Luis Ortiz-Guadalupe v. Merrick Garland, 20-73531

Petitioner Luis Alberto Ortiz-Guadalupe, a Mexican national, sought cancellation of removal under 8 U.S.C. § 1229b(b)(1), claiming ‘‘exceptional and extremely unusual hardship’’ to his U.S. citizen spouse and children; the IJ denied relief and the BIA dismissed his appeal.
Petitioner timely filed a motion to reopen (Nov. 18, 2020) based on newly discovered evidence concerning his daughter J.O.: a psychological evaluation diagnosing Major Depressive Disorder (recurrent, moderate) and affidavits reporting suicidal ideation and risk of further psychiatric harm if separated from her father.
The BIA denied the motion to reopen. Petitioner then petitioned the Ninth Circuit for review of the BIA’s denial.
The Government argued the court lacked jurisdiction because the BIA’s denial of cancellation is a discretionary determination not subject to judicial review; petitioner argued the new mental-health evidence was non‑cumulative and distinct in kind, so the motion sought new relief and is reviewable.
The Ninth Circuit held it had jurisdiction to review the BIA’s denial insofar as the motion relied on non‑cumulative, different‑in‑kind evidence about J.O.’s condition, but concluded the BIA did not abuse its discretion in denying reopening because the BIA reasonably found petitioner failed to make a prima facie showing of exceptional and extremely unusual hardship.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction to review BIA denial of motion to reopen based on new hardship evidence	New psychological evidence about daughter is non‑cumulative and distinct in kind, so court has jurisdiction	Denial of cancellation is discretionary; §1252 bars review	Court has jurisdiction only insofar as evidence is non‑cumulative/different in kind; here J.O. report qualifies
Whether BIA abused discretion in denying motion to reopen (prima facie exceptional and extremely unusual hardship)	J.O.’s diagnosed MDD and risk of worsening psychiatric harm if separated meets the heavy hardship standard	BIA: petitioner failed heavy burden; J.O. could still obtain recommended counseling/treatment in the U.S.	BIA did not abuse discretion; it considered the evidence and reasonably concluded the standard was not met

Romero-Torres v. Ashcroft, 327 F.3d 887 (discretionary cancellation denials are not subject to judicial review)
Fernandez v. Gonzales, 439 F.3d 592 (a reopening based on hardship grounds distinct from prior evidence can be reviewed)
Garcia v. Holder, 621 F.3d 906 (jurisdiction exists when motion presents non‑cumulative, different‑in‑kind evidence)
Valeriano v. Gonzales, 474 F.3d 669 (motions to reopen reviewed for abuse of discretion)
Singh v. INS, 295 F.3d 1037 (denial of reopening reversed only if arbitrary, irrational, or contrary to law)