Carlos Soto-Carrasco v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 3, 2024
• Docket: 20-72696
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS SOTO-CARRASCO, No. 20-72696

Petitioner, Agency No. A206-087-844

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 3, 2024**

Before: BYBEE and OWENS, Circuit Judges, and RAKOFF,*** District Judge.

Carlos Soto-Carrasco, a native and citizen of Mexico, petitions for review

from the Board of Immigration Appeals’ (“BIA”) decision denying his motion to

reopen his application for cancellation of removal. As the parties are familiar with

* 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. the facts, we do not recount them here. We deny the petition.

An immigration judge (“IJ”) has discretion to cancel removal of “a

noncitizen who meets certain statutory criteria.” Wilkinson v. Garland, 601 U.S.

209, 212 (2024). Among other requirements, the noncitizen must “establish[] that

removal would result in exceptional and extremely unusual hardship to the

[noncitizen’s] spouse, parent, or child” who is a citizen or lawful permanent

resident of the United States. 8 U.S.C. § 1229b(b)(1)(D). Here, the IJ determined

that Soto-Carrasco did not make this showing and denied cancellation of removal.

The BIA affirmed the IJ’s ruling without an opinion. Subsequently, Soto-Carrasco

filed a motion to reopen, offering new evidence of his daughter’s learning

disabilities. The BIA denied the motion, ruling that “the possibility of educational

hardship does not by itself rise to the exceptional and extremely unusual level of

hardship required for cancellation of removal.”

“We review the denial of a motion to reopen for abuse of discretion,” and

questions of law de novo. De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.

2004). The BIA may deny a motion to reopen if the movant fails to establish

(1) prima facie eligibility for relief, (2) new, material evidence, or (3) entitlement

to discretionary relief even if (1) and (2) are met. Najmabadi v. Holder, 597 F.3d

983, 986 (9th Cir. 2010). Each is an independent ground for denial. Id. If “the

ultimate relief is discretionary”—as here—the BIA may “leap over” (1) and (2).

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

Soto-Carrasco argues that the BIA applied the incorrect standard by not

applying the ground (1)—prima facie eligibility for relief—standard, which

“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. The government counters that the BIA properly applied the ground (3)—

ultimate entitlement to discretionary relief—standard, and thus “leap[t] over”

prima facie eligibility. Ultimate entitlement to discretionary relief requires that

“the new evidence offered would likely change the result in the case,” a higher

standard for the noncitizen than the standard for prima facie eligibility. Id. at 1181

(quoting In re Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992)) (explaining the

difference between and reasoning behind the two standards).

The government is correct. The BIA decided Soto-Carrasco’s motion to

reopen on ultimate entitlement to discretionary relief and, in doing so, applied the

correct standard. It held that “the evidence submitted [was] not likely to change

the outcome of removal proceedings” because “the possibility of educational

hardship” was not enough to demonstrate exceptional and extremely unusual

hardship. It further reasoned that Soto-Carrasco would be ineligible for

cancellation of removal in any case because of the IJ’s determination that “he [had]

not establish[ed] the requisite continuous physical presence” and did not “merit

3 relief as a matter of discretion.” Thus, the BIA did not abuse its discretion in

denying Soto-Carrasco’s motion to reopen.

The stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.