8 F.4th 355
5th Cir.2021Background
- Parada-Orellana (El Salvador native) was served an NTA on Oct. 2, 2005 while detained and told to provide a mailing address and notify the court of changes; she later moved and did not update the court.
- An IJ ordered her removed in absentia on Mar. 20, 2006 for failure to appear; the IJ found she forfeited notice by not providing an address.
- She discovered the order in 2010, married a U.S. citizen in 2015, and an I-130 was approved in 2017; DHS denied a motion to reopen in 2018 and she filed an opposed motion to reopen seeking rescission or reopening to apply for cancellation of removal (INA §240A(b)).
- The IJ denied rescission (failure to show exceptional circumstances) but applied equitable tolling post‑Pereira to allow a motion to reopen for cancellation; on the merits the IJ found she failed to make a prima facie showing that removal would cause "exceptional and extremely unusual hardship" to her U.S. citizen husband.
- The BIA affirmed the IJ: (1) she forfeited notice of the 2006 hearing; (2) although equitable tolling applied to permit the motion to reopen, she failed to make a prima facie showing of hardship. She petitioned the Fifth Circuit.
- The Fifth Circuit (this opinion) denied review as to the legal‑standard issue and dismissed for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) as to the prima facie hardship determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA applied its own precedent / correct legal standard (prima facie standard) | BIA ignored its precedent (Matter of L‑O‑G‑) and failed to apply the "reasonable likelihood" prima facie standard | Government contended the claim is factual/discretionary (and nonreviewable) but did not dispute court jurisdiction over legal questions | Court exercised legal review, found no abuse: IJ/BIA applied the reasonable‑likelihood standard and did not misapply precedent |
| Whether BIA erred in finding no prima facie showing of exceptional and extremely unusual hardship (cancellation eligibility) | Parada‑Orellana argued she presented prima facie evidence and that §1252 bar shouldn’t apply because she never had a full merits hearing | Government argued §1252(a)(2)(B)(i) bars judicial review of cancellation decisions and that assessing prima facie hardship is a discretionary merits determination | Court held it lacks jurisdiction under §1252(a)(2)(B)(i) and dismissed review of the prima facie hardship determination |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA service/notice rule affecting filing deadlines)
- I.N.S. v. Abudu, 485 U.S. 94 (1988) (sets three independent grounds to deny a motion to reopen)
- Manzano‑Garcia v. Gonzales, 413 F.3d 462 (5th Cir. 2005) (distinguishes when §1252(a)(2)(B)(i) jurisdictional bar applies based on Abudu grounds)
- Sung v. Keisler, 505 F.3d 372 (5th Cir. 2007) (recognizes the §1252(a)(2)(B)(i) bar on review of cancellation decisions)
- Rodriguez v. Ashcroft, 253 F.3d 797 (5th Cir. 2001) (application of jurisdictional limits to cancellation relief)
- Mata v. Lynch, 576 U.S. 143 (2015) (addresses limits on judicial review in removal/cancellation contexts)
- Gomez‑Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (standard: abuse of discretion review for BIA denial of motion to reopen)
- Rodriguez v. Holder, 585 F.3d 227 (5th Cir. 2009) (legal‑question de novo review vs. deferential review for discretionary determinations)