Mendez-Benhumea v. Garland
20-9573
| 10th Cir. | Dec 1, 2021Background
- Petitioner Faustino Mendez-Benhumea, a Mexican citizen, received an IJ removal order with voluntary departure and alternate removal on April 27, 2018.
- In Feb. 2020 he filed a second motion to reopen, claiming new evidence that his biological daughter is transgender and would be harmed in Mexico; he also submitted asylum, withholding, and CAT applications.
- The BIA denied the second motion as untimely under the 90-day rule and rejected sua sponte reopening, treating the daughter’s status as a changed personal circumstance, not changed country conditions.
- In Sept. 2020 he filed a third motion to reopen and remand seeking cancellation of removal based on alleged exceptional and extremely unusual hardship to his transgender child.
- The BIA denied the third motion for failure to establish prima facie eligibility for cancellation and again declined sua sponte reopening; petitioner appealed and the appeals were consolidated.
- The court applied the deferential abuse-of-discretion standard, dismissed in part for lack of jurisdiction over discretionary sua sponte and prima facie hardship determinations, and denied review in part.
Issues
| Issue | Mendez-Benhumea's Argument | BIA/Government's Argument | Held |
|---|---|---|---|
| Timeliness of 2nd motion (changed country conditions exception) | Daughter’s recent identification as transgender is new, material changed circumstances excusing 90-day deadline | This is a changed personal circumstance, not a changed country condition; motion is untimely | Motion untimely; BIA reasonably treated evidence as changed personal circumstance, no abuse of discretion |
| Sua sponte reopening (Feb. 2020 motion) | He established prima facie eligibility for asylum/withholding/CAT so BIA should reopen sua sponte | BIA properly exercised discretion and found petitioner did not make prima facie showings | Court lacks jurisdiction to review BIA’s discretionary refusal to reopen sua sponte |
| Prima facie eligibility for cancellation (Sept. 2020 motion) | Evidence shows exceptional and extremely unusual hardship to his child warranting cancellation | BIA found evidence insufficient to show prima facie hardship | Court cannot review BIA’s discretionary finding that evidence was insufficient |
| Due process challenge to denial of reopen/remand | BIA’s refusal denied procedural due process and merits remand to develop record | Claim is really a challenge to discretionary/factual rulings; no protected interest in cancellation; no procedural denial shown | Due process claim fails; court has jurisdiction over constitutional claims but petitioner recast discretionary issues as due process and cannot prevail |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (standard: deferential abuse-of-discretion review of motions to reopen)
- Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) (BIA abuses discretion when decisions lack rational explanation)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (summary on abuse-of-discretion review)
- Wei v. Mukasey, 545 F.3d 1248 (10th Cir. 2008) (distinguishing changed personal circumstances from changed country conditions)
- Salgado-Toribio v. Holder, 713 F.3d 1267 (10th Cir. 2013) (jurisdictional limits on review of sua sponte reopening denials)
- Alzainati v. Holder, 568 F.3d 844 (10th Cir. 2009) (no review of BIA’s discretionary finding that hardship evidence is insufficient)
- Galeano-Romero v. Barr, 968 F.3d 1176 (10th Cir. 2020) (no due-process violation where claim is merely disagreement with discretionary immigration determinations)