Oung v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2023
• Docket: 22-1927
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THONYLY OUNG, No. 22-1927 Agency No. Petitioner, A095-866-860 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 6, 2023** Pasadena, California

Before: M. SMITH, LEE, and VANDYKE, Circuit Judges.

Petitioner seeks review of a Board of Immigration Appeals (BIA) decision

denying his application for adjustment of status. We generally have jurisdiction

under 8 U.S.C. § 1252, and we dismiss the petition.

* 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). Section 1252(a)(2)(B)(i) bars review of “any judgment regarding the granting

of relief under section … 1255,” which includes adjustment of status under section

1255(a). The Supreme Court recently interpreted this jurisdiction-stripping

provision in Patel v. Garland and concluded that it “encompasses not just ‘the

granting of relief’ but also any judgment relating to the granting of relief,” which

“plainly includes factual findings.” 596 U.S. 328, 339 (2022). Any factual

determination made by the immigration judge (IJ) “relating to” Petitioner’s

application for adjustment of status is therefore outside this panel’s jurisdiction.

While this panel retains jurisdiction to review “constitutional claims or

questions of law,” 8 U.S.C. § 1252(a)(2)(D), Petitioner has not raised such a question

in this case. See Safaryan v. Barr, 975 F.3d 976, 989 (9th Cir. 2020) (concluding

that section 1252(a)(2)(B)(i) “eliminates our jurisdiction to review discretionary

decisions … ‘unless the petition raises a cognizable legal or constitutional question

concerning that determination’” (quoting Fernandez v. Gonzales, 439 F.3d 592, 596

(9th Cir. 2006))). Instead, the only question raised by Petitioner is whether a

preponderance of the evidence supports the IJ’s determination that Petitioner

“knowingly made a frivolous application for political asylum.” This question is a

factual one: does the evidence in the record factually show that Petitioner “fabricated

[his] asylum application[]”? Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 2008).

2 Nor does the fact that the IJ’s frivolousness determination was adjunct to the

primary question of whether to grant or deny Petitioner’s application for adjustment

of status place this issue within the court’s jurisdiction. As the Supreme Court

explained in Patel, section “1252(a)(2)(B)(i) does not stop at just the grant or denial

of relief; it extends to any judgment ‘regarding’ that ultimate decision.” 596 U.S. at

344 (emphasis added). Here, the IJ answered the factual question of whether

Petitioner filed a frivolous application in order to determine whether to grant or deny

the relief sought. This determination was an authoritative decision on the subject and

so constituted a “judgment” for purposes of Patel and section 1252(a)(2)(B)(i). Id.

at 337 (“‘[J]udgment’ means any authoritative decision.”). This judgment was

“regarding” the discretionary relief sought because it was made in the course of

deciding whether to grant or deny such relief—indeed, it determined Petitioner’s

eligibility for the relief. Because the IJ’s judgment was regarding its “ultimate

decision” to grant or deny Petitioner’s application for adjustment of status, it falls

within the reach of section 1252(a)(2)(B)(i)’s jurisdictional bar. Id. at 344.

PETITION DISMISSED.