FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARICELA M. FERNANDEZ, DANELIA 

FERNANDEZ COVARRUBIAS, No. 02-72733

Petitioners, Agency Nos.

v.  A75-481-628

A75-481-629 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 13, 2005—San Francisco, California

Filed March 2, 2006

Before: Betty B. Fletcher, John R. Gibson,* and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

2109
COUNSEL

Jonathan Sanders, Simpson Thacher & Bartlett LLP, Palo

Alto, California, for the petitioners. 

Shelley R. Goad, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, D.C., for

the respondent.

OPINION

BERZON, Circuit Judge: 

Petitioner1 Maricela Fernandez came to the United States

without inspection in 1985. She has two American citizen

daughters, Stacey, age 15, and Amy, age 12. The record indicates that Fernandez’s husband, whom she married in Mexico

in 1974, is a lawful permanent resident. At her removal hearing in 1998, Fernandez applied for cancellation of removal

based on her qualifying relative children. The immigration

judge (IJ) denied the application after determining that Fernandez had not shown that the children would be subject to

1Shortly after this petition for review was filed, the court ordered Fernandez’s adult daughter Danelia Fernandez Covarrubias, who was part of

the proceedings below, to file her own petition, which she did not. At oral

argument, pro bono counsel for petitioners informed us that Covarrubias

wishes to withdraw from this petition. We now formally dismiss Covarrubias as a party. 

FERNANDEZ v. GONZALES 2113
exceptional and extremely unusual hardship if Fernandez

were removed. See 8 U.S.C. § 1229b(b)(1)(D). 

On appeal, the Board of Immigration Appeals (“BIA”),

applying its streamlining regulation, summarily affirmed

without opinion the results of the IJ’s decision. See 8 C.F.R.

§ 1003.1(e)(4). Fernandez filed a timely motion to reopen,

attaching “additional evidence of hardship, loss of educational

opportunities, and loss of acculturation since the time of the[ ]

merits hearing over four years ago.” The BIA denied the

motion as “insufficient to show prima facie eligibility for cancellation of removal.” Fernandez thereupon filed a timely

petition for review of the BIA’s decision. 

We are asked to decide the extent of our jurisdiction over

the petition for review, in light of the jurisdictional bar to

review of “any [discretionary] judgment regarding the granting of [cancellation of removal]” contained in 8 U.S.C.

§ 1252(a)(2)(B)(i). 

BACKGROUND

Fernandez testified at her removal hearing that her children

would accompany her back to Mexico if she is removed.

Stacey also testified, stating that she did not want to go to

Mexico. The IJ’s decision denying relief commented that

“we’re dealing with two minor children, ages seven and four.

Stac[e]y appeared and it is very obvious that bilingual education has not made her fluent in English, nor has it produced

results that show concepts in either Spanish or English . . . .”

The IJ noted that Fernandez’s husband had work authorization

in the United States and stated that “at no time does [Fernandez] have to take either [child] to any country if she chooses

not to, since they have a home.” The IJ added that “[e]xtended

family members all live in Mexico,” drawing on Fernandez’s

testimony about her seven siblings and mother. Although Fernandez “has health insurance which allegedly covers the

whole family,” the IJ noted, she “related . . . an average result

2114 FERNANDEZ v. GONZALES
if, in fact, the children would have to leave the United States

and would accompany her. However, she has ample family,

specifically a spouse who works and who could take care of

the two United States citizen children presumably.” 

The additional evidence included with the motion to reopen

at issue focused on “four additional years of hardship” resulting from the children’s education and acculturation since the

removal hearing. The additional evidence was generally

cumulative with that presented at the removal hearing. Some

was new, however, particularly a letter from Fernandez’s husband — who did not submit evidence to the IJ — which mentions their three American citizen grandchildren. This letter

states that, without Fernandez, “we will lose our home that we

worked so hard to get for our children. My daughters will lose

a good mother. I will not be able to provide a healthy family

environment for my two youngest.” The evidence submitted

also includes school records for Fernandez’s two children, as

well as supporting affidavits from friends, Fernandez’s pastor,

and Stacey. 

In denying the motion to reopen, the BIA first explained

the legal standards it was applying:

A motion to reopen under 8 C.F.R. § 3.2(c) will not

be granted unless the movant establishes a prima

facie case of eligibility for the underlying relief

sought. See INS v. Abudu, 485 U.S. 94 (1988). As a

general rule, moreover, we will reopen removal proceedings on the basis of new evidence only “where

the new facts alleged, when coupled with the facts

already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.” . . . The new evidence submitted

by the respondents in connection with their motion

to reopen does not satisfy these standards. 

The Board then stated: 

FERNANDEZ v. GONZALES 2115
We have no doubt that the respondents’ removal

from the United States will be highly disruptive to

the lives of their families, yet there is simply nothing

in the record or the motion to reopen which persuades us that these relatives will suffer hardship that

is substantially different from, or beyond, that which

would normally be expected to result from the

removal of aliens with close family members in the

United States. Although the motion demonstrates

that the respondents have qualifying relatives . . . this

fact alone is insufficient to show prima facie eligibility for cancellation of removal. In addition, there

must be some indication that the relatives will suffer

hardship in connection with the respondents’

removal that is so excessive and uncommon as to be

“exceptional and extremely unusual.” While the

motion to reopen demonstrates that the respondents’

removal would be an occasion of sorrow and great

inconvenience for those left behind, that is commonly the case. It is not “exceptional and extremely

unusual.” 

DISCUSSION

I. Jurisdiction

A. General Principles

[1] 8 U.S.C. § 1252(a)(2)(B)(i) states in relevant part: “Notwithstanding any other provision of law (statutory or nonstatutory), . . . except as provided in subparagraph (D) . . . no

court shall have jurisdiction to review — (i) any judgment

regarding the granting of relief under section 212(h), 212(i),

240A, 240B, or 245 [8 U.S.C. §§ 1182(h), 1182(i), 1229b,

1229c, or 1255].” Cancellation of removal is relief granted

under the Immigration and Nationality Act’s section 240A. 

[2] Section 1252(a)(2)(B)(i) “eliminates jurisdiction only

over decisions by the BIA that involve the exercise of discre2116 FERNANDEZ v. GONZALES
tion. . . . [W]e retain jurisdiction over the BIA’s determination

of . . . purely legal and hence non-discretionary question[s]

. . . .” Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144

(9th Cir. 2002). A hardship determination is ordinarily discretionary, and therefore unreviewable under § 1252(a)(2)(B)(i)

in petitions for review of direct appeals to the BIA, unless the

petition raises a cognizable legal or constitutional question

concerning that determination. We so held in Romero-Torres

v. Ashcroft, 327 F.3d 887 (9th Cir. 2003), stating that we lack

jurisdiction “to review the BIA’s discretionary determination

that an alien failed to satisfy the ‘exceptional and extremely

unusual hardship’ requirement for cancellation of removal.”

Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d

926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID

Act, Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005), that

“we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate

‘exceptional and extremely unusual hardship’ under 8 U.S.C.

§ 1229b(b)(1)(D)”). The case before us involves the denial of

a motion to reopen, however, not a BIA decision on direct

appeal from an IJ, and therefore presents a distinct question.

Our most detailed analysis of § 1252(a)(2)(B)(i)’s effect on

our jurisdiction to review motions to reopen that implicate

discretionary determinations appears in Medina-Morales v.

Ashcroft, 371 F.3d 520 (9th Cir. 2004). In that case, the petitioner withdrew his application for adjustment of status before

the IJ, because his stepfather failed to appear at the removal

hearing. He subsequently filed a motion to reopen with the IJ,

accompanied by an affidavit from his stepfather explaining

why he had not attended the hearing. Medina-Morales stated:

[W]e conclude that § 1252(a)(2)(B)(i) does not withdraw our jurisdiction to review the BIA’s denial of

Medina-Morales’ motion to reopen. Because

Medina-Morales abandoned his petition for adjustment of status and instead accepted voluntary departure, the IJ never ruled on Medina-Morales’

FERNANDEZ v. GONZALES 2117
adjustment of status petition but instead granted his

request for voluntary departure. Medina-Morales

does not, therefore, appeal the denial of an adjustment of status application under § 1255 or a denial

of voluntary departure under § 1229c. See ZazuetaCarrillo v. Ashcroft, 322 F.3d 1166, 1169 (9th Cir.

2003) (rejecting the government’s argument that the

denial of an alien’s motion to reopen “involve[d] a

‘judgment regarding the granting’ of voluntary

departure” within the meaning of § 1252(a)(2)(B)(i),

where the alien had been granted voluntary departure). Rather, Medina-Morales’ appeal “involves a

decision regarding the denial of a motion to reopen,”

Zazueta-Carrillo, 322 F.3d at 1169-70.

The denial of Medina-Morales’ motion to reopen

is a decision under 8 U.S.C. § 1182(a)(6)(A)(i), the

provision relied upon by the INS as the basis for his

removability. See Rodriguez-Lariz [v. INS, 282 F.3d

1218, 1223 (9th Cir. 2002)]. The BIA’s decision is

not, therefore, a judgment “regarding the granting of

relief under” 8 U.S.C. §§ 1182(h), 1182(i), 1229b,

1229c or 1255, the provisions listed in § 1252(a)(2)

(B)(i). We hold, accordingly, that § 1252(a)(2)(B)(i)

does not preclude our review of the discretionary

aspects of the BIA’s denial of Medina-Morales’

motion to reopen. 

371 F.3d at 527 (emphasis added; footnotes omitted). 

Fernandez contends that Medina-Morales rested, as had

Arrozal v. INS, 159 F.3d 429 (9th Cir. 1998), a case decided

under the Illegal Immigration Reform and Immigrant Responsibility Act’s (“IIRIRA”)2

 transitional rules, on the principle

that the denial of a motion to reopen is always a decision

made pursuant to the ground of removability applicable to an

2Pub. L. No. 104-208, 110 Stat. 3009 (1996). 

2118 FERNANDEZ v. GONZALES
alien, not a decision regarding the granting of the underlying

relief sought. Here, as in Medina-Morales, Fernandez’s

Notice to Appear was issued pursuant to INA section

212(a)(6)(A)(i), which is not covered by the jurisdictionstripping provision of § 1252(a)(2)(B)(i). Pursuant to this line

of reasoning, we would have jurisdiction to review the BIA’s

prima facie case determination concerning Fernandez’s hardship showing, because it was not a decision regarding the

granting of cancellation of removal under section 240A. 

In Medina-Morales, however, we did not conduct a

mechanical inquiry into the statutory ground of removability.

Instead, we asked whether the denial of the motion to reopen

“was a judgment regarding the granting of relief” under an

enumerated provision in § 1252(a)(2)(B)(i). 371 F.3d at 526.

As there had been no previous denial of an adjustment of status application and Medina-Morales was not seeking reopening with regard to voluntary departure, the denial of his

motion to reopen was not a “judgment” regarding the granting

of either form of relief. Id. at 527. Had it been, MedinaMorales stated clearly that “we [would be] without jurisdiction to review the discretionary aspects of the BIA’s decision.” Id. Instead, the decision at issue in Medina-Morales

was a decision that the BIA would not exercise its discretion

to reopen the proceedings to consider on the merits a ground

for relief never considered before, and on which there had

consequently been no “judgment” made. Id. at 524-25. 

Medina-Morales’s transitional rules predecessor, Arrozal,

is distinct from Fernandez’s case for similar reasons. Arrozal

sought “reopening so that she can request suspension of

deportation under § 244 of the Immigration and Naturalization Act.” 159 F.3d at 431.3

 She presented evidence of hardship in her motion to reopen. Id. We held that

3The stop-time rule, which prevents aliens from accumulating continuous physical presence after the charging document is issued, was not

applicable in Arrozal. See generally Ram v. INS, 243 F.3d 510 (9th Cir.

2001). 

FERNANDEZ v. GONZALES 2119
the BIA’s order denying [Arrozal] Yehdego’s

motion to reopen should be treated as an order under

§ 241(a)(2), the overstay section of the INA. But

§ 241 is not one of the INA sections listed in

§ 309(c)(4)(E) of the IIRIRA, the section that precludes an appeal from certain discretionary decisions. 

Hence, this court has jurisdiction under the

IIRIRA’s transitional rules to hear [Arrozal] Yehdego’s appeal from the BIA’s denial of her motion to

reopen. 

Id. at 432. Arrozal thus decided the jurisdictional question by

looking at the ground of Arrozal’s deportability, not the

underlying relief she requested. But, once again, Arrozal was

requesting relief for the first time, so no prior discretionary

determination existed regarding the granting of the relief

sought. In Fernandez’s case, by contrast, there has been such

a discretionary determination — a “judgment” — made by the

IJ and summarily affirmed without opinion by the BIA. 

[3] Out-of-circuit decisions applying § 1252(a)(2)(B)(i)

support a distinction between motions to reopen seeking consideration of a form of relief not previously sought and those

seeking a redetermination regarding the denial of a form of

relief.4 In Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004), the

Sixth Circuit addressed the application of § 1252(a)(2)(B)(i)

to the BIA’s denial of a motion to remand “to seek relief, in

the form of adjustment of status, that was not available to [the

petitioner] at the time of his original hearing,” and held that

jurisdiction was not precluded by the statute. Id. at 945, 948.

Pilica emphasized that 

4Consistent with this distinction, the government recognized that we

would have had jurisdiction over the now-dismissed component of this

petition for review that pertained to Fernandez’s adult daughter Danelia

Fernandez Covarrubias, for whom the IJ never made a discretionary hardship determination. 

2120 FERNANDEZ v. GONZALES
it is clear that this Court lacks jurisdiction over the

Attorney General’s discretionary determination of

whether an alien should be granted adjustment of

status. Here, however, Petitioner does not appeal

from a discretionary determination denying him an

adjustment in status. Rather, he appeals from the

BIA’s denial of his motion in which he sought a

remand in order to permit him to apply for an adjustment of status. 

Id. at 945; see also Guerra-Soto v. Ashcroft, 397 F.3d 637,

640 (8th Cir. 2005) (“Guerra-Soto has not asked us to review

the BIA’s denial of discretionary relief. Her petition simply

asks us to review the BIA’s refusal to reopen a case which,

if it had been reopened, would have resulted in the Attorney

General deciding whether to grant a form of discretionary

relief.”); Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir.

2004) (exercising jurisdiction where “no . . . judgment

[regarding adjustment of status] has ever been made with

regard to Subhan” (citing Medina-Morales)). 

Manzano-Garcia v. Gonzales, 413 F.3d 462 (5th Cir.

2005), was also a case in which the petitioners were applying

for new relief. The petitioners “had abandoned their request

for voluntary departure and . . . there was no adjustment of

status application yet submitted.” Id. at 467. Following

Medina-Morales, the Fifth Circuit held “that review of the

BIA’s denial of the Manzanos’ motion to reopen pursuant to

8 C.F.R. § 1003.2 is not barred by § 1252(a)(2)(B)(i) because

such denial was an affirmance of their removability under

§ 1182(a)(6)(A)(i), not an adverse determination of the merits

of Mr. Manzano’s requested adjustment of status under

§ 1255.” Id. at 469; see also Obioha v. Gonzales, 431 F.3d

400, 406 (4th Cir. 2005) (“[W]e interpret the gatekeeper provision’s language to preclude review only where the basis for

the discretionary decision addresses the merits of an enumerated provision.”). 

FERNANDEZ v. GONZALES 2121
[4] Fernandez asks us to review a denial of a motion to

reopen where the BIA denied the motion on the ground that

there was no basis for reconsidering an earlier denial of the

relief sought, and that earlier denial was based on an unreviewable ground, hardship. The cases discussed above

addressing Courts of Appeals’ jurisdiction to review the

denial of a motion to reopen concerning discretionary relief

where there was a refusal to reopen for the purpose of considering the granting of freshly-sought relief are not directly pertinent to that question. Where the denial of the motion to

reopen is of the former variety — as it was in this case — the

question whether a court would “have been precluded from

reviewing the original determination of the BIA [or the IJ],”

Manzano-Garcia, 413 F.3d at 467, becomes more pertinent,

as will appear. 

B. Grounds for Denying a Motion to Reopen

[5] The BIA can deny a motion to reopen for various reasons. As explained in INS v. Abudu, 485 U.S. 94 (1988):

There are at least three independent grounds on

which the BIA may deny a motion to reopen. First,

it may hold that the movant has not established a

prima facie case for the underlying substantive relief

sought. . . . Second, the BIA may hold that the

movant has not introduced previously unavailable,

material evidence . . . . Third, in cases in which the

ultimate grant of relief is discretionary . . . the BIA

may . . . simply determine that even if [the other

requirements] were met, the movant would not be

entitled to the discretionary grant of relief. 

Id. at 104-05.5 At oral argument in this and a companion case

5As we have “interpreted [§ 1252(a)(2)(B)(i)] to encompass all discretionary decisions involved in the cancellation of removal context, including the ultimate discretionary decision to deny relief,” Romero-Torres,

327 F.3d at 890, Abudu’s third category of discretionary denials is not

reviewable in the cancellation of removal context. 

2122 FERNANDEZ v. GONZALES
regarding motions to reconsider, the government advocated a

statutory interpretation of § 1252(a)(2)(B)(i) under which we

would have jurisdiction over petitions for review where the

BIA relies on a procedural ground to deny a motion to reopen

or reconsider — Abudu’s second category — but not over

decisions in which the BIA determines that no prima facie

case was established with respect to a discretionary factor

already considered, Abudu’s first category.6 In advocating

reliance on the distinction between Abudu’s first two categories, counsel for the government contrasted Fernandez’s case

with those “based upon a regulatory or a statutory requirement that the evidence wasn’t new, that it wasn’t previously

available,” and contended that jurisdiction is lacking here

because the only question presented is “whether that new evidence altered the [prior, underlying] discretionary determination” that Fernandez had not met the hardship standard. We

agree with the government’s position: Section 1252(a)(2)

(B)(i) permits the exercise of jurisdiction in cases in which the

BIA rules that a motion to reopen fails to satisfy procedural

standards such as the evidentiary requirements specified in 8

C.F.R. § 1003.2(c)(1),7 but bars jurisdiction where the ques6The requirement that a motion to reopen establish a prima facie case

for relief is not regulatory, although 8 C.F.R. § 1003.2(a) does state that

“[t]he Board has discretion to deny a motion to reopen even if the party

moving has made out a prima facie case for relief.” The prima facie case

requirement was instead developed by the BIA in its case law. See INS v.

Wang, 450 U.S. 139, 141 (1981) (motions to reopen “will not be granted

‘when a prima facie case of eligibility for the relief sought has not been

established.’ Matter of Lam, 14 I. & N. Dec. 98 (BIA 1972). See Matter

of Sipus, 14 I. & N. Dec. 229 (BIA 1972).”); see also Abudu, 485 U.S. at

108 n.13 (collecting cases distinguishing between the prima facie case

requirement and regulatory requirements for motions to reopen). The standard for establishing a prima facie case is whether “the evidence reveals

a reasonable likelihood that the statutory requirements for relief have been

satisfied.” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003) (quoting In

re S-V-, 22 I. & N. Dec. 1306 (BIA 2000) (en banc)). 

7

8 C.F.R. § 1003.2(c)(1) states in relevant part: 

A motion to reopen proceedings shall state the new facts that will

be proven at a hearing to be held if the motion is granted and

FERNANDEZ v. GONZALES 2123
tion presented is essentially the same discretionary issue originally decided. 

This distinction is supported by Prado v. Reno, 198 F.3d

286 (1st Cir. 1999), in which the First Circuit considered the

case of a petitioner who sought and was granted voluntary

departure before the IJ. “She did not at that time seek adjustment of status based upon her marriage to a U.S. citizen, presumably because she had not yet procured the requisite

immediate relative visa.” Id. at 289. The BIA dismissed

Prado’s appeal from the IJ’s denial of her motion to reopen

for the purpose of adjusting status, on the ground that the

motion was untimely. The First Circuit concluded that

§ 1252(a)(2)(B)(i) did not bar its jurisdiction over the petition

challenging that timeliness decision, because “[t]he decision

as to which Prado seeks review is not a BIA judgment on

whether to adjust Prado’s status, which would be a ‘judgment

shall be supported by affidavits or other evidentiary material. A

motion to reopen proceedings for the purpose of submitting an

application for relief must be accompanied by the appropriate

application for relief and all supporting documentation. A motion

to reopen proceedings 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; nor shall any motion to reopen for the purpose

of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to

apply for such relief was fully explained to him or her and an

opportunity to apply therefore was afforded at the former hearing,

unless the relief is sought on the basis of circumstances that have

arisen subsequent to the hearing. 

This provision pertains to the facts available at the time of the original

hearing, not thereafter. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th

Cir. 2005) (“[B]oth the statute and the regulation indicate that the evidence

must not have been available to be presented ‘at the former hearing.’ 8

U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1). . . . The government’s

argument that the information was previously available because it became

available during the pendency of the appeal to the Board does not comport

with the statute and regulation.”). 

2124 FERNANDEZ v. GONZALES
regarding the granting of relief under’ an enumerated section,

but is rather a decision not to reopen under 8 C.F.R. § 3.2.”

Id. at 290. Similarly, as the government recognizes, BIA decisions applying the evidentiary requirements for motions to

reopen contained in 8 C.F.R. § 1003.2(c)(1) are reviewable. 

[6] In this case, the government contends that we lack jurisdiction over the non-constitutional component of the petition

for review, because the BIA did not rely on a statutory or regulatory provision to deny Fernandez’s motion to reopen.

Instead, the BIA concluded that she did not establish a prima

facie case concerning hardship, a discretionary factor that

would be unreviewable if it were the basis of a BIA decision

on direct appeal. See Martinez-Rosas, 424 F.3d at 929-30. We

agree that this is the relevant distinction. Medina-Morales

emphasized that discretionary decisions are those “acts over

which a statute gives the Attorney General pure discretion

unguided by legal standards or statutory guidelines.” 371 F.3d

at 528 (emphasis added). Decisions by the BIA that apply the

procedural requirements of 8 C.F.R. § 1003.2(c)(1) are not

discretionary under this definition. If, by contrast, the BIA

determines that a motion to reopen proceedings in which there

has already been an unreviewable discretionary determination

concerning a statutory prerequisite to relief does not make out

a prima facie case for that relief, § 1252(a)(2)(B)(i) precludes

our visiting the merits, just as it would if the BIA had

affirmed the IJ on direct appeal. Otherwise, petitioners could

make an end-run around the bar to review of their direct

appeals simply by filing a motion to reopen. 

Our conclusion that we lack jurisdiction to review the

BIA’s denials of motions to reopen for failure to establish a

prima facie case if a prior adverse discretionary determination

was made by the agency does not preclude this court from

reviewing denials of motions to reopen discretionary determinations in other circumstances. Motions to reopen involving

the submission of an application for new relief and those

denied on procedural grounds have already been discussed.

FERNANDEZ v. GONZALES 2125
There is, in addition, another category of cases over which we

have jurisdiction, pursuant to the principle that applications

for new relief are distinct from motions to reevaluate a prior

denial of relief: Where the relief sought is formally the same

as was previously denied but the evidence submitted with a

motion to reopen is directed at a different basis for providing

the same relief, the circumstances can take the matter out of

the realm of § 1252(a)(2)(B)(i). This category covers cases in

which the newly-submitted evidence is not cumulative, and

thus directed at collaterally attacking the agency’s initial decision on the same basis as it was originally made, but does

seek the same type of discretionary relief as was originally

sought. The BIA’s consideration of such evidence in deciding

whether to reopen the case is reviewable for abuse of discretion, as the petitioner is presenting a basis for relief that was

not previously denied in the exercise of the agency’s unreviewable discretion. 

An example would be the submission of evidence, subsequent to a denial of cancellation of removal, concerning a

newly-discovered, life-threatening medical condition afflicting a qualifying relative. If the BIA were to refuse to reopen

the removal proceedings to make a hardship determination on

this new basis, it would not be making a “judgment regarding

the granting [of cancellation of removal],” within the ambit of

§ 1252(a)(2)(B)(i), but rather making a decision, under the

removability provision at issue, whether to reopen for new

proceedings, just as in Medina-Morales and Arrozal. As this

court has “jurisdiction to determine whether jurisdiction

exists,” Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.

2000), determining on which side of this line — between

additional evidence concerning the same hardship ground and

evidence of an entirely new basis for finding hardship — can

be done on a case-by-case basis. The jurisdiction thus preserved with regard to motions to reopen seeking such new

relief is a “safety valve . . . that ensures that the agency at

least considers new information, even if its ultimate and unreviewable judgment denies the relief sought.” Prado, 198 F.3d

2126 FERNANDEZ v. GONZALES
at 291; see also Pilica, 388 F.3d at 948 (“The Court . . .

agrees with the reasoning in Prado regarding the importance

of a small safety valve in the form of court review to ensure

that the BIA lives by its rules and at least considers new information. There is no indication that Congress intended to eliminate this safeguard.”). 

Finally, in motion to reopen cases in which an independent

claim such as ineffective assistance of counsel is at issue, we

have jurisdiction to determine whether a petitioner was prejudiced, an assessment that can depend in cancellation of

removal cases on hardship evaluations. See, e.g., Maravilla v.

Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (per curiam) (stating in a cancellation of removal case that “Petitioners must

demonstrate that counsel’s performance was so inadequate

that it may have affected the outcome of the proceedings”

(internal quotation marks and citation omitted)). At times,

therefore, we will weigh hardship factors in this indirect fashion. In Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002),

for example, a transitional rules case, the petitioners contended “that they were prevented from timely filing their

applications for suspension of deportation due to ineffective

assistance of counsel . . . .” Id. at 1220. While, technically, the

fact that no application for relief had ever been filed could

place this case in the category of those in which entirely new

relief is sought, it would not have made a difference to the

ineffective assistance of counsel claim if the applications had

been filed, but defectively. Either way, the prejudice analysis

would include an examination of hardship where appropriate.8

8Our holdings in Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003), and

Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004), that

“[s]ince discretionary relief is a privilege created by Congress, denial of

such relief cannot violate a substantive interest protected by the Due Process clause,” Munoz, 339 F.3d at 954 (emphasis added), are not to the contrary. For purposes of prejudice analysis, procedural due process and

ineffective assistance of counsel claims, which are predicated on the right

to a full and fair hearing, see Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.

2000), are not affected by the nature of the relief sought, see Munoz, 339

F.3d at 955 (conducting an ineffective assistance of counsel analysis and

concluding that Munoz “fails to demonstrate either deficient performance

or the required prejudice”). 

FERNANDEZ v. GONZALES 2127
In sum, we have jurisdiction over motions to reopen regarding cases in which: (1) the agency has not made a prior discretionary determination concerning the relief sought; (2) the

agency’s denial of a motion to reopen applies a procedural

statute, regulation, or rule, as opposed to determining that the

movant did not establish a prima facie case for relief that merits reopening a prior decision denying relief on an unreviewable discretionary ground; (3) the evidence submitted

addresses a hardship ground so distinct from that considered

previously as to make the motion to reopen a request for new

relief, rather than for reconsideration of a prior denial; and (4)

an independent claim such as ineffective assistance of counsel

is at issue. Section 1252(a)(2)(B)(i) bars jurisdiction, however, to review the denial of a motion to reopen that pertains

only to the merits basis for a previously-made discretionary

determination under one of the enumerated provisions, 8

U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, and 1255. 

C. Application to this Case

[8] In Fernandez’s case, the BIA’s denial of her motion to

reopen was a discretionary determination, based on consideration of the new evidence provided, that Fernandez still did

not, prima facie, meet the hardship requirement for cancellation of removal. In relevant part, the BIA stated that

to show prima facie eligibility for cancellation of

removal . . . there must be some indication that the

relatives will suffer hardship in connection with the

respondents’ removal that is so excessive and

uncommon as to be “exceptional and extremely

unusual.” While the motion to reopen demonstrates

that the respondents’ removal would be an occasion

of sorrow and great inconvenience for those left

behind, that is commonly the case. It is not “exceptional and extremely unusual.” 

This decision did not rely on the evidentiary requirements of

8 C.F.R. § 1003.2(c)(1), or on any other procedural regula2128 FERNANDEZ v. GONZALES
tion, statute, or rule. Moreover, the evidence Fernandez presented was not so different in kind from what was before the

IJ as to constitute an application for new relief rather than a

request for reconsideration. The lion’s share of the documentation was either cumulative or pertained to the inevitable passage of time between Fernandez’s removal hearing and the

BIA’s adjudication of her appeal. The new letter from Fernandez’s husband does not alter the core of her claim, as it

addresses the same basic hardship grounds considered previously. Accordingly, the BIA’s decision was a “judgment

regarding the granting of relief under section . . . 240A,” and

we lack jurisdiction to review it under § 1252(a)(2)(B)(i). We

therefore dismiss this portion of the petition for review.

II. Due Process

[9] Fernandez contends that her due process right to a full

and fair hearing was violated by the BIA’s “de micromis

recounting of the [new] evidence” she submitted. We review

due process claims de novo. See Cano-Merida v. INS, 311

F.3d 960, 964 (9th Cir. 2002). The BIA specified that “there

is simply nothing in the record or the motion to reopen which

persuades us that [Fernandez’s qualifying] relatives will suffer hardship that is substantially different from, or beyond,

that which would normally be expected to result from the

removal of aliens with close family members in the United

States.” To the extent that Fernandez asserts that the BIA,

despite this statement, failed to consider some or all of her

evidence, she has not overcome the presumption that the BIA

did review the record. See Larita-Martinez v. INS, 220 F.3d

1092, 1095-96 (9th Cir. 2000) (“[E]ven though the Board did

not explicitly mention the supplemental evidence, it plainly

stated that it reviewed the ‘record of proceedings.’ ”). 

[10] Fernandez also relies on our requirement that “the BIA

must issue a decision that fully explains the reasons for denying a motion to reopen. . . . [T]he BIA is obligated to consider

and address in its entirety the evidence submitted by a petiFERNANDEZ v. GONZALES 2129
tioner.” Mohammed v. Gonzales, 400 F.3d 785, 792-93 (9th

Cir. 2005); see also Stoyanov v. INS, 172 F.3d 731, 736 (9th

Cir. 1999) (“[T]he BIA must provide a reasoned analysis of

the legal basis for its holding, specifying as well the particular

facts on which that holding relies.”). Our conclusion that we

lack jurisdiction to review Fernandez’s claim regarding the

BIA’s determination that she did not make out a prima facie

case of hardship forecloses this argument. As we have already

determined that we are without jurisdiction to review the

BIA’s conclusion on the merits, the concerns expressed in

Mohammed and Stoyanov about our ability to review inadequately reasoned or cursory BIA decisions when jurisdiction

is present do not apply. See Mohammed, 400 F.3d at 793;

Stoyanov, 172 F.3d at 735. 

Conclusion

For the reasons given, we dismiss the petition for review in

part for lack of jurisdiction and deny it in part. 

PETITION FOR REVIEW DISMISSED in part;

DENIED in part.

2130 FERNANDEZ v. GONZALES