Baldemar Pedroza Estrada v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALDEMAR PEDROZA ESTRADA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70377
Agency No. A205-418-973
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2022**
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS,*** District Judge.
Baldemar Pedroza Estrada, a citizen of Mexico, petitions for review of the
order of the Board of Immigration Appeals (BIA) denying his motion to reopen.
* 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).
*** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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For the following reasons, we hold that we have jurisdiction and grant the petition
for review.
Pedroza Estrada originally sought cancellation of removal pursuant to 8
U.S.C. § 1229b(b)(1) on the basis that his removal to Mexico would result in
“exceptional and extremely unusual hardship” to his two minor children, both
United States citizens, because Pedroza Estrada is the children’s sole financial
provider. The immigration judge (IJ) found that Pedroza Estrada’s children would
experience only ordinary economic and emotional hardships from Pedroza
Estrada’s removal, and accordingly denied Pedroza Estrada’s application. The
BIA dismissed his appeal.
Pedroza Estrada timely filed a motion to reopen with the BIA based on
materially changed circumstances affecting his eligibility for cancellation of
removal, submitting newly developed mental health conditions in his minor
children including that his minor child J. had begun struggling with suicidal
thoughts. Pedroza Estrada argued that his removal would cause exceptional and
extremely unusual hardship by exacerbating J.’s condition and increasing J.’s risk
of suicide. The BIA denied the motion.
1. Pedroza Estrada first argues that his underlying removal order is void
because his Notice to Appear (NTA) lacked the date and time of his hearing.
Pedroza Estrada never raised these deficiencies in his NTA before the agency and

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has appealed only the BIA’s denial of his motion to reopen rather than the
underlying removal order. Nonetheless, he argues that the deficiencies go to a
question of subject matter jurisdiction that cannot be waived. This argument is
foreclosed by our en banc holding in United States v. Bastide-Hernandez, 39 F.4th
1187, 1188 (9th Cir. 2022), that “failure of an NTA to include time and date
information does not deprive the immigration court of subject matter jurisdiction.”
2. The government argues that we lack jurisdiction to review the BIA’s denial
of Pedroza Estrada’s motion to reopen because it relates to an application for
cancellation of removal. While we ordinarily have jurisdiction to review the BIA’s
denial of a motion to reopen under 8 U.S.C. § 1252(a)(1), Mata v. Lynch, 576 U.S.
143, 147 (2015), pursuant to 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to
review a “judgment regarding the granting of relief” under cancellation of removal.
The statutory bar in 8 U.S.C. § 1252(a)(2)(B) does not apply, however, to a denial
of a motion to reopen where the evidence submitted to the BIA in connection with
the motion “addresses a hardship ground so distinct from that considered
previously as to make the motion to reopen a request for new relief, rather than for
reconsideration of a prior denial.” Fernandez v. Gonzales, 439 F.3d 592, 602–03
(9th Cir. 2006).
We have jurisdiction because Pedroza Estrada seeks to reopen his case on the
basis of non-cumulative evidence of a new hardship that is different in kind from

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the evidence presented at the original hearing. See Garcia v. Holder, 621 F.3d
906, 911–12 (9th Cir. 2010). Whereas the original application asserted that the
children would suffer extreme and unusual hardship from the removal of their
financial provider and included no evidence of any mental health problems for
either child, the motion to reopen includes specific evidence of newly developed
mental health conditions. The agency’s recognition in the original denial that the
children would suffer ordinary emotional hardship from parental separation does
not indicate that any claim was previously made or adjudicated for extreme and
unusual hardship on the basis of the mental health conditions presented in the
motion to reopen.
3. We review the denial of a motion to reopen for abuse of discretion. Avagyan
v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). The BIA may not make credibility
determinations on motions to reopen, and thus the specific “facts presented in
affidavits supporting a motion to reopen must be accepted as true unless inherently
unbelievable.” Bhasin v. Gonzales, 423 F.3d 977, 986–87 (9th Cir. 2005) (citing
Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)); see also Silva v. Garland, 993
F.3d 705, 718 (9th Cir. 2021). The BIA abuses its discretion when it fails to
“weigh all relevant evidence, including affidavits or declarations.” See
Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1078–79 (9th Cir. 2010).
Here, the BIA abused its discretion in its denial of Pedroza Estrada’s motion to

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reopen. The BIA’s decision misstates the record and fails entirely to mention
evidence—Pedroza Estrada’s declaration—that was both highly probative and
which it was required to accept as true unless inherently unbelievable. See Bhasin,
423 F.3d at 986; Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011). Despite the
account in Pedroza Estrada’s declaration of a months-long period during which J.
“kept” talking of suicide and Pedroza Estrada “spent lots of time” talking with J.
trying to provide encouragement to go on, the BIA’s decision reports finding only
one “mention that respondent’s son mentioned one incident” of suicidal thoughts in
February 2020. This statement is a reference only to the psychological evaluation,
which itself contains more than a single mention of suicidal thoughts.
Pedroza Estrada’s motion focused primarily on the hardship that Pedroza
Estrada’s removal would present for J. due to J.’s recent history of suicidal ideation
and related diagnosis of severe depression. Yet the BIA concluded that Pedroza
Estrada did not demonstrate a likelihood of prevailing on his new claim for
cancellation of removal by setting aside J.’s risk of suicide as related to a single
isolated incident and evaluating instead whether the children’s generalized mental
health problems relating to their parent’s removal would suffice to show the
requisite hardship. The BIA’s failure to properly consider all evidence presented
about J.’s specific vulnerability, including the facts presented in Pedroza Estrada’s
declaration, was an abuse of discretion. See Bhasin, 423 F.3d at 989; Cole, 659

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F.3d at 772. On this record, Pedroza Estrada has established prima facie eligibility
for cancellation of removal. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003)
(holding petitioner need not conclusively establish eligibility for relief in order to
prevail on a motion to reopen).
This matter is remanded to the BIA for further proceedings consistent with this
disposition.
PETITION GRANTED AND REMANDED.

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