Arreola Pina v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2025
• Docket: 24-6154
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISIDRA ARREOLA PINA, No. 24-6154 Agency No. Petitioner, A205-931-164 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted October 7, 2025 Las Vegas, Nevada

Before: BENNETT, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Petitioner Isidra Arreola Pina is a native and citizen of Mexico. She

petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her

appeal from an Immigration Judge’s (“IJ”) denial of her applications for

cancellation of removal and voluntary departure, and the BIA’s denial of her

motion to remand. “Where, as here, the BIA cites [Matter of ]Burbano [20 I. & N.

Dec. 872 (BIA 1994)] and also provides its own review of the evidence and law,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. we review both the IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025,

1028 (9th Cir. 2011).

1. The agency denied Petitioner’s application for cancellation of removal

for two reasons: (1) she was not statutorily qualified because she had not

established exceptional and extremely unusual hardship to a qualified relative; and

(2) even if she was statutorily qualified, she was not deserving of a positive

exercise of discretion. See 8 U.S.C. § 1229b(b)(1). The agency similarly denied

Petitioner’s application for voluntary departure after finding that she was not

deserving of a positive exercise of discretion for that relief. See 8 U.S.C. § 1229c.

We lack jurisdiction to review Petitioner’s challenge to the agency’s

discretionary determinations. See Gonzalez-Juarez v. Bondi, 137 F.4th 996, 1000

n.2 (9th Cir. 2025) (citing Wilkinson v. Garland, 601 U.S. 209, 218, 225 n.4

(2024)); Olea-Serefina v. Garland, 34 F.4th 856, 867 (9th Cir. 2022). While we

retain jurisdiction over constitutional or legal claims related to the agency’s

discretionary decisions under 8 U.S.C. § 1252(a)(2)(B), Petitioner’s argument—

that the agency denied her due process by refusing to “accept her credible

testimony” and consider her testimony as a mitigating factor—is not a cognizable

due process violation. Petitioner’s “real objection is not that the agency did not

acknowledge” her testimony but rather in “how the agency weighed” it, which is a

challenge to the agency’s exercise of discretion. Hernandez v. Garland, 52 F.4th

2 24-6154 757, 768 (9th Cir. 2022); see also Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th

Cir. 2006) (“This court has previously held that abuse of discretion challenges to

discretionary decisions, even if recast as due process claims, do not constitute

colorable constitutional claims.”). Accordingly, we lack jurisdiction to consider

Petitioner’s challenge to the agency’s discretionary denial and dismiss this portion

of the petition. See 8 U.S.C. § 1252(a)(2)(B); id. § 1229c(f).1

2. After the IJ’s decision and during the pendency of the appeal to the BIA,

Petitioner’s son was diagnosed with autism. Petitioner moved to remand to the IJ,

including additional evidence of hardship relating to this new diagnosis. In

reviewing the motion to remand, the BIA abused its discretion by applying an

incorrect legal standard. See Alcarez-Rodriguez v. Garland, 89 F.4th 754, 759 (9th

Cir. 2023) (“We review the BIA’s denial of a motion to remand using the abuse-of-

discretion standard.”). “The BIA abuses its discretion when it ‘act[s] arbitrarily,

irrationally, or contrary to law.’” Id. (alteration in original) (quoting Mohammed

v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005)). “The BIA can deny a motion to

[remand] on any one of ‘at least’ three independent grounds—[(1)] ‘failure to

establish a prima facie case for the relief sought, [(2)] failure to introduce

previously unavailable, material evidence, and [(3)] a determination that even if

1 In light of our conclusion, we do not address the agency’s antecedent statutory hardship determination because the discretionary determination is an independent basis for the agency’s denial.

3 24-6154 these requirements were satisfied, the movant would not be entitled to the

discretionary grant of relief which [s]he sought.’” Najmabadi v. Holder, 597 F.3d

983, 986 (9th Cir. 2010) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). The

appropriate legal standard for a movant to demonstrate prima facie eligibility for

relief is whether she has shown “a reasonable likelihood that [she] would prevail

on the merits if the motion to reopen were granted.” Fonseca-Fonseca v. Garland,

76 F.4th 1176, 1179 (9th Cir. 2023) (emphasis added). On the other hand, for a

determination made on discretionary grounds, the moving party must meet a

heavier burden and “present[ ] evidence of such a nature that the Board is satisfied

that . . . the new evidence offered would likely change the result in the case.” Id. at

1181, 1183 (emphasis in original) (quoting In re Coelho, 20 I. & N. Dec. 464, 473

(BIA 1992)).

The government concedes that the BIA “conflated the two legal standards”

in reviewing Petitioner’s motion for remand. The BIA denied Petitioner’s motion

on the basis that she failed to make “a prima facie showing that the new evidence

would likely affect the outcome of the case.” This constitutes the same error found

in Fonseca-Fonseca. See id. at 1183. Because the BIA erred by applying the

wrong standard, we remand for the BIA to apply the correct standard in the first

instance.

4 24-6154 PETITION DISMISSED IN PART; GRANTED IN PART; AND

REMANDED.

5 24-6154