                                                               FILED
                                                   United States Court of Appeals
                      UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          July 3, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
SANDRA LOPEZ-MUNOZ,

              Petitioner,

v.                                                          No. 13-9608
                                                        (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

              Respondent.


                            ORDER AND JUDGMENT*


Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.



       Sandra Lopez-Munoz, a native and citizen of Mexico, petitions for review of a

decision of the Board of Immigration Appeals (BIA) denying her motion to reopen

removal proceedings. We deny the petition for review in part and dismiss it in part

for lack of jurisdiction.



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I

      Ms. Lopez-Munoz was charged with entering the United States without being

lawfully admitted or paroled. She conceded the charge but sought cancellation of

removal under 8 U.S.C. § 1229b(b). That provision requires an alien to show, among

other things, “that removal would result in exceptional and extremely unusual

hardship to the alien’s spouse, parent, or child, who is a citizen of the United States

or an alien lawfully admitted for permanent residence.” Id. § 1229b(b)(1)(D).

      At a hearing before an immigration judge (IJ), Ms. Lopez-Munoz testified that

her sons, both of whom are U.S. citizens, would experience such hardship if she were

removed. She explained that she and her husband and sons had “always been

together as a family.” Admin. R. at 229. But she said that if she were removed, her

sons would remain in the United States with her husband. Moreover, she feared

violence and kidnappings in Mexico and worried that her sons would have difficulty

in school there. In particular, she expressed concern for her older son, Sergio, who

spoke very little Spanish and was receiving psychological counseling for difficulties

associated with the prospect of her removal. Indeed, she submitted a letter from

Sergio’s school indicating that he was having trouble with attendance and

concentrating due to his concerns about her potential deportation. She also submitted

a letter from a psychological counselor stating that Sergio’s ongoing symptoms of

depression seemed to have been exacerbated by the threat of her possible deportation.




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      The IJ acknowledged the inherent hardship attending removal proceedings but

concluded that Ms. Lopez-Munoz failed to show that a qualifying family member

would suffer exceptional and extremely unusual hardship if she were removed. The

IJ recognized that Sergio had seen a psychologist four times, the most recent

occasion stemming from Ms. Lopez-Munoz’s removal proceedings. Yet the IJ

observed that there was no documentary or testimonial evidence establishing the

severity of Sergio’s condition; instead, the evidence established only that Sergio was

having trouble with attendance and concentrating at school. Hence, the IJ denied

cancellation of removal and ordered Ms. Lopez-Munoz removed to Mexico.

      The BIA affirmed. The BIA concluded that the IJ had properly considered the

evidence of hardship to the children, including their good physical health, Sergio’s

mental-health counseling and difficulties with school, as well as the family’s

economic concerns. The BIA also recognized the hardship caused by the family’s

separation. Nevertheless, the BIA ruled that “separation of family is unfortunately

not uncommon in cancellation of removal cases.” Id. at 99-100. Thus, the BIA

determined that in the aggregate, Ms. Lopez-Munoz failed to establish that her sons

would suffer exceptional or extremely unusual hardship.

      Ms. Lopez-Munoz did not petition this court for review of the discretionary

denial of relief. Instead, she moved the BIA to stay her removal and reopen her case.

In support of the motion to reopen, she submitted a November 2012 psychological

assessment indicating that Sergio had been diagnosed with severe depression, which


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appeared to have been exacerbated by his mother’s removal proceedings. She also

submitted affidavits signed by herself, Sergio, and her younger son, declaring that

in February 2012, Sergio had been hit in the chest by his taekwondo instructor.

Finally, she submitted information indicating that Sergio had been diagnosed with

Osgood-Schlatter’s disease, a condition that causes knee pain. Ms. Lopez-Munoz

asserted that this information demonstrated the level of hardship required to establish

her eligibility for relief.

       The BIA disagreed, noting that a motion to reopen must be predicated on new,

previously unavailable, and material evidence. See 8 C.F.R. § 1003.2(c). The BIA

ruled that the allegations of Sergio’s assault, which occurred in February 2012, were

not new because they could have been presented at the IJ’s March 2012 hearing.

Likewise, the BIA ruled that Sergio’s diagnosis of severe depression was not new

because it was substantially similar to his ongoing symptoms of depression, which

began several years earlier. As for Sergio’s knee injury, the BIA found no need for a

hearing because the record indicated that it would resolve with conservative

treatment. Thus, the BIA concluded that the evidence was not sufficiently material to

warrant a new hearing, nor “sufficient to make a prima facie showing of exceptional

and extremely unusual hardship, so as to warrant reopening.” Admin. R. at 3.

       Ms. Lopez-Munoz now challenges the denial of her motion to reopen, arguing

that the BIA applied the wrong legal standard, failed to consider the aggregate impact

of the evidence, and abused its discretion in denying her motion to reopen.


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                                            II

      A. Legal Standard Governing a Motion to Reopen

      We first consider Ms. Lopez-Munoz’s contention that the BIA applied an

improper legal standard in denying her motion to reopen. She says that 8 U.S.C.

§ 1229a(c)(7)(B) simply requires an alien to produce new, material evidence that is

relevant to the hardship assessment, but the BIA requires a more onerous prima facie

showing of exceptional and extremely unusual hardship. The government contends

that the BIA’s prima facie requirement is a reasonable interpretation of the statute

that is entitled to deference under Chevron, U.S.A., Inc., v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). We review this legal question de novo,

Barrera-Quintero v. Holder, 699 F.3d 1239, 1243 (10th Cir. 2012), and conclude that

the prima facie showing requirement is entitled to deference.

      “Under the Chevron test, a court gives deference to an agency’s interpretation

of a statute Congress charged it with administering if the statute is silent or

ambiguous on the question at hand and the agency’s interpretation is not arbitrary,

capricious, or manifestly contrary to the statute.” Id. at 1244 (internal quotation

marks omitted). The statutory provision at issue here, 8 U.S.C. § 1229a(c)(7)(B),

provides that a “motion to reopen shall state the new facts that will be proven at a

hearing to be held if the motion is granted, and shall be supported by affidavits or

other evidentiary material.” Because the statute says nothing about an alien’s burden

to make a prima facie showing, we examine whether the requirement is “based on a


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permissible construction of the statute.” Contreras-Bocanegra v. Holder, 678 F.3d

811, 816 (10th Cir. 2012) (en banc) (internal quotation marks omitted).

      Section 1229a(c)(7)(A) “guarantees to each alien the right to file one motion to

reopen.” Dada v. Mukasey, 554 U.S. 1, 15 (2008) (internal quotation marks omitted).

But the decision to grant or deny a motion to reopen rests within the BIA’s “broad

discretion.” Kucana v. Holder, 558 U.S. 233, 242 (2010); see id. at 250 (holding that

BIA retains “broad discretion . . . to grant or deny a motion to reopen” (internal

quotation marks omitted)). The BIA may deny a motion to reopen where (1) the

alien “has not established a prima facie case for the underlying substantive relief

sought”; (2) the alien “has not introduced previously unavailable, material evidence”;

and (3) where relief is discretionary, the alien “would not be entitled to the

discretionary grant of relief.” INS v. Abudu, 485 U.S. 94, 104-05 (1988). Abudu’s

first ground—a prima facie showing of eligibility for relief—“is not regulatory” but

“was instead developed by the BIA in its case law.” Fernandez v. Gonzales,

439 F.3d 592, 600 n.6 (9th Cir. 2006). Under this standard, an alien must present

evidence that “reveals a reasonable likelihood that the statutory requirements for

relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (BIA 2000),

overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir.

2003). This requirement “serves a screening function by ensuring that only those

cases in which facts are alleged and supported that are legally sufficient to support a

finding of eligibility for [relief] will be reopened.” Haftlang v. INS, 790 F.2d 140,


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143 (D.C. Cir. 1986). Yet the BIA retains the “discretion to deny a motion to reopen

even if the party moving has made out a prima facie case for relief.” 8 C.F.R.

§ 1003.2(a); see Abudu, 485 U.S. at 105-06.

      We conclude that the BIA’s interpretation of the statute is reasonable. See

Barrera-Quintero, 699 F.3d at 1246 (“[A]s long as the interpretation is reasonable,

we must defer to the agency’s construction of the statute . . . .”). The prima facie

showing standard is met “where the new facts alleged, when coupled with the facts

already of record, satisfy [the BIA] that it would be worthwhile to develop the issues

further.” In re S-V-, 22 I. & N. Dec. at 1308 (internal quotation marks omitted). The

standard does not require “a conclusive showing that eligibility for relief has been

established,” id., despite the fact that the BIA retains the discretion to deny a motion

to reopen even if the alien makes the prima facie showing. To be sure, this presents

the alien with a “heavy burden,” but the requirement that an alien make a prima facie

showing of eligibility for relief attempts to ensure that “‘if proceedings before the

[IJ] were reopened, with all the attendant delays, the new evidence offered would

likely change the result in the case.’” Maatougui v. Holder, 738 F.3d 1230, 1239-40

(10th Cir. 2013) (quoting In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)).

Because this construction is not arbitrary, capricious, or contrary to the purpose of

the statute, the BIA’s requirement is entitled to deference.1


1
        Ms. Lopez-Munoz contends the BIA may not contract the jurisdiction granted
to it by Congress by establishing the prima facie eligibility requirement. See Pet’r
                                                                            (continued)
                                          -7-
      B. Consideration of Hardship Evidence in the Aggregate

      Next, Ms. Lopez-Munoz argues that the BIA failed to consider the aggregate

impact of her evidence. We have explained that “if, in deciding a motion to reopen,

the BIA refuses, contrary to established procedures, to consider new and pertinent

evidence, due process rights are implicated.” Alzainati v. Holder, 568 F.3d 844, 850

(10th Cir. 2009). Thus, to the extent Ms. Lopez-Munoz raises a constitutional claim,

we review her argument de novo. See Barrera-Quintero, 699 F.3d at 1243. We

perceive no violation, however, because the BIA expressly discussed the evidence of

Sergio’s alleged assault, his most recent psychological assessment, and the symptoms

of his knee injury. The BIA then concluded that this case, including the evidence

submitted with the motion to reopen, failed to establish Ms. Lopez-Munoz’s

eligibility for relief. This satisfied the BIA’s obligation to consider the evidence of

hardship in the aggregate. See generally In re Ige, 20 I. & N. Dec. 880, 882 (BIA

1994) (holding that hardship factors must be considered in the aggregate). And even

if it did not, we still would have no jurisdiction to review the underlying merits




Br. at 16 (citing Union Pac. R.R. v. Bhd. of Locomotive Eng’rs, 558 U.S. 67, 71-72
(2009)). There is no indication, however, that the requirement carries a jurisdictional
dimension. Rather, as we have explained, the requirement establishes a threshold
standard by which the BIA determines whether to exercise its discretionary authority
to reopen removal proceedings. Cf. Marin-Rodriguez v. Holder, 612 F.3d 591, 595
(7th Cir. 2010) (“The Board may well be entitled to recast its approach as one resting
on a categorical exercise of discretion, but it cannot insist that it has elected to
foreswear subject-matter jurisdiction that it possesses under a statute.”).


                                          -8-
decision; rather, we would have only limited jurisdiction to compel the BIA to fairly

consider the relevant evidence. See Alzainati, 568 F.3d at 850.

      C. Denial of Motion to Reopen

      Finally, Ms. Lopez-Munoz contends the BIA abused its discretion in denying

her motion to reopen. She insists that she presented new and sufficient evidence of

Sergio’s depression to warrant reopening her case, but the BIA failed to meaningfully

review it. Ordinarily, we retain jurisdiction to review the denial of a motion to

reopen for an abuse of discretion. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62

(10th Cir. 2004). However, Ms. Lopez-Munoz’s argument effectively challenges the

underlying merits determination that she failed to show the requisite level of hardship

for purposes of establishing her eligibility for cancelation of removal. Under

8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review the BIA’s discretionary

determination that an alien “has failed to demonstrate that removal would cause

exceptional and extremely unusual hardship.” Sabido Valdivia v. Gonzales, 423 F.3d

1144, 1148 (10th Cir. 2005) (internal quotation marks omitted). And “[b]ecause

§ 1252(a)(2)(B)([i]) precludes our review of an ‘exceptional and extremely unusual

hardship’ determination under § 1229b(b)(1)(D), it also precludes our jurisdiction

to review the BIA’s denial of a motion to reopen because the alien still has failed

to show the requisite hardship.” Alzainati, 568 F.3d at 849. To the extent

Ms. Lopez-Munoz asserts the BIA failed to adequately discuss the evidence in a

meaningful way, this is essentially “a quarrel about the level of detail required in the


                                          -9-
BIA’s analysis, not a colorable due process claim.” Id. at 851. Consequently, we

have no jurisdiction to review the BIA’s decision that Ms. Lopez-Munoz failed to

establish the requisite level of hardship in her motion to reopen. Cf. Kucana,

558 U.S. at 250 n.17 (declining to consider whether court has jurisdiction to review

the denial of motion to reopen where court would have no jurisdiction to review the

underlying claim for relief).

      Accordingly, the petition for review is denied in part and dismissed in part.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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