JESUS FIGUEROA OCHOA V. MERRICK GARLAND, No. 20-72510 (9th Cir. 2023)
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Petitioner is a native and citizen of Mexico. The Department of Homeland Security initiated removal proceedings against him, alleging that he had entered the United States without inspection at a time and place unknown to the government. Petitioner conceded that he was removable but applied for cancellation of removal under 8 U.S.C. Section 1229b(b) and adjustment of status under 8 U.S.C. Section 1255. Petitioner petitioned for review of a final order of removal of the Board of Immigration Appeals. After Petitioner applied for cancellation of removal and adjustment of status, the Board upheld an immigration judge’s denial of those applications and a request for a continuance, and it denied a motion to remand. Petitioner challenged the denial of the continuance and the motion to remand.
The Ninth Circuit dismissed Petitioner’s petition. The panel concluded it lacked jurisdiction to review the claim because—with an exception not at issue here— Congress forbade judicial review of “any judgment regarding the granting of relief under” the provisions governing cancellation and adjustment. The panel noted that, under Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006), a court may review the denial of a motion to reopen proceedings for cancellation in certain circumstances, including if the new evidence submitted addresses a hardship ground so distinct from that considered previously as to make the motion a request for new relief. The panel concluded that it need not decide whether that holding survives Patel, explaining that, even on its own terms, Fernandez does not help Petitioner because he did not present a request for new relief within the meaning of Fernandez.
Court Description: Immigration Dismissing Jesus Figueroa Ochoa’s petition for review of a decision of the Board of Immigration Appeals that upheld the denial of a continuance and denied a motion to remand, the panel concluded that it lacked jurisdiction. Figueroa Ochoa had sought cancellation of removal and adjustment of status. An immigration judge denied relief because of Figueroa Ochoa’s criminal record, and the Board of Immigration Appeals affirmed. Figueroa Ochoa’s challenge hinged on his contention that the agency erred factually in attributing a criminal conviction to him, arguing that it truly belonged to his brother.
The panel concluded it lacked jurisdiction to review that claim because—with an exception not at issue here—Congress forbade judicial review of “any judgment regarding the granting of relief under” the provisions governing cancellation and adjustment. 8 U.S.C. § 1252(a)(2)(B)(i). The panel was guided by Patel v. Garland, 142 S. Ct. 1614 (2022), in which the Supreme Court held that the jurisdiction-stripping language in § 1252(a)(2)(B)(i) “encompasses any and all decisions relating to the granting or denying of discretionary relief.” The panel explained that this jurisdictional bar applied even though Figueroa Ochoa sought review of the denial of a continuance and a motion to remand, rather than review of the denial of the underlying relief. The panel noted that its interpretation accords with that of the Fifth Circuit, while the Eighth and First Circuits have adopted a narrower view of § 1252(a)(2)(B)(i).
Finally, the panel noted that, under Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006), a court may review the denial of a motion to reopen proceedings for cancellation in certain circumstances, including if the new evidence submitted addresses a hardship ground so distinct from that considered previously as to make the motion a request for new relief. The panel concluded that it need not decide whether that holding survives Patel, explaining that, even on its own terms, Fernandez does not help Figueroa Ochoa because he did not present a request for new relief within the meaning of Fernandez.
The court issued a subsequent related opinion or order on February 6, 2024.
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