NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Gilberto Reducindo-Villanueva, No. 21-106 Petitioner, Agency No. A200-154-082 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 13, 2023 ** Pasadena, California Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges. Partial Concurrence and Partial Dissent by Judge MILLER. Gilberto Reducindo Villanueva petitions for review of the Board of Immigration Appeals (“BIA”) decision affirming the immigration judge’s denial of his application for cancellation of removal for nonpermanent residents, see 8 U.S.C. § 1229b(b), and denying his motion to remand. We hold that we have jurisdiction to review these claims and deny the petition on the merits. * 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. Jurisdiction Over Motion. We treat a motion to remand to the immigration judge for further factual development as a motion to reopen. See Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015); Matter of L-A-C-, 26 I. & N. Dec. 516, 526 (BIA 2015). Ordinarily, we have jurisdiction to review the BIA’s denial of a motion to reopen as a final order of removal under 8 U.S.C. § 1252(a)(1). Mata v. Lynch, 576 U.S. 143, 147 (2015). Under 8 U.S.C. § 1252(a)(2)(B)(i), however, we lack jurisdiction to review the denial of a motion to reopen that seeks to reapply for cancellation of removal on the same basis upon which an earlier application for the same relief was denied. Fernandez v. Gonzales, 439 F.3d 592, 602–03 (9th Cir. 2006); but see 8 U.S.C. § 1252(a)(2)(D) (restoring jurisdiction over constitutional questions or questions of law). But where a motion to reopen “is presenting a basis for relief that was not previously denied,” we retain jurisdiction. Fernandez, 429 F.3d at 601 (emphasis omitted).1 Here, we conclude that we have jurisdiction to review the denial of the motion because Reducindo Villanueva seeks to reapply for cancellation of removal based on hardship to his U.S. citizen children that is different in kind from the hardship he presented in his original application. See Garcia v. 1 The Supreme Court’s decision in Patel v. Garland, 142 S. Ct. 1614 (2022), does not alter this conclusion. Patel does not address motions to reopen. Patel eliminates the jurisdictional distinction between discretionary and non- discretionary determinations, id. at 1622, but does not abrogate the underlying reasoning in Fernandez. 2 21-106 Holder, 621 F.3d 906, 911–12 (9th Cir. 2010); Fernandez, 439 F.3d at 602–03. At the time of Reducindo Villanueva’s hearing, his two children lived with their respective mothers. Reducindo Villanueva argued that his children would suffer from reduced financial support and emotional hardship due to lack of contact with their father if he were removed. …
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