De Mercado v. Mukasey

• Citation: 566 F.3d 810
• Decision Date: 21 August 2008
• Docket Number: No. 06-70366.,No. 06-70361.,06-70361.,06-70366.
• Parties: Maria De Lourdes Castro DE MERCADO, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Ildefonso Mercado Moran, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

566 F.3d 810

Maria De Lourdes Castro DE MERCADO, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Ildefonso Mercado Moran, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 06-70361.

No. 06-70366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2008.

Filed August 21, 2008.

Amended May 19, 2009.

Joseph Mbacho, El Centro, CA, filed briefs on behalf of the petitioners.

Catherine Carroll, Wilmer Cutler Pickering Hale & Dorr, Washington, DC, argued the cause for the petitioners as courtappointed amicus curiae; Jonathan H. Becker, Wilmer Cutler Pickering Hale & Dorr, Washington, DC, filed briefs as court-appointed amicus curiae; John A. Rogovin was on the briefs.

Charles Canter, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, argued the cause for the respondent; Luis E. Perez, Attorney, Office of Immigration Litigation, filed a brief; John C. Cunningham, Senior Litigation Counsel, Office of Immigration Litigation, and Peter D. Keisler, Assistant Attorney General, Civil Division, were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A98-006-996, A98-006-997.

Before: DAVID R. THOMPSON, DIARMUID F. O'SCANNLAIN, and RICHARD C. TALLMAN, Circuit Judges.

Order; Dissent by Judge PREGERSON; Opinion by Judge O'SCANNLAIN.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed in this case on August 21, 2008, 539 F.3d 1102, is amended as follows:

At page 11373 of the slip opinion, line 10, after the sentence concluding delete § 1183a requires Mr. Mercado's brother to provide, their claim is simply an argument that the IJ underestimated the hardship their removal would cause. We lack jurisdiction over such question. >

The panel has unanimously voted to deny the petition for rehearing. Judge O'Scannlain and Judge Tallman vote to deny the petition for rehearing en banc and Judge Thompson so recommends.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.

PREGERSON, Circuit Judge, dissenting from the denial of rehearing en banc:

I dissent from our court's denial of an en banc rehearing in this case. The panel opinion ignores a well-settled rule of constitutional avoidance. In the final footnote, the panel gratuitously and unnecessarily addresses a constitutional issue after basing its decision on the plain language of the statute at issue and pre-existing case law. There was absolutely no need for the panel opinion to grapple with a constitutional argument—particularly after expressly setting the constitutional question aside and deciding the case on other grounds.

Under the principle of constitutional avoidance,

[A court] will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.... [T]hus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); see also Envt'l Def. Ctr., Inc. v. EPA, 344 F.3d 832, 843 (9th Cir.2003) (stating that "we avoid considering constitutionality if an issue may be resolved on narrower grounds[ ]") (citing Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 184, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (stating that "[i]t is ... an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be fully resolved on a narrower ground.")); United States v. Gurolla, 333 F.3d 944, 953 n. 11 (9th Cir.2003) (declining to express any view on implicated constitutional concerns and noting that the court's ruling avoided the necessity of reaching the constitutional questions); Anchustegui v. Dep't of Agric., 257 F.3d 1124, 1129 (9th Cir.2001) (explaining that "because we find a statutory violation, it is not necessary to reach the constitutional question presented" and citing Ashwander, 297 U.S. at 347, 56 S.Ct. 466 (Brandeis, J., concurring)).

I believe the panel gratuitously, unnecessarily and cursorily addressed a constitutional issue in its final footnote. I dissent.

OPINION

O'SCANNLAIN, Circuit Judge:

We are asked to reexamine whether we have jurisdiction to review an Immigration Judge's decision which held that the removal of two aliens, a husband and wife, would not impose an "exceptional and extremely unusual hardship" on their United States-born children and the husband's elderly parents, both of whom have legal status to reside in the United States.

I

Maria de Lourdes Castro de Mercado and Ildefonso Mercado Moran (the "Mercados") are natives and citizens of Mexico who entered the United States without inspection in 1990 and 1989 respectively. The Mercados are married, have four minor children, and share their home with Mr. Mercado's elderly parents. The Mercados' children are citizens of the United States. Mr. Mercado's parents are lawful permanent residents; their applications were sponsored by Mr. Mercado's brother, a U.S. citizen. The Mercados themselves have never lawfully been admitted to this country.

In 2004, the Department of Homeland Security served Mr. and Mrs. Mercado with Notices to Appear charging them with removability as aliens present in the United States without admission or parol under 8 U.S.C. § 1182(a)(6)(A)(i). The Mercados conceded the charges but applied for cancellation of removal, arguing that their departure from this country would impose an "exceptional and extremely unusual hardship" on their children and on Mr. Mercado's parents. See id. § 1229b(b)(1). In 2005, an Immigration Judge ("IJ") held a hearing and denied the Mercados' applications, acknowledging that their removal would impose a hardship on their relatives, but concluding that such hardship did not rise to such an extreme level as to warrant relief. The IJ granted their alternative applications for voluntary departure instead.

The Board of Immigration Appeals ("BIA") affirmed the IJ's decision without opinion, and the Mercados timely filed petitions for review, arguing that the IJ's decision was predicated on a legal error and violated their constitutional rights.¹

II

Before we reach the merits of the Mercados' claims, we must determine whether we have jurisdiction. The Immigration and Naturalization Act ("INA") authorizes the Attorney General to cancel the removal of an otherwise-deportable alien if he or she meets certain requirements. See 8 U.S.C. § 1229b(b).² One such requirement is that the alien demonstrate that his or her removal "would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Id. § 1229b(b)(1)(D) (emphasis added). The INA also contains a jurisdiction-stripping provision, id. § 1252(a)(2)(B)(i) ("Subsection B(i)"), which deprives us of jurisdiction to review "any judgment regarding the granting of relief under section ... 240A [cancellation of removal]." Id. We have interpreted this jurisdictional bar to encompass "all discretionary decisions involved in the cancellation of removal context, including the ultimate discretionary decision to deny relief." Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). The question whether an alien's relatives are likely to suffer an exceptional and extremely unusual hardship upon the alien's removal is a discretionary decision because it is "`a subjective question' that depends on the value judgment `of the person or entity examining the issue,'" not a legal determination. Id. at 891 (quoting Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997)); see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.2005) ("[W]hether an alien demonstrated `exceptional and extremely unusual hardship under 8 U.S.C. § 1229b(b)(1)(D) [i]s a discretionary determination and [i]s therefore unreviewable under [Subsection B(i)].'").

Nevertheless, Subsection B(i) does not deprive us of jurisdiction over questions pertaining to a petitioner's statutory eligibility for cancellation of removal, such as whether certain relatives qualify for consideration in the IJ's hardship analysis, because such questions are "purely legal and hence non-discretionary." Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.2002); see id. (holding that we have jurisdiction to review an IJ's conclusion as to whether an alien's adult child is a qualifying relative); Molina-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir.2002) (holding that we have jurisdiction to consider whether an alien's parent is a lawful permanent resident). In addition, the Real ID Act of 2005, Pub.L. No. 109-13, div. B, 119 Stat. 231, vests us with jurisdiction to review "constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D) ("Subsection D"). Still, we have held that Subsection D "did not alter our jurisdiction" over the agency's denial of an application for cancellation of removal. Martinez-Rosas, 424 F.3d at 929. We continue to "lack jurisdiction to review the IJ's subjective, discretionary determination that [a petitioner] did not demonstrate `exceptional and extremely unusual hardship.'" Id. at 930.³

III

Against this backdrop, the Mercados assert three challenges to the IJ's...