Unreported / Non-Citable
Background
Francisco Javier Martinez Ortiz, a citizen of Mexico, petitioned for review of a Board of Immigration Appeals (BIA) decision denying his motion to reopen removal proceedings. Martinez Ortiz sought cancellation of removal under 8 U.S.C. § 1229b(b), which requires demonstrating that removal would result in “exceptional and extremely unusual hardship” to a qualifying relative.
In support of his motion to reopen, he submitted new evidence concerning his son’s mental health struggles, including an evaluation from a marriage and family therapist, his son’s Individualized Education Program (IEP), and declarations from himself and his son. He also reiterated that his daughter had made two suicide attempts. The BIA denied the motion, concluding the new evidence relating to his son did not establish a prima facie case for the requisite hardship and was insufficient to demonstrate the decision would likely change if reopening were granted.
The Court’s Holding
The Ninth Circuit denied the petition for review. The court held it had jurisdiction to review the colorable legal question of whether the BIA applied the correct burden of proof.
While the BIA erroneously referenced the “would-likely-change-the-result” standard—which applies to discretionary denials—rather than the correct “reasonable likelihood of success” standard for prima facie eligibility, the error was harmless. The BIA’s definitive conclusion that Martinez Ortiz “has not established that a particular change has occurred that would cause his son hardship, to now be considered ‘exceptional and extremely unusual'” demonstrated it had already assessed the evidence under the correct substantive standard. The court further held the BIA’s determination that the evidence failed to establish a qualifying hardship was not arbitrary, irrational, or contrary to law, as the BIA properly considered and weighed the submitted evidence in the aggregate.
Key Takeaways
- The Ninth Circuit has jurisdiction to review whether the BIA applied the correct legal standard in denying a motion to reopen, even where jurisdiction over discretionary hardship determinations is generally barred.
- A BIA error in citing the “would-likely-change-the-result” standard instead of the “reasonable likelihood” standard for prima facie eligibility is subject to harmless error analysis.
- Remand is unnecessary where the BIA has already expressed a definitive judgment on the material issue—here, that the evidence failed to show a change constituting “exceptional and extremely unusual hardship”—such that applying the correct standard would not alter the outcome.
- The BIA’s weighing of new evidence (therapist evaluation, IEP, declarations, and prior suicide attempts of a sibling) against the stringent hardship standard for cancellation of removal was within its discretion and not arbitrary.
- The temporary stay of removal previously ordered by the court was terminated.
Why It Matters
This memorandum disposition clarifies the application of harmless error review when the BIA cites an incorrect legal standard in denying a motion to reopen. It reinforces that the “would-likely-change-the-result” standard governs only discretionary decisions, while the “reasonable likelihood of success” standard governs prima facie eligibility for relief. Critically, it establishes that if the BIA’s reasoning demonstrates it actually evaluated the evidence under the correct substantive standard—finding the hardship not “exceptional and extremely unusual”—a remand for formalistic correction of the standard’s articulation is not required.
The decision underscores the high bar for “exceptional and extremely unusual hardship” under 8 U.S.C. § 1229b(b)(1)(D) and the deference afforded to the BIA’s aggregate weighing of hardship factors. The ruling is limited to the record and procedural posture before the court. It does not decide questions the opinion expressly left unresolved, and an unpublished Ninth Circuit memorandum is not precedential except as Ninth Circuit Rule 36-3 permits.