Martinez v. Ashcroft

• Decision Date: 31 January 2001
• Docket Number: No. 99-70596,MONTERO-HERNANDE,PETITIONERS,MONTERO-MARTINEZ,99-70596
• Citation: 277 F.3d 1137
• Parties: (9th Cir. 2002) HECTOR; GREGORIO PEDRO, v. JOHN ASHCROFT, <A HREF="#fr1-*" name="fn1-*">* ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT. NINTH CIRCUIT Submitted <A HREF="#fr1-**" name="fn1-**">**
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1137

277 F.3d 1137 (9th Cir. 2002)

HECTOR MONTERO-MARTINEZ; GREGORIO PEDRO MONTERO-HERNANDEZ, PETITIONERS, v. JOHN ASHCROFT,^* ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.

No. 99-70596

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Submitted^** January 31, 2001

Filed January 16, 2002

Nicholas Marchi, Carney & Marchi, P.S., Seattle, Washington, for the petitioners.

David W. Ogden, Acting Assistant Attorney General, Karen Fletcher Torstenson, Assistant Director, and Robbin K. Blaya, Office of Immigration Litigation, Washington, D.C., for the respondent.

Linton Joaquin, National Immigration Law Center, Los Angeles, California, and Marc Van Der Hout, Van Der Hout & Brigagliano, San Francisco, California, for the amici curiae.

Petition for Review of an Order of the Board of Immigration Appeals INS Nos. A75-482-401, A75-482-402

Before: Harry Pregerson, Barry G. Silverman, and Richard C. Tallman, Circuit Judges.

Pregerson, Circuit Judge.

Gregorio Pedro Montero-Hernandez and Hector Montero-Martinez (Petitioners) seek review of a final order of removal issued by the Board of Immigration Appeals (BIA). The BIA determined that Petitioners were statutorily ineligible for cancellation of removal as non-permanent residents under 8 U.S.C. §§1229b(b)(1) because neither had a qualifying relative for the purposes of §§1229b(b)(1)(D). We deny the petition because Petitioners' argument that Montero-Hernandez's adult daughter qualifies as a "child" for the purposes of §§1229b(b)(1)(D) is without merit.

I. FACTS AND PRIOR PROCEEDINGS.

Montero-Hernandez and Montero-Martinez are father and son. They are natives and citizens of Mexico who entered the United States in 1986.

In April 1997, the Immigration and Naturalization Service (INS) served upon Petitioners a Notice to Appear, alleging that Petitioners were removable under 8 U.S.C. §§1182(a)(6)(A)(i) because they had entered the United States without inspection. Petitioners admitted the allegations contained in the Notice and conceded removability. Because they had no other viable options for remaining in the United States, they applied for cancellation of removal pursuant to §§1229b(b)(1).

Petitioners appeared before an Immigration Judge (IJ) in April 1998. At the hearing, they both conceded that they did not have a qualifying relative under §§ 1229b(b)(1)(D). Although Montero-Hernandez had an adult daughter who was a lawful permanent resident, he acknowledged that she was too old to qualify as a child under the INS regulations.

The IJ found Petitioners statutorily ineligible for cancellation of removal and allowed them to voluntarily depart within 60 days. Petitioners appealed to the BIA arguing that they were entitled to cancellation of removal. The BIA found them statutorily ineligible on the same grounds as did the IJ--because neither had a qualifying relative for the purposes of §§1229b(b)(1)(D).

Petitioners now ask this Court to review the BIA's decision. They argue in their petition that the BIA and IJ erred in concluding that Montero-Hernandez's adult daughter is not a "child" for the purposes of §§1229b(b)(1)(D) and that the BIA denied them procedural due process by "fail[ing] to evaluate the Petitioners['] claim for relief."

II. WE HAVE JURISDICTION TO REVIEW THE BIA'S DETERMINATION OF THE PURELY LEGAL AND HENCE NON-DISCRETIONARY QUESTION OF WHETHER MONTERO-HERNANDEZ'S ADULT DAUGHTER QUALIFIES AS A "CHILD" FOR THE PURPOSES OF 8 U.S.C. §§1229b(b)(1)(D).

A. Introduction

Initially, we have to determine whether Immigration and Naturalization Act (INA) §§242(a)(2)(B)(i), 8 U.S.C. §§1252(a)(2)(B)(i), negates our jurisdiction to review the BIA's¹ determination of the purely legal and hence non-discretionary question whether Montero-Hernandez's adult daughter qualifies as a "child" for the purposes of INA§§240(A)(b)(1)(D), 8 U.S.C. §§1229b(b)(1)(D). Under the heading "Denials of discretionary relief," §§1252(a)(2)(B) provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.

8 U.S.C. §§1252(a)(2)(B) (2001).

The underlying discretionary relief sought by the petitioners in this case is cancellation of removal. ² Because the petitioners are non-permanent residents, they must meet the eligibility requirements for cancellation of removal set forth in §§1229b(b)(1).³ This section permits an IJ to cancel removal if an alien: (1) has resided in the United States continuously for at least 10 years; (2) is of good moral character; (3) has not been convicted of enumerated criminal offenses; and (4) can establish that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a U.S. citizen or a legal permanent resident. 8 U.S.C. §§1229b(b)(1) (2001).

The discrete question on appeal is whether Montero-Hernandez's adult daughter qualifies as a "child " for purposes of establishing the hardship requirement of §§1229b(b)(1)(D). This question would require us to review the BIA's construction of the INA, which is a pure question of law. This question would not require us to review a discretionary determination by the BIA. For the reasons explained below, we hold that under the jurisdiction-limiting provision of §§1252(a)(2)(B)(i), we retain jurisdiction to review the issue presented, because the BIA's determination of the purely legal and hence non-discretionary question whether Montero-Hernandez's adult daughter qualifies as a "child " for the purposes of §§1229b(b)(1)(D) -and the BIA's construction of the INA in general -is not a "judgment regarding the granting of relief."

B. Discussion

We take as our starting point two important principles of statutory construction recently affirmed by the Supreme Court. First, there is a "strong presumption in favor of judicial review of administrative action." INS v. St. Cyr, 121 S. Ct. 2271, 2278 (2001). Second, there is a " `longstanding principle of construing any ambiguities in deportation statutes in favor of the alien.' " Id. at 2290 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)). In light of these principles, we should construe narrowly restrictions on jurisdiction. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482-83 (1999) (finding the scope of the jurisdictional bar in INA §§242(g), 8 U.S.C. §§1252(g), to be "much narrower" than the parties assumed, and to be limited to review of the "three discrete actions" listed in the statute).

With these principles in mind, we turn to the language of §§1252(a)(2)(B)(i). It is well-established that if the "langauge at issue has a plain and unambiguous meaning .. . . [o]ur inquiry must cease . . . ." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). But "judgment" as used in §§1252(a)(2)(B)(i) does not have a"plain and unambiguous" meaning, because the statute does not define the term, and "judgment" could either mean"any decision" or "any decision involving the exercise of discretion."⁴

Our observation that the meaning of the word "judgment" is ambiguous is based on a careful study of the entire INA, which is codified at Title 8 of the U.S. Code. This study is revealing: when the word "judgment" is not being used in the INA to refer to a formal order given by a court (i.e., a "judgment of conviction"), it is only used to refer to the exercise of discretion, or to a discretionary determination.⁵ This suggests that Congress similarly intended the word"judgment" in §§1252(a)(2)(B)(i) to refer only to discretionary determinations. Indeed, it is a well-established canon of statutory interpretation that where Congress uses the same word or phrase throughout a statute, Congress generally intends the word or phrase to have the same meaning each time Congress uses it. Weaver v. United States Information Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996) (citing Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, (1932)) ("Normally, the same word appearing in different portions of a single provision or act is taken to have the same meaning in each appearance.").

Also, the embedding of the term "judgment" in the phrase "judgment regarding the granting of relief" in§§1252(a)(B)(i) shows that the provision does not apply to the order or decision itself, but only to a judgment regarding the order or decision. The only judgment exercised regarding the order or decision lies in the Attorney General's discretionary authority to determine who among the eligible persons should be granted discretionary relief. No judgment is exercised with respect to the mere eligibility for discretionary relief that is at issue here.

The structure of §§1252(a)(2)(B) further supports interpreting "judgment" to refer only to discretionary determinations. Subsection (i) of §§1252(a)(2)(B) states that courts cannot review certain "judgments" made by the Attorney General;⁶ subsection (ii) of §§1252(a)(2)(B) states that courts also cannot review "any other decision[s]" that are within the discretion of the Attorney General. Read together, it seems clear that the "judgments" referred to in subsection (i) must also be decisions that are within the discretion of the Attorney General. If "judgment" in subsection (i) is interpreted to encompass all decisions, discretionary and non-discretionary, then the word "other" in subsection (ii) becomes superfluous.⁷

Next, when §§1252(a)(2)(B)(i) is read together with §§1252(a)(2)(B)(i) which directly precedes it in the statutory code, the intent of §§1252(a)(2)(B)(i) becomes even clearer. A...