IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-60562

(Summary Calender)

 

ANTONIO RODRIGUEZ,

Petitioner,

v.

JOHN ASHCROFT, U. S. Attorney General,

Respondent.

 

Petition for Review of an Order of the 

Board of Immigration Appeals

 

May 18, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. 

PER CURIAM:

Petitioner Antonio Rodriguez petitions for review of an order

of the Board of Immigration Appeals (“BIA” or “the Board”) denying

his motion to reopen his application for suspension of deportation.

The Board concluded that Rodriguez had failed to adduce sufficient

new evidence to convince it to reverse its denial of his

application for suspension of deportation, which denial was

grounded on the Board’s determination that Rodriguez had failed to

establish the requisite “extreme hardship” element of INA § 244.

Because Congress has explicitly precluded us from reviewing such

discretionary decisions, we dismiss Rodriguez’s appeal.
2

I. Facts and Proceedings 

Deportation proceedings were initiated against Rodriguez,

charging that he was deportable pursuant to then-Section

241(a)(1)(A) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1251(a)(1)(A), because he had procured his entry visa by

willfully misrepresenting a material fact in violation of INA §

212(a)(19), 8 U.S.C. § 1182(a)(19), and was excludable at entry.

Specifically, the Board found that Rodriguez had willfully

misrepresented his marital status and his U. S. address (and that

of his purported U.S. citizen-spouse), thereby falsely securing a

visa as an immediate relative of a United States citizen. An

Immigration Judge (“IJ”) found Rodriguez deportable as charged and

denied his application for suspension of deportation pursuant to

then-section 244 of the INA, 8 U.S.C. § 1254. The IJ concluded

that Rodriguez had failed to establish that he would suffer

“extreme hardship” should he be forced to leave this country and

return to his native Mexico. The IJ did, however, grant Rodriguez’s

request for voluntary departure. 

On appeal the BIA affirmed the IJ’s decision. Rodriguez did

not appeal the Board’s decision at that juncture, but instead filed

a motion asking the Board to reconsider its decision denying his

application for suspension of deportation in light of new evidence.

The Board treated that motion as a motion to reopen and concluded

that the evidence proffered as new —— Rodriguez’s purchase of a
1 Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).

2 Ramos v. INS, 695 F.2d 181, 184 (1983).

3

home —— was insufficient to change its decision. Rodriguez timely

appealed that Board decision.

II. Analysis

A. Standard of Review

We review a denial of a motion to reopen under a “highly

deferential abuse of discretion standard.”1 Before the Illegal

Immigration and Immigrant Responsibility Act (“IIRIRA”), we

reviewed for abuse of discretion the BIA’s denial of an application

for suspension of deportation on the ground that the alien has

failed to establish the requisite element of “extreme hardship”2

but our review of such questions has been abolished, as explained

in greater detail below.

B. Discussion

In his petition for review, Rodriguez raises two claims:

Whether the Board abused its discretion in affirming the IJ’s

conclusions that Rodriguez (1) willfully misrepresented a material

fact to gain entry into the United States (the “willful

misrepresentation” claim) and (2) failed to establish that he would

suffer “extreme hardship” if deported (the “extreme hardship”

claim). 

Assuming without granting that, because the motion to reopen
3 Section 309(c)(4)(C) of the Illegal Immigration and

Immigrant Responsibility Act (“IIRIRA”) provides that a petition

for review of a final order of exclusion or deportation entered

after October 30, 1996 but before April 1, 1997 must be filed no

more than 30 days after that order is entered. The filing with the

Board of a motion to reopen does not toll the running of this 30-

day period. Stone v. INS, 514 U.S. 386, 405-06 (1995).

4 Respondent contends that, at best, Rodriguez preserved for

appeal the limited issue whether the Board abused its discretion in

denying his motion to reopen on the ground that the new evidence

proffered was unlikely to affect its denial of his application for

suspension of deportation.

4

was filed with the Board within the 30-day window of appealability3

and addressed the extreme hardship issue —— one issue underlying

the Board’s initial decision —— Rodriguez’s timely appeal of the

denial of his motion to reopen carries the substance of the extreme

hardship issue in its entirety.4 Petitioner essentially concedes,

however, that because he did not address the willful

misrepresentation issue in his motion to reopen and had not timely

appealed the Board’s initial decision (which did address that

issue), we may not here consider that claim. 

Congress has expressly precluded our consideration of the

merits of Rodriguez’s claim that the BIA abused its discretion in

denying his application for suspension of deportation pursuant to

INA § 244 for his failure to establish that he would suffer extreme

hardship if deported to his native Mexico. IIRIRA § 309(c)(4)(E)

provides, in pertinent part, that “there shall be no appeal of any

discretionary decision under [INA] section . . . 244.” We have

previously held that denials of applications for suspension of
5 Moosa v. INS, 171 F.3d 994, 1012 (5th Cir. 1999).

6 Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999). Unlike

the instant situation, the denial of the motion to reopen appealed

in Stewart involved a decision pursuant to INA § 242B(e)(2)(A), not

one of the listed discretionary provisions in § 309(c)(4)(E). The

Fourth Circuit held that because that decision was not a

discretionary one, the court was not precluded from reviewing the

Board’s denial of the alien’s motion to reopen.

7 159 F.3d 429 (9th Cir. 1998).

5

deportation “based on the [INA] § 244 element of ‘extreme hardship’

are discretionary decisions, which IIRIRA § 309(c) precludes us

from reviewing.”5 

This provision not only interdicts our consideration of the

Board’s initial denial of Rodriguez’s application for suspension of

deportation but also his motion to reopen. Congress has divested

us of jurisdiction to review a denial of a motion to reopen when,

as here, the Board, in reaching that decision, addressed the

“merits of an alien's request for relief pursuant to” a provision

of the INA established as discretionary by § 309(c)(4)(E).6

Despite Petitioner’s contention to the contrary, this conclusion is

consistent with the Ninth Circuit’s holding in Arrozal v. INS7 that

§ 309(c)(4)(E) did not preclude review of a motion to reopen. We

see that case as clearly distinguishable because the merits of the

denial of the motion to reopen did not involve a decision by the

Board involving any of the discretionary provisions set forth in §

309(c)(4)(E); rather, it involved a deportation order under INA §

241(a)(2). It is axiomatic that if we are divested of jurisdiction
6

to review an original determination by the Board that an alien has

failed to establish that he would suffer extreme hardship if

deported, we must also be divested of jurisdiction to review the

Board’s denial of a motion to reopen on the ground that the alien

has still failed to establish such hardship. To hold otherwise

would create a loophole that would thwart the clear intent of

Congress that the courts not review the discretionary decisions of

the BIA. 

III. Conclusion

At most, Rodriguez preserved only his claim that the Board

abused its discretion in denying his application for suspension of

deportation on grounds of extreme hardship. As we are expressly

denied jurisdiction to hear that claim, we are constrained to deny

Rodriguez’s petition for review of the Board’s denial of his motion

to reopen grounded in the same contention of hardship.

Petition for Review DISMISSED.