Summary
The Ninth Circuit dismissed in part and denied in part a petition for review of the Board of Immigration Appeals’ denial of a motion to reopen removal proceedings. The court held that it lacked jurisdiction to review the discretionary hardship determination and rejected the petitioner’s due process challenge because he was not prevented from presenting his case and failed to show prejudice.
Topics
Practice areas
Questions Presented
- Whether the Ninth Circuit had jurisdiction to review the BIA's discretionary determination that the evidence submitted with the motion to reopen was insufficient to establish a prima facie case of hardship.
- Whether the BIA violated due process by finding that Salinas Mendieta engaged in dilatory tactics.
Holdings
- The court lacked jurisdiction to review the BIA's discretionary determination that the evidence was insufficient to establish a prima facie case of hardship where the motion to reopen concerned the same basic hardship grounds as the cancellation-of-removal application.
- Salinas Mendieta did not establish a due-process violation because he was not prevented from reasonably presenting his case and failed to demonstrate prejudice.
Key quotations
“the BIA determines that a motion to reopen proceedings in which there has already been an unreviewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief” (234 F. App'x at 478-79)
Factual background
Salinas Mendieta sought reopening of his removal proceedings based on evidence concerning hardship similar to the hardship grounds underlying his application for cancellation of removal. The BIA determined that the evidence did not establish a prima facie case of hardship and also found that Salinas Mendieta had engaged in dilatory tactics. He challenged those determinations, including the asserted due-process violation, in his petition for review.
Procedural history
Salinas Mendieta, a native and citizen of Mexico, moved to reopen his removal proceedings. The Board of Immigration Appeals denied the motion, and he petitioned the Ninth Circuit for review. The court dismissed the petition in part for lack of jurisdiction and denied it in part on the due-process claim.