Mazariegos v. Holder, Jr.
2015 U.S. App. LEXIS 10693
| 1st Cir. | 2015Background
- Mazariegos, a Guatemalan national who entered the U.S. at age two, married a U.S. citizen in 2008 and applied for adjustment of status based on an approved I-130.
- DHS denied adjustment because of criminal convictions (including juvenile offenses and an October 2008 Massachusetts arrest); DHS placed him in removal proceedings and he conceded removability.
- An IJ granted a §212(h) waiver and adjustment of status, citing family hardship and positive equities; DHS appealed and the BIA reversed, denying the discretionary waiver based principally on Mazariegos's criminal history.
- Mazariegos did not seek court review of the BIA's initial decision; later he filed a timely motion to reopen with new evidence: an affidavit from his reconciled wife (addressing hardship) and an I-589 (asylum/withholding/CAT) plus an attorney affidavit asserting prior ineffective assistance.
- The BIA denied the motion to reopen: (1) it found the wife/stepchild were qualifying relatives but concluded the new affidavit would not overcome the negative discretionary weight of his criminal record for a §212(h) waiver; (2) it held the I-589/CAT submission was too skeletal and lacked required documentary or country-conditions evidence to make a prima facie showing; (3) the ineffective-assistance claim failed Lozada requirements and showed no prejudice.
- The First Circuit had jurisdiction to review the denial of the motion to reopen and denied Mazariegos’s petition, holding the BIA did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review denial of motion to reopen | Court has jurisdiction over BIA denial of motion to reopen despite statutory bar on review of discretionary §212(h) grants/denials | Government: denial of reopening is a discretionary waiver decision barred from review | Court: has jurisdiction to review BIA denial of motion to reopen (citing precedent) |
| Standard of review for motion to reopen | N/A (assert relief warranted given new evidence) | BIA has broad discretion; review for abuse of discretion | Denial reviewed for abuse of discretion; petitioner must show error of law or arbitrary action |
| Whether wife's affidavit required reopening to reconsider §212(h) discretionary waiver | Wife's affidavit showing hardship to wife/stepdaughter is new material evidence that would change outcome | BIA: even crediting affidavit, petitioner’s criminal history weighs against discretionary grant; reopening not warranted | Denial proper: BIA permissibly concluded new affidavit would not alter discretionary outcome |
| Whether I-589/CAT evidence supported reopening for asylum/withholding | I-589 + attorney affidavit (ineffective assistance) establish prima facie entitlement and explain prior omission; BIA should take administrative notice of Guatemala conditions | BIA: submission was skeletal, lacked specific facts, documentary evidence, or country-conditions proof; Lozada procedure not followed; no prejudice shown | Denial proper: petitioner failed to present the specific, documentary, or country-conditions evidence necessary for a prima facie CAT/asylum claim; BIA not required to take administrative notice |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (BIA denial of reopening generally reviewable)
- Perez v. Holder, 740 F.3d 57 (1st Cir. 2014) (motions to reopen reviewed for abuse of discretion)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (agency must articulate reasoned decision)
- INS v. Doherty, 502 U.S. 314 (BIA may deny reopening if movant would not obtain discretionary relief even after new evidence)
- Jutus v. Holder, 723 F.3d 105 (1st Cir. 2013) (to reopen must submit new material evidence and prima facie eligibility)
- Romilus v. Ashcroft, 385 F.3d 1 (1st Cir. 2004) (elements and standard for CAT relief)