Rengel-Pena v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2025
• Docket: 23-1931
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISMAEL ERNESTO RENGEL-PENA, No. 23-1931 Agency No. Petitioner, A200-720-472 v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 7, 2025** Pasadena, California

Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.

Ismael Ernesto Rengel Pena (“Rengel”), a native and citizen of Mexico,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”)

dismissing an appeal from an order of an Immigration Judge (“IJ”) finding Rengel

inadmissible and denying his application for cancellation of removal for certain

* 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). nonpermanent residents. We have jurisdiction under 8 U.S.C. § 1252. Where, as

here, the BIA affirms the IJ “and also adds its own reasoning, we review the

decision of the BIA and those parts of the IJ’s decision upon which it relies.”

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019) (citation

omitted). We deny the petition for review in part and dismiss it in part.

1. We review de novo questions of law, including determinations of

inadmissibility. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). We

accept an agency’s factual findings as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Garland v. Ming

Dai, 593 U.S. 357, 365 (2021) (citation omitted). Rengel does not dispute that he

is a foreign citizen and that, after receiving voluntary departure, he reentered the

United States without inspection. A noncitizen “present in the United States

without being admitted or paroled” is inadmissible. See 8 U.S.C. §

1182(a)(6)(A)(i).

Rengel argues that he is admissible based on his prior lawful entry to the

United States, and that his prior voluntary departure was invalid because an

immigration officer affirmatively misled him about when he would see an

immigration judge and the likelihood of success of his claims for relief. However,

even assuming that a defect in the prior voluntary departure would affect

admissibility, the IJ determined, and the BIA affirmed, that Rengel’s prior

2 23-1931 voluntary departure was valid based on a voluntary departure form signed by

Rengel informing Rengel of his rights. Rengel’s testimony does not compel the

contrary conclusion. Given its factual findings, the BIA did not err in finding that

Rengel failed to prove that he was “clearly and beyond a doubt entitled to be

admitted to the United States.” 8 C.F.R. § 1240.8(c).

2. Although we lack jurisdiction to review the merits of a discretionary

decision to deny cancellation of removal, we can determine whether the agency

considered all relevant evidence in making its decision. Szonyi v. Barr, 942 F.3d

874, 896 (9th Cir. 2019) (citing Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir.

2000)); see 8 U.S.C. § 1252(a)(2)(B)(i), (D) (depriving this court of jurisdiction to

review discretionary decisions but conferring jurisdiction to review “constitutional

claims or questions of law”). In making its discretionary determination, the agency

must consider evidence of the applicant’s family ties, his length of residence in the

United States, the potential hardship to the applicant and his family, his

employment or property ownership, any community service or service in the U.S.

military, his criminal history and rehabilitation, his immigration violations, and any

other relevant positive or negative information. Matter of C-V-T-, 22 I. & N. Dec.

7, 11 (B.I.A. 1998).

Here, the IJ considered all the evidence relevant to the cancellation decision:

Rengel’s residence in the United States since he was “an extremely young child”;

3 23-1931 the “significant hardship” that Rengel’s family would experience if he were

deported; Rengel’s employment; his payment of taxes; and his role in raising four

children who “appear to be doing extremely well.” The IJ considered Rengel’s

two prior DUI convictions and additional DUI arrest, and the dangerousness of

drunk driving, but he also considered Rengel’s attempt at rehabilitation by

attending Alcoholics Anonymous meetings. The IJ concluded that Rengel’s

unlawful entries into the United States were adverse factors, and he denied

cancellation of removal.

The BIA affirmed the IJ’s negative discretionary determination. Because the

agency “‘thoroughly reviewed’ . . . all of the positive and negative equities in the

record” under the correct legal standard, we lack jurisdiction to re-weigh these

factors and to disturb the agency’s discretionary determination. Vilchez, 682 F.3d

at 1200–01. A discretionary decision is sufficient to support the denial of

cancellation of removal. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th

Cir. 2003) (“[T]he ultimate decision whether to grant [cancellation of removal],

regardless of eligibility, rests with the Attorney General.”). We therefore dismiss

the remainder of Rengel’s petition for review.

PETITION DENIED IN PART AND DISMISSED IN PART.1

1 Rengel’s Motion to Stay Removal (Dkt. No. 4) is denied as moot. The temporary stay (Dkt. No. 10) will dissolve upon the issuance of the mandate.

4 23-1931