Valerdi v. Holder, Jr. , 581 F. App'x 1 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2117
ENRIQUETA LILIA VALERDI,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Kayatta, and Lipez,
Circuit Judges.
Lidia M. Sanchez on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Shelley R. Goad and Tim Ramnitz, Office of Immigration Litigation,
on brief for respondent.
September 24, 2014
LIPEZ, Circuit Judge. Enriqueta Lilia Valerdi, a citizen
of Mexico, entered the United States on or about May 15, 1999,
without being admitted or paroled. Subsequently placed into
removal proceedings, she filed an application for cancellation of
removal. An immigration judge ("IJ") denied Valerdi’s application
for relief and then denied her subsequent motion to reconsider and
reopen. The Board of Immigration Appeals ("BIA") upheld the IJ’s
denial of her motion to reconsider and reopen, and Valerdi now
timely petitions for review of the BIA’s denial. We dismiss the
petition for lack of jurisdiction.
I.
Valerdi is married, although separated from her husband, and
has four children. Her oldest child is a Mexican citizen, while her
three younger children are U.S. citizens. Her youngest child, who
is her only minor child, was diagnosed with asthma in 2008 and eye
problems in December 2011.
In August 2009, Valerdi filed an application for asylum with
the United States Citizenship and Immigration Services. In
December 2009, the Department of Homeland Security placed Valerdi
in removal proceedings. Through counsel, Valerdi conceded
removability before the IJ in February 2010, and requested relief
through cancellation of removal under 8 U.S.C. § 1229b(b). In her
application for cancellation of removal, Valerdi stated her removal
would constitute an exceptional and extremely unusual hardship to
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her U.S. citizen children. In an oral ruling after a hearing on
the merits on December 8, 2011, the IJ found that removal would not
constitute such a hardship.1 At that hearing, Valerdi also
withdrew her application for asylum with prejudice.
Valerdi filed a timely motion to reconsider and reopen with
the IJ. In her motion, she asserted that new evidence relating to
her youngest child's medical conditions established that her
removal would result in an exceptional and extremely unusual
hardship to her U.S. citizen child. The IJ denied the motion on
March 6, 2012, finding that Valerdi had not identified any error of
fact or law warranting reconsideration and that the evidence
regarding her son's asthma was neither new nor newly discovered.
The IJ further found that, even considering the proffered evidence,
Valerdi had not established that her removal would result in
exceptional and extremely unusual hardship for her son.
Valerdi filed a timely appeal of the IJ's denial of her motion
to reconsider and reopen with the BIA. Although she acknowledged
in her brief to the BIA that she had not timely disclosed her son's
asthma diagnosis, she had noted evidence of her son's eye problems,
which were diagnosed after the IJ initially denied her application
for cancellation of removal. She argued that the evidence of her
son’s medical conditions proved that her removal would constitute
exceptional and extremely unusual hardship to her son and that,
1
The other eligibility requirements for cancellation of removal
are not at issue on appeal. See 8 U.S.C. § 1229b(b)(1).
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therefore, the IJ erred in denying her motion to reopen and
reconsider. The BIA denied Valerdi's appeal on August 13, 2013,
concluding that the record supported the IJ’s decision.
This petition for review followed. Valerdi argues that the
BIA abused its discretion by (1) finding she had not identified any
error of law or fact in her motion to reconsider, (2) finding she
had not identified any new or previously unavailable information in
her motion to reopen, and (3) agreeing with the IJ's determination
that, even with the evidence of her son’s conditions, Valerdi did
not establish that her removal would cause her son exceptional and
extremely unusual hardship.
II.
Citing 8 U.S.C. § 1252, the government argues that we lack
jurisdiction to consider the BIA’s rulings on petitioner's motion
to reconsider and reopen her case. Section 1252 forecloses
judicial review of a specific set of discretionary agency decisions
on the merits of a petitioner’s claim for immigration relief,
including cancellation of removal. See 8 U.S.C.
§ 1252(a)(2)(B)(i) (stating that "no court shall have jurisdiction
to review . . . any judgment regarding the granting of relief under
section. . . 1229b [cancellation of removal]"); see also Restrepo
v. Holder, 676 F.3d 10, 15 (1st Cir. 2012) (noting that section
1252 bars review of "any judgment regarding the granting of relief
relative to cancellation of removal" (internal quotation marks
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omitted)). We have previously held that "we also lack jurisdiction
to consider the BIA's denial of the motion to reopen for
consideration of cancellation of removal when the BIA has decided
there was not the requisite hardship." Parvez v. Keisler, 506 F.3d
93, 96 (1st Cir. 2007).
The Supreme Court, in Kucana v. Holder, 558 U.S. 233 (2010),
held that "[a]ction on motions to reopen, made discretionary by the
Attorney General only, . . . [are] subject to judicial review."
Id. at 253. However, the Court relied in its reasoning on the fact
that there "the alien's underlying claim (for asylum) would itself
be reviewable." Id. at 250. The Court also explicitly disclaimed
any decision as to whether courts have jurisdiction over a motion
to reopen a denial of a claim that is itself otherwise
unreviewable. Id. at 250 n.17 ("We do not reach the question
whether review of a reopening denial would be precluded if the
court would lack jurisdiction over the alien's underlying claim for
relief."). Accordingly, our precedent foreclosing review of a
"denial of [a] motion to reopen for consideration of cancellation
of removal when the BIA has decided there was not the requisite
hardship" remains binding. Parvez, 506 F.3d at 96.
The IJ concluded here, and the BIA agreed, that petitioner did
not identify in her motion to reconsider any error or previously
unavailable information, and therefore was not entitled to reopen
her case. The Board further concluded that, even considering the
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evidence and arguments in Valerdi's motion, she did not establish
that her removal would cause her son exceptional and extremely
unusual hardship. Accordingly, we lack jurisdiction to review the
BIA's denial of her motion to reconsider and reopen her application
for cancellation of removal. Her petition is dismissed.
So ordered.
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