Pena-Lopez v. Garland ( 2022 )

Case: 20-60911 Document: 00516317518 Page: 1 Date Filed: 05/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2022
No. 20-60911
Lyle W. Cayce
Clerk
Fredy Leo Pena-Lopez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 404 574
Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.
Priscilla Richman, Chief Judge:
Fredy Leo Pena-Lopez (Pena-Lopez) was ordered removed in
absentia in 2004. He remained in the United States, and in 2019, he filed a
motion to reopen under a special rule for battered spouses. 1 Because the BIA
did not abuse its discretion in concluding that Pena-Lopez had failed to show
extreme hardship or extraordinary circumstances, we deny his petition for
review.
1
8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
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I
Fredy Leo Pena-Lopez, a native and citizen of El Salvador, was
personally served with a notice to appear charging him with removability
because he entered the United States in September 2004 without being
admitted or paroled. Pena-Lopez failed to appear for his immigration
hearing, and he was ordered removed in absentia later that year.
In 2012, Pena-Lopez married Ingrid Roxana Rivas, a United States
citizen. Rivas then filed an I-130 Alien Relative Petition on Pena-Lopez’s
behalf, and Pena-Lopez 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have the in-absentia removal order rescinded, alleging that he had never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 (IJ) denied
that motion to reopen. The BIA dismissed Pena-Lopez’s appeal. Pena-
Lopez later filed a second motion to reopen based on the Supreme Court’s
decision in Pereira v. Sessions,2 which was also denied. Pena-Lopez did not
petition for review of any of these decisions by the BIA. They are not at issue.
In 2019, Pena-Lopez filed the instant motion to reopen—his third—
with the BIA pursuant to 8 U.S.C. § 1229a(c)(7)(C)(iv), which sets forth a
special rule for motions to reopen filed by battered spouses, children, and
parents. He alleged that Rivas used her ability to file I-130 petitions for him
and his two sons as a means to oppress and control him. After Pena-Lopez’s
sons arrived in this country, Rivas allegedly mistreated the boys and would
insult Pena-Lopez in front of them. “[O]n occasion,” Rivas was also
“physically violent” toward Pena-Lopez. Rivas eventually issued an
ultimatum, giving Pena-Lopez and his sons six months to move out or begin
paying rent; she allowed them to take only their clothing from the home.
These facts prompted Pena-Lopez to move to reopen his immigration
2
138 S. Ct. 2105 (2018).
2
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proceedings in order to pursue cancellation of removal under 8 U.S.C.
§ 1229b(b)(2)(A)(i)(I), a form of relief provided by the Violence Against
Women Act (VAWA).3
Generally, an alien is entitled to file one motion to reopen, which must
be filed within ninety days of the entry of a final order of removal.4 However,
when the motion to reopen is filed for the purpose of pursuing special-rule
cancellation of removal under VAWA, the normal time and number
limitations do not apply if certain requirements are met.5 The pertinent
requirement for purposes of this petition is that the motion to reopen must
be filed within one year of the entry of the final removal order.6 If that
deadline is not met, the statute dedicates to the Attorney General discretion
whether to “waive this [one-year] time limitation in the case of an alien who
demonstrates extraordinary circumstances or extreme hardship to the alien’s
child.”7
Pena-Lopez conceded that his motion to reopen was untimely because
it was filed after the one-year period had already passed. He argued, though,
that the psychological abuse inflicted upon him by Rivas was an extraordinary
circumstance that warranted a waiver of the one-year filing deadline. Pena-
Lopez also argued that his sons would experience hardship if he were
removed to El Salvador because they would not be able to support themselves
in the United States without his “material and paternal support.”
3
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,
108 Stat. 1796, 1902.
4
8 U.S.C. § 1229a(c)(7)(A), (C)(i).
5
Id. at § 1229a(c)(7)(A), (C)(iv).
6
Id. at § 1229a(c)(7)(C)(iv)(III).
7
Id.; see also Kucana v. Holder, 558 U.S. 233, 243 (2010).
3
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Therefore, Pena-Lopez argued, his sons would be forced to return with him
to El Salvador, where they were “destined to be subjected to extreme poverty
and criminal violence.”
The BIA denied the motion to reopen. The BIA determined that
Pena-Lopez’s motion was number barred because it was his third and that
the motion was untimely because it was filed beyond the one-year filing
deadline.
The BIA then considered its statutory ability to waive the one-year
filing deadline for the motion to reopen. The BIA found that the abuse Pena-
Lopez received from Rivas did “not qualify as an ‘extraordinary
circumstance’ warranting a waiver” of the filing deadline, explaining that the
abuse described by Pena-Lopez was “the type of abuse that would ordinarily
be associated with an application for VAWA cancellation of removal.” With
respect to extreme hardship, the BIA found that the hardship that Pena-
Lopez argued his sons would suffer if he were removed to El Salvador did
“not qualify as ‘extreme hardship,’ but rather the type of hardship that
would ordinarily be expected when a close family member is removed from
the United States to another country.” In a footnote, the BIA observed that
the older of Pena-Lopez’s two sons in the United States was twenty years old
and could assist Pena-Lopez in providing for their family. The BIA
determined that Pena-Lopez did not make the necessary demonstration of
extreme hardship or extraordinary circumstances. It did not exercise its
discretion to waive the one-year filing deadline for Pena-Lopez’s VAWA-
based motion to reopen. The BIA also declined to exercise its discretion to
4
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sua sponte reopen Pena-Lopez’s immigration proceeding. Pena-Lopez
timely petitioned for review of the BIA’s order.8
Pena-Lopez asserts that the BIA committed legal and factual error in
concluding that his motion to reopen was time barred and number barred and
that no exception to those bars applied here. Despite that assertion, Pena-
Lopez does not actually dispute the BIA’s determinations that his instant
motion to reopen is his third and that it was filed more than a year after the
entry of his final order of removal. Moreover, those determinations are
supported by the record. Pena-Lopez’s challenge is to the BIA’s decision not
to waive the untimeliness of his motion to reopen. He contends that he
affirmatively demonstrated both extraordinary circumstances and extreme
hardship to his children, and he maintains that the BIA’s decision to the
contrary was “utterly without foundation in the evidence.”
The government argues that this court lacks jurisdiction to review the
BIA’s decision because it was a discretionary denial of relief. 9 It points to two
unpublished decisions of this court holding that the BIA’s decision whether
to waive the one-year limitation under § 1229a(c)(7)(C)(iv)(III) is a
discretionary decision that we have no jurisdiction to review under 8 U.S.C.
§ 1252(a)(2)(D).10
8
See 8 U.S.C. § 1252(b)(1) (providing that a petition for review must be filed within
thirty days of the date of a final order of removal); see also Omozee v. Mukasey, 261 F. App’x
655, 655-56 (5th Cir. 2008) (per curiam) (unpublished) (citing Giova v. Rosenberg, 379 U.S.
18 (1964), and stating that the denial of a motion to reopen removal proceedings is
construed as a final order of removal for purposes of this court’s jurisdiction); Torabi v.
Gonzales, 165 F. App’x 326, 329 (5th Cir. 2006) (per curiam) (unpublished) (same).
9
See 8 U.S.C. § 1252(a)(2)(B).
10
See Pinho-De Oliveira v. Barr, 778 F. App’x 332, 333 (5th Cir. 2019) (per curiam)
(unpublished) (citing Kucana, 558 U.S. at 237, 249); Ezeokoli v. Lynch, 630 F. App’x 334,
335 (2016) (per curiam) (unpublished) (same).
5
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II
We must first consider our jurisdiction. This court reviews questions
of jurisdiction de novo.11 Pursuant to § 1252(a)(2)(B)(ii), no court has
jurisdiction to review any decision that is statutorily committed to the
Attorney General’s discretion.12 Section 1252(a)(2)(B) “precludes review
only of discretionary decisions.”13 The provision at issue here,
§ 1229a(c)(7)(C)(iv)(III), contains the only statutory reference to the
Attorney General’s discretion with respect to motions to reopen, and a
decision not to reopen may be barred from judicial review.14 This court
nevertheless retains jurisdiction under § 1252(a)(2)(D) to review
“constitutional claims or questions of law” raised in a petition for review. 15
However, an alien cannot obtain judicial review of a discretionary decision
simply by characterizing it as such.16 The question, then, is whether the
BIA’s decision not to waive the one-year limitation presents a question of law
for the purposes of § 1252(a)(2)(D).17
This court has previously held in unpublished, nonprecedential
opinions that the BIA’s decision whether to waive the one-year time
limitation under § 1229a(c)(7)(C)(iv)(III) is a discretionary decision that it
11
Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001).
12
8 U.S.C. § 1252(a)(2)(B)(ii).
13
Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003) (emphasis omitted).
14
Kucana, 558 U.S. at 243 n.10; see also 8 U.S.C. § 1252(a)(2)(B)(ii).
15
8 U.S.C. § 1252(a)(2)(D); see also Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,
1070-72 (2020).
16
Hadwani v. Gonzales, 445 F.3d 798, 801 (5th Cir. 2006) (per curiam).
17
Pena-Lopez does not raise a constitutional claim.
6
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lacks jurisdiction to review.18 Pinho-De Oliveira and Ezeokoli are the only two
cases issued by this court addressing § 1229a(c)(7)(C)(iv)(III).19 Pena-Lopez
acknowledges the holdings of those cases, but he contends that the Supreme
Court’s recent decision in Guerrero-Lasprilla v. Barr20 undermines them. We
agree.
A
In Guerrero-Lasprilla, the Supreme Court addressed the scope of the
phrase “questions of law” that is used in the jurisdiction-restoring provision
of § 1252(a)(2)(D).21 The Court 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.22 To hold otherwise, the Court reasoned, “would effectively
foreclose judicial review of the [BIA’s] determinations so long as it
announced the correct legal standard.”23
This court has not directly addressed the effect of Guerrero-Lasprilla
on § 1229a(c)(7)(C)(iv) determinations. The Second Circuit has recently
issued an unpublished, summary order, holding that there was no jurisdiction
to review a § 1229a(c)(7)(C)(iv) determination.24 But it did not cite—much
18
Pinho-De Oliveira v. Barr, 778 F. App’x 332, 333 (5th Cir. 2019) (per curiam)
(unpublished) (citing Kucana, 558 U.S. 237, 249); Ezeokoli v. Lynch, 630 F. App’x 334, 335
(5th Cir. 2016) (per curiam) (unpublished) (same).
19
See Pinho-De Oliveira, 778 F. App’x at 333; Ezeokoli, 630 F. App’x 335.
20
140 S. Ct. 1062 (2020).
21
Id. at 1067.
22
Id. at 1072.
23
Id. at 1070.
24
Antoine v. Garland, No. 20-716, 2022 WL 1022607, at *2 (2d Cir. 2022) (per
curiam) (unpublished) (summary order).
7
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less discuss—the effect of Guerrero-Lasprilla on its analysis.25 The Third
Circuit has also addressed the jurisdictional question recently, concluding
the opposite but also without discussion or even citation of Guerrero-
Lasprilla.26
More helpful is our court’s holding in Flores-Moreno v. Barr.27 Flores-
Moreno filed an untimely motion to reopen his removal proceedings but
argued that the untimeliness of his motion “should be equitably tolled
because he exercised due diligence in the face of extraordinary
circumstances.”28 This court noted that, prior to Guerrero-Lasprilla, it
would have held that the question whether an alien exercised due diligence
for purposes of equitable tolling was a factual question that it lacked
jurisdiction to consider.29 In light of Guerrero-Lasprilla, though, this court
held that, “[b]ecause there is no dispute as to the underlying facts, but rather
only as to the application of a legal standard to those facts, the due diligence
inquiry in this case is properly construed as a question of law over which we
have jurisdiction pursuant to § 1252(a)(2)(D).”30
Moreover, in Trejo v. Garland,31 a panel of this court held that the four
statutory conditions required for an alien to be eligible for cancellation of
removal under § 1229b(b)(1)—including the exceptional and extremely
25
Id.
26
Walters v. Att’y Gen. of the United States, No. 20-2543, 2021 WL 4316832, at *1-
2 (3d Cir. 2021) (unpublished).
27
971 F.3d 541, 544 (5th Cir. 2020), cert. denied, 141 S. Ct. 1238 (2021).
28
Id. at 543.
29
Id. at 544.
30
Id.
31
3 F.4th 760 (5th Cir. 2021).
8
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unusual hardship determination—are not discretionary determinations but
“the application of a legal standard to . . . established facts,” as discussed in
Guerrero-Lasprilla.32 Looking to the language of the statute, this court
reasoned that “[o]nly after the adjudicator has determined that the alien may
be legally considered for cancellation of removal does the adjudicator’s
discretion enter the picture, when he or she is called upon to decide whether
to actually grant cancellation to a qualifying alien.”33
We see no material difference in the statutes at issue in Trejo and those
at issue here.34 Each grants the Attorney General discretion to take an
action—but qualifies that discretion with a legal standard involving extreme
hardship. In the current context, it is only “in the case of an alien who
demonstrates extraordinary circumstances or extreme hardship to the alien’s
child” that the Attorney General may waive the limitation. 35
This stands in stark contrast to the BIA’s ability to sua sponte reopen
proceedings. The board has absolute discretion to “at any time reopen or
32
Id. at 773 (quoting Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020)).
33
Id.; see also 8 U.S.C. § 1229b(b)(1) (“The Attorney General may cancel
removal . . . if the alien . . . establishes that removal would result in exceptional and
extremely unusual hardship”); Parada-Orellana v. Garland, 21 F.4th 887, 894 (5th Cir.
2022) (citing Trejo with approval).
34
Compare 8 U.S.C. § 1229b(b)(1) (“The Attorney General may cancel
removal . . . if the alien . . . establishes that removal would result in exceptional and
extremely unusual hardship”), with 8 U.S.C. § 1229b(b)(2)(A)(v) (“The Attorney General
may cancel removal . . . if the alien demonstrates that . . .the removal would result in
extreme hardship to the alien, the alien’s child, or the alien’s parent.”), and 8 U.S.C.
§ 1229a(c)(7)(C)(iv)(III) (“[T]he Attorney General may . . . waive this time limitation in
the case of an alien who demonstrates extraordinary circumstances or extreme hardship to
the alien’s child.”).
35
8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
9
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reconsider a case.”36 “[T]here is ‘no legal standard against which to judge’”
the board’s decision to sua sponte reopen a case.37 Here, however, there is a
standard—“extraordinary circumstances or extreme hardship to the alien’s
child.”38
Section 1229a(c)(7)(C)(iv)(III)—just like § 1229b(b)(1)—asks the
Attorney General to apply a legal standard to a set of facts. 39 If the facts are
undisputed, then under Guerrero-Lasprilla, we have jurisdiction to review the
application of that standard to a set of facts.40 What we do not have is
jurisdiction to review the ultimate, discretionary decision of whether to grant
relief assuming the alien does meet the legal standard required in the statute.
B
The government contends that Guerrero-Lasprilla concerned only the
application of 8 U.S.C. § 1252(a)(2)(D) to the jurisdictional bar found in
§ 1252(a)(2)(C) and should not be “carried over” to this context—the
jurisdictional bar found in § 1252(a)(2)(B). But this court’s decision in Trejo
explicitly rejected this argument as “a distinction without a difference.” 41
Guerrero-Lasprilla construed the meaning of “question of law” as it applies
36
8 C.F.R. § 1003.2(a).
37
Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019) (quoting Enriquez-Alvarado
v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004)).
38
8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
39
8 U.S.C. § 1229a(c)(7)(C)(iv)(III); Trejo v. Garland, 3 F.4th 760, 773 (2021).
40
Id.41
Trejo, 3 F.4th at 772.
10
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to both § 1252(a)(2)(C) and § 1252(a)(2)(B).42 “There is no principled
reason why its holding does not apply with equal force [to both].”43
The government further argues that this court’s opinion in Nastase v.
Barr44 clarifies that Guerrero-Lasprilla “does not disturb” prior precedent
suggesting that the BIA’s determination was discretionary. But Nastase
concerned only the narrow question of whether we had jurisdiction to review
the BIA’s denial of a § 1159(c) waiver for humanitarian purposes on the
theory that “the BIA [had not] considered each of the facts Nastase
alleged.”45 The court concluded that “[o]ur cases disclaiming jurisdiction
over the BIA’s decision whether to grant a § 1159(c) waiver of
inadmissibility . . . are based on the simple observation that the Attorney
General’s power to grant a § 1159(c) waiver is purely discretionary.”46 The
court therefore held that Guerrero-Lasprilla did not apply.47 Here however,
Trejo makes clear that, at least in the context of § 1229b(b)(1), the question
whether an alien has demonstrated exceptional and extremely unusual
hardship is a prerequisite question of law that must be answered in the
affirmative before the Attorney General’s discretion is relevant. 48 Given the
nearly identical language in § 1229a(c)(7)(C)(iv)(III) and § 1229b(b)(2), the
same is true here as well. Moreover, there are no precedential decisions
42
Id.
43
Id.
44
964 F.3d 313 (5th Cir. 2020), cert. denied, 141 S. Ct. 877 (2020).
45
Id. at 320.
46
Id.
47
Id.
48
Trejo, 3 F.4th at 773.
11
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supporting the proposition that § 1229a(c)(7)(C)(iv) determinations are
purely discretionary.
C
In its decision, the BIA addressed only whether Pena-Lopez had
demonstrated extreme hardship or extraordinary circumstances. It made no
mention of a discretionary denial. Further, the government does not contest
the underlying facts, only that they do not demonstrate extreme hardship or
extraordinary circumstances. The issue on appeal, then, is whether the BIA
erred in determining that Pena-Lopez did not establish extreme hardship or
extraordinary circumstances. This appeal falls squarely within the holdings
of Guerrero-Lasprilla and Trejo. Normally review would be barred under
§ 1252(a)(2)(B), but the jurisdiction-restoring provision of § 1252(a)(2)(D),
as interpreted by those cases, restores our jurisdiction to review the BIA’s
determination that Pena-Lopez did not demonstrate the necessary
prerequisites to relief.
III
We turn now to the merits. The BIA determined that Pena-Lopez did
not demonstrate extreme hardship or extraordinary circumstances when it
denied his motion to reopen. We review a motion to reopen under a highly
deferential abuse of discretion standard of review.49 “[We] 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.”50
49
Mejia v. Whitaker, 913 F.3d 482, 488 (5th Cir. 2019).
50
Id. (quoting Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)).
12
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We have been unable to find any decisions on point, nor have the
parties provided any to us. Nevertheless, our decisions in the related context
of § 1229b(b)(1) provide guidance. Relying on a decision of the BIA, we have
held that a showing of exceptional and extremely unusual hardship requires
more than a showing that relocation would be hard on the family.51 Congress
required a showing of something more than mere hardship, something
beyond the challenges a relocation normally entails.52 Put simply, the
ordinary travails of a relocation do not suffice.
In the present context, Congress has required a showing of
“extraordinary circumstances or extreme hardship to the alien’s child” in
order to waive the one-year filing deadline.53 Obviously, this standard is
worded slightly different than that found in § 1229b(b)(1); however, just as
in that section, Congress has required a showing beyond ordinary
circumstances or mere hardship.54 The BIA determined that Pena-Lopez did
not establish that his circumstances were extraordinary nor that his children
would suffer extreme hardship. Rather, it determined that they were the
ordinary circumstances of a VAWA-based motion to reopen, and the usual
hardships of a relocation. Further, the BIA pointed out that one of Pena-
51
Parada-Orellana v. Garland, 21 F.4th 887, 895 (5th Cir. 2021) (denying petition
for review of a § 1229b(b)(1) denial when an alien failed to show that any hardships suffered
would be “different from, or beyond, that which would normally be expected from the
deportation of an alien”) (quoting In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA
2001)); see also Trejo v. Garland, 3 F.4th 760, 775 (5th Cir. 2021) (noting that “every court
to have considered [the BIA’s interpretation] has concluded that [it] is . . . entitled to
Chevron deference”); Avila-Baeza v. Barr, 827 F. App’x 414, 415-16 (5th Cir. 2020) (per
curiam) (unpublished) (deferring to the BIA’s interpretation of the hardship requirement
in § 1229b(b)(1)).
52
See 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
53
Id.
54
Cf. Parada-Orellana, 21 F.4th at 895; see also 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
13
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Lopez’s children is twenty years old and more than likely able to supplement
the material support his father could provide from outside the country.
We need not—and do not—determine the precise contours of
“extraordinary circumstances or extreme hardship to the alien’s child” with
our opinion today. Nor, indeed, did the BIA in its decision. But whatever
the precise contours of that standard, we can say confidently that the ordinary
(terrible) circumstances of a VAWA-based motion to reopen and the usual
hardships of a relocation do not suffice.55 Congress has given petitioners an
opportunity to seek relief beyond the usual filing deadline, but it limits that
opportunity to extraordinary or extreme cases. On these facts and under this
highly deferential standard of review, we cannot say that the BIA’s decision
was “capricious, without foundation in the evidence,” or “irrational.” 56 We
do not disturb the determination of the BIA.57
IV
Pena-Lopez also appeals the BIA’s decision not to sua sponte reopen
his proceedings. But “[t]he Board may at any time reopen or reconsider a
case.”58 This decision is firmly entrenched within the discretion of the
55
See Parada-Orellana, 21 F.4th at 895.
56
See Mejia v. Whitaker, 913 F.3d 482, 487 (5th Cir. 2019) (quoting Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)).
57
See Parada-Orellana 21 F.4th at 895; see also Zambrano Reyes v. Barr, 776 F. App’x
187, 187 n.* (4th Cir. 2019) (per curiam) (unpublished) (“Even if we assume that Zambrano
Reyes’ motion was timely filed under 8 U.S.C. § 1229a(c)(7)(C)(iv) (2012), the Board
provided substantive reasoning for denying the motion. Because this reasoning was not
‘arbitrary, irrational, or contrary to law,’ we find no abuse of discretion.”) (internal citation
omitted).
58
8 C.F.R. § 1003.2(a).
14
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Attorney General and unaffected by Guerrero-Lasprilla “because there is ‘no
legal standard against which to judge.’”59 We lack jurisdiction to review it.60
* * *
Because the BIA did not abuse its discretion in determining that Pena-
Lopez has not established extreme hardship or extraordinary circumstances
with regard to his motion to reopen, we DENY his petition for review on
that ground. Further, we DISMISS his petition for review for lack of
jurisdiction as to the BIA’s decision not to sua sponte reopen his proceedings.
59
See Mejia, 913 F.3d at 490 (quoting Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,
250 (5th Cir. 2004)).
60
See id.15