               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0049n.06

                                         Case No. 18-3539

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                        Jan 29, 2019
ABDIAS ALEXANDER CATALAN-                            )              DEBORAH S. HUNT, Clerk
ESTRADA,                                             )
                                                     )
       Petitioner,                                   )      ON PETITION FOR REVIEW
                                                     )      FROM THE UNITED STATES
v.                                                   )      BOARD   OF  IMMIGRATION
                                                     )      APPEALS
MATTHEW G. WHITAKER, Acting U.S.                     )
Attorney General,                                    )
                                                     )
       Respondent.                                   )




       BEFORE: CLAY, COOK, and LARSEN, Circuit Judges.

       COOK, Circuit Judge. Abdias Alexander Catalan-Estrada petitions for review of the Board

of Immigration Appeals’ decision upholding an immigration judge’s denial of his motion to reopen

cancellation of removal proceedings. Because the Board correctly required Catalan-Estrada to

present new evidence likely to change the result of his case, and he failed to do so, we DENY

Catalan-Estrada’s petition for review.

                                                I.

       Catalan-Estrada, a native and citizen of Guatemala, entered the United States illegally on

an unknown date. In 2012, the Department of Homeland Security issued a Notice to Appear

charging Catalan-Estrada as removable. Catalan-Estrada admitted the Notice’s factual allegations
Case No. 18-3539, Catalan-Estrada v. Whitaker


and conceded his removability. The immigration court held a hearing in 2015, at which Catalan-

Estrada applied for cancellation of removal. Relevant here, Catalan-Estrada testified at the hearing

and marked on his application that his two daughters, both United States citizens, would not

accompany him to Guatemala should his application fail. He also acknowledged that Tennessee’s

Medicaid program covered both daughters. The immigration judge denied the application in a

written decision issued almost two years after the hearing, finding that Catalan-Estrada failed to

show that his deportation would cause his daughters “exceptional and extremely unusual”

hardship.

       Instead of appealing the immigration court’s decision, Catalan-Estrada timely moved to

reopen the proceedings, citing new evidence of his younger daughter’s recent diagnoses of asthma

and expressive language delay, and symptoms of autism spectrum disorder. The immigration

judge denied the motion, reasoning that because Catalan-Estrada never amended his testimony that

the daughters would not accompany him to Guatemala, and because his younger daughter had

access to care in the United States, the new evidence would not alter the cancellation decision.

Catalan-Estrada appealed this decision to the Board, which dismissed the case, rejecting the

argument that the immigration judge applied the wrong standard by requiring new evidence likely

to change the result of the case. This petition followed.

                                                II.

       We review the Board’s denial of a motion to reopen immigration proceedings for abuse of

discretion. Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018). The Board abuses its

discretion when it denies a motion to reopen “without a rational explanation,” “inexplicably

depart[s] from established policies,” or rests its decision “on an impermissible basis such as

invidious discrimination against a particular race or group.” Balani v. I.N.S., 669 F.2d 1157, 1161


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(6th Cir. 1982). We review questions of law de novo, giving “substantial deference” to the Board’s

interpretations of the Immigration and Nationality Act and its accompanying regulations. Kukalo

v. Holder, 744 F.3d 395, 402 (6th Cir. 2011).

       This petition presents the sole question of whether the Board applied the correct materiality

standard to Catalan-Estrada’s new evidence on his motion to reopen. The proponent of a motion

to reopen “bears a heavy burden,” I.N.S. v. Abudu, 485 U.S. 94, 110 (1988) (analogizing a motion

to reopen to a motion for a new trial in a criminal case), and immigration courts generally disfavor

reopening proceedings “in light of the strong public interest in the finality of removal orders,”

Trujillo Diaz, 880 F.3d at 249. An immigration judge will not grant such a motion unless the new

evidence “[1] is material and [2] was not available and could not have been discovered or presented

at the former hearing.” 8 C.F.R. § 1003.23(b)(3). Indeed, the Supreme Court in Abudu recognized

a petitioner’s failure to produce new, material evidence as a sufficient ground for denying a motion

to reopen. 485 U.S. at 104; see also Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005).

       Catalan-Estrada renews the argument he made before the Board that, to qualify as

“material,” his new evidence needn’t be of a quality likely to change the outcome of his case. But,

in Matter of Coelho, the Board defined “material evidence” on a motion to reopen as evidence that

satisfies the Board that “if proceedings before the immigration judge were reopened, with all the

attendant delays, the new evidence offered would likely change the result in the case.” 20 I. & N.

Dec. 464, 473 (BIA 1992). We recently endorsed the Coelho standard, holding that the Board

correctly required a petitioner seeking the same relief as Catalan-Estrada to present new evidence

that “would likely change the result in the case.” Hernandez-Perez v. Whitaker, 911 F.3d 305, 321

(6th Cir. 2018). Moreover, in unpublished decisions, this court consistently applies Coelho’s

materiality standard. See, e.g., Mbaye v. Holder, 369 F. App’x 688, 695 (6th Cir. 2010); Abeshi v.


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Mukasey, 259 F. App’x 775, 778 (6th Cir. 2008); see also Vakeesan v. Holder, 343 F. App’x 117,

122 (6th Cir. 2009); Jaber v. Mukasey, 274 F. App’x 469, 474 (6th Cir. 2008); Flores-Cedra v.

Holder, 572 F. App’x 389, 391 (6th Cir. 2014). Thus, the Board unsurprisingly affirmed the

immigration judge’s application of the Coelho standard to dismiss Catalan-Estrada’s motion.

       Nevertheless, Catalan-Estrada argues that Coelho’s standard applies only to immigration

cases where new evidence relates to eligibility for relief as a matter of discretion and not to cases,

like his, where new evidence relates to relief grounded in statutory elements. We find this

argument unpersuasive. Beyond the dearth of authority supporting this argument, Coelho itself

fails to evince the distinction Catalan-Estrada draws. Although the petitioner’s new evidence in

Coelho related to discretionary relief, the Board’s materiality holding encompassed all movants

“already . . . provided the opportunity to apply for [relief from deportation].” 20 I. & N. Dec. at

473. Indeed, the Supreme Court and the Board consistently justify the “heavy burden” on

proponents of motions to reopen by referencing the petitioner’s previous opportunity to argue his

case, rather than the precise basis for relief. See Abudu, 485 U.S. at 107–08; I.N.S. v. Doherty, 502

U.S. 314, 323 (1992); In re L-O-G-, 21 I. & N. Dec. 413, 419–20 (BIA 1996). Consistent with

this approach, we applied Coelho’s standard to motions to reopen irrespective of the background

relief sought by the petitioner. See, e.g., Mbaye, 369 F. App’x at 694–95 (applying Coelho’s

materiality standard to evidence relevant to statutory relief); Welson v. Sessions, 744 F. App’x 249,

255–56 (6th Cir. 2018) (same); see also Hernandez-Perez, 911 F.3d at 320 (observing that our

cases cite Coelho “without limiting that discussion to a certain category of cases”).

       Catalan-Estrada further argues that, instead of meeting Coelho’s standard, his new

evidence need only satisfy a weaker standard—that it “may influence” the immigration judge’s

decision. But the Board opinions he cites for this proposition fail to address materiality in the


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Case No. 18-3539, Catalan-Estrada v. Whitaker


motion to reopen context. See Matter of A-C-M-, 27 I. & N. Dec. 303 (BIA 2018) (interpreting

the phrase “material support” as it relates to terrorist activity disqualifying admission); Matter of

D-R-, 25 I. & N. Dec. 445 (BIA 2011) (addressing “material misrepresentation” in the context of

fraud disqualifying admission). Catalan-Estrada’s inability to produce support for this argument

makes sense: this “may influence” standard would thwart “the strong public interest in the finality

of removal orders.” Trujillo Diaz, 880 F.3d at 249.

                                                III.

       We uphold the Board’s decision and DENY Catalan-Estrada’s petition for review.




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