Castillo Martinez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2024
• Docket: 23-3030
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO CASTILLO MARTINEZ, No. 23-3030 Agency No. Petitioner, A205-145-218 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 24, 2024** Portland, Oregon

Before: LEE, VANDYKE, and H.A. THOMAS, Circuit Judges.

Ricardo Castillo Martinez, a native and citizen of Mexico, seeks review of an

order by the Board of Immigration Appeals (BIA) dismissing his appeal of the

Immigration Judge’s (IJ) decision denying his applications 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 and voluntary departure. Because we lack jurisdiction under 8 U.S.C.

§ 1252(a)(2)(B)(i), we dismiss the petition.

Section 1252(a)(2)(B)(i) strips courts of jurisdiction to review the factual

determinations underlying the BIA’s decisions regarding cancellation of removal

and voluntary departure. See Patel v. Garland, 596 U.S. 328, 347 (2022). We retain

jurisdiction to review “constitutional claims or questions of law.” § 1252(a)(2)(D).

But to invoke such jurisdiction, a petitioner must raise a “colorable” question of law

that has “some possible validity.” Arteaga-De Alvarez v. Holder, 704 F.3d 730, 736

(9th Cir. 2012) (citation omitted). “[A] petitioner may not create the jurisdiction that

Congress chose to remove simply by cloaking” a factual argument in legal “garb.”

Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001).

Castillo Martinez challenges the IJ’s determination that he lacks good moral

character because he provided false testimony about his 2003 departure to Mexico

with the intent to bolster his application for cancellation of removal. See 8 U.S.C.

§ 1101(f)(6) (“No person shall be regarded as . . . a person of good moral character

who . . . has given false testimony for the purpose of obtaining any benefits under

this chapter.”). Whether a person has falsely testified with the requisite subjective

intent to obtain an immigration benefit is a question of fact. See Kungys v. United

States, 485 U.S. 759, 782 (1988); United States v. Hovsepian, 422 F.3d 883, 887–88

(9th Cir. 2005). Because Castillo Martinez challenges only the IJ’s factual finding

2 23-3030 that he had the subjective intent to deceive, we lack jurisdiction to review his

petition.

Castillo Martinez unsuccessfully attempts to establish jurisdiction by framing

his challenge as a legal question. He asserts that the IJ applied the wrong legal

standard under § 1101(f)(6) because the IJ failed to ask—and failed to ultimately

find—whether Castillo Martinez had the required subjective intent to obtain an

immigration benefit. See Kungys, 485 U.S. at 780. But the record says otherwise.

The IJ stated the correct legal standard under § 1101(f)(6) and made the reasonable

inference from the facts that Castillo Martinez had the requisite intent. See United

States v. Bucher, 375 F.3d 929, 931 (9th Cir. 2004) (“[F]acts and reasonable

inferences from those facts are the province of the trier of fact.”). After Castillo

Martinez failed to provide a plausible explanation for his inconsistent testimony, the

IJ reasonably inferred that he provided false testimony about his 2003 departure to

benefit his application for cancellation of removal.

Castillo Martinez responds that because he raised an objection to the

sufficiency of his Notice to Appear (NTA) in his August 2018 hearing—which

called into question the start date of the period of continuous residence required

under § 1229b(b)(1)(A)—he could not have conclusively known that his false

testimony about his 2003 departure would benefit his application. This argument is

unavailing, not least because Castillo Martinez provided inconsistent testimony in

3 23-3030 his March 2017 hearing—over a year before he raised his objection to the NTA.

Ultimately, whether Castillo Martinez knew he would benefit from

misrepresenting his departure in 2003 is a factual issue. That inquiry boils down to

one question: Did Castillo Martinez provide false testimony to bolster his eligibility

for cancellation of removal, or for some other reason? Castillo Martinez may

disagree with the IJ’s answer to this question, “but that disagreement does not

amount to a colorable constitutional or legal challenge.” Zia v. Garland, 112 F.4th

1194, 1202 (9th Cir. 2024).

PETITION DISMISSED.

4 23-3030