UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SANDRA LOPEZ-MUNOZ, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9608 (Petition for Review)

ORDER AND JUDGMENT *

Before LUCERO and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

Sandra Lopez-Munoz, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration A ppeals (BIA) denying her motion to reopen removal proceedings. We deny the petition for review in part and dismiss it in part for lack of jurisdiction.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 3, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I Ms. Lopez-Munoz was charged with en tering the United States without being lawfully admitted or paroled. She con ceded the charge but sought cancellation of removal under 8 U.S.C. § 1229b(b). That provision requires an a lien to show, among other things, “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” Id. § 1229b(b)(1)(D). At a hearing before an immigration judg e (IJ), Ms. Lopez-Munoz testified that her sons, both of whom are U.S. citizens, w ould experience such hardship if she were removed. She explained that she and her husband and sons had “always been together as a family.” Admin. R. at 229. But she said that if she were removed, her sons would remain in the United States with her husband. Mo reover, she feared violence and kidnappings in Mexico and worri ed that her sons would have difficulty in school there. In particular, she expres sed concern for her older son, Sergio, who spoke very little Spanish and was receiving psychological counseli ng for difficulties associated with the prospect of her removal. Ind eed, she submitted a letter from Sergio’s school indicating that he was having trouble with attendance and concentrating due to his concerns about he r potential deportation. She also submitted a letter from a psychological counselor sta ting that Sergio’s ongoing symptoms of depression seemed to have b een exacerbated by the threat of her possible deportation.- 3 - The IJ acknowledged the inherent hard ship attending remova l proceedings but concluded that Ms. Lopez-Munoz failed to show that a qualifying family member would suffer exceptional and extremely unusual hardship if she were removed. The IJ recognized that Sergio had seen a ps ychologist four times , the most recent occasion stemming from Ms. Lopez-Munoz’ s removal proceedings. Yet the IJ observed that there was no documentary or testimonial evidence establishing the severity of Sergio’s conditi on; instead, the evidence establ ished only that Sergio was having trouble with attendance and concentr ating at school. Hen ce, the IJ denied cancellation of removal and ordered Ms . Lopez-Munoz removed to Mexico. The BIA affirmed. The BIA concluded th at the IJ had properly considered the evidence of hardship to the children, including their good physical health, Sergio’s mental-health counseling and difficulties with school, as well as the family’s economic concerns. The BIA also recognized the hardship caused by the family’s separation. Nevertheless, the BIA ruled that “separation of family is unfortunately not uncommon in cancellati on of removal cases.” Id. at 99-100. Thus, the BIA determined that in the aggregate, Ms. Lop ez-Munoz failed to establish that her sons would suffer exceptional or extremely unusual hardship. Ms. Lopez-Munoz did not petition this c ourt for review of the discretionary denial of relief. Instead, she moved the BIA to stay her removal and reopen her case. In support of the motion to reopen, she submitted a November 2012 psychological assessment indicating that Sergio had been diagnosed with severe depression, which- 4 - appeared to have been exacerbated by his mother’s removal pro ceedings. She also submitted affidavits signed by herself, Sergio, and her younger son, declaring that in February 2012, Sergio had been hit in the chest by his taekwondo instructor. Finally, she submitted inform ation indicating that Sergio had been diagnosed with Osgood-Schlatter’s disease, a condition that causes kn ee pain. Ms. Lopez-Munoz asserted that this informati on demonstrated the level of ha rdship required to establish her eligibility for relief. The BIA disagreed, noting that a motion to reopen must be predicated on new, previously unavailable, a nd material evidence. See 8 C.F.R. § 1003.2(c). The BIA ruled that the allegations of Sergio’s assault, which occu rred in February 2012, were not new because they could have been pres ented at the IJ’s Ma rch 2012 hearing. Likewise, the BIA ruled that Sergio’s di agnosis of severe de pression was not new because it was substantially similar to his ongoing symp toms of depression, which began several years earlier. As for Sergio’s knee injury, the BIA found no need for a hearing because the record indicated that it would resolve with conservative treatment. Thus, the BIA concluded that th e evidence was not suffi ciently material to warrant a new hearing, nor “s ufficient to make a prima facie showing of exceptional and extremely unusual hardship, so as to wa rrant reopening.” Admin. R. at 3. Ms. Lopez-Munoz now challenges the deni al of her motion to reopen, arguing that the BIA applied the wrong legal standard, failed to consider the aggregate impact of the evidence, and abused its discreti on in denying her motion to reopen.- 5 - II A. Legal Standard Gover ning a Motion to Reopen We first consider Ms. L opez-Munoz’s contention that the BIA applied an improper legal standard in denying her moti on to reopen. She says that 8 U.S.C. § 1229a(c)(7)(B) simply requires an alien to produce new, material evidence that is relevant to the hardship assessment, but the BIA requires a more onerous prima facie showing of exceptional and extremely unusu al hardship. The government contends that the BIA’s prima facie requirement is a reasonable interpretation of the statute that is entitled to deference under Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). We review this legal question de novo, Barrera-Quintero v. Holder , 699 F.3d 1239, 1243 (10th Ci r. 2012), and conclude that the prima facie showing requireme nt is entitled to deference. “Under the Chevron test, a court gives deference to an agency’s interpretation of a statute Congress charge d it with administering if the statute is silent or ambiguous on the question at hand and the agen cy’s interpretation is not arbitrary, capricious, or manifestly contrary to the statute.” Id. at 1244 (internal quotation marks omitted). The statut ory provision at issue here, 8 U.S.C. § 1229a(c)(7)(B), provides that a “motion to reopen shall stat e the new facts that will be proven at a hearing to be held if the motion is grante d, and shall be suppor ted by affidavits or other evidentiary material.” Because the statute says not hing about an alien’s burden to make a prima facie showing, we examin e whether the requirement is “based on a- 6 - permissible constructi on of the statute.” Contreras-Bocanegra v. Holder , 678 F.3d 811, 816 (10th Cir. 2012) (en banc) (internal quotation marks omitted). Section 1229a(c)(7)(A) “guarantees to each alien the right to file one motion to reopen.” Dada v. Mukasey , 554 U.S. 1, 15 (2008) (inter nal quotation marks omitted). But the decision to grant or deny a motion to reopen rests within the BIA’s “broad discretion.” Kucana v. Holder , 558 U.S. 233, 242 (2010); see id. at 250 (holding that BIA retains “broad discretion . . . to gr ant or deny a motion to reopen” (internal quotation marks omitted)). The BIA ma y deny a motion to reopen where (1) the alien “has not established a prima facie case for the un derlying substantive relief sought”; (2) the alien “has not introduced previously unavailable, material evidence”; and (3) where relief is discretionary, the alien “would not be entitled to the discretionary grant of relief.” INS v. Abudu , 485 U.S. 94, 104-05 (1988). Abudu ’s first ground—a prima facie s howing of eligibility for reli ef—“is not regulatory” but “was instead developed by th e BIA in its case law.” Fernandez v. Gonzales , 439 F.3d 592, 600 n.6 (9th Cir. 2006). Un der this standard, an alien must present evidence that “reveals a re asonable likelihood that the statutory requirements for relief have been satisfied.” In re S-V- , 22 I. & N. Dec. 1306, 1308 (BIA 2000), overruled on other grounds by Zheng v. Ashcroft , 332 F.3d 1186, 1196 (9th Cir. 2003). This requirement “serves a screen ing function by ensuring that only those cases in which facts are alle ged and supported that are le gally sufficient to support a finding of eligibility for [re lief] will be reopened.” Haftlang v. INS , 790 F.2d 140,- 7 - 143 (D.C. Cir. 1986). Yet the BIA retains the “discretion to deny a motion to reopen even if the party moving has made out a pr ima facie case for relief.” 8 C.F.R. § 1003.2(a); see Abudu , 485 U.S. at 105-06. We conclude that the BIA’s interpreta tion of the statute is reasonable. See Barrera-Quintero , 699 F.3d at 1246 (“[A]s long as th e interpretation is reasonable, we must defer to the agency’s construction of the stat ute . . . .”). The prima facie showing standard is met “whe re the new facts alleged, wh en coupled with the facts already of record, satisfy [the BIA] that it would be worthw hile to develop the issues further.” In re S-V- , 22 I. & N. Dec. at 1308 (interna l quotation marks omitted). The standard does not require “a conclusive showing that elig ibility for relief has been established,” id. , despite the fact that the BIA retains the disc retion to deny a motion to reopen even if the alien ma kes the prima facie showing. To be sure, this presents the alien with a “heavy burden,” but the requi rement that an alien make a prima facie showing of eligibility for reli ef attempts to ensu re that “‘if proceedings before the [IJ] were reopened, with all the attendant delays, the new evidence offered would likely change the resu lt in the case.’” Maatougui v. Holder , 738 F.3d 1230, 1239-40 (10th Cir. 2013) (quoting In re Coelho , 20 I. & N. Dec. 464, 473 (BIA 1992)). Because this construction is not arbitrary, capricious, or contrary to the purpose of the statute, the BIA’s requireme nt is entitled to deference. 1

1 Ms. Lopez-Munoz contends the BIA ma y not contract the jurisdiction granted to it by Congress by establishing the pr ima facie eligibility requirement. See Pet’r (continued)- 8 - B. Consideration of Hardsh ip Evidence in the Aggregate Next, Ms. Lopez-Munoz argues that the BI A failed to consider the aggregate impact of her evidence. We have explained that “if, in deciding a motion to reopen, the BIA refuses, contrary to established procedures, to consid er new and pertinent evidence, due process ri ghts are implicated.” Alzainati v. Holder , 568 F.3d 844, 850 (10th Cir. 2009). Thus, to the extent Ms. Lopez-Munoz ra ises a constitutional claim, we review her argument de novo. See Barrera-Quintero , 699 F.3d at 1243. We perceive no violation, however, because th e BIA expressly discussed the evidence of Sergio’s alleged assault, hi s most recent psychological as sessment, and the symptoms of his knee injury. The BIA then concl uded that this case, including the evidence submitted with the motion to reopen, failed to establish Ms. Lopez-Munoz’s eligibility for relief. This satisfied the BIA’s obligation to consider the evidence of hardship in the aggregate. See generally In re Ige , 20 I. & N. Dec. 880, 882 (BIA 1994) (holding that hardship fa ctors must be considered in the aggregate). And even if it did not, we still would have no juri sdiction to review the underlying merits

Br. at 16 (citing Union Pac. R.R. v. Bhd. of Locomotive Eng’rs , 558 U.S. 67, 71-72 (2009)). There is no indication, however, th at the requirement ca rries a jurisdictional dimension. Rather, as we have explained, the requireme nt establishes a threshold standard by which the BIA determines whethe r to exercise its di scretionary authority to reopen removal proceedings. Cf. Marin-Rodriguez v. Holder , 612 F.3d 591, 595 (7th Cir. 2010) (“The Board may well be en titled to recast its appr oach as one resting on a categorical exercise of discretion, but it cannot insist that it has elected to foreswear subject-matter jurisdiction th at it possesses under a statute.”).- 9 - decision; rather, we would have only limited jurisdiction to compel the BIA to fairly consider the relevant evidence. See Alzainati , 568 F.3d at 850. C. Denial of Motion to Reopen Finally, Ms. Lopez-Munoz contends the BIA abused its discretion in denying her motion to reopen. She insists that sh e presented new and sufficient evidence of Sergio’s depression to warrant reopening he r case, but the BIA fa iled to meaningfully review it. Ordinarily, we retain jurisdiction to review the denial of a motion to reopen for an abuse of discretion. See Infanzon v. Ashcroft , 386 F.3d 1359, 1361-62 (10th Cir. 2004). However, Ms. Lopez-Munoz’s argument effectively challenges the underlying merits determinati on that she failed to show the requisite level of hardship for purposes of establishing her eligibility for cancela tion of removal. Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisd iction to review the BIA’s discretionary determination that an alien “has failed to demonstrat e that removal would cause exceptional and extremely unusual hardship.” Sabido Valdivia v. Gonzales , 423 F.3d 1144, 1148 (10th Cir. 2005) (internal quotation mark s omitted). And “[b]ecause § 1252(a)(2)(B)([i]) precludes our review of an ‘exceptional and extremely unusual hardship’ determination under § 1229b(b)(1 )(D), it also precludes our jurisdiction to review the BIA’s denial of a motion to reopen because the alien still has failed to show the requisite hardship.” Alzainati , 568 F.3d at 849. To the extent Ms. Lopez-Munoz asserts the BIA failed to adequately discuss the evidence in a meaningful way, this is esse ntially “a quarrel about the leve l of detail required in the- 10 - BIA’s analysis, not a colora ble due process claim.” Id. at 851. Consequently, we have no jurisdiction to review the BIA’s decision that Ms. Lopez-Munoz failed to establish the requisite level of ha rdship in her motion to reopen. Cf. Kucana , 558 U.S. at 250 n.17 (declining to consider whether court has jurisdiction to review the denial of motion to reopen where court would have no jurisdiction to review the underlying claim for relief). Accordingly, the petition for review is denied in part and dismissed in part.

Entered for the Court
Monroe G. McKay Circuit Judge