33 F.4th 798
5th Cir.2022Background
- Fredy Leo Pena-Lopez, a Salvadoran national, was served with a notice to appear for unlawful entry, failed to appear, and was ordered removed in absentia in 2004.
- He married a U.S. citizen in 2012, she filed I-130 petitions for him and his sons, and Pena-Lopez filed multiple motions to reopen; prior motions were denied.
- In 2019 he filed a third motion to reopen under the VAWA special-rule provision (8 U.S.C. § 1229a(c)(7)(C)(iv)) alleging psychological and occasional physical abuse by his wife and an eviction ultimatum.
- The motion was filed after the one-year statutory window; the statute permits the Attorney General to waive that deadline for an alien who shows "extraordinary circumstances or extreme hardship to the alien’s child."
- The BIA denied the motion as number- and time-barred and concluded Pena-Lopez failed to show extraordinary circumstances or extreme hardship; it also declined to sua sponte reopen.
- Pena-Lopez appealed; key questions were (1) whether the court had jurisdiction to review the BIA’s waiver decision, and (2) whether the BIA abused its discretion in finding no extraordinary circumstances or extreme hardship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA’s refusal to waive the one-year filing limit under § 1229a(c)(7)(C)(iv)(III). | Guerrero-Lasprilla means the legal application to facts is reviewable; mixed questions fall under §1252(a)(2)(D). | The decision is discretionary under §1252(a)(2)(B) and not reviewable. | Court has jurisdiction to review the application of the statutory legal standard to undisputed facts (Guerrero-Lasprilla/Trejo). |
| Whether Pena-Lopez’s alleged psychological/occasional physical abuse was an "extraordinary circumstance" warranting waiver. | Abuse qualifies as an extraordinary circumstance that excuses untimely filing. | The abuse is the type normally alleged in VAWA cases and not extraordinary. | BIA did not abuse its discretion; abuse did not meet the extraordinary-circumstances threshold. |
| Whether Pena-Lopez’s sons would suffer "extreme hardship" if he were removed. | Sons would face extreme poverty and criminal violence in El Salvador and need Pena-Lopez’s material/paternal support. | Hardship alleged is the ordinary consequence of a family member’s removal; older son (20) can assist. | BIA reasonably found the asserted harms were ordinary relocation/removal hardships, not "extreme hardship." |
| Whether the BIA’s refusal to sua sponte reopen is reviewable. | Appeal challenges denial of sua sponte reopening. | Sua sponte reopening is a wholly discretionary, unreviewable decision. | Court lacks jurisdiction to review the BIA’s refusal to sua sponte reopen; that part of the petition is dismissed. |
Key Cases Cited
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (mixed questions of law and fact—application of legal standards to established facts—are reviewable under §1252(a)(2)(D))
- Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021) (applying Guerrero-Lasprilla to cancellation-of-removal hardship standards; statutory threshold is reviewable before discretion to grant relief)
- Flores-Moreno v. Barr, 971 F.3d 541 (5th Cir. 2020) (due-diligence equitable-tolling inquiry construed as a reviewable legal application under Guerrero-Lasprilla)
- Kucana v. Holder, 558 U.S. 233 (2010) (discussing limits on judicial review of certain administrative waivers)
- Mejia v. Whitaker, 913 F.3d 482 (5th Cir. 2019) (abuse-of-discretion standard for motions to reopen)
- Parada-Orellana v. Garland, 21 F.4th 887 (5th Cir. 2021) (holding ordinary relocation hardship insufficient for extraordinary/extremely unusual hardship)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (articulating standard for finding BIA abuse of discretion)