Chavez-Lopez v. Garland

Case: 22-60346 Document: 00516775405 Page: 1 Date Filed: 06/05/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 5, 2023 No. 22-60346 Lyle W. Cayce ____________ Clerk Juan De Dios Chavez-Lopez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206 239 480 ______________________________ Before Jones, Clement, and Haynes, Circuit Judges. Per Curiam: * Petitioner Juan De Dios Chavez-Lopez petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Chavez-Lopez, a native and citizen of Mexico, arrived in the United States in 1996. He has a spouse who has no legal status and five U.S. citizen children. In 2015, the Department of Homeland Security initiated removal proceedings against Chavez-Lopez. After an Immigration Judge (“IJ”) _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60346 Document: 00516775405 Page: 2 Date Filed: 06/05/2023 No. 22-60346 found Chavez-Lopez removable, Chavez-Lopez appealed to the BIA. The BIA sustained his appeal, remanding the case to the IJ for consideration of potential relief from removal. Chavez-Lopez then applied for cancellation of removal, asserting that his removal would result in exceptional and extremely unusual hardship to his children. 1 The IJ concluded that Chavez-Lopez failed to demonstrate such hardship and denied his application. Chavez-Lopez appealed to the BIA, which adopted and affirmed the IJ’s decision, dismissing the appeal. Chavez-Lopez then moved for reconsideration (in the nature of reopening). He urged that there was new evidence that his two youngest children suffered severe mental health hardships. The BIA denied this motion, reasoning that Chavez-Lopez had failed to (1) show a factual or legal error that warranted reconsideration or (2) demonstrate that the newly discovered evidence would change the ultimate result. Chavez-Lopez now seeks our review of the BIA’s denial of his motion. “[W]e review the BIA’s denial of a motion to reopen or to reconsider under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). We will only overturn the BIA under this standard if its decision is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. at 304 (quotation omitted). _____________________ 1 Under 8 U.S.C. § 1229b(b)(1), the Attorney General has the discretion to “cancel removal of” noncitizens who are removable but meet certain criteria. Most relevant here, those criteria include whether the noncitizen “establishes that removal would result in exceptional and extremely unusual hardship to the [noncitizen’s] spouse . . . or child, who is a citizen of the United States or a[] [noncitizen] lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). 2 Case: 22-60346 Document: 00516775405 Page: 3 Date Filed: 06/05/2023 No. 22-60346 Chavez-Lopez argues on appeal that the BIA abused its discretion by overlooking the new evidence of mental health hardships his two …

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