Chavez-Lopez v. Garland ( 2023 )

Case: 22-60346 Document: 00516775405 Page: 1 Date Filed: 06/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 5, 2023
No. 22-60346 Lyle W. Cayce
____________ Clerk
Juan De Dios Chavez-Lopez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 239 480
______________________________
Before Jones, Clement, and Haynes, Circuit Judges.
Per Curiam: *
Petitioner Juan De Dios Chavez-Lopez petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen.
Chavez-Lopez, a native and citizen of Mexico, arrived in the United States in
1996. He has a spouse who has no legal status and five U.S. citizen children.
In 2015, the Department of Homeland Security initiated removal
proceedings against Chavez-Lopez. After an Immigration Judge (“IJ”)
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60346
found Chavez-Lopez removable, Chavez-Lopez appealed to the BIA. The
BIA sustained his appeal, remanding the case to the IJ for consideration of
potential relief from removal.
Chavez-Lopez then applied for cancellation of removal, asserting that
his removal would result in exceptional and extremely unusual hardship to
his children. 1 The IJ concluded that Chavez-Lopez failed to demonstrate
such hardship and denied his application. Chavez-Lopez appealed to the
BIA, which adopted and affirmed the IJ’s decision, dismissing the appeal.
Chavez-Lopez then moved for reconsideration (in the nature of reopening).
He urged that there was new evidence that his two youngest children suffered
severe mental health hardships. The BIA denied this motion, reasoning that
Chavez-Lopez had failed to (1) show a factual or legal error that warranted
reconsideration or (2) demonstrate that the newly discovered evidence
would change the ultimate result. Chavez-Lopez now seeks our review of the
BIA’s denial of his motion.
“[W]e review the BIA’s denial of a motion to reopen or to reconsider
under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales,
404 F.3d 295, 303 (5th Cir. 2005). We will only overturn the BIA under this
standard if its decision is “capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Id. at 304 (quotation
omitted).
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1
Under 8 U.S.C. § 1229b(b)(1), the Attorney General has the discretion to “cancel
removal of” noncitizens who are removable but meet certain criteria. Most relevant here,
those criteria include whether the noncitizen “establishes that removal would result in
exceptional and extremely unusual hardship to the [noncitizen’s] spouse . . . or child, who
is a citizen of the United States or a[] [noncitizen] lawfully admitted for permanent
residence.” 8 U.S.C. § 1229b(b)(1)(D).
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Chavez-Lopez argues on appeal that the BIA abused its discretion by
overlooking the new evidence of mental health hardships his two youngest
children have experienced throughout his proceedings, which, he contends,
was material to the outcome of his case. Chavez-Lopez also asserts that the
BIA abused its discretion by failing to consider his evidence cumulatively and
ignoring relevant precedent while arbitrarily comparing his situation to a
dissimilar case. We begin our review by considering our jurisdiction.
8 U.S.C. § 1252(a)(2)(B)(i) prohibits us from reviewing certain BIA
determinations, including the BIA’s hardship determination at issue here.
As we recently concluded, under Patel v. Garland, 142 S. Ct. 1614 (2022)“the BIA’s determination that a citizen would face exceptional and
extremely unusual hardship is an authoritative decision which falls within the
scope of [8 U.S.C.] § 1252(a)(2)(B)(i) and is beyond our review.” Castillo-
Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir. 2022) (per curiam).
Likewise, we also lack jurisdiction to review the BIA’s refusal to reopen an
order of removal if the underlying order is not subject to judicial review under
§ 1252(a)(2). Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (per
curiam). As such, we lack jurisdiction to review the BIA’s denial of Chavez-
Lopez’s motion to reopen insofar as he challenges its hardship
determination. 2
Despite these bars, we do possess jurisdiction over “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Chavez-Lopez does
not raise any constitutional claims. He does contend that he is raising
questions regarding whether the BIA incorrectly interpreted the law by
failing to consider his evidence cumulatively or arbitrarily comparing his case
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2
To the extent Chavez-Lopez characterizes his motion as a motion for
reconsideration and argues the BIA erred in denying that motion, we lack jurisdiction to
consider the BIA’s denial for the same reasons noted above.
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to another, different case. But Chavez-Lopez “may not—merely by
phras[ing] his argument in legal terms—use[] those terms to cloak a request
for review of the BIA’s discretionary decision, which is not a question of
law.” Nastase v. Barr, 964 F.3d 313, 319 (5th Cir. 2020) (alteration in
original) (internal quotation marks and citation omitted). Thus, insofar as
Chavez-Lopez’s challenge amounts to a disagreement with the BIA’s
hardship determination, we lack jurisdiction over it. See id.; see also Delgado-
Reynua v. Gonzales, 450 F.3d 596, 599–600 (5th Cir. 2006).
To the extent Chavez-Lopez does raise a question of law, his
arguments fail on the merits. The BIA applied the appropriate standard,
cumulatively assessed his evidence, and then concluded that said evidence
failed to satisfy the high standard for reopening. We cannot say that the
BIA’s analysis was “so irrational that it [wa]s arbitrary rather than the result
of any perceptible rational approach.” Zhao, 404 F.3d at 304 (quotation
omitted).
Therefore, for the foregoing reasons, Chavez-Lopez’s petition is
DISMISSED in part for lack of jurisdiction and DENIED in part.
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