Medina-Morales v. Ashcroft, 02-73924.
| Decision Date | 07 April 2004 |
| Docket Number | No. 02-73924.,02-73924. |
| Citation | 371 F.3d 520 |
| Parties | Dennis MEDINA-MORALES, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen W. Manning, Immigrant Law Group LLP, Portland, OR, for the petitioner.
Aviva L. Poczter, United States Department of Justice Office of Immigration Litigation, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-142-968.
Before D.W. NELSON, FISHER and GOULD, Circuit Judges.
The opinion filed on April 7, 2004, slip op. at 4463, and published at 362 F.3d 1263 (9th Cir.2004), is amended by the opinion filed concurrently with this order.
Dennis Medina-Morales, a native and citizen of Honduras, petitions for review of the decision of the Board of Immigration Appeals ("BIA"), dismissing his appeal from the Immigration Judge's ("IJ's") denial of his motion to reopen removal proceedings. In his motion to reopen, Medina-Morales sought to resurrect his application for adjustment of status based upon his relationship with his stepfather, who is an American citizen. See 8 U.S.C. § 1255. Medina-Morales previously abandoned this application in a hearing before the IJ and instead accepted voluntary departure under 8 U.S.C. § 1229c.
Medina-Morales' removal proceedings began after April 1, 1997, so this case falls within the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 ("IIRIRA"). Medina-Morales argues that the BIA erred in basing its decision on (1) his previous agreement to depart voluntarily and (2) his ostensibly weak relationship with his stepfather. The government argues that these aspects of the BIA's decision are discretionary and that IIRIRA, and in particular § 242(a)(2)(B) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. § 1252(a)(2)(B)) [hereinafter § 1252(a)(2)(B)], deprives us of jurisdiction to review them. We hold that § 1252(a)(2)(B) does not deprive us of jurisdiction, but conclude that the BIA did not abuse its discretion in finding that Medina-Morales' voluntary departure agreement weighed against granting his motion to reopen. We also hold that § 1252(a)(2)(B) does not affect our jurisdiction to review BIA decisions that are contrary to law. The BIA violated its own precedent by looking to the strength of Medina-Morales' relationship to his stepfather in denying his motion to reopen. We therefore grant Medina-Morales' petition and remand.
Medina-Morales entered the United States in 1986 without being admitted or paroled. In August 1992, his natural mother married Ernesto Chavaria, a native and citizen of the United States. In 1996, they began living apart but have no plans to divorce.
Medina-Morales traveled to Honduras in 1993, seeking an immigrant visa to the United States. When his visa was refused, he returned to the United States anyway. The Immigration and Naturalization Service ("INS") issued Medina-Morales a notice to appear on August 13, 1998, alleging that he was a removable alien.1 At a hearing on November 5, 1998, Medina-Morales indicated that he intended to apply for adjustment of status based upon his stepfather's U.S. citizenship. At subsequent hearings in October and November 1999, Chavaria failed to appear and testify regarding the petition for adjustment of status that he had filed on Medina-Morales' behalf. At the conclusion of the November hearing, Medina-Morales agreed to withdraw his adjustment of status application and waive his right to appeal in exchange for voluntary departure. The IJ granted Medina-Morales voluntary departure until February 29, 2000.
On January 14, 2000, Medina-Morales filed a motion to reopen the proceedings, citing an affidavit from Chavaria as new facts justifying the reopening. In the affidavit, Chavaria explained that he did not attend the November 1999 hearing because his brother had suffered a serious heart attack the day before.
The IJ held a hearing on the motion to reopen on February 22, 2000. Chavaria did not appear at this hearing. The IJ held another hearing on March 23, 2000, at which Chavaria did appear and testify. Chavaria said that his brother's heart attack caused him to miss one hearing but did not say why he missed the February 2000 hearing. At the conclusion of the hearing, the IJ denied Medina-Morales' motion to reopen, citing Chavaria's absences and the ostensibly weak relationship between Medina-Morales and his stepfather.
The BIA affirmed the IJ's denial, citing Medina-Morales' agreement to depart voluntarily and the IJ's assessment of the stepparent-stepchild relationship. In particular, the BIA stated:
Rather[] than follow through with the bargain he made at his removal hearing, the respondent's motion to reopen seeks to resurrect his previously abandoned application for adjustment of status.
The respondent has failed to establish that allowing the respondent to seek previously abandoned relief on the basis of his relationship to his step-father is deserving of greater discretionary consideration than holding him to the bargain he entered into with the United States when he asked for and accepted voluntary departure under section 240B(a) of the Act. In this regard, the Immigration Judge's finding that the respondent failed to establish a particularly strong relationship between the adult respondent and his United States citizen step-father is also relevant to the exercise of discretion as the quality of the relationship impacts upon the equities the respondent has established in support of reopening.
Although eligibility determinations are matters of law, the Attorney General has broad discretion to grant or deny motions to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); 8 C.F.R. § 1003.23(b)(3).2 Likewise, "[t]he first step in adjudicating a petition for adjustment of status[under 8 U.S.C. § 1255] is the nondiscretionary determination of statutory eligibility, followed by a discretionary determination regarding whether an eligible applicant is actually permitted to adjust status." Hernandez v. Ashcroft, 345 F.3d 824, 845 (9th Cir.2003).3 Relying on these propositions, the government argues that the BIA's denial of Medina-Morales' motion to reopen his removal proceedings in order to pursue adjustment of status was cloaked in discretion. The government contends that § 1252(a)(2)(B) thus forecloses our jurisdiction over Medina-Morales' petition. Section 1252(a)(2)(B) provides:
(B) Denials of discretionary relief
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.
The BIA exercised its discretion in weighing Medina-Morales' agreement to a voluntary departure against reopening his proceedings. Because Medina-Morales argues that the BIA abused its discretion in doing so, we must consider whether this discretionary aspect of the BIA's denial is among the "[d]enials of discretionary relief" that § 1252(a)(2)(B) withdraws our jurisdiction to review. To that end, we consider separately whether § 1252(a)(2)(B)(i) or § 1252(a)(2)(B)(ii) affects our jurisdiction in this case. Throughout our analysis, we are guided by the "strong presumption in favor of judicial review of administrative action," INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and the longstanding principle of construing ambiguous deportation and removal provisions in favor of the alien. Id. at 320, 121 S.Ct. 2271; see, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141-44 (9th Cir.2002) ().
Under § 1252(a)(2)(B)(i), we do not have jurisdiction to review "any judgment regarding the granting of relief under [8 U.S.C.] section 1182(h), 1182(i), 1229b, 1229c, or 1255." Discretionary determinations are "judgments" for the purposes of § 1252(a)(2)(B)(i). Montero-Martinez, 277 F.3d at 1144. Because discretionary denials of motions to reopen are thus judgments subject to § 1252(a)(2)(B)(i), the question is whether they are judgments "regarding the granting of relief under" 8 U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c or 1255.
The only statutory reference to motions to reopen appears in 8 U.S.C. § 1229a(c)(6), which is not among the sections enumerated in § 1252(a)(2)(B)(i). The proceedings below have also involved several other INA provisions, however. Medina-Morales was initially charged under 8 U.S.C. § 1182(a)(6)(A)(i), as a removable alien present in the United States without admission or parole. He then sought adjustment of status under 8 U.S.C. § 1255, through a petition filed by his stepfather on his behalf. Finally, Medina-Morales abandoned his adjustment of status application and accepted voluntary departure under 8 U.S.C. § 1229c. Thus, sections 1229a, 1182(a), 1255 and 1229c are the eligible sections to which the denial of Medina-Morales' motion to...
To continue reading
Request your trial
-
Hovhannisyan v. U.S. Dept. of Homeland Sec., Case No. CV 08-323AHM (JTLx).
...the Ninth Circuit held that it had jurisdiction to review an immigration judge's discretionary denial of a motion to reopen. 371 F.3d 520 (9th Cir.2004). The Ninth Circuit began by noting that "the jurisdictional bar in § 1252(a)(2)(B)(ii) applies only to acts over which a statute gives the......
-
Tamenut v. Mukasey
...the subchapter as § 1252(a)(2)(B)(ii) contemplates); Zhao, 404 F.3d at 303 (same, in motion to reopen context); Medinar-Morales v. Ashcroft, 371 F.3d 520, 529 (9th Cir.2004) (same, in motion to reopen context). It is here where I part ways with the court majority even though we all agree th......
-
Sheikh v. United States Dep't Of Homeland Sec.
...not preclude judicial review. The Ninth Circuit reached a similar result in MedinaMorales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). In Medina-Morales, the was whether 1252(a)(2)(B)(ii) barred judicial review of the Board of Immigration Appeals' denial of an alien's motion to reopen removal ......
-
Kaur v. Chertoff
...intent to leave the country within the specified time period." Id. (citing 8 U.S.C. § 1229c(b)(1)(D)); see also Medina-Morales v. Ashcroft, 371 F.3d 520, 530 (9th Cir.2004) (stating that under a voluntary departure agreement, "[t]he government affords the alien a more convenient means of le......