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On August 6, 2021, the Fifth Circuit Court of Appeals published a decision in which it determined that a prima facie (i.e. on the face or surface of the record) discretionary decision by an Immigration Judge and the Board of Immigration Appeals (“BIA”) relating to cancellation of removal under section 240A(b) of the Immigration and Nationality Act, as amended (“the Act”) filed in support of a motion to reopen is “tantamount to a discretionary decision on the merits” and deprives an appellate court of jurisdiction based on section 242(a)(2)(B)(i) of the Act.  Mirian Margarita Parada-Orellana v. Merrick Garland, at p. 11 (5^th Cir. August 6, 2021) No. 19-60645 (Parada-Orellana v. Garland I).

In its August 6, 2021 decision, the Fifth Circuit Court of Appeal reasoned as follows:

• With regard to an appellate court’s jurisdiction to consider the Petitioner’s abuse of discretion argument relating to the BIA’s conclusion that she had not presented prima facie evidence of eligibility for the relief of cancellation of removal, section 242(a)(2)(B)(i) of the Act specifically precludes judicial review of “any judgment” regarding cancellation of removal under section 240A(b) of the Act which encompasses the requirement that the petitioner establish “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, . . . who is a citizen of the United States . . .” as required under section 240A(b)(1)(D) of the Act.
• Even though the Petitioner did not have a “full merits” hearing on her application for cancellation, the BIA’s denial of her motion based on its conclusion that she failed to establish a prima facie case for the underlying relief of cancellation of removal is tantamount to a discretionary decision on the merits barred by section 242(a)(2)(B)(i) of the Act.

The Fifth Circuit Court of Appeal then went on to deny the petition in part and dismiss the petition in part for lack of jurisdiction.

For more details about Parada-Orellana v. Garland I, see my August 9, 2001 post entitled, "Appellate Jurisdiction Over Motions to Reopen to Consider Discretionary Relief."

Upon revisiting the jurisdiction issue in the same case, the Fifth Circuit Court of Appeal reissued its decision in January 2022.  Mirian Margarita Parada-Orellana v. Merrick Garland, (5^th Cir. January 3, 2022) No. 19-60645 (Parada-Orellana v. Garland II).

In its January 3, 2022 decision, the Fifth Circuit Court of appeal changed its rationale with regard to jurisdiction and, instead of dismissing the petition in part for lack of jurisdiction, assumed jurisdiction over the issue of whether the Petitioner had established prima facie eligibility for cancellation of removal under section 240A(b) of the Act and denied the petition using the following modified rationale:

• Whether the BIA applied the correct legal standard is a question of law over which an appellate court has jurisdiction.  Hakim v. Holder, 628 F.3d 151, at 155 (5th Cir. 2010).
• Specifically, the Petitioner's assertion that although the BIA used the phrase, "prima facie eligibility," it did not actually apply the standard set forth in Matter of L-O-G-, 21 I&N Dec. 413, at 419 (BIA 1996), which requires that the BIA decide whether there is a "reasonable likelihood that relief will be granted in the exercise of discretion" is sufficient to address the issue of prima facie eligibility as a question of law.
• The Petitioner did not point to any language in the BIA’s order that indicates the BIA applied the incorrect standard.
• The BIA’s failure to expressly denote the standard of review does not  make the BIA’s ruling incorrect.
• Failure to expound upon the law and failure to apply the law (or failure to apply the law correctly) are not the same.
• There is no requirement “that the BIA address evidentiary minutiae or write any lengthy exegesis . . . .” Abdel-Masieh v. U.S. I.N.S., 73 F.3d 579, at 585 (5th Cir. 1996).
• Therefore, review of the record does not indicate that the BIA abused its discretion by applying an incorrect legal standard.

This revised approach to appellate court jurisdiction to review denial of a motion to reopen based on a determination that the moving party did not establish prima facie eligibility for the underlying relief application did not rescue Parada-Orellana in the petition under review.  The Fifth Circuit Court of Appeal denied the part of the petition relating to jurisdiction, rather than dismissing it.  

However, the revised rationale used by the Fifth Circuit Court of Appeal in the application of section 242(a)(2)(B)(i) of the Act broadens the scope of judicial review at least for future petitioners who can establish prima facie evidence of extreme and unusual hardship by (required for cancellation of removal under section 240A(b) of the Act) in accordance with the criteria set forth in Matter of L-O-G-, 21 I. & N. Dec 413, at 419 (BIA 1996) in which the BIA had concluded that it must determine if there is a “reasonable likelihood that relief will be granted in the exercise of discretion.”

Limitation of appellate court review under section 242(a)(2)(B)(i) of the Act has recently caught the attention of the United States Supreme Court which granted certiorari in a matter styled as Pankajkumar S. Patel, et al. v. Merrick B. Garland, No. 20-979, on June 28, 2021.