United States Court of Appeals

for the Fifth Circuit

No. 20-60911

Fredy Leo Pena-Lopez, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A098 404 574

Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.

Priscilla Richman, Chief Judge:

Fredy Leo Pena-Lopez (Pena-Lopez) was ordered removed in 

absentia in 2004. He remained in the United States, and in 2019, he filed a

motion to reopen under a special rule for battered spouses.1 Because the BIA 

did not abuse its discretion in concluding that Pena-Lopez had failed to show 

extreme hardship or extraordinary circumstances, we deny his petition for 

review.

1 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2022

Lyle W. Cayce

Clerk

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I

Fredy Leo Pena-Lopez, a native and citizen of El Salvador, was 

personally served with a notice to appear charging him with removability 

because he entered the United States in September 2004 without being 

admitted or paroled. Pena-Lopez failed to appear for his immigration 

hearing, and he was ordered removed in absentia later that year.

In 2012, Pena-Lopez married Ingrid Roxana Rivas, a United States 

citizen. Rivas then filed an I-130 Alien Relative Petition on Pena-Lopez’s 

behalf, and Pena-Lopez moved to reopen his immigration proceedings and to

have the in-absentia removal order rescinded, alleging that he had never 

received notice of the removal hearing. The immigration judge (IJ) denied 

that motion to reopen. The BIA dismissed Pena-Lopez’s appeal. PenaLopez later filed a second motion to reopen based on the Supreme Court’s 

decision in Pereira v. Sessions,

2 which was also denied. Pena-Lopez did not 

petition for review of any of these decisions by the BIA. They are not at issue.

In 2019, Pena-Lopez filed the instant motion to reopen—his third—

with the BIA pursuant to 8 U.S.C. § 1229a(c)(7)(C)(iv), which sets forth a 

special rule for motions to reopen filed by battered spouses, children, and 

parents. He alleged that Rivas used her ability to file I-130 petitions for him 

and his two sons as a means to oppress and control him. After Pena-Lopez’s 

sons arrived in this country, Rivas allegedly mistreated the boys and would 

insult Pena-Lopez in front of them. “[O]n occasion,” Rivas was also 

“physically violent” toward Pena-Lopez. Rivas eventually issued an 

ultimatum, giving Pena-Lopez and his sons six months to move out or begin 

paying rent; she allowed them to take only their clothing from the home. 

These facts prompted Pena-Lopez to move to reopen his immigration 

2

138 S. Ct. 2105 (2018).

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proceedings in order to pursue cancellation of removal under 8 U.S.C. 

§ 1229b(b)(2)(A)(i)(I), a form of relief provided by the Violence Against 

Women Act (VAWA).

3

Generally, an alien is entitled to file one motion to reopen, which must 

be filed within ninety days of the entry of a final order of removal.4 However, 

when the motion to reopen is filed for the purpose of pursuing special-rule 

cancellation of removal under VAWA, the normal time and number 

limitations do not apply if certain requirements are met.

5

 The pertinent 

requirement for purposes of this petition is that the motion to reopen must

be filed within one year of the entry of the final removal order.6 If that 

deadline is not met, the statute dedicates to the Attorney General discretion 

whether to “waive this [one-year] time limitation in the case of an alien who 

demonstrates extraordinary circumstances or extreme hardship to the alien’s 

child.”7

Pena-Lopez conceded that his motion to reopen was untimely because 

it was filed after the one-year period had already passed. He argued, though, 

that the psychological abuse inflicted upon him by Rivas was an extraordinary 

circumstance that warranted a waiver of the one-year filing deadline. PenaLopez also argued that his sons would experience hardship if he were 

removed to El Salvador because they would not be able to support themselves 

in the United States without his “material and paternal support.” 

3 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 

108 Stat. 1796, 1902.

4 8 U.S.C. § 1229a(c)(7)(A), (C)(i).

5

Id. at § 1229a(c)(7)(A), (C)(iv).

6

Id. at § 1229a(c)(7)(C)(iv)(III).

7

Id.; see also Kucana v. Holder, 558 U.S. 233, 243 (2010).

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Therefore, Pena-Lopez argued, his sons would be forced to return with him 

to El Salvador, where they were “destined to be subjected to extreme poverty 

and criminal violence.”

The BIA denied the motion to reopen. The BIA determined that 

Pena-Lopez’s motion was number barred because it was his third and that 

the motion was untimely because it was filed beyond the one-year filing 

deadline.

The BIA then considered its statutory ability to waive the one-year 

filing deadline for the motion to reopen. The BIA found that the abuse PenaLopez received from Rivas did “not qualify as an ‘extraordinary 

circumstance’ warranting a waiver” of the filing deadline, explaining that the 

abuse described by Pena-Lopez was “the type of abuse that would ordinarily 

be associated with an application for VAWA cancellation of removal.” With 

respect to extreme hardship, the BIA found that the hardship that PenaLopez argued his sons would suffer if he were removed to El Salvador did 

“not qualify as ‘extreme hardship,’ but rather the type of hardship that 

would ordinarily be expected when a close family member is removed from 

the United States to another country.” In a footnote, the BIA observed that 

the older of Pena-Lopez’s two sons in the United States was twenty years old 

and could assist Pena-Lopez in providing for their family. The BIA 

determined that Pena-Lopez did not make the necessary demonstration of 

extreme hardship or extraordinary circumstances. It did not exercise its 

discretion to waive the one-year filing deadline for Pena-Lopez’s VAWAbased motion to reopen. The BIA also declined to exercise its discretion to 

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sua sponte reopen Pena-Lopez’s immigration proceeding. Pena-Lopez 

timely petitioned for review of the BIA’s order.8

Pena-Lopez asserts that the BIA committed legal and factual error in 

concluding that his motion to reopen was time barred and number barred and 

that no exception to those bars applied here. Despite that assertion, PenaLopez does not actually dispute the BIA’s determinations that his instant 

motion to reopen is his third and that it was filed more than a year after the 

entry of his final order of removal. Moreover, those determinations are 

supported by the record. Pena-Lopez’s challenge is to the BIA’s decision not 

to waive the untimeliness of his motion to reopen. He contends that he 

affirmatively demonstrated both extraordinary circumstances and extreme 

hardship to his children, and he maintains that the BIA’s decision to the 

contrary was “utterly without foundation in the evidence.”

The government argues that this court lacks jurisdiction to review the 

BIA’s decision because it was a discretionary denial of relief.9 It points to two 

unpublished decisions of this court holding that the BIA’s decision whether 

to waive the one-year limitation under § 1229a(c)(7)(C)(iv)(III) is a 

discretionary decision that we have no jurisdiction to review under 8 U.S.C.

§ 1252(a)(2)(D).

10

8 See 8 U.S.C. § 1252(b)(1) (providing that a petition for review must be filed within 

thirty days of the date of a final order of removal); see also Omozee v. Mukasey, 261 F. App’x 

655, 655-56 (5th Cir. 2008) (per curiam) (unpublished) (citing Giova v. Rosenberg, 379 U.S. 

18 (1964), and stating that the denial of a motion to reopen removal proceedings is 

construed as a final order of removal for purposes of this court’s jurisdiction); Torabi v. 

Gonzales, 165 F. App’x 326, 329 (5th Cir. 2006) (per curiam) (unpublished) (same).

9 See 8 U.S.C. § 1252(a)(2)(B).

10 See Pinho-De Oliveira v. Barr, 778 F. App’x 332, 333 (5th Cir. 2019) (per curiam)

(unpublished) (citing Kucana, 558 U.S. at 237, 249); Ezeokoli v. Lynch, 630 F. App’x 334, 

335 (2016) (per curiam) (unpublished) (same).

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II

We must first consider our jurisdiction. This court reviews questions 

of jurisdiction de novo.11 Pursuant to § 1252(a)(2)(B)(ii), no court has 

jurisdiction to review any decision that is statutorily committed to the 

Attorney General’s discretion.12 Section 1252(a)(2)(B) “precludes review 

only of discretionary decisions.”13 The provision at issue here, 

§ 1229a(c)(7)(C)(iv)(III), contains the only statutory reference to the 

Attorney General’s discretion with respect to motions to reopen, and a 

decision not to reopen may be barred from judicial review.14 This court 

nevertheless retains jurisdiction under § 1252(a)(2)(D) to review 

“constitutional claims or questions of law” raised in a petition for review.15 

However, an alien cannot obtain judicial review of a discretionary decision 

simply by characterizing it as such.

16

 The question, then, is whether the 

BIA’s decision not to waive the one-year limitation presents a question of law

for the purposes of § 1252(a)(2)(D).

17

This court has previously held in unpublished, nonprecedential

opinions that the BIA’s decision whether to waive the one-year time 

limitation under § 1229a(c)(7)(C)(iv)(III) is a discretionary decision that it 

11 Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001).

12 8 U.S.C. § 1252(a)(2)(B)(ii).

13 Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003) (emphasis omitted).

14 Kucana, 558 U.S. at 243 n.10; see also 8 U.S.C. § 1252(a)(2)(B)(ii).

15 8 U.S.C. § 1252(a)(2)(D); see also Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 

1070-72 (2020).

16 Hadwani v. Gonzales, 445 F.3d 798, 801 (5th Cir. 2006) (per curiam).

17 Pena-Lopez does not raise a constitutional claim.

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lacks jurisdiction to review.18 Pinho-De Oliveira and Ezeokoli are the only two 

cases issued by this court addressing § 1229a(c)(7)(C)(iv)(III).19 Pena-Lopez 

acknowledges the holdings of those cases, but he contends that the Supreme 

Court’s recent decision in Guerrero-Lasprilla v. Barr20 undermines them. We 

agree.

A

In Guerrero-Lasprilla, the Supreme Court addressed the scope of the 

phrase “questions of law” that is used in the jurisdiction-restoring provision 

of § 1252(a)(2)(D).21 The Court concluded that “the statutory term 

‘questions of law’ includes the application of a legal standard to established 

facts” and so “mixed questions” of fact and law are not jurisdictionally 

barred.22 To hold otherwise, the Court reasoned, “would effectively 

foreclose judicial review of the [BIA’s] determinations so long as it 

announced the correct legal standard.”23

This court has not directly addressed the effect of Guerrero-Lasprilla 

on § 1229a(c)(7)(C)(iv) determinations. The Second Circuit has recently 

issued an unpublished, summary order, holding that there was no jurisdiction 

to review a § 1229a(c)(7)(C)(iv) determination.

24 But it did not cite—much 

18 Pinho-De Oliveira v. Barr, 778 F. App’x 332, 333 (5th Cir. 2019) (per curiam) 

(unpublished) (citing Kucana, 558 U.S. 237, 249); Ezeokoli v. Lynch, 630 F. App’x 334, 335 

(5th Cir. 2016) (per curiam) (unpublished) (same).

19 See Pinho-De Oliveira, 778 F. App’x at 333; Ezeokoli, 630 F. App’x 335.

20 140 S. Ct. 1062 (2020).

21 Id. at 1067.

22 Id. at 1072.

23 Id. at 1070.

24 Antoine v. Garland, No. 20-716, 2022 WL 1022607, at *2 (2d Cir. 2022) (per 

curiam) (unpublished) (summary order).

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less discuss—the effect of Guerrero-Lasprilla on its analysis.25 The Third 

Circuit has also addressed the jurisdictional question recently, concluding 

the opposite but also without discussion or even citation of GuerreroLasprilla.

26

More helpful is our court’s holding in Flores-Moreno v. Barr.

27

 FloresMoreno filed an untimely motion to reopen his removal proceedings but 

argued that the untimeliness of his motion “should be equitably tolled 

because he exercised due diligence in the face of extraordinary 

circumstances.”28 This court noted that, prior to Guerrero-Lasprilla, it 

would have held that the question whether an alien exercised due diligence 

for purposes of equitable tolling was a factual question that it lacked 

jurisdiction to consider.29 In light of Guerrero-Lasprilla, though, this court 

held that, “[b]ecause there is no dispute as to the underlying facts, but rather 

only as to the application of a legal standard to those facts, the due diligence 

inquiry in this case is properly construed as a question of law over which we 

have jurisdiction pursuant to § 1252(a)(2)(D).”30

Moreover, in Trejo v. Garland,

31 a panel of this court held that the four 

statutory conditions required for an alien to be eligible for cancellation of 

removal under § 1229b(b)(1)—including the exceptional and extremely

25 Id.

26 Walters v. Att’y Gen. of the United States, No. 20-2543, 2021 WL 4316832, at *1-

2 (3d Cir. 2021) (unpublished).

27 971 F.3d 541, 544 (5th Cir. 2020), cert. denied, 141 S. Ct. 1238 (2021).

28 Id. at 543.

29 Id. at 544.

30 Id.

31 3 F.4th 760 (5th Cir. 2021).

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unusual hardship determination—are not discretionary determinations but 

“the application of a legal standard to . . . established facts,” as discussed in 

Guerrero-Lasprilla.

32

 Looking to the language of the statute, this court 

reasoned that “[o]nly after the adjudicator has determined that the alien may 

be legally considered for cancellation of removal does the adjudicator’s 

discretion enter the picture, when he or she is called upon to decide whether 

to actually grant cancellation to a qualifying alien.”33

We see no material difference in the statutes at issue in Trejo and those 

at issue here.34 Each grants the Attorney General discretion to take an 

action—but qualifies that discretion with a legal standard involving extreme 

hardship. In the current context, it is only “in the case of an alien who 

demonstrates extraordinary circumstances or extreme hardship to the alien’s 

child” that the Attorney General may waive the limitation.35

This stands in stark contrast to the BIA’s ability to sua sponte reopen 

proceedings. The board has absolute discretion to “at any time reopen or 

32 Id. at 773 (quoting Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020)).

33 Id.; see also 8 U.S.C. § 1229b(b)(1) (“The Attorney General may cancel 

removal . . . if the alien . . . establishes that removal would result in exceptional and 

extremely unusual hardship”); Parada-Orellana v. Garland, 21 F.4th 887, 894 (5th Cir. 

2022) (citing Trejo with approval).

34 Compare 8 U.S.C. § 1229b(b)(1) (“The Attorney General may cancel 

removal . . . if the alien . . . establishes that removal would result in exceptional and 

extremely unusual hardship”), with 8 U.S.C. § 1229b(b)(2)(A)(v)(“The Attorney General 

may cancel removal . . . if the alien demonstrates that . . .the removal would result in 

extreme hardship to the alien, the alien’s child, or the alien’s parent.”), and 8 U.S.C. 

§ 1229a(c)(7)(C)(iv)(III) (“[T]he Attorney General may . . . waive this time limitation in 

the case of an alien who demonstrates extraordinary circumstances or extreme hardship to 

the alien’s child.”).

35 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

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reconsider a case.”36 “[T]here is ‘no legal standard against which to judge’”

the board’s decision to sua sponte reopen a case.37 Here, however, there is a 

standard—“extraordinary circumstances or extreme hardship to the alien’s 

child.”38

Section 1229a(c)(7)(C)(iv)(III)—just like § 1229b(b)(1)—asks the 

Attorney General to apply a legal standard to a set of facts.39 If the facts are 

undisputed, then under Guerrero-Lasprilla, we have jurisdiction to review the 

application of that standard to a set of facts.

40

 What we do not have is 

jurisdiction to review the ultimate, discretionary decision of whether to grant 

relief assuming the alien does meet the legal standard required in the statute.

B

The government contends that Guerrero-Lasprilla concerned only the 

application of 8 U.S.C. § 1252(a)(2)(D) to the jurisdictional bar found in 

§ 1252(a)(2)(C) and should not be “carried over” to this context—the 

jurisdictional bar found in § 1252(a)(2)(B). But this court’s decision in Trejo

explicitly rejected this argument as “a distinction without a difference.”41 

Guerrero-Lasprilla construed the meaning of “question of law” as it applies 

36 8 C.F.R. § 1003.2(a).

37 Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019) (quoting Enriquez-Alvarado 

v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004)).

38 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

39 8 U.S.C. § 1229a(c)(7)(C)(iv)(III); Trejo v. Garland, 3 F.4th 760, 773 (2021).

40 Id.

41 Trejo, 3 F.4th at 772.

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to both § 1252(a)(2)(C) and § 1252(a)(2)(B).42 “There is no principled 

reason why its holding does not apply with equal force [to both].”43

The government further argues that this court’s opinion in Nastase v. 

Barr44 clarifies that Guerrero-Lasprilla “does not disturb” prior precedent 

suggesting that the BIA’s determination was discretionary. But Nastase

concerned only the narrow question of whether we had jurisdiction to review 

the BIA’s denial of a § 1159(c) waiver for humanitarian purposes on the 

theory that “the BIA [had not] considered each of the facts Nastase 

alleged.”45 The court concluded that “[o]ur cases disclaiming jurisdiction 

over the BIA’s decision whether to grant a § 1159(c) waiver of 

inadmissibility . . . are based on the simple observation that the Attorney 

General’s power to grant a § 1159(c) waiver is purely discretionary.”46 The

court therefore held that Guerrero-Lasprilla did not apply.47 Here however, 

Trejo makes clear that, at least in the context of § 1229b(b)(1), the question 

whether an alien has demonstrated exceptional and extremely unusual

hardship is a prerequisite question of law that must be answered in the 

affirmative before the Attorney General’s discretion is relevant.48 Given the 

nearly identical language in § 1229a(c)(7)(C)(iv)(III) and § 1229b(b)(2), the 

same is true here as well. Moreover, there are no precedential decisions

42 Id.

43 Id.

44 964 F.3d 313 (5th Cir. 2020), cert. denied, 141 S. Ct. 877 (2020).

45 Id. at 320.

46 Id.

47 Id.

48 Trejo, 3 F.4th at 773.

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supporting the proposition that § 1229a(c)(7)(C)(iv) determinations are 

purely discretionary.

C

In its decision, the BIA addressed only whether Pena-Lopez had 

demonstrated extreme hardship or extraordinary circumstances. It made no 

mention of a discretionary denial. Further, the government does not contest 

the underlying facts, only that they do not demonstrate extreme hardship or 

extraordinary circumstances. The issue on appeal, then, is whether the BIA 

erred in determining that Pena-Lopez did not establish extreme hardship or 

extraordinary circumstances. This appeal falls squarely within the holdings 

of Guerrero-Lasprilla and Trejo. Normally review would be barred under 

§ 1252(a)(2)(B), but the jurisdiction-restoring provision of § 1252(a)(2)(D), 

as interpreted by those cases, restores our jurisdiction to review the BIA’s 

determination that Pena-Lopez did not demonstrate the necessary 

prerequisites to relief.

III

We turn now to the merits. The BIA determined that Pena-Lopez did 

not demonstrate extreme hardship or extraordinary circumstances when it 

denied his motion to reopen. We review a motion to reopen under a highly 

deferential abuse of discretion standard of review.

49

 “[We] must affirm the 

BIA’s decision as long as it is not capricious, without foundation in the 

evidence, or otherwise so irrational that it is arbitrary rather than the result 

of any perceptible rational approach.”50

49 Mejia v. Whitaker, 913 F.3d 482, 488 (5th Cir. 2019).

50 Id. (quoting Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)).

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We have been unable to find any decisions on point, nor have the 

parties provided any to us. Nevertheless, our decisions in the related context 

of § 1229b(b)(1) provide guidance. Relying on a decision of the BIA, we have 

held that a showing of exceptional and extremely unusual hardship requires 

more than a showing that relocation would be hard on the family.51 Congress 

required a showing of something more than mere hardship, something

beyond the challenges a relocation normally entails.52 Put simply, the 

ordinary travails of a relocation do not suffice.

In the present context, Congress has required a showing of 

“extraordinary circumstances or extreme hardship to the alien’s child” in 

order to waive the one-year filing deadline.53 Obviously, this standard is 

worded slightly different than that found in § 1229b(b)(1); however, just as 

in that section, Congress has required a showing beyond ordinary 

circumstances or mere hardship.

54

 The BIA determined that Pena-Lopez did 

not establish that his circumstances were extraordinary nor that his children 

would suffer extreme hardship. Rather, it determined that they were the 

ordinary circumstances of a VAWA-based motion to reopen, and the usual 

hardships of a relocation. Further, the BIA pointed out that one of Pena51 Parada-Orellana v. Garland, 21 F.4th 887, 895 (5th Cir. 2021) (denying petition 

for review of a § 1229b(b)(1) denial when an alien failed to show that any hardships suffered 

would be “different from, or beyond, that which would normally be expected from the 

deportation of an alien”) (quoting In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 

2001)); see also Trejo v. Garland, 3 F.4th 760, 775 (5th Cir. 2021) (noting that “every court 

to have considered [the BIA’s interpretation] has concluded that [it] is . . . entitled to 

Chevron deference”); Avila-Baeza v. Barr, 827 F. App’x 414, 415-16 (5th Cir. 2020) (per 

curiam) (unpublished) (deferring to the BIA’s interpretation of the hardship requirement 

in § 1229b(b)(1)).

52 See 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

53 Id.

54 Cf. Parada-Orellana, 21 F.4th at 895; see also 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

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Lopez’s children is twenty years old and more than likely able to supplement 

the material support his father could provide from outside the country.

We need not—and do not—determine the precise contours of 

“extraordinary circumstances or extreme hardship to the alien’s child” with 

our opinion today. Nor, indeed, did the BIA in its decision. But whatever 

the precise contours of that standard, we can say confidently that the ordinary 

(terrible) circumstances of a VAWA-based motion to reopen and the usual 

hardships of a relocation do not suffice.55 Congress has given petitioners an 

opportunity to seek relief beyond the usual filing deadline, but it limits that 

opportunity to extraordinary or extreme cases. On these facts and under this 

highly deferential standard of review, we cannot say that the BIA’s decision 

was “capricious, without foundation in the evidence,” or “irrational.”56 We 

do not disturb the determination of the BIA.57

IV

Pena-Lopez also appeals the BIA’s decision not to sua sponte reopen 

his proceedings. But “[t]he Board may at any time reopen or reconsider a 

case.”58 This decision is firmly entrenched within the discretion of the 

55 See Parada-Orellana, 21 F.4th at 895.

56 See Mejia v. Whitaker, 913 F.3d 482, 487 (5th Cir. 2019) (quoting Gomez-Palacios 

v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)).

57 See Parada-Orellana 21 F.4th at 895; see also Zambrano Reyes v. Barr, 776 F. App’x 

187, 187 n.* (4th Cir. 2019) (per curiam) (unpublished) (“Even if we assume that Zambrano 

Reyes’ motion was timely filed under 8 U.S.C. § 1229a(c)(7)(C)(iv) (2012), the Board 

provided substantive reasoning for denying the motion. Because this reasoning was not 

‘arbitrary, irrational, or contrary to law,’ we find no abuse of discretion.”) (internal citation 

omitted).

58 8 C.F.R. § 1003.2(a).

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Attorney General and unaffected by Guerrero-Lasprilla “because there is ‘no 

legal standard against which to judge.’”59 We lack jurisdiction to review it.60

* * *

Because the BIA did not abuse its discretion in determining that PenaLopez has not established extreme hardship or extraordinary circumstances 

with regard to his motion to reopen, we DENY his petition for review on 

that ground. Further, we DISMISS his petition for review for lack of 

jurisdiction as to the BIA’s decision not to sua sponte reopen his proceedings.

59 See Mejia, 913 F.3d at 490 (quoting Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 

250 (5th Cir. 2004)).

60 See id.

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