De La Rosa-Rodriguez v. Garland

49 F.4th 1282

Antonio DE LA ROSA-RODRIGUEZ, aka Antonio Delarosa Rodriguez, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-71923

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 2022^* Pasadena, California

Filed September 27, 2022

Mackenzie W. Mackins, Mackins & Mackins LLP, Sherman Oaks, California, for Petitioner.

Brian Boynton, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Jonathan A. Robbins, Senior Litigation Counsel; Andrew B. Insenga, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Kim McLane Wardlaw and Andrew D. Hurwitz, Circuit Judges, and Karin J. Immergut,^** District Judge.

HURWITZ, Circuit Judge:

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped federal courts of jurisdiction to review "any judgment regarding the granting of relief under ... [ 8 U.S.C. §] 1229b," which governs, among other forms of relief, cancellation of an order of removal. Pub. L. No. 104-208, 110 Stat. 3009, 3009-607 (codified at 8 U.S.C. § 1252(a)(2)(B)(i) ). But, the Real ID Act of 2005 restored our jurisdiction over "constitutional claims or questions of law" presented in cases subject to the jurisdiction-stripping provision. Pub. L. No. 109-13, 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(2)(D) ) (the "Limited Review Provision").

The central issue before us today is whether the Limited Review Provision allows review of a Board of Immigration Appeals ("BIA") decision denying cancellation of removal to petitioner Antonio De La Rosa-Rodriguez, who claimed his removal would result in "exceptional and extremely unusual hardship" to his two children, both U.S. citizens. See 8 U.S.C. § 1229b(b)(1). We hold that although the BIA's ultimate decision to grant cancellation of removal is discretionary, § 1252(a)(2)(D) grants us jurisdiction to review a question of law or a mixed question of law and fact presented in a petition for review of an agency decision denying cancellation based on the absence of exceptional and extremely unusual hardship to family members. But, even assuming arguendo that De La Rosa's petition presents such questions, we deny it.

I.

De La Rosa, a native and citizen of Mexico, entered the United States without inspection in 2005 and was served with a Notice to Appear twelve years later. De La Rosa conceded removability but sought various forms of relief, including cancellation of removal, claiming that his removal would result in exceptional and extremely unusual hardship to his two U.S.-citizen minor children. De La Rosa testified that he held a steady job and that his partner was unable to work. Although his sister-in-law assisted with childcare, De La Rosa helped his children with homework and took them to and from school because his partner did not drive. De La Rosa claimed that if he had to return to Mexico, his family would remain in the United States, and he would not be able to support them.

An Immigration Judge ("IJ") denied all relief sought by De La Rosa and ordered removal. In denying cancellation of removal, the IJ found that De La Rosa had not established that his children would suffer exceptional and extremely unusual hardship if he were removed; in the alternative, the IJ also denied cancellation in the exercise of his discretion. The BIA dismissed an appeal, holding that the IJ applied the appropriate legal standard and considered all factors relevant to the hardship determination. The BIA also conducted its own review of the record, finding that De La Rosa had not shown that his children would suffer any hardship "different from that normally experienced in the removal context." The BIA did not address the IJ's alternative decision to deny cancellation in the exercise of his discretion. This timely petition for review followed.¹

II.

Under 8 U.S.C. § 1229b(b)(1), the Attorney General may cancel an alien's order of removal if "(1) he has been present in the United States for at least 10 years; (2) he has been a person of good moral character; (3) he has not been convicted of certain criminal offenses; and (4) his removal would impose an ‘exceptional and extremely unusual’ hardship on a close relative who is either a citizen or permanent resident of this country." Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 759, 209 L.Ed.2d 47 (2021). Although we have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1), the jurisdiction-stripping provision in § 1252(a)(2)(B)(i) prevents judicial review of any agency "judgment regarding the granting of relief under section ... 1229b." The Limited Review Provision, however, provides that:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D).

De La Rosa contends that the BIA failed to apply its settled precedent in denying his application for cancellation of removal and that the Limited Review Provision grants us jurisdiction over his petition for review because it presents a question of law or a mixed question of law and fact. The Attorney General contends that because the decision to grant cancellation of removal based on hardship is left to his discretion, the Limited Review Provision does not apply. Resolution of this jurisdictional issue requires us to review our decisions concerning both the jurisdiction-stripping provision and the Limited Review Provision, as well as subsequent Supreme Court decisions about these statutes.

A.

Some twenty years ago, we held that the jurisdiction-stripping provision in § 1252(a)(2)(B)(i) bars judicial review of only those "decisions by the BIA that involve the exercise of discretion." Montero-Martinez v. Ashcroft , 277 F.3d 1137, 1144 (9th Cir. 2002). The following year, we held that the denial of cancellation of removal was such a decision. Romero-Torres v. Ashcroft , 327 F.3d 887, 888–91 (9th Cir. 2003). In Romero-Torres , the petitioner accepted the factual determinations made by an IJ in denying cancellation of removal. Id. at 891. However, Romero-Torres challenged the BIA's conclusion that those facts did not establish exceptional and extremely unusual hardship, claiming that this presented an issue of law not covered by the jurisdiction-stripping provision. Id. We held that § 1252(a)(2)(B)(i) divested us of jurisdiction because the ultimate decision about whether the requisite hardship had been established was discretionary. Id. Our subsequent decisions concerning the jurisdiction-stripping provision in various contexts similarly focused on whether the challenged agency decision was discretionary. See, e.g. , Torres-Valdivias v. Lynch , 786 F.3d 1147, 1155 (9th Cir. 2015) ; Bazua-Cota v. Gonzales , 466 F.3d 747, 748 (9th Cir. 2006) (per curiam); Martinez-Rosas v. Gonzales , 424 F.3d 926, 930 (9th Cir. 2005) ; Medina-Morales v. Ashcroft , 371 F.3d 520, 525–29 (9th Cir. 2004) ; Castillo Castillo v. Garland , 855 F. App'x. 360, 361 (9th Cir. 2021).²

However, the Supreme Court recently rejected our historic approach to § 1252(a)(2)(B)(i), stressing instead that the statute bars not only review of "discretionary" decisions, but also of "any judgment relating to the granting of relief" under the statutes mentioned in the jurisdiction-stripping provision. Patel v. Garland , ––– U.S. ––––, 142 S. Ct. 1614, 1622–26, 212 L.Ed.2d 685 (2022). Although Patel rejected our discretionary/nondiscretionary analysis under § 1252(a)(2)(B)(i), it did not address the application of § 1252(a)(2)(D) to hardship determinations, simply noting that the Limited Review Provision was clearly intended to apply to questions of law presented in all cases covered by the jurisdiction-stripping provision. Id. at 1623.

B.

Patel makes clear that the jurisdiction-stripping provision in 8 U.S.C. § 1252(a)(2)(B)(i) applies to the BIA's decision to deny cancellation of removal to De La Rosa, whether or not characterized as discretionary. The next question is whether the Limited Review Provision restores our jurisdiction. Answering that question again requires a review of our precedents and a recent Supreme Court decision concerning that statute.

We stated shortly after the adoption of the Real ID Act that § 1252(a)(2)(D) "restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders." Martinez-Rosas , 424 F.3d at 930 (quoting Fernandez-Ruiz v. Gonzales , 410 F.3d 585, 587 (9th Cir. 2005) ). But in the same case, we stated that the provision "did not alter" our prior holdings that we are barred from reviewing discretionary hardship determinations relating to the denial of cancellation of removal. Id. at 929–30.

Then came Mendez-Castro v. Mukasey , 552 F.3d 975 (9th Cir. 2009), in which the petitioners sought review of a hardship determination. The petitioners argued that the agency failed to apply its settled precedent about whether a child's special educational needs could establish exceptional and extremely unusual hardship, and failed to engage in a cumulative analysis of the hardship that removal would cause to the petitioners' children. Id. at 978. The panel first considered whether it had jurisdiction under the Limited Review Provision to address those claims. Id. at 977–78.

The panel stated that "whether an IJ failed to apply a controlling standard governing a discretionary determination is a question over which we have jurisdiction under § 1252(a)(2)(D)." Id. at 979 (cleaned up); see also Afridi v. Gonzales , 442 F.3d 1212, 1218 (9th Cir. 2006) ("The plain language of the REAL ID Act grants jurisdiction ... to review questions of law presented in petitions...