Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Rangel Perez v. Garland (May 2, 2023) No. 22-60074 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged that the Petitioner is subject to removal from the United States.

 

The Petitioner conceded the removal charge.

 

The Petitioner then filed an application for relief from removal.

 

The Immigration Judge denied the Petitioner’s application for relief from removal.

 

The Petitioner appealed the denial of his application for relief from removal to the Board of Immigration Appeals (“BIA”).

 

The BIA adopted and affirmed the Immigration Judge’s decision, dismissed the Petitioner’s appeal and denied the Petitioner’s request to remand the record to the Immigration Judge.

 

The Petitioner timely petitioned for review in the Fifth Circuit Court of Appeal.

 

 

Facts

• The Petitioner is a native and citizen of Mexico who entered the United States on an unknown date.
• In 2011, the DHS charged that the Petitioner is subject to removal from the United States under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) as an alien present in the United States without having been admitted or paroled by an immigration officer.
• The Petitioner conceded that he was removable as charged.
• The Petitioner then filed an application for cancellation of removal under section 240A(b) of the Act.
• The Immigration Judge denied the Petitioner’s application, concluding that the hardship to the Petitioner’s qualifying relatives did not rise to the level of “exceptional and extremely unusual hardship” required to qualify the Petitioner for relief.  See section 240A(b)(1)(D) of the Act.
• The Petitioner appealed to the BIA and presented newly available evidence that his wife was pregnant with their fourth child and that his middle daughter was being treated for ADHD, evaluated for speech deficiencies, and placed in special education classes.
• The BIA adopted and affirmed the Immigration Judge’s decision and dismissed the Petitioner’s appeal.
• With regard to the Petitioner’s new evidence, the BIA concluded that a remand was not warranted because the new evidence would not change the result in the case.
• The Petitioner timely petitioned for review.

 

Held

Petition for Review DISMISSED for lack of jurisdiction
 

Rationale

The Petitioner asserted that that:

1. The Immigration Judge and BIA used the wrong legal standard to determine his eligibility for cancellation of removal under the hardship statute, and
2. The BIA erred by failing to remand the record of proceedings to the Immigration Judge for consideration of new evidence and a potential grant of voluntary departure.

The Fifth Circuit Court of Appeal reasoned as follows:

• The application of sections 240A(b)(1) and 240A(b)(1)(D) of the Act requires a two-step process: 
  1. 1. 1. The Immigration Judge and the BIA must determine which applicants are eligible for cancellation.
        2. Then, if an applicant is deemed eligible, they must decide whether to grant cancellation in the exercise of discretion.
• Section 242(a)(2)(B)(i) of the Act broadly states that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 240B.”
• “Here, ‘any’ means that the provision applies to judgments ‘of whatever kind’ under [§ 1229b(b)(1)], not just discretionary judgments or the last-in-time judgment.”  Patel v. Garland, 142 S. Ct. 1614, at 1622 (2022) (quoting United States v. Gonzales, 520 U.S. 1, at 5 (1997).
• The Fifth Circuit Court of Appeal has determined that Patel v. Garland, 142 S. Ct. 1614 (2022) categorically forecloses review of hardship determinations.  Castillo-Gutierrez v. Garland, 43 F.4th 477, at 481 (5th Cir. 2022) (“[T]he BIA’s determination that a citizen would face exceptional and extremely unusual hardship is an authoritative decision which falls within the scope of § 1252(a)(2)(B)(i) and is beyond our review.”).
• It follows that no appellate jurisdiction exists to review the BIA’s decision not to remand to the Immigration Judge to consider new evidence. “[W]here a final order of removal is shielded from judicial review . . . so, too, is the BIA’s refusal to reopen that order.” Assaad v. Ashcroft, 378 F.3d 471, at 474 (5th Cir. 2004) (internal quotation marks, citation, and brackets omitted).

 

Commentary

Scope of Jurisdiction Before Patel v. Garland

Not long ago, the Fifth Circuit Court of Appeal reasoned, in Fredy Leo Pena-Lopez v. Garland (May 12, 2022) No. 20-60911, that section 242(a)(2)(B) of the Act “precludes review only of discretionary decisions.” Mireles-Valdez v. Ashcroft, 349 F.3d 213, at 216 (5th Cir. 2003).

In addition, the Fifth Circuit Court of Appeal reasoned that an appellate court retains jurisdiction under section 242(a)(2)(D) of the Act to review “constitutional claims or questions of law” raised in a petition for review.

The Fifth Circuit Court of Appeal then relied on Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, at 1072 (2020), to conclude that “the statutory term ‘questions of law’ includes the application of a legal standard to established facts” and so “mixed questions” of fact and law are not jurisdictionally barred.

 

Patel v. Garland

Then, on May 16, 2022, the United States Supreme Court concluded that in matters relating to immigration law, section 242(a)(2)(B) of the Act, as modified by section 242(a)(2)(D) of the Act, deprives appellate courts of jurisdiction to review findings of fact by administrative decision makers in the adjudication of relief applications pursuant to sections 212(h) (waiver of inadmissibility arising from criminal behavior or convictions), 212(i) (waiver of inadmissibility based on fraud), 240A (cancellation of removal), 240B (voluntary departure), and 245 of the Act (adjustment of status), as well as any other discretionary decision or action by the United States Attorney General or the DHS that is not a ground for a constitutional claim or a question of law raised in a petition for review.  Patel v. Garland, at 1622.

In short, mixed questions of law and fact no longer serve as a means of invoking appellate jurisdiction over discretionary immigration law decisions by Immigration Judges and the BIA.

 

Jurisdiction After Patel v. Garland

The Fifth Circuit Court of Appeal clarified its lack of jurisdiction, in Ayala Chapa v. Garland (February 20, 2023) No. 21-60039, by specifically extending the Patel analysis to claims arising from denial of cancellation of removal relating to permanent residents under section 240A(a) of the Act.

Now, in Rangel Perez v. Garland, (May 2, 2023) No. 22-60074, the Fifth Circuit Court of Appeal has extended the reach of section 242(a)(2)(B) to prohibit appellate review over decisions denying motions or requests to remand for the purpose of considering new evidence relating to hardship determinations in the context of cancellation of removal applications.

 

Miscellaneous Observations

Although the path to appellate review of discretionary immigration law decisions is extremely narrow, a litigant might achieve the holy grail of appellate review by framing a factually supported argument that error exists in “the application of a legal standard to undisputed or established facts.”  See Guerrero-Lasprilla v. Barr, at 1069. 

Furthermore, even though the jurisdictional saving clause under section 242(a)(2)(D) of the Act does not bestow appellate jurisdiction over discretionary BIA decisions (i.e. decisions that are unconstrained by any legal standard), the quest for jurisdiction might be founded on the misapplication of a specific statute or regulation.  

 

According to Ayala Chapa v. Garland, (February 20, 2023) No. 21-60039, even a published BIA decision seems to be an unlikely source for a legal standard, especially if the standard found in the decision can be described as a totality of circumstances approach or some other recommended discretionary analysis.

 

Pre-hearing Conference

Finally, a concession or agreement with the DHS regarding the facts to which a legal standard must be applied during immigration court proceedings might help lay the foundation for appellate review.

Although rarely employed due to impacted immigration court dockets, governing regulations provide for pre-hearing conference.

An Immigration Judge is authorized to schedule a pre-hearing conference to narrow issues, voluntarily exchange information, and otherwise simplify and organize proceedings.  See 8 C.F.R. § 1003.21(a). 

An Immigration Judge may also require the production of witness lists and stipulations.  See 8 C.F.R. § 1003.21(b).

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