Court of Appeal then made the following determinations:
• In concluding that the Petitioner had not shown that there is a reasonable likelihood that she could demonstrate that her removal to El Salvador would result in exceptional and extremely unusual hardship to her husband, the Immigration Judge cited In Re S-V-, 22 I. & N. Dec. 1306 (BIA 2000), a more recent case that cited Matter of L-O-G- to support its use of the reasonable-likelihood standard. In addition, the BIA had stated its agreement with the Immigration Judge’s analysis upon affirming her decision.
• The BIA’s failure expressly to denote the standard of review does not make the BIA’s ruling incorrect. There is no requirement “that the BIA address evidentiary minutiae or write any lengthy exegesis . . . .” Abdel-Masieh v. U.S. I.N.S., 73 F.3d 579, at 585 (5th Cir. 1996). Therefore, no indication can be found in the record that the BIA abused its discretion by applying an incorrect legal standard.
• With regard to an appellate court’s jurisdiction to consider the Petitioner’s abuse of discretion argument relating to the BIA's conclusion that she had not presented prima facie evidence of eligibility for the relief of cancellation of removal, section 242(a)(2)(B)(i) of the Act specifically precludes judicial review of “any judgment” regarding cancellation of removal under section 240A(b) of the Act which encompasses the requirement that the petitioner establish “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, . . . who is a citizen of the United States . . .” as required under section 240A(b)(1)(D) of the Act.
• Even though the Petitioner did not have a “full merits” hearing on her application for cancellation, the BIA’s denial of her motion based on its conclusion that she failed to establish a prima facie case for the underlying relief of cancellation of removal is tantamount to a discretionary decision on the merits barred by section 242(a)(2)(B)(i) of the Act.
Commentary
For persons seeking relief in immigration court by filing a motion to reopen, Mirian Margarita Parada-Orellana v. Merrick Garland, (5th Cir. August 6, 2021) No. 19-60645 will lead to dismissal of Petitions For Review based on lack of appellate court jurisdiction to review administrative decisions relating to prima facie eligibility for the following relief applications:
• Waivers under section 212(h) of the Act;
• Waivers under section 212(i) of the Act;
• Cancellation of Removal, relating to lawful permanent residents as well as non-permanent residents, under section 240A of the Act;
• Adjustment of Status; or
• Any discretionary decision or action, except for relief under section 208(a) of the Act (asylum applications).
It seems, therefore, that the best approach for those seeking to reopen immigration court proceedings to apply for discretionary relief is to prepare substantial evidence that would be offered in a full hearing on the merits of the relief application in the form of documents and sworn statements. Apparently, the only immediate advantage will be no cross examination of the applicant and witnesses. This approach, however, could create a treasure trove of detailed facts for cross examination by the Government at the ultimate hearing on the merits.
Finally, if possible, try to structure relief claims that resemble the framework of successful claims in published decisions and avoid similarities to claims in published cases in which the relief claims were denied.
With regard to cancellation of removal, one way to create an impression of exceptional and extremely unusual hardship is to align the circumstances surrounding each of the qualifying relatives (including the applicant if a battered spouse or child) with the hardship factors identified in Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). The Immigration Judge will make an assessment about the severity of the hardship and decide whether or not the hardship individually or cumulatively falls outside of the ordinary hardships that occur when an alien is removed from the United States.
The specific hardship factors identified by the BIA in Matter of Anderson are as follows:
1) the age of the applicant;
2) family ties in the United States and abroad;
3) length of residence in the United States;
4) state of health;
5) economic and political conditions in the country to which the applicant is returnable;
6) financial status, including business and occupation;
7) the possibility of other means of adjustment;
8) special assistance to the United States or the applicant’s community; and
9) immigration history.
Remember, these suspension of deportation hardship factors under section 244(a)(1) of the former Act should be attributed to qualifying relatives (i.e. United States citizen or lawful permanent resident spouses, parents or children) for cancellation of removal cases under section 240A(b) of the Act. Hardship to the applicant is not a threshold eligibility consideration in cancellation of removal cases, unless the applicant is a battered spouse or child. See section 240A(b)(2)(A)(v) of the Act.
Avoid, as much as possible, describing fact patterns in published cases relating to unsuccessful claims such as Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (addressing extreme hardship under section 244(a)(1) of the former Act before enactment of IIRIRA on September 30, 1996), Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) and Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020).
On the other hand the BIA granted a cancellation of removal application in Matter of Recinas, 23, I&N Dec. 467 (BIA 2002). In Matter of Recinas, the BIA determined that a single mother who had no immediate family in Mexico and was the only source of support for 6 children established exceptional and extremely unusual hardship to 4 United States children who were 5, 8, 11, and 12 years of age and who were unfamiliar with Spanish.
An Immigration Judge’s denial of a suspension of deportation application under former section 244(a) of the former Act was reversed by the BIA in Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996).
In Matter of O-J-O-, suspension of deportation was granted by the BIA where:
the 24-year-old Nicaraguan respondent lived in the United States since the age of 13, was educated in this country, speaks English fluently, is fully assimilated into American life and culture, is involved in various activities in this country, runs a small trucking business, has no other means of obtaining lawful permanent resident status, and if deported, would return to a country where economic and political conditions were difficult.
See Headnote.
As noted above, unlike determinations relating to suspension of deportation, an Immigration Judge is limited to consideration of hardship to qualifying relatives to determine threshold eligibility for cancellation of removal under section 240A(b) of the Act, unless the applicant is a battered spouse or child.
Finally, keep an eye open for an error of law by the decision maker. The appellate court will have jurisdiction to review errors of law de novo (i.e. legalese for a new decision unaffected by a previous decision).