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 is denied. The Board of Immigration Appeals did not abuse its discretion in dismissing the petitioner's appeal from the immigration judge's denial of her motion to reopen.

Lorena Gonzalez-Matus, a Mexican citizen in removal proceedings, sought review of the Board of Immigration Appeals' dismissal of her appeal challenging an immigration judge's denial of her motion to reopen her case. She argued the agency should have reopened proceedings to allow her to pursue a U visa and to pursue cancellation of removal based on exceptional and extremely unusual hardship. The court examined whether the agency abused its discretion in rejecting these requests.

Regarding the U visa claim, the court found no abuse of discretion because immigration regulations permit applicants to pursue a U visa even while under a removal order, and if the visa is granted, they may then file a separate motion to reopen. As to the cancellation of removal claim, the court determined the agency properly applied the legal standard and reasonably found the petitioner failed to present sufficient evidence of the requisite hardship to warrant reopening.

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

Key issues

Whether motion to reopen was required to pursue U visa relief
Whether new evidence established exceptional and extremely unusual hardship for cancellation of removal
Standard of review for denial of motion to reopen

Procedural posture

The petitioner appealed to the Court of Appeals for the Ninth Circuit seeking review of the BIA's 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.