Jesus Leon-Leon v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2021
• Docket: 20-71058
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JESUS HUMBERTO LEON-LEON, No. 20-71058

Petitioner, 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 Leon-

Leon’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 Guerrero-

Lasprilla 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 FILED BUMATAY, Circuit Judge, concurring: 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 Guerrero-

Lasprilla 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).