Marcos Ortiz-Cervantes v. Eric Holder, Jr.
596 F. App'x 429
6th Cir.2015Background
- Ortiz, a Mexican national, admitted removability after entering the U.S. in July 1999 and sought cancellation of removal under 8 U.S.C. § 1229b(b)(1) based on U.S. citizen children.
- The IJ denied cancellation, finding Ortiz failed to prove ten years' continuous physical presence and failed to show "exceptional and extremely unusual" hardship to qualifying relatives; IJ granted voluntary departure.
- The BIA affirmed denial of cancellation (agreeing on hardship) and remanded solely to the IJ to grant a new period of voluntary departure and confirm bond payment.
- After remand Ortiz sought reopening/remand to present evidence of a newly-born son (Ethan) with severe asthma, claiming Ethan’s condition would produce the required exceptional hardship.
- The BIA denied remand, concluding the new evidence was not previously unavailable and that the submitted hardship evidence was insufficient; it reinstated voluntary departure.
- Ortiz petitioned for review arguing due process and that the BIA/IJ misweighed hardship and continuous presence; the Sixth Circuit dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA denial of cancellation for lack of "exceptional and extremely unusual" hardship | Ortiz: Ethan’s severe asthma and supporting records establish the required hardship; BIA/IJ misweighed evidence | Gov: Denial is discretionary and unreviewable under §1252(a)(2)(B) | Court: Dismissed for lack of jurisdiction; hardship weighing is discretionary and not reviewable |
| Jurisdiction to review denial of motion to remand/reopen based on new hardship evidence | Ortiz: Ethan’s condition is a new, material ground warranting remand/reopening | Gov: BIA found evidence was not new or previously unavailable; denial implicates discretionary merits | Court: Even assuming reviewable, BIA reasonably found the evidence was not new; appeal dismissed |
| Due process claim based on failure to consider all factors | Ortiz: Fifth Amendment violated because IJ/BIA failed to consider full record and changed circumstances | Gov: No protected liberty/property interest in discretionary cancellation; no due process violation | Court: Due process claim fails—cancellation is discretionary and not a protected interest |
| Challenge to BIA’s finding on continuous physical presence | Ortiz: Argues he demonstrated ten years’ continuous presence | Gov: IJ/BIA found insufficient proof; discretionary factual determination | Court: Court declined to reach this issue as unnecessary to disposition |
Key Cases Cited
- Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir.) (BIA decision is reviewed as final agency determination when it issues a separate opinion)
- Ettienne v. Holder, 659 F.3d 513 (6th Cir.) (jurisdictional bar on reviewing discretionary hardship determinations)
- Patel v. Ashcroft, 401 F.3d 400 (6th Cir.) (cancellation of removal is discretionary; no protected liberty interest)
- Ali v. Ashcroft, 366 F.3d 407 (6th Cir.) (denial of discretionary relief does not deprive a liberty interest)
- Fernandez v. Gonzales, 439 F.3d 592 (9th Cir.) (distinguishes reviewable procedural defects from unreviewable discretionary merits in motions to reopen)
- Pilica v. Ashcroft, 388 F.3d 941 (6th Cir.) (circumstances under which denial of remand/reopening may be judicially reviewable)
- INS v. Bagamasbad, 429 U.S. 24 (1976) (courts need not decide issues unnecessary to disposition)
- Rodriguez v. Ashcroft, 253 F.3d 797 (5th Cir.) (if courts lack jurisdiction to review merits denial of extreme hardship, they likewise lack jurisdiction over denial of motion to reopen on same ground)