JESUS LEON-LEON V. MERRICK GARLAND, No. 20-71058 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 17 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JESUS HUMBERTO LEON-LEON, Petitioner, No. U.S. COURT OF APPEALS 20-71058 Agency No. A202-009-831 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 13, 2021** San Francisco, California Before: McKEOWN, FORREST, and BUMATAY, Circuit Judges. Concurrence by Judge BUMATAY Jesus Humberto Leon-Leon, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”) decision denying his application for cancellation of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removal under 8 U.S.C. § 1229b(b)(1). Because we lack jurisdiction over LeonLeon’s petition, we dismiss it. Leon-Leon argues that the IJ and BIA “committed legal error in failing to correctly apply the exceptional and extremely unusual hardship standard.” See 8 U.S.C. § 1229b(b)(1)(D). But as we have held, “we lack jurisdiction to review the IJ’s subjective, discretionary determination that [a petitioner] did not demonstrate ‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D).” Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); see also 8 U.S.C. § 1252(a)(2)(B)(i) (“Notwithstanding any other provision of law[,] . . . no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b, [the cancellation of removal provision].”). Leon-Leon cites to the Supreme Court’s recent decision in GuerreroLasprilla v. Barr, 140 S. Ct. 1062 (2020), to suggest that his challenge falls within the exception to the jurisdictional bar set out in 8 U.S.C. § 1252(a)(2)(D), which provides that the limitation on judicial review in 8 U.S.C. § 1252(a)(2)(B)(i) “shall [not] be construed as precluding review of constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Specifically, Leon-Leon argues that, because Guerrero-Lasprilla holds that questions of law includes “the application of a legal standard to undisputed or established facts,” 140 S. Ct. at 1067, it also provides for 2 judicial review of whether the BIA failed to “correctly apply” the “exceptional and extremely unusual hardship” standard to the facts of his case. Not so. Long before the Court concluded in Guerrero-Lasprilla that the phrase “questions of law” in § 1252(a)(2)(D) includes “the application of a legal standard to undisputed or established facts,” id., we concluded the same. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Accordingly, the principle announced by the Supreme Court in Guerrero-Lasprilla has long coexisted with our jurisprudence under § 1252, including our holding that the hardship determination is a subjective, discretionary determination that we lack jurisdiction to review. Thus, though we concluded nearly 15 years ago that we possess jurisdiction under § 1252(a)(2)(D) to review questions involving the application of statutes or regulations to undisputed facts, neither Ramadan’s holding, nor by extension the Court’s holding in Guerrero-Lasprilla, “infringe[s] upon the rule that discretionary determinations are beyond our review.” De Mercado v. Mukasey, 566 F.3d 810, 815 n.3 (9th Cir. 2009). Because we lack jurisdiction to review the agency’s determination that Leon-Leon failed to establish that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives, we dismiss his petition for review. PETITION DISMISSED. 3 Leon-Leon v. Garland, No. 20-71058 BUMATAY, Circuit Judge, concurring: FILED AUG 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS As a matter of text, structure, and history, the “exceptional and extremely unusual hardship” determination under 8 U.S.C. § 1229b(b)(1)(D) appears to be a mixed question of law and fact. See Trejo v. Garland, 3 F.4th 760, 766–74 (5th Cir. 2021); Singh v. Rosen, 984 F.3d 1142, 1150–54 (6th Cir. 2021). Under recent Supreme Court precedent, we retain jurisdiction over such questions. See GuerreroLasprilla v. Barr, 140 S. Ct. 1062 (2020). I still concur with the court’s decision to dismiss this petition for lack of jurisdiction, however, because binding precedent dictates that we treat the hardship determination as a discretionary question. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003). We are accordingly precluded from reviewing petitioner’s claim. See 8 U.S.C. § 1252(a)(2)(B).

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