           Case: 12-16504   Date Filed: 07/18/2013   Page: 1 of 7




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16504
                        Non-Argument Calendar
                      ________________________

                        Agency No. A094-809-903



ROSENDO BENITO RANGEL-PEREZ,

                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                             (July 18, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
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       Rosendo Rangel-Perez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeal’s (“BIA”) decision denying his (1) motion for

reconsideration of the BIA’s denial of his first motion to reopen, and (2) second

motion to reopen. Through these motions, Rangel-Perez sought to reopen his

application for cancellation of removal, filed pursuant to the Immigration and

Nationality Act (“INA”) § 240(a), 8 U.S.C. § 1229a(a). For the reasons that

follow, we dismiss in part and deny in part Rangel-Perez petition for review.

                                  I. JURISDICTION

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

or to reconsider. See Kucana v. Holder, 558 U.S. 233, 252-53, 130 S. Ct. 827, 840

(2010) (concluding that INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B) does not

strip courts of jurisdiction to review denials of motions to reopen or reconsider

made pursuant to 8 C.F.R.§ 1003.2). 1 We lack jurisdiction, however, to review the

denial of an application for cancellation or removal under § 1229b except in

appeals that raise a constitutional claim or a question of law. INA

§ 242(a)(2)(B)(i), (a)(2)(D), 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); see also

Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549-50 (11th Cir. 2011); Martinez v.

U.S. Att’y Gen., 446 F.3d 1219, 1221-22 (11th Cir. 2006). Under our binding

precedent, when review of the underlying order is barred by the INA’s jurisdiction-

       1
        “We review our subject matter jurisdiction de novo.” Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
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stripping provisions, we also lack “jurisdiction to entertain an attack on that order”

mounted through a motion to reopen or motion for reconsideration. Patel v. U.S.

Att’y Gen., 334 F.3d 1259, 1261-62 (11th Cir. 2003).

       Here, the IJ’s final removal order, affirmed by the BIA, denied Rangel-

Perez’s request for cancellation of removal because he did not establish the

hardship requirement. Whether an applicant demonstrates the “exceptional and

extremely unusual hardship” needed for cancellation of removal is a discretionary

determination not subject to review. See Alhuay, 661 F.3d at 549-50. Under our

binding precedent, we therefore also lack jurisdiction to review the denial of any

motions to reopen or reconsider that determination. See Patel, 334 F.3d at 1262.

Thus, to the extent Rangel-Perez argues that the BIA abused its discretion in

denying (1) his motion to reconsider the denial of his first motion to reopen; or (2)

his second motion to reopen, we dismiss his petition for lack of jurisdiction. 2

                                  II. LEGAL CLAIMS

       Although we retain jurisdiction to review constitutional or legal claims,

Rangel-Perez raises two legal errors that are wholly without merit. We explain

why.



       2
        We lack jurisdiction to review the BIA’s refusal to sua sponte reopen removal
proceedings. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). Thus, we
cannot review Rangel-Perez’s alternative argument that the BIA abused its discretion in not
reopening his case sua sponte.
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      Rangel-Perez’s motion for reconsideration and second motion to reopen

were both based on new evidence of his wife’s recent diagnosis of fibromyalgia.

The BIA denied the motion for reconsideration because Rangel-Perez’s motion did

not identify any error of fact or law in the BIA’s prior decision denying his first

motion to reopen. The BIA denied Rangel-Perez’s second motion to reopen as

both time-barred and number-barred. See INA § 240(c)(7)(A) &(C), 8 U.S.C.

§ 1229a(c)(7)(A) &(C) (limiting motions to reopen to one motion filed within

ninety days of the final order of removal).

A.    Second Motion to Reopen

      Rangel-Perez does not dispute that his motion to reopen was his second and

that it was not filed within ninety days of his removal order. Instead, Rangel Perez

argues, without citing any authority, that the BIA nonetheless was required as a

matter of law to remand his case to the IJ to consider whether, in light of his new

evidence, he now met the hardship requirement. However, the only motions to

reopen not subject to the time and/or number limitations are motions to reopen

asylum applications based on changed country conditions and motions to reopen

based on allegations of a battered spouse, child, or parent. See id. § 240(c)(7)(A),

(C)(ii) & (iv), 8 U.S.C. § 1229a(c)(7)(A), (C)(ii) & (iv). Rangel-Perez’s second

motion to reopen did not fall within either of these exceptions, and thus was both

time- and number-barred.


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       Rangel-Perez also argues that as a matter of law the BIA was required to

remand his case to the IJ because of an intervening change in the BIA’s precedent.

Rangel-Perez contends Matter of Morales, decided after his final removal order,

required the IJ to consider the hardship to his stepson in addition to his wife. See

25 I. & N. Dec. 186, 187 (BIA 2010) (concluding that a stepparent qualifies as a

“parent” for purposes of establishing the hardship requirement for cancellation of

removal). 3

       Given that the purpose of a motion to reopen is to present new facts, it is

doubtful a motion to reopen is the proper vehicle to argue a change in the law. See

8 C.F.R. § 1003.2(c) (requiring motion to reopen to “state the new facts that will be

proven at a hearing to be held if the motion is granted” and to be “supported by

affidavits or other evidentiary material”); In re O-S-G, 24 I. & N. Dec. 56, 57 (BIA

2006) (explaining that while a motion to reconsider “contests the correctness of the

[BIA’s] original decision based on the previous factual record,” a motion to reopen

“seeks a new hearing based on new or previously unavailable evidence”). In any

event, Rangel-Perez fails to cite any authority supporting his claim that a second

motion to reopen based on a change in the law is exempt from the INA’s time and

number limitations. Indeed, the provision of the INA that governs motions to


       3
        The government contends that Rangel-Perez failed to exhaust this issue before the BIA.
Rangel-Perez’s motions filed with the BIA, however, argued that stepchildren could be
considered in hardship determinations and cited Matter of Morales.
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reopen does not include such an exception. See INA § 240A(c)(7), 8 U.S.C.

§ 1229b(c)(7).

B.    Motion for Reconsideration

      Unlike a motion to reopen, a motion to reconsider filed pursuant to 8 C.F.R.

§ 1003.2(b) may be based on a change in the law. See In re O-S-G, 24 I. & N.

Dec. at 57 (“A motion to reconsider is a request that the Board reexamine its

decision in light of . . . a change of law . . . .” (internal quotation marks omitted)).

A motion to reconsider, however, must also show a factual or legal error in the

BIA’s prior decision—in this case, the BIA’s decision affirming the IJ’s denial of

Rangel-Perez’s first motion to reopen. See 8 C.F.R. § 1003.2(b)(1); In re O-S-G,

24 I. & N. Dec. at 56-57.

      Here, however, there was no legal error in the BIA’s prior decision in light

of Matter of Morales. Contrary to Rangel-Perez’s contention, the IJ in fact

considered the hardship to Rangel-Perez’s stepson when he denied Rangel-Perez’s

application for cancellation of removal. Specifically, the IJ considered both

Rangel-Perez’s “wife, and/or stepson” to be “qualifying relatives,” discussed the

hardships they would suffer and concluded that Rangel-Perez did not show the

requisite level of hardship. In affirming the IJ’s denial of cancellation of removal,

the BIA agreed that the hardships “his wife and stepchild will suffer” did not rise

to the level needed for cancellation of removal. As such, the IJ’s denial of


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cancellation of removal was consistent with Matter of Morales, and, in light of the

lack of legal error, the BIA had no reason to reconsider its prior decision to

denying Rangel-Perez’s first motion to reopen.

      PETITION DISMISSED IN PART, DENIED IN PART.




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