Zhang v. Gonzales

• Decision Date: 12 July 2006
• Docket Number: Docket No. 04-2503-AG.
• Citation: 457 F.3d 172
• Parties: Jun Min ZHANG, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, and Bureau of Citizenship and Immigration Services, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

457 F.3d 172

Jun Min ZHANG, Petitioner, v. Alberto GONZALES,^* Attorney General, and Bureau of Citizenship and Immigration Services, Respondents.

Docket No. 04-2503-AG.

United States Court of Appeals, Second Circuit.

Argued: March 6, 2006.

Decided: July 12, 2006.

Alexander G. Rojas (Stephen Singer, on the brief), Barst & Mukamal LLP, New York, NY, for Petitioner.

Michael J. Sullivan, United States Attorney for the District of Massachusetts, and Gregg Shapiro, Assistant United States Attorney, Boston, MA, submitted a brief for Respondent.

Before WALKER, Chief Judge, CALABRESI and CABRANES, Circuit Judges.

Judge CABRANES joins the opinion and concurs in a separate opinion, which is joined by Chief Judge WALKER.

Judge CALABRESI joins the opinion and concurs in a separate opinion.

JOHN M. WALKER, JR., Chief Judge.

Petitioner Jun Min Zhang asks this court to review the April 13, 2004 order of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Alan A. Vomacka, see File No. A 29-415-328 (New York, N.Y., Oct. 1, 2002), denying the petitioner's request for a waiver of inadmissibility because the petitioner failed to establish "extreme hardship" to a qualifying relative under § 212(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(i), and therefore denying the petitioner's application for adjustment of status under 8 U.S.C. § 1255(i). We consider here whether this court has jurisdiction to review such an order. We hold that (1) a finding of "extreme hardship" under 8 U.S.C. § 1182(i) is a discretionary judgment committed to the BIA (acting on behalf of the Attorney General) and that 8 U.S.C. § 1252(a)(2)(B)(i) precludes us from reviewing such a judgment; and (2) in the circumstances presented here, § 106(a)(1)(A)(iii) of the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), does not restore jurisdiction because the petitioner challenges a discretionary judgment and does not raise any "constitutional claims or questions of law" within the meaning of 8 U.S.C. § 1252(a)(2)(D). Accordingly, we lack jurisdiction to entertain the petition.

We note initially that the petitioner does not dispute the IJ's finding that he is inadmissible by operation of 8 U.S.C. § 1182(a)(6)(C)(i).¹ Inadmissibility pursuant to that clause may be waived by the Attorney General in his discretion if the petitioner establishes "to the satisfaction of the Attorney General" that refusing to admit the petitioner would result in "extreme hardship" to a qualifying relative, in this case, the petitioner's mother. 8 U.S.C. § 1182(i)(1).² Like the IJ, the BIA, acting for the Attorney General, determined that the petitioner did not establish that such extreme hardship would result were the petitioner not admitted to the United States.

It is an issue of first impression in this circuit whether we have jurisdiction to review the BIA's determination that an alien does not satisfy the extreme-hardship standard of § 1182(i)(1). The REAL ID Act of 2005 instructs us to treat this petition as a petition for review under 8 U.S.C. § 1252. Pub.L. No. 109-13, § 106(d), 119 Stat. 231, 311. Relevant here is subsection (a)(2)(B)(i) of § 1252, which provides that courts lack jurisdiction to review "any judgment regarding the granting of relief under . . . [8 U.S.C. § 1182(i)]." 8 U.S.C. § 1252(a)(2)(B)(i). We have held that the term "judgment" in this subsection refers to discretionary decisions. See De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006) (holding explicitly what the court deemed was "strongly implied" by Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) — namely, that discretionary decisions regarding the granting of relief under a provision referenced by § 1252(a)(2)(B)(i) are "judgments" within the meaning of that subsection). Thus, the decisive issue in this case is whether the BIA's determination that the petitioner did not establish extreme hardship was discretionary.

The only circuit court to have addressed this question has held that the extreme-hardship determination under 8 U.S.C. § 1182(i)(1) is a discretionary judgment, not subject to judicial review. See Okpa v. INS, 266 F.3d 313, 317 (4th Cir.2001). And this court has agreed with our sister circuits that the similar hardship determination under the cancellation-of-removal provision is discretionary and therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i). De La Vega, 436 F.3d at 146 (addressing 8 U.S.C. § 1229b(b)(1)(D)); see also Kalkouli v. Ashcroft, 282 F.3d 202, 204 (2d Cir.2002) (addressing 8 U.S.C. § 1254(a)(1) (repealed 1996) and holding that "the determination as to whether an alien is eligible for suspension of deportation by reason of extreme hardship is a discretionary decision . . . and therefore may not be appealed to this Court"). Section 1229(b)(1)(D) requires an applicant to demonstrate "exceptional and extremely unusual hardship," whereas the pre-IIRIRA language of § 1254(a)(1) tracked the "extreme hardship" language now used in § 1182(i)(1). Although the phrasing of the § 1182(i)(1) standard and the § 1229b(b)(1)(D) standard varies slightly, the Attorney General makes both decisions in the same manner: by evaluating the same discretionary factors in light of the facts and circumstances of a given case. See In re Cervantes-Gonzalez, 22 I. & N. Dec. 560, 565-66 (B.I.A.1999) (identifying the factors relevant to § 1182(i)(1)'s "extreme hardship" standard by reference to the hardship factors evaluated in suspension-of-deportation cases). Because these hardship determinations are made in the same manner under practically identical standards and because De La Vega holds that the cancellation-of-removal hardship determination is discretionary, we join the Fourth Circuit in holding that the § 1182(i)(1) hardship determination is discretionary as well.³ We therefore lack jurisdiction to review this judgment. See 8 U.S.C. § 1252(a)(2)(B)(i).

Finally, we hold that § 106(a)(1)(A)(iii) of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), does not affect our conclusion because the instant petition, in challenging the BIA's discretionary extreme-hardship determination, does not raise any "constitutional claims or questions of law" within the meaning of 8 U.S.C. § 1252(a)(2)(D). See Xiao Ji Chen v. DOJ, 434 F.3d 144, 153-54 (2d Cir.2006) (holding that the REAL ID Act leaves this court "deprived of jurisdiction to review discretionary and factual determinations").

For the foregoing reasons, we lack jurisdiction to entertain this petition for review. The petition is therefore DISMISSED.

JOSÉ A. CABRANES, Circuit Judge, concurring:

I concur fully in Chief Judge Walker's opinion, in which Judge Calabresi also joins, and write briefly to address further Zhang's jurisdictional arguments and the analysis of Judge Calabresi in his separate opinion.¹

To qualify for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1), a petitioner is required to demonstrate, "to the satisfaction of the Attorney General," that a refusal to admit the petitioner would result in "extreme hardship" to a qualifying relative. Zhang argues that the statutory phrase "to the satisfaction of the Attorney General" in § 1182(i)(1) serves to entrust the extreme-hardship determination to the Attorney General in the first instance, but that the decision nevertheless is "nondiscretionary" and therefore subject to judicial review. See Pet'r's Br. at 10-16. This argument, however, is inconsistent with our governing precedents and the applicable statutory language.

The plain language of § 1182(i)(1) specifically provides that an applicant must demonstrate extreme hardship "to the satisfaction of the Attorney General" — language that, as we have held before, "clearly entrusts the decision to the Attorney General's discretion." See Xiao Ji Chen v. DOJ, 434 F.3d 144, 154 (2d Cir.2006) (noting that the existence of "changed" or "extraordinary" circumstances under 8 U.S.C. § 1158(a)(2)(D), which the petitioner must prove "to the satisfaction of the Attorney General," is a "discretionary and factual determination[ ]"); Kalkouli v. Ashcroft, 282 F.3d 202, 204 (2d Cir.2002) (construing phrase "in the opinion of the Attorney General" as a "clear[ ]" grant of "discretion"); see also Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005) ("Permissive language that refers to demonstrating something to the agency's `satisfaction' is inherently discretionary."). Were we to accept Zhang's contention that the statutory phrase "to the satisfaction of the Attorney General" merely serves "to identify the decision-maker," Pet'r's Br. at 13 (citing Nakamoto v. Ashcroft, 363 F.3d 874, 879-80 (9th Cir.2004)), we would render that statutory language mere surplusage, inasmuch as every determination regarding a waiver of inadmissibility or an adjustment of status under the INA must be made in the first instance by the Attorney General and his delegates — namely, the IJ and the BIA. If anything, because the Attorney General and his delegates would be responsible for making the extreme-hardship determination in the first instance even absent this phrase, the inclusion of this language in 8 U.S.C. § 1182(i)(1) reinforces the conclusion here, consistent with Xiao Ji Chen and Kalkouli, that the provision serves as an express grant of discretion to the Attorney General in making the extreme-hardship determination. Such discretionary judgments, as we held in De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006), fall within the plain language of the jurisdiction-denying provision at 8 U.S.C. § 1252(a)(2)(B)(i).²

I also agree with Chief Judge Walker that Zhang, in challenging the IJ's extreme-hardship determination, has failed to raise a "constitutional claim[ ] or question[ ] of law" within the meaning of section 106(a)(1)(A)(iii) ("Section 106") of the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D). In Xiao Ji Chen, we concluded that, notwithstanding the jurisdiction-restoring language of the...