On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A098-571-169 & A098-571-168.
The opinion of the court was delivered by: Reinhardt, Circuit Judge.
Submitted September 1, 2010 -- Pasadena, California
Before: Harry Pregerson, Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges.
Analilia Arenas de Garcia and her husband, Gelasio Garcia ("the Garcias"), petition for review of a BIA decision denying their motion to reopen their removal proceedings. Some of the evidence that the Garcias submitted with their motion to reopen and with a subsequently filed "supplemental brief" in support of their motion, was cumulative of evidence that they had submitted during their hearing, and some was not. We hold that, pursuant to Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006), we have jurisdiction to review the BIA's decision to the extent that it pertains to the Garcias' non-cumulative evidence. Id. at 603. However, we lack jurisdiction to review that decision insofar as it pertains to the cumulative evidence, except to the extent that the Garcias raise a question of law regarding the BIA's treatment of that evidence. See 8 U.S.C. § 1252(a)(2)(D) (preserving jurisdiction over questions of law raised in petitions for review of removal orders).
Reaching the merits of the Garcias' claims, we deny the petition in part and grant it in part. We hold that the BIA did not abuse its discretion in concluding that the Garcias' daughter's new medical condition did not warrant reopening. However, the BIA erred by failing to exercise its discretion to consider or decline to consider the Garcias' supplemental brief and the attached exhibit relating to a new medical condition allegedly incurred by Analilia's mother. Accordingly, we remand for further proceedings.
I. Factual and Procedural Background
Analilia Arenas De Garcia and Gelasio Garcia are natives and citizens of Mexico. They entered the United States in August 1989 and have lived in this country for more than twenty years. They are each the children of lawful permanent resident mothers and are together the parents of two U.S. citizen daughters, Vanessa, born in 1990, and Mariela, born in 1992.
In December 2004, the Garcias contacted a Department of Homeland Security office and requested cancellation of removal. The Garcias were not at the time in removal proceedings. Immigration officials subsequently initiated removal proceedings against them by serving them with Notices to Appear, alleging that they were removable as aliens present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing before an IJ, the Garcias conceded removability and sought cancellation of removal. See 8 U.S.C. § 1229b(b). To be eligible for cancellation, each had to show that, inter alia, his or her "removal would result in exceptional and extremely unusual hardship to [his or her] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Id.
At their hearing, Analilia and Gelasio testified that they are very close to their U.S. citizen daughters. They explained that their family has never lived apart and that, if they were ordered removed, their daughters would go with them. They feared that their daughters, who have never been to Mexico apart from a single trip to Tijuana, would have trouble adjusting to life there. In particular, they were worried about the diminished educational opportunities that their daughters would face. In the United States, both girls were doing well in school and were on track to go to college. Analilia and Gelasio feared that the girls would have trouble succeeding academically in Mexico, because English was their best language, and neither could read or write in Spanish. Gelasio was also concerned about the family's economic prospects in Mexico. Here, both he and Analilia worked full time. With help from extended family, they were able to achieve a comfortable standard of living. In Mexico, Gelasio worked as a subsistence farmer, a job that would not allow him to provide well for his family.
Analilia and Gelasio also testified briefly about an eye condition afflicting Mariela, which had required her to undergo surgery about ten years earlier, and which necessitated trips to the doctor every six months to a year to replace her glasses. They further testified that Analilia cared for her lawful permanent resident mother, who lived with them, and who suffered from hypertension and high cholesterol. Finally, they testified that most ...