GONZALEZ MATUS v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-05-12No. No. 18-71455

Summary · law.co

Holding. The petition for review was denied because the Board of Immigration Appeals did not abuse its discretion in dismissing the appeal from the denial of the motion to reopen.

Lorena Gonzalez-Matus, a Mexican citizen facing removal, sought review of the Board of Immigration Appeals' decision to dismiss her appeal challenging an immigration judge's denial of her motion to reopen. She pursued two potential avenues of relief: a U nonimmigrant visa and cancellation of removal based on exceptional and extremely unusual hardship.

The court determined that the agency did not abuse its discretion in either instance. Regarding the U visa claim, the court noted that petitioner could pursue this visa even with a removal order in place and could later move to reopen if the visa were granted—making immediate reopening unnecessary. As to the cancellation of removal claim, the court found petitioner failed to establish a prima facie case for the required hardship standard and that her arguments about improper agency review lacked evidentiary support.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the agency abused discretion in denying motion to reopen for U visa pursuit
Whether the agency abused discretion in denying motion to reopen for cancellation of removal
Whether petitioner established prima facie case for exceptional and extremely unusual hardship
Timing and procedure for U visa relief in context of removal proceedings

Procedural posture

Petitioner sought judicial review of the Board of Immigration Appeals' order dismissing her appeal from an immigration judge's denial of her motion to reopen.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Lorena Gonzalez-Matus, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing her appeal from an immigration judges denial of her motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for an abuse of discretion. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (“The [agency] abuses its discretion when its decision is arbitrary, irrational, or contrary to law.”). We deny the petition for review.

The agency did not abuse its discretion in denying petitioners motion to reopen to pursue a U Visa. Petitioner may pursue a U Visa with a removal order in place. See 8 C.F.R. § 214.14(c)(1)(ii). Petitioners contentions that the agency did not consider material factors and failed to follow regulations or its own guidelines are not supported. Matter of Sanchez Sosa sets forth “the factors that an Immigration Judge and the Board should consider in determining whether an alien has established good cause to continue a case involving a U nonimmigrant visa petition” not to reopen a case. 25 I. & N. Dec. 807, 807 (BIA 2012) (emphasis added); id. at 815 (“Aliens subject to an order of removal may seek a stay from the USCIS to await the adjudication of a U visa. Section 237(d) of the Act, 8 U.S.C. § 1227(d)(2006); 8 C.F.R. § 214.14(c)(1)(ii). If the U visa is granted, the alien may file a motion to reopen and terminate removal proceedings under 8 C.F.R. § 214.14(c)(5)(i).”).

The agency did not abuse its discretion in denying petitioners motion to reopen to pursue cancellation of removal on the ground that she failed to make a prima facie case for exceptional and extremely unusual hardship. See Garcia v. Holder, 621 F.3d 906, 911-14 (9th Cir. 2010) (the court has jurisdiction review the denial of a motion to reopen when the relief is the same, but the basis is different; no abuse of discretion in determining the new evidence was insufficient to show the exceptional and extremely unusual hardship). Petitioners contentions that (1) the agency applied the wrong standard, (2) the agency failed to properly review the new evidence submitted with her motion, or (3) the BIA engaged in improper fact-finding are not supported.

PETITION FOR REVIEW DENIED.

FOOTNOTES

. The motion by ASISTA Immigration Assistance, National Network to End Domestic Violence, Freedom Network USA, and Asian Pacific Institute to End Gender-Based Violence for leave to file an out-of-time amici curiae brief is GRANTED.