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

                            FOR THE TENTH CIRCUIT                       January 28, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ISRAEL JUAREZ-GONZALEZ,
a/k/a Pelon,

              Petitioner,
                                                            No. 14-9558
v.                                                      (Petition for Review)

ERIC H. HOLDER, JR.,
United States Attorney General,

              Respondent.


                             ORDER AND JUDGMENT*


Before KELLY, BALDOCK, and MORITZ, Circuit Judges.


       Israel Juarez-Gonzalez petitions for review of the Board of Immigration

Appeals’ (BIA) denial of his second motion to reopen. We dismiss in part and deny

in part the petition for review.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.    Background

      Mr. Juarez-Gonzalez, a native and citizen of Mexico, entered the United States

illegally in 1994. In 2011, the Department of Homeland Security sought his removal

as an alien present in the United States without being admitted or paroled. During a

hearing before an immigration judge (IJ), at which he was represented by counsel,

Mr. Juarez-Gonzalez conceded removability but requested cancellation of removal

and voluntary departure. After Mr. Juarez-Gonzalez testified at a subsequent

hearing, the IJ denied him cancellation of removal, but granted voluntary departure.

      In denying cancellation of removal, the IJ found that Mr. Juarez-Gonzalez had

been continuously physically present in the United States for at least a ten year

period; he was a person of good moral character; and he had not been convicted of a

crime that made him ineligible for relief. See 8 U.S.C. § 1229b(b)(1)(A)-(C) (listing

first three factors alien must demonstrate to obtain cancellation of removal). But the

IJ concluded that he failed to establish that his removal would result in “exceptional

and extremely unusual hardship” to a qualifying relative, in this case

Mr. Juarez-Gonzalez’s three children who are United States citizens. See id.

§ 1229b(b)(1)(D). The IJ noted that Mr. Juarez-Gonzalez was primarily concerned

with his ability to meet his children’s special-education needs in Mexico. The IJ

found that “[w]hile the children would no doubt face certain obstacles in adjusting to

a new school system, there is no indication that this adjustment would rise to the

level of exceptional and extremely unusual hardship.” Admin. R. at 752.


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      The BIA dismissed Mr. Juarez-Gonzalez’s appeal, agreeing with the IJ that he

failed to demonstrate exceptional and extremely unusual hardship. It noted that,

aside from a letter from a special educator, he had not submitted further documentary

evidence regarding his children’s special-education needs in school. The BIA

concluded, “The evidence shows that while his children have some special needs in

school they are not compelling special needs.” Id. at 618.

      Mr. Juarez-Gonzalez filed a timely motion to reopen based on new evidence,

specifically Individual Education Program (IEP) documents in support of his claim

that his children have compelling special-education needs. He further represented in

his motion that his wife was applying for Deferred Action for Childhood Arrivals

(DACA). Mr. Juarez-Gonzalez asserted that his wife’s pending DACA application

called into question whether she and the children would accompany him to Mexico,

as she could not continue to pursue that relief if she left the United States.

      The BIA denied the motion to reopen. It held that the newly submitted IEP

documents did not constitute new evidence because Mr. Juarez-Gonzalez failed to

demonstrate that these or similar documents could not reasonably have been

presented to the IJ. Additionally, because the IEP documents were substantially

similar to the record evidence, the BIA concluded that they were also not material

evidence. The BIA further held that Mr. Juarez-Gonzalez had not demonstrated a

material change in his children’s hardship based on a speculative claim that his wife

may be granted DACA.


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      Mr. Juarez-Gonzalez retained new counsel and filed a second motion to

reopen. He asked the BIA to sua sponte reopen his case based on a claim of

ineffective assistance of counsel. He first argued that his former counsel was

ineffective in failing to obtain and present all of the available evidence of hardship to

his children based on their special-education needs. In addition, after representing

that his wife had been granted DACA, he claimed that his former counsel was also

ineffective in failing to inform the IJ that he was eligible for DACA and other relief.

      The BIA denied Mr. Juarez-Gonzalez’s second motion to reopen. It found that

the motion was both untimely and number-barred. And because he failed to

demonstrate that he was prejudiced by his former counsel’s representation, the BIA

held that equitable tolling of the filing restrictions on motions to reopen was not

warranted in this case. It also declined to exercise its authority to reopen the case sua

sponte.

      As to prejudice, the BIA found that the evidence indicated that

Mr. Juarez-Gonzalez’s oldest child was receiving special-education services,

specifically to improve his expressive English-language skills; the youngest child no

longer required special education; and there was no evidence regarding the nature

and degree of the middle child’s claimed disability. The BIA held that the

cumulative evidence regarding the children’s special-education needs did not satisfy

the exceptional and extremely unusual hardship requirement for cancellation of




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removal. Therefore, Mr. Juarez-Gonzalez had not shown that, but for his counsel’s

ineffective performance, the result of the case would likely have been different.

                              II.    Petition For Review

      In his petition for review, Mr. Juarez-Gonzalez argues that the BIA erred in

finding that he failed to show he was prejudiced by his former counsel’s

representation. He claims that counsel was ineffective in two respects: (1) failing to

present evidence of his children’s hardship and (2) failing to exhaust his

administrative remedy.

      Regarding hardship, Mr. Juarez-Gonzalez asserts that his former counsel

initially failed to provide the IJ with complete documentation of his children’s

compelling special-education needs. Then, in his first motion to reopen, former

counsel failed to provide the IJ with evidence regarding special-education programs

in Mexico. Mr. Juarez-Gonzalez also contends that the BIA failed to consider the

additional evidence he submitted and did not weigh the hardship evidence in the

aggregate.

      Regarding his failure to exhaust his administrative remedy,

Mr. Juarez-Gonzalez does not elaborate on his contention that his counsel was

ineffective. He states only that he requested consideration of his eligibility for

DACA and that the BIA has the authority to administratively close removal

proceedings under appropriate circumstances.




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                                   III.   Discussion

      In general, an alien may file only one motion to reopen immigration

proceedings, and it “must be filed no later than 90 days after the date on which the

final administrative decision was rendered in the proceeding sought to be reopened.”

8 C.F.R. § 1003.2(c)(2). But the time and numerical limitations on motions to reopen

may be equitably tolled in circumstances of ineffective assistance of counsel. See

Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir. 2002). A motion to reopen must

“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.” Id.

§ 1003.2(c)(1). “The decision to grant or deny a motion to reopen . . . is within the

discretion of the [BIA] . . . .” Id. § 1003.2(a). Thus, we review the BIA’s denial of a

motion to reopen for an abuse of discretion. See Infanzon v. Ashcroft, 386 F.3d 1359,

1362 (10th Cir. 2004).

      We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s denial of a

motion to reopen as a “final, separately appealable order.” Infanzon, 386 F.3d at

1361. The Attorney General contends we nonetheless lack jurisdiction to review

some of Mr. Juarez-Gonzalez’s claims. We agree, and to the extent that he seeks

review of issues outside of this court’s jurisdiction, we dismiss his petition for

review.

      We lack jurisdiction to review the BIA’s discretionary decision not to sua

sponte reopen proceedings in this case. Salgado-Toribio v. Holder, 713 F.3d 1267,


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1270-71 (10th Cir. 2013). We are also precluded from reviewing the BIA’s

discretionary determinations under § 1229b regarding applications for cancellation of

removal. See 8 U.S.C. § 1252(a)(2)(B)(i) (providing “no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under section . . .

1229b”). Whether an alien has demonstrated exceptional and extremely unusual

hardship as required by § 1229b(b)(1)(D) is an unreviewable discretionary

determination. Alzainati v. Holder, 568 F.3d 844, 848 (10th Cir. 2009) (concluding

the “hardship determination involved an exercise of discretion insulated from our

review under [8 U.S.C.] § 1252(a)(2)(B)([i])”). We likewise lack “jurisdiction to

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

show the requisite hardship.” Id. at 849.

      We can review Mr. Juarez-Gonzalez’s claim that the BIA failed to consider his

new and pertinent evidence in denying his motion to reopen. See id. at 850. But that

claim has no merit: the BIA stated that it considered “the evidence of the children’s

educational needs at the time of the removal hearing and the evidence offered with

the motions.” Admin. R. at 8 (emphasis added).

      Mr. Juarez-Gonzalez otherwise contends that the BIA abused its discretion in

holding that he was not prejudiced by his former counsel’s allegedly ineffective

assistance. But the BIA’s no-prejudice determination was predicated entirely on its

holding that the totality of the evidence—i.e., everything Mr. Juarez-Gonzalez

contended that his former counsel should have submitted to the IJ—still failed to


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satisfy the requisite level of hardship for cancellation of removal. The BIA therefore

concluded that Mr. Juarez-Gonzalez was not prejudiced because such evidence would

not have altered the outcome of his case. Thus, we cannot review the BIA’s

no-prejudice holding without also reviewing its hardship determination, which is an

unreviewable discretionary decision.1

      Lastly, Mr. Juarez-Gonzalez contends that his counsel was ineffective in

failing to exhaust his administrative remedy and the BIA failed to consider other

administrative relief. Although we have jurisdiction to review these claims, he fails

to develop a sufficient argument to allow for meaningful appellate review. See U.S.

ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1175 (10th Cir. 2007)

(“We have long made clear that . . . conclusory and ill-developed arguments are

insufficient to permit us meaningful judicial review and will not be entertained.”) In

any event, Mr. Juarez-Gonzalez has not shown an abuse of discretion by the BIA.

      The petition for review is dismissed in part for lack of jurisdiction and

otherwise denied.

                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge
1
      Despite the jurisdictional bar in § 1252(a)(2)(B)(i), we retain jurisdiction to
review constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(D).
See Alzainati, 568 F.3d at 850. But Mr. Juarez-Gonzalez does not respond to the
Attorney General’s argument that he has not raised a non-frivolous constitutional
claim or question of law.


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