Rosendo Benito Rangel-Perez v. U.S. Attorney General
523 F. App'x 671
| 11th Cir. | 2013Background
- Rangel-Perez, a native and citizen of Mexico, petitions for review of BIA denial of his first motion to reopen and second motion to reopen seeking cancellation of removal under INA § 240(a).
- The IJ denied cancellation of removal for lack of hardship; BIA affirmed, concluding hardships to wife and stepson did not meet the required level.
- The court lacks jurisdiction to reviewCancellation of removal denial under INA § 242(a)(2)(B)(i) and (a)(2)(D) except on constitutional or legal questions; motions to reopen/reconsider remain jurisdictionally tied to that underlying order.
- Rangel-Perez argued for remand or reconsideration based on new evidence (wife’s fibromyalgia) and a change in law from Matter of Morales affecting hardship analysis.
- Second motion to reopen was time-barred and number-barred under INA § 240(c)(7); exceptions for asylum-based changes or battered-spouse/parent claims do not apply.
- Motion to reconsider could not identify legal error in the BIA’s prior decision in light of Morales; no error found, so no basis to reconsider.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review | Rangel-Perez seeks review of BIA denial via motions to reopen/reconsider. | Under INA provisions, jurisdiction is limited; underlying discretionary hardship denial is not reviewable except for legal/constitutional issues. | Lack of jurisdiction to review cancellation denial; petition dismissed in part, denied in part. |
| Second motion to reopen timing/limits | BIA should remand to consider new evidence on hardship. | Second motion to reopen is time- and number-barred and not within exceptions. | Second motion to reopen time- and number-barred; not within established exceptions. |
| Change in law and remand obligation | Intervening Morales precedent required remand to consider stepchild hardship. | Motion to reopen based on change in law not available here; Morales does not compel remand for second reopening. | No remand obligation; Morales does not alter timeliness/number-bar rules for this case. |
| Motion to reconsider based on change of law | Changed law warrants reconsideration of BIA decision. | Reconsideration requires legal error in prior decision; no error found under Morales. | No legal error identified; motion to reconsider properly denied. |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (jurisdiction over motions to reopen/reconsider)
- Alhuay v. U.S. Atty Gen., 661 F.3d 534 (11th Cir. 2011) (hardship standard review; discretionary decision not reviewable where no legal error)
- Patel v. U.S. Att’y Gen., 334 F.3d 1259 (11th Cir. 2003) (link between motion practice and jurisdictional limits)
- In re O-S-G, 24 I. & N. Dec. 56 (BIA 2006) (motions to reopen vs. reconsider; change of law considerations)
- Matter of Morales, 25 I. & N. Dec. 186 (BIA 2010) (stepparents as parents for hardship analysis)