Appellate Case: 20-9573 Document: 010110612541 Date Filed: 12/01/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 1, 2021 _________________________________ Christopher M. Wolpert Clerk of Court FAUSTINO MENDEZ-BENHUMEA, Petitioner, v. No. 20-9573 and 21-9503 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HOLMES, KELLY, and MATHESON, Circuit Judges. _________________________________ Petitioner Faustino Mendez-Benhumea, a citizen of Mexico, seeks review of a Board of Immigration Appeals (BIA) decision (June 2020) denying his second motion to reopen. He also seeks review of a subsequent BIA decision (December 2020) denying his third motion to reopen and remand. We have jurisdiction under 8 U.S.C. § 1252(a), and we dismiss in part and deny review in part. Background In July 2017, an Immigration Judge (IJ) determined that Mr. Mendez-Benhumea was subject to removal. AR 532. In April 2018, the IJ granted Mr. Mendez-Benhumea * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-9573 Document: 010110612541 Date Filed: 12/01/2021 Page: 2 voluntary departure and issued an alternate removal order. AR 516–18. In February 2020, Mr. Mendez-Benhumea filed a second motion to reopen based on information he contended was previously unavailable and material: that his biological daughter would be harmed in Mexico for being a transgender individual. AR 324–26. He also submitted applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). See AR 329–40. The BIA denied this second motion to reopen as untimely. AR 255. The BIA also declined to exercise its authority to reopen his removal proceedings sua sponte finding that Mr. Mendez-Benhumea had not presented a prima facie case for relief. AR 255. In September 2020, Mr. Mendez-Benhumea filed a third motion to reopen and remand his case to determine his eligibility for cancellation of removal. AR 20–29. He also applied for cancellation of removal, see AR 31–44, contending that removal would result in exceptional and extremely unusual hardship to his transgender child. AR 27–29. In December 2020, the BIA denied this third motion to reopen. AR 3. Setting aside whether his motion was procedurally barred, the BIA determined that Mr. Mendez- Benhumea failed to demonstrate prima facie eligibility for cancellation of removal. AR 3. Mr. Mendez-Benhumea filed timely petitions for review of both decisions, and this court has consolidated them for review. Discussion We review the BIA’s denial of a motion to reopen under a “deferential, abuse of discretion standard of review.” Kucana v. Holder, 558 U.S. 233, 242 (2010). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicably 2 Appellate Case: 20-9573 Document: 010110612541 Date Filed: 12/01/2021 Page: 3 departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Maatougui v. …
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