Quintanilla-Cortez v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 31 2024 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ALBERTO QUINTANILLA- No. 23-1057 CORTEZ, Agency No.

A038-084-240

Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 11, 2024** Pasadena, California

Before: MURGUIA, Chief Judge, and MENDOZA and DE ALBA, Circuit Judges.

Jorge Alberto Quintanilla-Cortez, a citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (BIA) decision vacating the immigration judge’s (IJ) grant of a waiver of inadmissibility under former § 212(c)

*

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).

of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1182(c) (1994). Generally, “[d]iscretionary decisions, including whether or not to grant § 212(c) relief, are not reviewable.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007). However, we have jurisdiction over petitions for review that raise colorable constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006). We deny the petition.

1. The BIA applied the correct legal standard for § 212(c) relief as set forth in Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). A § 212(c) waiver may be warranted when, considering the record as a whole, favorable considerations outweigh adverse factors. Id. The BIA identified and applied the Matter of Marin standard, discussed the “positive equities,” and then turned to Quintanilla-Cortez’s conviction. The BIA accurately cited additional § 212(c) precedent indicating that for some serious crimes, “a favorable exercise of discretion is not warranted even in the face of unusual or outstanding equities.” Matter of Edwards, 20 I. & N. Dec. 191, 196 (BIA 1990). In light of the circumstances of Quintanilla-Cortez’s conviction, the BIA concluded a favorable exercise of discretion was unwarranted.

We agree with Quintanilla-Cortez that the standard for refugees seeking a § 209(c) waiver, as described in Matter of C-A-S-D-, 27 I. & N. Dec. 692, 700 (BIA 2019), has never been applied to lawful permanent residents seeking a

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§ 212(c) waiver, and the application of the § 209(c) standard makes little sense in the unique context of § 212(c) relief. See, e.g., Judulang v. Holder, 565 U.S. 42, 48 (2011) (citing INS v. St. Cyr, 533 U.S. 289, 326 (2001)). But here, the BIA applied the Matter of Marin standard and declined to apply the § 209(c) standard. The BIA’s passing citation to Matter of C-A-S-D-, while inartful, was not an application of the incorrect standard.

2. The record does not support Quintanilla-Cortez’s argument that the BIA engaged in improper fact-finding. The BIA accepted and recited the facts that the IJ found but simply weighed those facts differently. This court lacks jurisdiction to review the merits of that discretionary determination. Vargas-Hernandez, 497 F.3d at 923.

3. The BIA sufficiently weighed the evidence and explained its reasoning.

Quintanilla-Cortez argues that due process requires a minimum degree of clarity. Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc). Here, the BIA acknowledged several positive factors weighing in Quintanilla-Cortez’s favor but explained that his conviction for harming a child in his care was “an exceptionally serious crime” not warranting a favorable exercise of discretion. Because the BIA explicitly considered the evidence presented and explained its reasons for denying a waiver, relief is unavailable on this ground.

Petition DENIED.

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