Pedro Flores-Cedra v. Eric Holder, Jr.
572 F. App'x 389
6th Cir.2014Background
- Petitioner Pedro Flores-Cedra, a Mexican national who entered the U.S. in 1996, sought cancellation of removal under 8 U.S.C. § 1229b(b)(1) based on ten years’ presence, good moral character, no disqualifying convictions, and extreme and exceptional hardship to four U.S.-citizen children.
- The immigration judge (IJ) denied relief, finding Flores-Cedra had not shown the children would suffer the required extraordinary and extremely unusual hardship if they accompanied him to Mexico; lower standard of living and fewer educational opportunities in Mexico were not enough, and there was insufficient evidence they would face violent crime.
- After the IJ decision, DHS issued a new travel warning mentioning violent crime in Zacatecas (state of petitioner’s family) but referencing different cities/regions than petitioner’s hometown; Flores-Cedra asked the BIA to remand to consider this new warning.
- The Board of Immigration Appeals (BIA) affirmed the IJ, rejected the hardship showing, remarked Flores-Cedra could relocate to a less dangerous area in Mexico, and denied the motion to remand as the new evidence would not change the result.
- On appeal to this court, Flores-Cedra argued (1) the BIA erred by considering the possibility of internal relocation within Mexico in a cancellation-of-removal hardship analysis and (2) the BIA abused its discretion by denying the motion to remand; the government urged dismissal for lack of jurisdiction.
- The majority dismissed the petition for lack of jurisdiction, treating the hardship determination and denial of remand as discretionary and/or not raising a reviewable new hardship ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA’s denial of cancellation based on hardship | Flores-Cedra argued BIA’s denial involved legal error (e.g., improper considerations) and should be reviewable. | Government argued the denial is a discretionary decision barred from review by 8 U.S.C. § 1252(a)(2)(B)(i). | Court: Lack of jurisdiction to review discretionary hardship determination; only legal questions not involving eligibility factors are reviewable (citing Ettienne). |
| Whether BIA may consider internal relocation in cancellation hardship analysis | Flores-Cedra contended relocation is relevant to asylum only, not cancellation, so BIA erred in considering it. | Government and BIA treated internal relocation as a permissible factor in cancellation cases. | Court: Considering relocation is permissible; precedent shows BIA may consider relocation in cancellation cases; petitioner’s challenge to factual weighing is nonreviewable. |
| Jurisdiction to review denial of motion to remand/reopen based on new country-conditions evidence | Flores-Cedra argued new DHS travel warning was material and BIA should have remanded. | Government argued courts lack jurisdiction to review denial of motions to reopen/remand in cancellation cases unless a new hardship ground was raised; BIA found new evidence would not change result. | Court: Lack of jurisdiction to review denial of motion to remand here; even on the merits BIA did not abuse discretion because evidence was not material. |
| Whether BIA engaged in improper fact-finding by suggesting internal relocation | Flores-Cedra (and dissent) argued BIA improperly made factual findings about feasibility of relocation, which the BIA must not do and should have remanded to the IJ. | Government treated that as permissible appellate consideration (or a discretionary determination) and urged dismissal. | Court (majority): Did not reach or accept the fact-finding-error argument as reviewable; dismissed petition for lack of jurisdiction. (Dissent would remand for factual findings.) |
Key Cases Cited
- Ettienne v. Holder, 659 F.3d 513 (6th Cir. 2011) (court lacks jurisdiction to review discretionary denial of cancellation when resolution requires evaluating eligibility factors)
- Cruz-Mayaho v. Holder, 698 F.3d 574 (7th Cir. 2012) (limited jurisdiction to review denial of reopening/remand in cancellation cases; new hardship grounds exception)
- Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006) (denial of reopening/remand in cancellation cases generally not reviewable absent new hardship ground)
- Allabani v. Gonzales, 402 F.3d 668 (6th Cir. 2005) (motion to reopen/reconsider requires material evidence to warrant reopening)
- Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) (BIA commits legal error subject to review if it engages in improper independent fact-finding)
- Saleheen v. Holder, 618 F.3d 957 (8th Cir. 2010) (BIA’s failure to follow its own procedures or regulations can be a reviewable legal question)