Alvarenga-Rodriguez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 2025
• Docket: 23-2918
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 14 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETROCINIO ALVARENGA- No. 23-2918 RODRIGUEZ, Agency No. A088-721-732 Petitioner, MEMORANDUM* v.

PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 12, 2025** San Francisco, California

Before: S.R. THOMAS, W. FLETCHER, and M. SMITH, Circuit Judges.

Petitioner Petrocinio Alvarenga-Rodriguez petitions for review of a Board of

Immigration Appeals (“BIA”) decision denying his motion to reopen. He moved

to reopen his proceedings to apply for cancellation of removal. We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 We review the BIA’s denial of a motion to reopen for abuse of discretion.

Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). Alvarenga-Rodriguez contends

that the BIA abused its discretion when it declined to equitably toll his untimely

motion to reopen. But even if he prevailed on the issue of equitable tolling, that

would not necessarily result in a favorable decision. The BIA also denied

Alvarenga-Rodriguez’s motion to reopen on two “independent grounds”: (1)

“failure to establish a prima facie case for” cancellation of removal; and (2) failure

to show he would be entitled to a favorable exercise of discretion for cancellation

of removal. Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023)

(quoting Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)).

“[P]rima facie eligibility for relief requires only a threshold showing of

eligibility—a reasonable likelihood that the petitioner would prevail on the merits

if the motion to reopen were granted.” Id. at 1179. To be eligible for cancellation

of removal, Alvarenga-Rodriguez must, among other criteria, “‘establis[h] that

removal would result in exceptional and extremely unusual hardship to [his]

spouse, parent, or child,’ who is a U.S. citizen or lawful permanent resident.”

Wilkinson v. Garland, 601 U.S. 209, 213 (2024) (second alteration in original)

(quoting 8 U.S.C. § 1229b(b)(1)(D)). The BIA concluded that Alvarenga-

Rodriguez had not demonstrated a reasonable likelihood of prevailing on his

cancellation of removal application because he had “not identified and documented

2 heightened hardship” to his U.S. citizen children “beyond that which would

normally be expected to occur.” That is, Alvarenga-Rodriguez did not show his

removal would result in exceptional and extremely unusual hardship to his

children. The BIA did not abuse its discretion in denying his motion to reopen on

the prima facie eligibility ground.

Further, if a movant seeks relief that requires a favorable exercise of

discretion, he must meet the “would likely change” standard by “establish[ing] that

it is at least more probable than not that the new evidence would change the

outcome of the claim.” Fonseca-Fonseca, 76 F.4th at 1183. The BIA

independently denied Alvarenga-Rodriguez’s motion to reopen because he had not

sufficiently addressed whether he would deserve a favorable exercise of discretion,

“such that a different outcome would be likely.” The BIA applied the correct

“would likely change” standard. See id. It permissibly put the burden on

Alvarenga-Rodriguez to satisfy that standard given that “a moving party must

show that he warrants the relief sought as a matter of discretion.” Matter of

Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992); see also Matter of Chen, 28 I. & N.

Dec. 676, 682 (BIA 2023). In his motion to reopen, Alvarenga-Rodriguez did not

address or attempt to diminish the force of a significant negative factor that

weighed against a favorable exercise of discretion. BIA therefore did not abuse its

discretion in denying his motion to reopen on this discretionary ground.

3 PETITION DENIED.