Leonel Hernandez-Perez v. Matthew Whitaker
911 F.3d 305
| 6th Cir. | 2018Background
- Leonel Hernandez-Perez, a Mexican national present in the U.S. since 2000, applied for cancellation of removal in 2011 based on hardship to his U.S. citizen daughter (L); IJ denied relief in Nov. 2016 after an August 2015 merits hearing.
- After the BIA dismissed his appeal in July 2017, Hernandez-Perez discovered (and in August 2017 confirmed by DNA) that an eight-year-old U.S. citizen, A.W., was his son; A.W.’s family circumstances had changed (mother incarcerated; grandfather ill/unable to care for child).
- Hernandez-Perez filed a motion to reopen, seeking cancellation of removal based on hardship to A.W.; he alleged prior inability to pursue paternity proof because A.W.’s grandparents threatened him and refused DNA testing.
- The BIA denied the motion to reopen on two articulated grounds: (1) the new evidence was not shown to be previously unavailable at the earlier hearing; and (2) the evidence failed to establish prima facie eligibility for cancellation of removal.
- The Sixth Circuit reviewed jurisdictional objections (including Pereira-based challenge to NTA practice), held it had jurisdiction to review this motion to reopen because it raised a new hardship ground, found BIA erred on the availability-of-evidence point, and remanded for the BIA to apply proper legal standards and analysis.
Issues
| Issue | Hernandez-Perez’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether Pereira v. Sessions invalidates vesting of IJ jurisdiction where NTA lacked time/date | Pereira means NTA missing time/place never vests IJ jurisdiction | BIA practice (two-step NTA + Notice of Hearing) vests jurisdiction; Pereira limited to stop-time rule | Court declined to extend Pereira to invalidate jurisdiction where Notice of Hearing later provided time/date and Bermudez‑Cota controls |
| Whether this court has jurisdiction to review BIA denial of motion to reopen in cancellation case | Motion raises a new hardship ground (A.W.), so petition for review is permissible | Denial of discretionary cancellation generally unreviewable | Court has jurisdiction because motion alleged a new, distinct hardship ground |
| Whether the BIA properly found new evidence was previously available at the time of the IJ hearing | Evidence (DNA, mother’s later incarceration, grandfather’s illness) was not discoverable at 2015 hearing; threats by grandparents prevented earlier testing | Government contended paternity was known and thus discoverable earlier | Court: BIA erred—must accept petitioner’s credible factual allegations; new evidence was not available at the 2015 hearing |
| Whether the BIA properly concluded movant failed to show prima facie eligibility for cancellation | Movant argued BIA ignored central hardship claim (risk A.W. becoming ward of state) and applied cursory custody-focused analysis | Government emphasized lack of custody, speculative abuse allegations, and cited Coelho standard | Court: BIA’s prima facie rejection was cursory and failed to analyze evidence or apply relevant precedents (e.g., Vizcaino); remand required for reasoned consideration |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA lacking time/place cannot trigger stop-time rule)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of own regulations)
- Kucana v. Holder, 558 U.S. 233 (2010) (BIA denials of motions to reopen are generally judicially reviewable)
- Trujillo Diaz v. Sessions, 880 F.3d 244 (6th Cir. 2018) (standard for abuse of discretion review of BIA motions to reopen)
- Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004) (jurisdiction to review motions to remand/reopen that do not involve merits of relief)
- Preçetaj v. Sessions, 907 F.3d 453 (6th Cir. 2018) (BIA must give reasoned analysis; one-paragraph denials may be inadequate)