                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0408n.06

                                        Case No. 17-4162

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Aug 14, 2018
 MIGUEL FERNANDEZ MORETA,                         )                        DEBORAH S. HUNT, Clerk
                                                  )
         Petitioner,                              )
                                                  )         ON PETITION FOR REVIEW
 v.                                               )         FROM THE UNITED STATES
                                                  )         BOARD   OF  IMMIGRATION
 JEFFERSON B. SESSIONS, III, U.S.                 )         APPEALS
 Attorney General,                                )
                                                  )
         Respondent.                              )


       BEFORE: COOK, STRANCH, and NALBANDIAN, Circuit Judges.

       COOK, Circuit Judge. Miguel Fernandez Moreta, a native and citizen of the Dominican

Republic, seeks reversal of the Board of Immigration Appeals’ (the “Board”) denial of his motions

to reopen and to reconsider his application for cancellation of removal. For the following reasons,

we deny his petition.

                                             I.

       Since immigrating to the United States as a lawful permanent resident in 2002, Fernandez

has lived in Michigan near his parents and three siblings. But he hasn’t always conducted himself

lawfully, having three times been convicted of possessing controlled substances. Following his

last arrest, the Department of Homeland Security started removal proceedings against him. See

8 U.S.C. § 1227(a)(2)(B)(i). And though found eligible for removal, the Immigration Judge (“IJ”)

nevertheless granted Fernandez a discretionary cancellation of removal, citing “social and humane

considerations” for keeping Fernandez’s family together.
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Fernandez v. Sessions


       The Board saw it differently. After reweighing the equities of Fernandez’s case, it vacated

the IJ’s grant of discretionary relief and ordered him removed. In its consideration, the Board

acknowledged the length of Fernandez’s lawful residency and his extensive family ties to the

United States.   It nevertheless decided that his criminal record and history of drug abuse

outweighed those considerations. It also denied Fernandez’s later motions for reconsideration and

reopening. Those denials occasion this petition.

                                              II.

       We review the Board’s denial of either a motion to reconsider or to reopen for abuse of

discretion, Vasquez Salazar v. Mukasey, 514 F.3d 643, 645 (6th Cir. 2008); Allabani v. Gonzales,

402 F.3d 668, 675 (6th Cir. 2005), looking for whether the Board “acts arbitrarily, irrationally or

contrary to law.” Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003).

                                  A.      Motion to Reconsider

       Fernandez first seeks review of the denial of his motion for reconsideration, alleging that

the Board impermissibly made its own factual findings in denying him discretionary relief. See 8

C.F.R. § 1003.1(d)(3)(iv) (providing that beyond taking administrative notice of certain facts, the

Board “will not engage in factfinding in the course of deciding appeals.”). When the Attorney

General, acting through the Board, denies an alien’s application for cancellation of removal, we

lack jurisdiction to review discretionary aspects of the decision. 8 U.S.C. § 1252(a)(2)(B); Aburto-

Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008). We retain jurisdiction, however, to review




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Fernandez v. Sessions


the decision’s non-discretionary features, including “constitutional claims or questions of law.”

8 U.S.C. § 1252(a)(2)(D); Aburto-Rocha, 535 F.3d at 502.

        Although Fernandez contends that his appeal of these denials raises questions of law, we

may assume that it does without deciding, and deny on the merits. Djokic v. Sessions, 683 F.

App’x 385, 390 (6th Cir. 2017). And to the extent that Fernandez’s claim presents a question of

law, see Hussam F. v. Sessions, No. 17-3641, 2018 WL 3599146, at *10 (6th Cir. July 27, 2018)

(published) (finding jurisdiction to review whether the Board engaged in impermissible fact

finding), we assume for purposes of argument that we may review it. But even assuming

jurisdiction, his claim nevertheless fails.

        Fernandez maintains that the Board made its own findings concerning a warning he

received from an Immigration and Customs Enforcement officer. Yet as we read the record, the

Board’s decision simply described Fernandez’s testimony. It observed––as the IJ had found––that

the officer warned him about the risk of deportation in the event of further criminal activity. In

the absence of any evidence of impermissible fact-finding, this court is without a basis to criticize

the decision, let alone find an abuse of discretion. See Sova v. Holder, 451 F. App’x 543, 547–48

(6th Cir. 2011) (holding that the Board did not impermissibly engage in fact-finding when it

summarized letters in the record).

                                     B.       Motion to Reopen

        As for the denial of his motion to reopen, Fernandez targets the Board’s refusal to allow

him to present new evidence of his rehabilitation and the hardship that his removal imposes on his



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Fernandez v. Sessions


family. A motion to reopen “shall not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could not have been discovered or

presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). To the extent that the Board’s ruling

involves a nondiscretionary decision concerning whether the evidence presented was new and

previously unavailable, we assume for purposes of argument that we have jurisdiction to review

it. See Ortiz-Cervantes v. Holder, 596 F. App’x 429, 432–33 (6th Cir. 2015) (assuming arguendo

that we had jurisdiction to review the Board’s determination that the evidence was not new or

formerly unavailable).

       The Board determined that Fernandez failed to show that his proffered evidence––his

substance-abuse counseling records and letters from his friends and family––could not have been

discovered or presented earlier. Indeed, Fernandez’s counseling records predate his February 2017

merits hearing, and he offered no sufficient explanation for why he could not have submitted those

records beforehand. And although the letters from his friends and family confirm their support for

Fernandez, they are not new material evidence. Given the cumulative nature of this evidence, the

refusal to reopen the case fell comfortably within the Board’s discretion.

                                             III.

       We DENY the petition for review.




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