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The procedural history, facts of record, holding and rationale in Ayala Chapa v. Garland (February 20, 2023)   No. 21-60039 are as follows:

 

Case History

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

 

The Petitioner conceded the removal charge and applied for cancellation of removal for permanent residents, withholding of removal and relief under the Convention Against Torture (“CAT”).

 

The Immigration Judge denied the Petitioner’s applications for relief.
 

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

 

The BIA dismissed the appeal.

 

The Petitioner filed a motion to reconsider which was denied by the BIA.

 

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

 

 

Facts

• The Petitioner is a citizen of Mexico who has been convicted of more than one criminal offense.
• In 2005, the Petitioner was arrested for possession of marijuana, charged as a juvenile, and granted deferred probation.
• In 2011, the Petitioner pled guilty to delivering cocaine on two separate occasions.
• In 2017, the Petitioner was convicted of marijuana possession.
• In 2020, the Petitioner was convicted of possession of a controlled substance.
• On February 27, 2020, the Department of Homeland Security (“DHS”) charged him with removability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as amended (“the Act”) which provides for the removal of any alien who at any time after admission has been convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance defined in section 102 of the Controlled Substances Act (21 U.S.C. § 812), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.
• The Petitioner admitted the factual allegations and conceded the removal charge.
• The Petitioner applied for cancellation of removal (relating to lawful permanent residents), withholding of removal, and protection under the CAT.  See sections 240A(a)(1) and 241(b)(3) of the Act and the Convention Against Torture described under 8 C.F.R. § 1208.16(c).
• The Immigration Judge denied all of the Petitioner’s applications.
• The BIA dismissed the appeal.
• The Petitioner filed a motion to reconsider, arguing that his removal proceedings should be terminated under Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) based on a defective notice to appear (“NTA”).
• The Petitioner's motion to reconsider was denied by the BIA.
• The Petitioner filed a petition for review, but only preserved his cancellation of removal claim and the decision denying his motion to reconsider.

 

Held

Petition for Review DISMISSED for lack of jurisdiction

 

Rationale

The Petitioner raised three challenges to the BIA’s denial of his cancellation of removal application:

1. The BIA did not follow the legal standard described in Matter of C-V-T-, 22 I&N Dec. 7, at 14 (BIA 1998) which advises Immigration Judges to look to the “totality of the evidence” and consider a non-exhaustive, permissive list of factors “upon review of the record as a whole” to decide if the applicant “warrants a favorable exercise of discretion.”
2. The BIA misapplied the law to settled facts by failing to recognize hardships to his family and mischaracterizing his criminal activities, drug use, and rehabilitation efforts as negative factors.  See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, at 1069 (2020).
3. The BIA acted ultra vires (i.e. an act done without legal authority) by allowing a temporary board member to sign the order dismissing the Petitioner’s appeal after the board member’s six-month term had expired.

Finally, with regard to his motion to reconsider, the Petitioner asserted that his removal proceedings should be terminated under Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) based on a defective NTA.

The Fifth Circuit Court of Appeal reasoned as follows:

 

Reliance on Matter of C-V-T-

• Congress expressly stripped appellate jurisdiction over “any judgment regarding the granting of relief under section . . . 240A.” See section 242(a)(2)(B)(i) of the Act.  Patel v. Garland, 142 S. Ct. 1614, at 1622 (2022)
• The removal of jurisdiction pursuant to section 242(a)(2)(B)(i) of the Act includes “judgments of whatever kind . . . relating to the granting of relief.”  Patel v. Garland, at 1622.
• Retention of jurisdiction under section 242(a)(2)(D) of the Act over “constitutional claims or questions of law” can include "the application of a legal standard to undisputed or established facts."  See Guerrero-Lasprilla v. Barr, at 1069.  However, this jurisdictional saving clause does not bestow jurisdiction over BIA decisions that are unconstrained by any legal standard.  See, e.g., Castillo-Gutierrez v. Garland, 43 F.4th 477, at 481 (5th Cir. 2022) (no jurisdiction to review whether an alien meets the “exceptional and extremely unusual hardship” standard of 240A(b)(1)(D) of the Act); Hernandez-Castillo v. Sessions, 875 F.3d 199, at 206 (5th Cir. 2017) (no jurisdiction to review BIA decision declining to reopen removal proceedings sua sponte).
• The statute merely says the Attorney General “may cancel removal” if a lawful permanent resident satisfies certain conditions.  See 240A(a) (emphasis added).  The statute does not require the Attorney General to do anything.  See Barton v. Barr, 140 S. Ct. 1442, at 1445 (2020) (“If a lawful permanent resident meets [the § 1229b(a)] eligibility requirements, the immigration judge has discretion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States.” (emphasis added).
• The Petitioner cites no regulations or cases that provide a legal standard for claims under section 240A(a) of the Act.
• The Petitioner wrongfully relies on Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998).  
• Even if a BIA decision could provide a legal standard, Matter of C-V-T-, at 14 merely advises Immigration Judges to look to the “totality of the evidence” and consider a non-exhaustive, permissive list of factors “upon review of the record as a whole” to decide if the applicant “warrants a favorable exercise of discretion.”  This type of totality-of-the-circumstances standard is tantamount to no standard at all.

 

Misapplication of Law to Settled Facts

• The Petitioner’s claim that the BIA failed to recognize hardships to his family and mischaracterized his criminal activities, drug use, and rehabilitation efforts as negative factors is just another way of saying the BIA erred in its factual analysis and its discretionary weighing of the facts.  See Tibakweitira v. Wilkinson, 986 F.3d 905, at 911 (5^th Cir. 2021) (foreclosing jurisdiction when an alien “essentially asks us to reweigh the facts” in a discretionary determination by “contend[ing] that the IJ and BIA erred by giving weight to certain facts related to his crime and declining to give weight to other facts”).
• Consequently, no foundation for appellate jurisdiction over the Petitioner’s cancellation of removal claim can be recognized.

 

Ultra Vires Claim

• With regard to the Petitioner’s contention that the BIA acted ultra vires by allowing a temporary board member to sign the order dismissing Ayala Chapa’s appeal after the board member’s six-month term had expired, section 242(d)(1) of the Act requires an alien to “exhaust[] all administrative remedies available to [him] as of right.”  See Roy v. Ashcroft, 389 F.3d 132, at 137 (5th Cir. 2004) (per curiam).
• This exhaustion requirement extends to claims of BIA procedural errors that fall short of due process violations.  See Omari v. Holder, 562 F.3d 314, at 320 (5th Cir. 2009); Roy v. Ashcroft, at 137; Goonsuwan v. Ashcroft, 252 F.3d 383, at 390 (5^th Cir. 2001).
• When a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the petitioner must raise the issue in a motion to reopen prior to resorting to review by the courts. Goonsuwan, at 390.
• The Petitioner never presented his ultra vires claim to the BIA, even though he could have raised it in his motion to reconsider.

 

Termination Under Niz-Chavez v. Garland

• In denying this claim under Niz-Chavez v. Garland, the BIA held (1) the Petitioner forfeited the claim by failing to raise a timely objection, (2) Niz-Chavez v. Garland did not require the agency to terminate the proceedings, and (3) the Petitioner did not show prejudice.
• The Petitioner’s brief in support of his petitioner for review only contests the first determination (relating to forfeiture of the claim).
• Since the Petitioner failed to assert the other two claims in his briefs, he abandoned them.  See Arulnanthy v. Garland, 17 F.4th 586, at 593 n.1 (5th Cir. 2021).
• In short, Ayala Chapa forfeited two of the three arguments he needs to prevail on his Niz-Chavez claim.
• Therefore, anything that might be written about his one preserved argument would be purely advisory.

 

Commentary

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.

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.

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

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.

Another lesson that Ayala Chapa v. Garland teaches is that, 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. 

However, since the jurisdictional saving clause under section 242(a)(2)(D) of the Act does not bestow appellate jurisdiction over BIA 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, 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.

Finally, a concession or agreement with the DHS regarding the facts to which a legal standard must be applied during immigration court proceedings will 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).