Rodriguez Jimenez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2024
• Docket: 21-740
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FULGENCIO RODRIGUEZ JIMENEZ, No. 21-740 Agency No. Petitioner, A073-923-004 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 17, 2024** Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and HINDERAKER, District Judge.***

Petitioner Fulgencio Rodriguez Jimenez, a native and citizen of Mexico,

* 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). *** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation. petitions for review of a decision by the Board of Immigration Appeals (“BIA”)

affirming an immigration judge’s (“IJ”) order denying Rodriguez Jimenez’s

applications for cancellation of removal and adjustment of status. The agency

declined to exercise its discretion to grant relief on either application. We have

jurisdiction to determine our jurisdiction, notwithstanding 8 U.S.C. §

1252(a)(2)(B)(i). See Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir.

2014). “Where the BIA conducts its own review of the evidence and law, rather

than adopting the IJ’s decision, our review is limited to the BIA’s decision, except

to the extent the IJ’s opinion is expressly adopted.” Guerra v. Barr, 974 F.3d 909,

911 (9th Cir. 2020) (internal quotation marks and citation omitted). The facts are

familiar to the parties, so we do not restate them. We dismiss the petition for lack

of jurisdiction.

1. Even if a noncitizen qualifies for cancellation of removal or adjustment of

status, both those forms of relief still require the agency to decide that the

petitioner merits a favorable exercise of discretion. See 8 U.S.C.

§§ 1229a(c)(4)(A)(ii), 1229b(b)(1), 1255(i); Patel v. Garland, 596 U.S. 328,

332 (2022). We do not have jurisdiction to review a “factual challenge”

brought by a noncitizen “to orders denying discretionary relief, including

cancellation of removal [and] adjustment of status . . . .” Nasrallah v. Barr,

590 U.S. 573, 587 (2020) (citing Kucana v. Holder, 558 U.S. 233, 248

2 21-740 (2010)). Upon de novo review, the BIA dismissed Rodriguez Jimenez’s

applications for cancellation of removal and adjustment of status, with both

dismissals as a matter of discretion, after finding that Rodriguez Jimenez did

not sufficiently appreciate the seriousness and wrongfulness of his

misdemeanor conviction for kissing a 9-year-old neighbor girl who was a

classmate of one of his children. Rodriguez Jimenez’s petition challenges

these findings by contending that the BIA erred by not balancing the equities

in his favor despite evidence of positive factors, which amounts to a factual

challenge to the agency’s discretion. Such “claims fall well within the

BIA’s discretionary authority and are not subject to our review.” See Mejia

v. Gonzalez, 499 F.3d 991, 999 (9th Cir. 2007) (concluding there was a lack

of jurisdiction when petitioner claimed that BIA in its discretion did not

sufficiently consider the petitioner’s rehabilitation). Because Rodriguez

Jimenez only challenges decisions by the BIA that depended in part on the

agency’s exercise of its discretion, we dismiss the petition for lack of

jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)(i); Nasrallah, 590 U.S. at 587;

see also 8 U.S.C. §§ 1229b, 1255; Patel, 596 U.S. at 331; Torres-Valdivias

v. Lynch, 786 F.3d 1147, 1153 (9th Cir. 2015); Mejia, 499 F.3d at 999.

2. To the extent that the petition raises a colorable legal question, including a

mixed question of law and fact, we have jurisdiction to review the issue. 8

3 21-740 U.S.C. § 1252(a)(2)(D); see Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225

(2020) (holding that the phrase “questions of law” under subsection (D)

“includes the application of a legal standard to undisputed or established

facts”); Hernandez v. Ashcroft, 345 F.3d 824, 833–34, 847 (9th Cir. 2003)

(stating that applying law to factual determinations is not discretionary and

courts can review questions about the BIA’s legal authority); Ridore v.

Holder, 696 F.3d 907, 911 (9th Cir. 2012) (holding that the jurisdiction

stripping provisions of 8 U.S.C. § 1252(a)(2)(B)(i) do not apply where the

petitioner raises a question of law, such as whether the BIA acted within its

regulatory authority). As such, to the extent that Rodriguez Jimenez raises a

colorable legal claim by contending that the agency was biased in requiring

him to admit to wrongdoing in order to garner a favorable grant of

discretion, we can review his petition. See 8 U.S.C. § 1252(a)(2)(D);

Guerrero-Lasprilla, 589 U.S. at 224–25; Hernandez, 345 F.3d at 833–34,

847; Ridore, 696 F.3d at 911.

In its de novo review of Rodriguez Jimenez’s petition, after

“considering all of the positive factors,” the BIA was not persuaded that

Rodriguez Jimenez “appreciate[d] the seriousness and wrongfulness” of his

criminal conduct. Rodriguez Jimenez’s petition is correct that the agency

cannot require a petitioner to show rehabilitation as a prerequisite to its

4 21-740 discretionary grant of relief; however, the agency has the authority to

consider rehabilitation among all of the positive and adverse factors in the

record. See Rashtabadi v. I.N.S., 23 F.3d 1562, 1571 (9th Cir. 1994); see

also Paredes-Urrestarazu v. I.N.S., 36 F.3d 801, 816–17 (9th Cir. 1994).

The BIA here acted within its authority by considering whether Rodriguez

Jimenez appreciated the nature of his conduct, among all positive and

adverse factors, when deciding whether to exercise its discretion to grant

him relief. See Rashtabadi, 23 F.3d at 1570–71 ; see also Paredes-

Urrestarazu, 36 F.3d at 816–17; Matter of Buscemi, 19 I. & N. Dec. 628,

633–34 (BIA 1988); In re C-V-T-, 22 I. & N. Dec. 7, 11–12 (BIA 1998).

PETITION DISMISSED. The stay of removal remains in place

until the mandate issues.

5 21-740