Petition for Review of an Order of the Board of Immigration Appeals.
The opinion of the court was delivered by: Melloy, Circuit Judge.
Submitted: December 11, 2008
Before MELLOY and BENTON, Circuit Judges, and MAGNUSON,*fn2 District Judge.
Hilario Vargas petitions for review of an order of the Board of Immigration Appeals (the "BIA") denying his motion to reopen his cancellation of removal proceedings in light of new material facts. He claims that in denying his motion, the BIA abused its discretion and violated his due-process rights by not remanding proceedings to the Immigration Judge (the "IJ"). We deny the petition.
Vargas petitioned for cancellation of removal on the grounds that his U.S.-citizen daughter, Hillary, would face exceptional and extreme hardship if she returned with him to Mexico. See 8 U.S.C. § 1229b (cancellation of removal). He claimed that she suffered from speech problems resulting from years of lead poisoning and that the necessary speech therapy would not be available in Mexico. The IJ denied Vargas's petition, stating: "Having failed to establish either exceptional and extremely unusual hardship to the United States citizen children, or the continuous physical presence as required, the Court will find that the respondent has failed to meet his burden of proof to show eligibility for cancellation of removal . . . ." Vargas appealed to the BIA.
While his appeal was pending, Vargas's daughter Abigail, who the BIA subsequently noted is not a qualifying relative for purposes of § 1229b,*fn3 was hit by a car and seriously injured. Vargas claims that Hillary, who was with Abigail at the time, was "seriously emotionally further affected" by the incident. Based on this incident, Vargas made a motion to submit new evidence to the BIA and asked that, alternatively, the BIA remand the case to the IJ for further consideration of the new evidence.*fn4 The new evidence Vargas submitted was a copy of the civil claim filed against the driver who hit Abigail; Vargas claims hospital records were not available until after the applicable motion deadline. Neither the motion nor the claim reference any impact on Hillary.
The BIA did not remand the case to the IJ to consider the new evidence of hardship, stating, "Since this evidence does not alter the determination regarding removal-related hardship to the qualifying relatives [i.e., Hillary and her brother Abraham], a remand to the Immigration Court for consideration of this evidence is not deemed necessary." The BIA then affirmed the IJ's decision regarding the lack of showing of exceptional and extremely unusual hardship but did not address the appeal regarding the adverse continuous-physical-presence determination. Vargas appeals the denial of his motion to remand, claiming that the BIA abused its discretion and violated his due-process rights by refusing to remand.
We lack jurisdiction to review the denial of a petition for cancellation of removal under 8 U.S.C. § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i); Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007) (identifying cancellation of removal under § 1229b as a form of discretionary relief shielded from our review).*fn5 However, Vargas does not ask us to review the BIA's denial of discretionary relief under § 1229b. Rather, his petition "simply asks us to review the BIA's refusal to reopen a case which, if it had been reopened, would have resulted in the Attorney General deciding whether to grant a form of discretionary relief." Guerra-Soto v. Ashcroft, 397 F.3d 637, 640 (8th Cir. 2005). The jurisdiction-stripping provisions of § 1252(a)(2)(B) do not generally apply to the BIA's denial of a petition to reopen. Id. In fact, "[s]section 1252(a)(2)(B)(i) would have prohibited our review only if the case had been reopened, and discretionary relief had actually been denied. This case never got that far, and thus we have jurisdiction to review the BIA's decision for abuse of discretion." Id. As we have previously stated:
The [jurisdiction-stripping] statute applies to decisions "the authority for which is specified under this subchapter to be in the discretion of the Attorney General." (emphasis added). The discretion to grant or deny motions to reopen or reconsider is conferred by the Attorney General's regulations, not by statute. See 8 C.F.R. § 1003.2. Thus, we have continued our long-standing practice of reviewing the denial of motions to reopen for abuse of the BIA's discretion.
Miah v. Mukasey, 519 F.3d 784, 789 n.1 (8th Cir. 2008) (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)).
The BIA, however, has already once considered Vargas's initial request for relief on grounds of exceptional and extremely unusual hardship. But, contrary to the Government's argument, Vargas does not ask us to review that underlying decision. Even if we were to conclude that we do not have jurisdiction to consider a motion to reopen where an initial, unreviewable determination has been made, see Zacarias-Velasquez, 509 F.3d at 434, Infanzon v. Ashcroft, 386 F.3d 1359, 1361--62 (10th Cir. 2004), that is not the case before us. Here, "the evidence submitted addresses a hardship ground so distinct from that considered previously as to make the motion to reopen a request for new relief, rather than a reconsideration of a prior denial." Fernandez v. Gonzales, 439 F.3d 592, 602--03 (9th Cir. 2006). Although the new evidence also goes to establishing hardship, it is not merely cumulative evidence prompting a re-evaluation of the relief already sought; rather, the new ...