Jurisdiction and Review of Special Rule for Battered Spouse or Child-based Motions to Reopen
The procedural history, facts of record, holding and rationale in Fredy Leo Pena-Lopez v. Garland (May 12, 2022) No. 20-60911 are as follows:
Case History
The Petitioner was ordered removed in absentia in 2004.
In 2019, the Petitioner filed a third motion to reopen, after the second motion to reopen had been denied by the Immigration Judge and his appeal dismissed by the Board of Immigration Appeals (“BIA”).
The Petitioner then petitioned for review of the BIA’s order.
The Petitioner had not appealed the denial of his first motion to reopen in 2004.
Facts
The Petitioner is a native and citizen of El Salvador, who was personally served with a notice to appear charging that he was subject to removal under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) because he entered the United States in September 2004 without being admitted or paroled.
Before the end of 2004, the Petitioner failed to appear for his immigration hearing, and the Immigration Judge ordered him removed in absentia.
In 2012, Petitioner married a United States citizen. The Petitioner’s wife then filed an I-130 Alien Relative Petition, naming the Petitioner as a beneficiary.
Subsequently, the Petitioner moved to reopen his immigration proceedings and to have the in-absentia removal order rescinded, alleging that he had never received notice of the removal hearing.
The Immigration Judge denied this motion to reopen.
The BIA dismissed Petitioner’s appeal.
Later, the Petitioner filed a second motion to reopen based on the United States Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). This second motion to reopen was also denied.
The Petitioner, however, did not file a petition for review of any of these decisions by the BIA. Consequently, they are not in controversy.
In 2019, the Petitioner filed his third motion to reopen with the BIA pursuant to section 240(c)(7)(C)(iv) of the Act, which sets forth a special rule for motions to reopen filed by battered spouses, children, and parents.
In particular, the Petitioner alleged that his wife used her ability to file I-130 petitions for him and his two sons as a means to oppress and control him; after the Petitioner’s sons arrived in the United States, his wife mistreated the boys and would insult the Petitioner in front of them; “on occasion,” the Petitioner’s wife was “physically violent” toward him; and the Petitioner’s wife eventually issued an ultimatum, giving the Petitioner and his sons six months to move out or begin paying rent.
Based on these facts, the Petitioner moved to reopen his immigration proceedings in order to pursue cancellation of removal under section 240A(b)(2)(A)(i)(I) of the Act.
Section 240A(b)(A)(i)(I) of the Act provides for cancellation of the removal of an alien who demonstrates battery or subjection to extreme cruelty:
by a spouse or parent who is or was a United States Citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent.
The BIA determined that Pena-Lopez did not make the necessary demonstration of extreme hardship or extraordinary circumstances, and declined to favorably exercise its discretion to sua sponte (i.e. legalese meaning by spontaneous self-urging or recommendation) to reopen the Petitioner’s removal proceeding.
Held
Petition for Review DENIED in part regarding the BIA’s determination that the Petitioner did not established extreme hardship or extraordinary circumstances necessary to a favorable disposition of his motion to reopen
Petition DISMISSED in part for lack of jurisdiction regarding the BIA’s decision not to sua sponte reopen removal proceedings
Rationale
The Petitioner asserted that that he affirmatively demonstrated both extraordinary circumstances and extreme hardship to his children, and maintains that the BIA’s decision to the contrary was “utterly without foundation in the evidence.”
The government asserted that the Fifth Circuit Court of Appeal lacks jurisdiction to review the BIA’s decision because it was a discretionary denial of relief pursuant to section 242(a)(2)(D) of the Act.
The Fifth Circuit Court of Appeal reasoned as follows:
Jurisdiction
- Section 242(a)(2)(B) of the Act “precludes review only of discretionary decisions.” Mireles-Valdez v. Ashcroft, 349 F.3d 213, at 216 (5th Cir. 2003).
- However, an appellate court retains jurisdiction under § 242(a)(2)(D) of the Act to review “constitutional claims or questions of law” raised in a petition for review.
- Therefore, the question is whether the BIA’s decision not to waive the one-year limitation presents a question of law for the purposes of section 242(a)(2)(D) of the Act.
- The United States Supreme Court, in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, at 1072 (2020), concluded that “the statutory term ‘questions of law’ includes the application of a legal standard to established facts” and so “mixed questions” of fact and law are not jurisdictionally barred.
- With regard to the sua sponte exercise of discretion, however, the BIA has absolute discretion to “at any time reopen or reconsider a case.” See 8 C.F.R. § 1003.2(a).
- The question whether the Petitioner has demonstrated extreme hardship or extraordinary circumstances is a prerequisite question of law that must be answered in the affirmative before the Attorney General’s discretion is relevant.
- Therefore, under Guerrero-Lasprilla v. Barr and Trejo v. Garland, F.4th 760 (5th Cir. 2021), the jurisdiction-restoring provision of section 242(a)(2)(D) of the Act restores jurisdiction to review the BIA’s determination that the Petitioner did not demonstrate the necessary prerequisites to relief.
Extreme Hardship or Extraordinary Circumstances Determination
- A BIA decision relating to a motion to reopen is reviewed under a highly deferential abuse of discretion standard of review under which an appellate court “must affirm the BIA’s decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Mejia v. Whitaker, 913 F.3d 482, at 488 (5th Cir. 2019) (quoting Gomez-Palacios v. Holder, 560 F.3d 354, at 358 (5th Cir. 2009)).
- The BIA determined that the Petitioner did not establish his circumstances were extraordinary nor that his children would suffer extreme hardship. Rather, it determined that they were the ordinary circumstances of a Special Rule for Battered Spouse or Child-based motion to reopen, and the usual hardships associated with relocation.
- Also, the BIA indicated that one of the Petitioner’s children is twenty years old and more than likely able to supplement the material support his father could provide from outside the country.
- Whatever the precise contours of extraordinary circumstances and extreme hardship, the ordinary (terrible) circumstances of a Special Rule for Battered Spouse or Child-based motion to reopen and the usual hardships of relocation do not suffice.
- Based on the facts of the record under review and under the highly deferential abuse of discretion standard applied to review of motions to reopen, the BIA’s decision was not “capricious, without foundation in the evidence,” or “irrational.” See Mejia v. Whitaker, 913 F.3d 482, at 487 (5th Cir. 2019) (quoting Gomez-Palacios v. Holder, 560 F.3d 354, at 358 (5th Cir. 2009)).
Sua Sponte Reopening
- Pursuant to 8 C.F.R. § 1003.2(a), “[t]he Board may at any time reopen or reconsider a case.”
- “[T]here is ‘no legal standard against which to judge.’” See Mejia v. Whitaker, 913 F.3d 482, at 490 (5th Cir. 2019) (quoting Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, at 250 (5th Cir. 2004)).
- Therefore, an appellate court lacks jurisdiction to review the exercise of sua sponte discretion.
Commentary
The decision of the Fifth Circuit Court of Appeal in Fredy Leo Pena-Lopez v. Garland (May 12, 2022) No. 20-60911 does not clearly define what circumstances will constitute extraordinary circumstances or extreme hardship to children in order to waive the one-year filing deadline imposed in section 240(c)(7)(C)(iv)(III) of the Act. Moreover, future clarity from the Fifth Circuit Court of Appeal seems unlikely to be forthcoming due to the highly deferential review that applies to motions to reopen at the appellate level.
The Fifth Circuit Court of Appeal, however, did provide immigration litigants with a format to obtain review of ostensibly discretionary administrative decisions.
It does not appear out of the ordinary for Immigration Judges and the BIA to focus on the legal standard that must be met to obtain discretionary review in the first place in more than one context.
If an administrative decision maker only relies on failure to establish facts that satisfy the standard for discretionary review and does not actually weigh the evidence to justify denial of discretionary relief or any other unfavorable exercise of discretion, the party requesting a such relief or favorable exercise of discretion might obtain appellate review by contending on the record that the unfavorable decision was not based on the exercise of discretion, but on misapplication of the legal standard.
For example, the Seventh Circuit Court of Appeal rejected the government’s contention that denial of a second six-month continuance was not reviewable as a “discretionary decision” based on section 242(a)(2)(B) of the Act. See Subhan v. Ashcroft, 383 F. 3d 591 (7th Cir. 2004). According to the Seventh Circuit Court of Appeal, the Immigration Judge did not deny the petitioner’s motion for continuance in the exercise of “discretion” because the Immigration Judge had provided no reason other than stating the obvious:
Again through no laxity or other fault on his part, the labor departments did not act on his application within the further six-month period. But when, therefore, he applied for a third continuance, the immigration judge turned him down with no explanation beyond saying that while Subhan "may be able to eventually acquire lawful permanent resident status by virtue of employment," not having done so as yet he was "not eligible for this form of relief at this time."
This was not a reason for denying the motion for a third continuance, but merely a statement of the obvious: that the labor departments hadn't yet acted.
Subhan v. Ashcroft, 383 F.3d 591, at 593 (7th Cir. 2004)
Ultimately, the Seventh Circuit Court of Appeal granted the petition for review.