Brenda Lechuga Munguia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2022
• Docket: 19-72552
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 23 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDA LECHUGA MUNGUIA, No. 19-72552

Petitioner, Agency No. A087-880-128

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 8, 2022** San Francisco, California

Before: RAWLINSON, BADE, and BRESS, Circuit Judges.

* 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). Petitioner Brenda Lechuga Munguia (Petitioner), a native and citizen of

Mexico, petitions for review of a decision from the Board of Immigration Appeals

(BIA) dismissing her appeal from the denial of her application for cancellation of

removal. We lack jurisdiction to review Petitioner’s challenge to the denial, and

we DISMISS the petition for review.1

1. We first consider whether we have jurisdiction under 8 U.S.C. § 1252 to

review this petition, and “[w]e review our own jurisdiction de novo.” Taslimi v.

Holder, 590 F.3d 981, 984 (9th Cir. 2010) (citation omitted). The Supreme Court

held in Patel v. Garland, 142 S. Ct. 1614, 1627 (2022), that federal courts “lack

jurisdiction to review facts found as part of discretionary-relief proceedings under

§ 1255 and the other provisions enumerated in § 1252(a)(2)(B)(i).” Cancellation

of removal is included in the “other provisions enumerated.” Id. at 1619; see also

§ 1252(a)(2)(B)(i) (listing, among other provisions, 8 U.S.C. § 1229b, the statute

governing cancellation of removal). Patel specifically stated that the jurisdictional

bar “does not restrict itself to certain kinds of decisions,” and thus applies to “the

decision that an applicant has fewer than 10 years of continuous presence in the

United States.” 142 S. Ct. at 1622. The Court noted, however, that the

1 Petitioner does not challenge the BIA’s denial of her request to terminate proceedings due to alleged deficiencies in the Notice to Appear. 2 jurisdictional bar “has an important qualification” that “preserves review of

constitutional claims and questions of law,” but not “questions of fact.” Id. at

1619, 1623.

2. Petitioner contends that the agency “erred” in determining that Petitioner

failed to meet her burden to establish that she was continuously physically present

in the United States for ten years prior to being served with a Notice to Appear.

Petitioner argues that “the record is consistent that [she] initially entered the United

States in January of 2000.” Petitioner maintains that her “testimony to the court

regarding her entry and whereabouts from 2000-2002,” the lack of “an adverse

credibility finding” made against Petitioner, her explanation of any missing

documents, and her corroborating witnesses’ testimony were sufficient to show

that the IJ erred in his determination. These assertions challenge the agency’s

continuous presence determination on a factual basis, but this Court lacks

jurisdiction to review an agency’s purely factual determination that an applicant

failed to establish continuous physical presence. See id. at 1622-23; see also

Ibarra-Flores v. Gonzalez, 439 F.3d 614, 618 (9th Cir. 2006) (characterizing the

determination of continuous physical presence as factual). Because Petitioner has

failed to raise any colorable legal or constitutional claim, we lack jurisdiction over

3 this petition.2 See 8 U.S.C. § 1252(a)(2)(D); see also Vilchiz-Soto v. Holder, 688

F.3d 642, 644 (9th Cir. 2012).

PETITION DISMISSED.

2 Because we dismiss the petition for review, we deny as moot Petitioner’s motion for stay of removal pending appeal. 4