UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ISRAEL JUAREZ-GONZALEZ, 

a/k/a Pelon, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., 

United States Attorney General, 

 Respondent. 

No. 14-9558 

(Petition for Review)

 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 28, 2015

Elisabeth A. Shumaker 

Clerk of Court
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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.