Mireles-Valdez v. Ashcroft, No. 02-60405.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Rhesa Hawkins Barksdale
• Citation: 349 F.3d 213
• Parties: Jose MIRELES-VALDEZ, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.
• Decision Date: 27 October 2003
• Docket Number: No. 02-60405.

349 F.3d 213 Jose MIRELES-VALDEZ, Petitioner,
v.
John ASHCROFT, U.S. Attorney General, Respondent. No. 02-60405. United States Court of Appeals, Fifth Circuit. October 27, 2003.

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Lawrence Erik Rushton (argued), Isaias D. Torres, Houston, TX, for Petitioner.

Julia Katherine Doig (argued), Thomas Ward Hussey, Director, David Michael McConnell, U.S. Dept. of Justice, Civ. Div., Imm. Lit., Washington, DC, Hipolito Acosta, U.S. INS, Houston, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

If we have jurisdiction, see 8 U.S.C. § 1252 (prescribing rules for judicial review of removal orders and, inter alia, precluding jurisdiction over certain denials of discretionary relief), at issue is whether a voluntary departure from the United States under the threat of the commencement of immigration proceedings interrupts the requisite continuous presence for eligibility for cancellation of removal, pursuant to 8 U.S.C. § 1229b (prescribing the four requirements for cancellation of removal eligibility). We have jurisdiction; such departure is an interruption. DENIED.

I.

Mireles-Valdez, a native and citizen of Mexico, illegally entered the United States in 1973; departed in 1998; was apprehended at the border 14 days later, while attempting to return; agreed to accept an administrative voluntary departure; and was returned to Mexico without having proceedings brought against him. The day after that departure, however, Mireles-Valdez illegally returned to the United States. In February 1999, he was arrested and turned over to the INS, which began proceedings against him on 8 February 1999 by issuing a Notice to Appear.

In those proceedings, Mireles-Valdez admitted he was present illegally in the United States and therefore subject to removal. He applied, inter alia, for cancellation of removal (cancellation), pursuant to 8 U.S.C. § 1229b. To be eligible, an alien must satisfy four statutory requirements. See 8 U.S.C. § 1229b(b). One requirement is ten years' continuous physical presence in the United States (presence requirement). 8 U.S.C. § 1229b(b)(1)(A). Even if the alien can establish such eligibility,

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the Attorney General retains discretion to deny cancellation. See 8 U.S.C. § 1229b(b)(1) (Attorney General "may" cancel removal); Sad v. INS, 246 F.3d 811, 819 (6th Cir.2001) ("Even if an alien satisfies the conditions to qualify for relief, the Attorney General retains discretion to grant or deny the application.").

Concerning cancellation, the immigration judge (IJ) ruled that Mireles-Valdez did not satisfy the presence requirement because his accepting voluntary departure in 1998 interrupted his continuous presence; therefore, cancellation was denied. Mireles-Valdez was ordered removed.

Mireles-Valdez appealed the IJ's decision to the Board of Immigration Appeals (BIA). It affirmed in April 2002, without opinion.

II.

The BIA's factual findings are reviewed for substantial evidence, e.g., Lopez De Jesus v. INS, 312 F.3d 155, 158-59 (5th Cir.2002); rulings of law, de novo, deferring to the BIA's interpretation of the immigration statutes, id. at 158. When, as in this instance, the BIA affirms without opinion, we review the IJ's decision. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003).

A.

Pursuant to 8 U.S.C. § 1252(a)(2)(B), "no court shall have jurisdiction to review... any judgment regarding the granting of relief under section ... 1229b [cancellation]". The extent of this jurisdiction-bar is determined, in part, by the meaning given the phrase "judgment regarding the granting of relief".

Both Mireles-Valdez and the Attorney General urge "judgment" being read to refer to discretionary determinations by the Attorney General and his designees. In other words, this would permit judicial review of nondiscretionary determinations. The parties further contend that the decision at issue — Mireles-Valdez was not statutorily eligible for cancellation of removal because he did not satisfy the presence requirement — is nondiscretionary. This is consistent with the IJ's stating that Mireles-Valdez' "application for cancellation of removal is denied as a matter of law and not in the exercise of discretion". (Emphasis added.)

1.

Because Congress has delegated to the Attorney General significant responsibility over immigration matters, his construction of immigration statutes is entitled to considerable deference. See 8 U.S.C. § 1103(a)(1) (Attorney General "shall be charged with the administration and enforcement of this chapter [8 U.S.C. §§ 1101-1537] and all other laws relating to the immigration and naturalization of aliens"; his "determination and ruling ... with respect to all questions of law shall be controlling"); Amanfi v. Ashcroft, 328 F.3d 719, 721 (3d Cir.2003) (Attorney General is "ultimate authority on interpretations" of the immigration statutes). This is consistent with our "tak[ing] appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation's need to `speak with one voice' in immigration matters". Zadvydas v. Davis, 533 U.S. 678, 700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

Regarding jurisdiction pursuant to § 1252(a)(2)(B), the Attorney General notes that several circuits have adopted the position urged here. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002), also involving a cancellation application,

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held: the jurisdiction-stripping provision "eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion"; and the court retained jurisdiction over the "purely legal and non-discretionary question" in that case. Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002), concerning the application of § 1252(a)(2)(B) for discretionary relief other than cancellation, held: § 1252(a)(2)(B) "only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections", including cancellation. Gonzalez-Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1332-33 (11th Cir. 2003), resolved a question of jurisdiction under § 1252(a)(2)(B) by looking to that circuit's rulings that a previous statute "precludes appellate review of discretionary decisions, but does not preclude review of non-discretionary legal decisions that pertain to statutory eligibility for discretionary relief" and applied that distinction in the context of § 1252(a)(2)(B). Most recently, Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003), reviewed Montero-Martinez and Iddir and held: "We join the other circuits and conclude that, for nondiscretionary factors, the Court maintains jurisdiction, but as to discretionary...