De La Vega v. Gonzales, Docket No. 03-40164.

• Decision Date: 27 January 2006
• Docket Number: Docket No. 03-40164.
• Citation: 436 F.3d 141
• Parties: Gustavo A. DE LA VEGA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Edward McElroy, New York District Director, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 141

436 F.3d 141

Gustavo A. DE LA VEGA, Petitioner, v. Alberto R. GONZALES,^* Attorney General of the United States, Edward McElroy, New York District Director, Immigration and Naturalization Service, Respondents.

Docket No. 03-40164.

United States Court of Appeals, Second Circuit.

Argued: September 14, 2005.

Decided: January 27, 2006.

Mario DeMarco, Law Office of Mario DeMarco, P.C., Port Chester, NY, for Petitioner.

J. Alvin Stout, III, Assistant United States Attorney (Virginia A. Gibson, Michael L. Levy, Assistant United States Attorneys, of counsel; Patrick L. Meehan, United States Attorney for the Eastern District of Pennsylvania, on the brief), United States Attorney's Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Respondents.

Before: MESKILL and CABRANES, Circuit Judges, and NEVAS, District Judge.^**

JOSÉ A. CABRANES, Circuit Judge.

We write to address whether this Court has jurisdiction to review a denial by the Board of Immigration Appeals ("BIA") of a petitioner's request for cancellation of removal on the basis of its finding that the petitioner failed to demonstrate that his removal would cause "exceptional and extremely unusual hardship" to a qualifying U.S. citizen relative. Because we hold that such denials are discretionary judgments committed by law to the BIA (acting on behalf of the Attorney General) and that we are precluded from reviewing such discretionary judgments in the cancellation of removal context by 8 U.S.C. § 1252(a)(2)(B)(i), we dismiss the petition for review for lack of jurisdiction.

We further hold that, in the circumstances presented, Section 106 of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231 ("REAL ID Act"), does not override the jurisdiction-denying provisions of 8 U.S.C. § 1252(a)(2)(B)(i) because petitioner challenges a purely discretionary determination of the BIA and does not raise any "constitutional claims or questions of law."

BACKGROUND

Gustavo A. De La Vega, a native and citizen of Guatemala, petitions for review of a June 4, 2003 decision of the BIA vacating an August 29, 2000 order of an Immigration Judge ("IJ") granting petitioner's request for cancellation of removal.

Petitioner entered the United States on or about March 30, 1986 and resided in this country for over a decade before being served in May 1998 with a Notice to Appear charging him with "removability." Petitioner admitted the truth of the factual allegations—that he was an alien present in the United States without being admitted or paroled—and conceded his removability, but sought the discretionary relief of cancellation of removal. Petitioner was statutorily eligible to apply for cancellation of removal due to his uncontested status as a nonpermanent resident with ten years or more of continuous physical presence in the United States. His wife, a native and citizen of Mexico, could not satisfy the ten-year physical presence requirement and therefore departed the United States voluntarily in 1998, returning to Mexico along with petitioner's U.S. citizen daughter, who was then four years old.

The Attorney General is accorded discretion to cancel the removal of a nonpermanent resident if that alien can demonstrate (1) that he has been "physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [his] application"; (2) that he has been "a person of good moral character during such period"; (3) that he has not been convicted of any of the disqualifying crimes specified in 8 U.S.C. § 1229b(b)(1)(C); and (4) "that removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1).¹

After finding that petitioner clearly satisfied the first two requirements of § 1229b(b)(1), the IJ noted that "[t]here is no case law telling us what extreme and unusual hardship is . . . . under the new cancellation of removal provisions." The IJ then identified two "hardship factors" in petitioner's case. First, the IJ highlighted "the issue of [petitioner's] U.S. citizen daughter's health," noting that her medical conditions, which included allergies and sinusitis, had worsened in Mexico and that petitioner could better afford to finance her treatments through medical insurance were she to return to the United States to live with petitioner. Second, the IJ noted that "there are three nationalities involved here," rendering it more difficult either for petitioner to rejoin his family in Mexico or for his wife and child to join him in Guatemala. Based on these considerations, the IJ concluded that petitioner had "met all the qualifications for cancellation of removal as a nonpermanent resident" and that "all the discretionary aspects in this case indicate that he merits the favorable exercise of discretion."

The Immigration and Naturalization Service ("INS") appealed the IJ's decision to the BIA on the basis that petitioner had not demonstrated that "exceptional and extremely unusual hardship" would befall his U.S. citizen daughter in the event of petitioner's removal to Guatemala. The BIA, upon review of the record and the IJ's findings, concluded that petitioner "failed to establish that his removal to Guatemala would result in exceptional and extremely unusual hardship to the child" because petitioner's "removal would not significantly alter the child's current circumstances," and because petitioner's child would not suffer "hardship that is substantially beyond that which would ordinarily be expected to result from [an] alien's deportation," despite the child's medical condition and ongoing separation from her father. Accordingly, the BIA vacated the IJ's order and denied petitioner's request for cancellation of removal.

Petitioner now seeks review of the BIA's decision and largely reiterates the same "hardship factors" on which the IJ relied in his August 29, 2000 decision. See Pet'r's Br. at 10-11. Based on these factors, petitioner asserts that he "clearly merits the favorable exercise of the Attorney General['s] discretion," id. at 7, and that the BIA "abused its discretion by . . . going against the Immigration Judge's decision," id. at 4.

DISCUSSION

The threshold issue in this case—and one of first impression in this Circuit—is whether we have jurisdiction to review the BIA's denial of cancellation of removal when that denial was based on the BIA's rejection of petitioner's claim of "exceptional and extremely unusual hardship." Because we conclude that the BIA's denial of cancellation of removal on that basis is a discretionary judgment, we hold that 8 U.S.C. § 1252(a)(2)(B)(i)² deprives us of jurisdiction to review petitioner's claim.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA") excepted certain immigration determinations from judicial review. Specifically, under the heading of "Denials of discretionary relief," Section 306(a)(2) of the IIRIRA provided that "no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b [relating to cancellation of removal]." 8 U.S.C. § 1252(a)(2)(B)(i).

We have stated, in another case concerning cancellation of removal, that "8 U.S.C. § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien's eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)(i)." Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005) (holding that we have jurisdiction to review the BIA's legal, nondiscretionary determination that a petitioner lacks good moral character because he had spent more than 180 days in jail during the previous ten years) (emphasis added); cf. Mariuta v. Gonzales, 411 F.3d 361 (2d Cir.2005) (holding that we lack jurisdiction, under the "transitional rules" of the IIRIRA, to review the BIA's discretionary denial of a request for adjustment of status).

Although the principle was strongly implied by our holding in Sepulveda, we now hold explicitly that the BIA's discretionary determinations concerning whether to grant cancellation of removal constitute "judgment[s] regarding the granting of relief under section . . . 1229b" within the meaning of 8 U.S.C. § 1252(a)(2)(B)(i) and therefore the review of such determinations falls outside our jurisdiction. In so holding, we join five sister circuits that have concluded that 8 U.S.C. § 1252(a)(2)(B)(i) deprives courts of the power to review discretionary determinations concerning cancellation of removal. See Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir.2005) (holding that 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review of discretionary decisions concerning cancellation of removal); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.2004) (same); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003) (same); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (same); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-42 (9th Cir.2002) (same).

We next turn to whether the BIA's judgment that an alien has failed to demonstrate that his removal will cause a qualifying U.S. citizen relative to suffer "exceptional and extremely unusual hardship" is discretionary. Those circuits that have confronted this question have concluded unanimously that such hardship determinations are discretionary judgments and therefore, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), may not be reviewed. See Mendez-Moranchel, 338 F.3d at 179 ("The determination of whether the alien has established the requisite hardship [under 8 U.S.C. § 1229b(b)(1)(D)] is a quintessential discretionary judgment."); Rueda, 380 F.3d at 831 ("The IJ's determination under § 1229b(b)(1)(D) that [petitioner]'s children would not suffer an `exceptional and extremely unusual hardship' if [petitioner] were deported to Mexico involved the exercise of discretion.")...