Funes Menjivar v. Sessions
679 F. App'x 66
| 2d Cir. | 2017Background
- Petitioner Manuel De Jesus Funes Menjivar, a Salvadoran national, sought cancellation of removal but did not petition for review of the immigration judge’s (IJ) denial of that relief.
- Funes filed a motion to reopen proceedings before the Board of Immigration Appeals (BIA) based on additional evidence about his U.S. citizen daughter’s speech condition and school records.
- The BIA denied the motion to reopen, concluding the new evidence would not change the outcome and some reports were not new.
- Funes petitioned this Court for review of the BIA’s denial of the motion to reopen and argued the BIA failed to consider his daughter’s condition and related hardship.
- The government (through the Attorney General) defended the BIA’s decision and the procedural limits on judicial review of discretionary cancellation determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review hardship determination underlying cancellation of removal | Funes argued the BIA failed to consider his daughter’s speech condition, raising legal error in hardship analysis | Government argued hardship is a discretionary determination not reviewable except for legal or constitutional questions | Court held it lacked jurisdiction to review the discretionary hardship determination absent a legal or constitutional claim; petition dismissed |
| Whether BIA abused discretion in denying motion to reopen | Funes argued the new school/medical reports showed the BIA would reach a different outcome if reopened | Government argued reports were either not new or insufficient to show exceptional and extremely unusual hardship | Court held BIA reasonably found evidence would not change result and did not abuse discretion |
| Whether some evidence was "new" for reopening purposes | Funes asserted school reports supported reopening | Government noted several reports predated the merits hearing and thus were not new | Court agreed some reports predated the hearing and the post-hearing reports showed no substantial impairment |
| Whether diminished educational opportunities constitute "exceptional and extremely unusual hardship" | Funes implied his daughter’s educational needs would be unmet without him | Government argued diminished opportunities rarely meet the standard and BIA reasonably applied precedent | Court relied on BIA precedent that diminished educational opportunities generally do not meet the high hardship threshold |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (procedural requirement for separate review of final removal order and denial of motion to reopen or reconsider)
- Kaur v. BIA, 413 F.3d 232 (2d Cir. 2005) (same principle regarding separate petitions for review)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (motions to reopen are disfavored; standard of review is abuse of discretion)
- INS v. Doherty, 502 U.S. 314 (motions to reopen are disfavored and reviewed under deferential standard)
- Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008) (jurisdictional limits on reviewing discretionary relief like cancellation)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (distinguishing legal questions from mere disagreement with discretionary factual determinations)
- Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) (finding legal error where facts important to hardship were overlooked or mischaracterized)