Jun Min Zhang v. Gonzales

457 F.3d 172

• Court: Court of Appeals for the Second Circuit
• Decided: July 12, 2006
• Docket: Docket No. 04-2503-AG
• Status: Published

Opinions

Judge CABRANES joins the opinion and concurs in a separate opinion, which is joined by Chief Judge WALKER.

Judge CALABRESI joins the opinion and concurs in a separate opinion.

JOHN M. WALKER, JR., Chief Judge.

Petitioner Jun Min Zhang asks this court to review the April 13, 2004 order of the Board of Immigration Appeals (“BIA”) affirming the decision of Immigration Judge (“IJ”) Alan A. Vomaeka, see File No. A 29-415-328 (New York, N.Y., Oct. 1, 2002), denying the petitioner’s request for a waiver of inadmissibility because the petitioner failed to establish “extreme hardship” to a qualifying relative under § 212(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182®, and therefore denying the petitioner’s application for adjustment of status under 8 U.S.C. § 1255®. We consider here whether this court has jurisdiction to review such an order. We hold that (1) a finding of “extreme hardship” under 8 U.S.C. § 1182© is a discretionary judgment committed to the BIA (acting on behalf of the Attorney General) and that 8 U.S.C. § 1252(a)(2)(B)® precludes us from reviewing such a judgment; and (2) in the circumstances presented here, § 106(a)(l)(A)(iii) of the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), does not restore jurisdiction because the petitioner challenges a discretionary judgment and does not raise any “constitutional claims or questions of law” within the meaning of 8 U.S.C. § 1252(a)(2)(D). Accordingly, we lack jurisdiction to entertain the petition.

We note initially that the petitioner does not dispute the IJ’s finding that he is inadmissible by operation of 8 U.S.C. § 1182(a)(6)(C)®.¹ Inadmissibility pursuant to that clause may be waived by the Attorney General in his discretion if the petitioner establishes “to the satisfaction of the Attorney General” that refusing to admit the petitioner would result in “extreme hardship” to a qualifying relative, in this case, the petitioner’s mother. 8 U.S.C. § 1182(i)(l).² Like the IJ, the BIA, acting for the Attorney General, determined that the petitioner did not establish that such extreme hardship would result were the petitioner not admitted to the United States.

It is an issue of first impression in this circuit whether we have jurisdiction to review the BIA’s determination that an alien does not satisfy the extreme-hardship standard of § 1182(i)(l). The REAL ID Act of 2005 instructs us to treat this petition as a petition for review under 8 U.S.C. § 1252. Pub.L. No. 109-13, § 106(d), 119 Stat. 231, 311. Relevant here is subsection (a)(2)(B)(i) of § 1252, which provides that courts lack jurisdiction to review “any judgment regarding the granting of relief under ... [8 U.S.C. § 1182(i) ].” 8 U.S.C. § 1252(a)(2)(B)®. We have held that the term “judgment” in this subsection refers to discretionary decisions. See De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006) (holding explicitly what the court deemed was “strongly implied” by Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir.2005)—namely, that discretionary decisions regarding the granting of relief under a provision referenced by § 1252(a)(2)(B)® are “judgments” within the meaning of that subsection). Thus, the decisive issue in this case is whether the BIA’s determination that the petitioner did not establish extreme hardship was discretionary.

The only circuit court to have addressed this question has held that the extreme-hardship determination under 8 U.S.C. § 1182(i)(l) is a discretionary judgment, not subject to judicial review. See Okpa v. INS, 266 F.3d 313, 317 (4th Cir.2001). And this court has agreed with our sister circuits that the similar hardship determination under the eaneellation-of-removal provision is discretionary and therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i). De La Vega, 436 F.3d at 146 (addressing 8 U.S.C. § 1229b(b)(1)(D)); see also Kalkouli v. Ashcroft, 282 F.3d 202, 204 (2d Cir.2002) (addressing 8 U.S.C. § 1254(a)(1) (repealed 1996) and holding that “the determination as to whether an alien is eligible for suspension of deportation by reason of extreme hardship is a discretionary decision ... and therefore may not be appealed to this Court”). Section 1229(b)(1)(D) requires an applicant to demonstrate “exceptional and extremely unusual hardship,” whereas the pre-IIRIRA language of § 1254(a)(1) tracked the “extreme hardship” language now used in § 1182(i)(l). Although the phrasing of the § 1182(i)(l) standard and the § 1229b(b)(l)(D) standard varies slightly, the Attorney General makes both decisions in the same manner: by evaluating the same discretionary factors in light of the facts and circumstances of a given case. See In re Cervantes-Gonzalez, 22 I. & N. Dec. 560, 565-66 (B.I.A.1999) (identifying the factors relevant to § 1182(i)(l)’s “extreme hardship” standard by reference to the hardship factors evaluated in suspension-of-deportation cases). Because these hardship determinations are made in the same manner under practically identical standards and because De La Vega holds that the cancellation-of-removal hardship determination is discretionary, we join the Fourth Circuit in holding that the § 1182(i)(l) hardship determination is discretionary as well.³ We therefore lack jurisdiction to review this judgment. See 8 U.S.C. § 1252(a)(2)(B)®.

Finally, we hold that § 106(a)(1)(A)(iii) of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), does not affect our conclusion because the instant petition, in challenging the BIA’s discretionary extreme-hardship determination, does not raise any “constitutional claims or questions of law” within the meaning of 8 U.S.C. § 1252(a)(2)(D). See Xiao Ji Chen v. DOJ, 434 F.3d 144, 153-54 (2d Cir.2006) (holding that the REAL ID Act leaves this court “deprived of jurisdiction to review discretionary and factual determinations”).

For the foregoing reasons, we lack jurisdiction to entertain this petition for review. The petition is therefore Dismissed.

1 . 8 U.S.C. § 1182(a)(6)(C)(i) provides, "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.”

2 . 8 U.S.C. § 1182(i)(l) provides in pertinent part,

The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien....

3 . Although the former version of § 1229b(b)(l)(D) expressly entrusted the hardship determination to “the opinion of the Attorney General,” this court attached no consequence to the absence of that language in the present version of the statute. De La Vega, 436 F.3d at 145.