                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2003

Mendez-Moranchel v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-2146




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                                 PRECEDENTIAL

                                             Filed July 29, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 02-2146


             MAURILIO MENDEZ-MORANCHEL,
                                        Petitioner
                                v.
   JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE
    UNITED STATES OF AMERICA; JAMES W. ZIGLAR,
      COMMISSIONER OF THE IMMIGRATION AND
             NATURALIZATION SERVICE,
                                        Respondent

         PETITION FOR REVIEW OF AN ORDER
       OF THE BOARD OF IMMIGRATION APPEALS
                  (No. A75-547-409)

                   Argued January 21, 2003
       BEFORE: NYGAARD, AMBRO, and BECKER,1
                   Circuit Judges.

                     (Filed July 29, 2003)

                        Raymond P. D’Uva, Esq. (Argued)
                        Law Offices of Raymond P. D’Uva
                        17 Academy Street, Suite 1000
                        Newark, NJ 07102
                          Counsel for Petitioner

1. Judge Becker completed his term as Chief Judge on May 4, 2003.
                             2


                      Michael P. Lindemann, Esq.
                      John M. McAdams, Jr., Esq.
                      Russell J. E. Verby, Esq. (Argued)
                      David V. Bernal, Esq.
                      United States Department of Justice
                      Office of Immigration Litigation
                      P.O. Box 878
                      Ben Franklin Station
                      Washington, DC 20044
                        Counsel for Respondent


                OPINION OF THE COURT

NYGAARD, Circuit Judge.
   Maurilio Mendez-Moranchel, a nonresident deportable
alien, challenges the government’s denial of discretionary
cancellation of deportation. The Board of Immigration
Appeals found that Mendez met three of the four initial
requirements     for   consideration   of  cancellation   of
deportation under 8 U.S.C. § 1229b. The issue before us is
whether we can review the Board’s decision that Mendez
does not meet the fourth requirement—the hardship
requirement. Because we hold that the issue of whether
Mendez meets the hardship requirement is a discretionary
decision by the Board of Immigration Appeals, we lack
jurisdiction to review the decision and we will dismiss this
action. See 8 U.S.C. § 1252(a)(2)(B).

                             I.
   Our decision is based on the narrow question of whether
we have jurisdiction to review the decision of the
Immigration Law Judge and the Board that Mendez’s U.S.
citizen children would not suffer an extreme and unusual
hardship as a result of Mendez’s deportation. Mendez, a
native and citizen of Mexico, has resided in the United
States since 1982. In 1998, the INS issued Mendez a Notice
to Appear, alleging he violated the Immigration and
Nationalization Act by entering the United States without
inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). Mendez admitted
                              3


that he entered the country without inspection and was
therefore subject to removal. Seeking to stay in the country,
Mendez sought discretionary cancellation of removal under
8 U.S.C. § 1229b(b).
  Mendez is the father of three children, all U.S. citizens,
and resides with two of his children and their mother.
Mendez claims that if the INS removes him, his family,
particularly his oldest son, will suffer an exceptional and
extremely unusual hardship. It is on this basis that Mendez
seeks cancellation of removal. If removed, Mendez will have
to take his family with him to Mexico, or be separated from
them. He argues that either would result in hardship.
Mendez provides the sole financial support for his sons. He
has been away from Mexico for several years and testified
that he will be unable to earn a living in Mexico. Therefore,
he argues that he will neither be able to support his family
in Mexico if they accompany him, nor be able to send them
money to support them in the United States if they stay. In
addition, Mendez argues that his oldest son’s disability
militates against his removal. Mendez’s son apparently
suffers from a disability that requires him to receive special
language instruction. Because of this disability, his son
does not speak English or Spanish well. Mendez argues
that if he takes his son to Mexico, he will be denied an
appropriate education.
  The Immigration Judge found that Mendez met the first
three requirements for cancellation of removal: residency,
good moral character, and no conviction for disqualifying
crime. 8 U.S.C. § 1229b(b)(1)(A)-(C). However, the
Immigration Judge concluded that Mendez’s removal would
not result in an exceptional and extremely unusual
hardship to his U.S. citizen children. Therefore, he denied
Mendez’s request for discretionary cancellation of removal.
Mendez appealed to the Board, which affirmed the
Immigration Judge’s decision without an opinion.

                             II.
   Mendez sought cancellation of removal under 8 U.S.C.
§ 1229b(b). Section 1229b(b) allows the Attorney General to
cancel removal of an inadmissible or deportable alien if the
alien meets four threshold requirements:
                               4


    The Attorney General may cancel removal of, and
    adjust to the status of an alien lawfully admitted for
    permanent residence, an alien who is inadmissible or
    deportable from the United States if the alien—
    (A) has been physically present in the United States
    for a continuous period of not less than 10 years
    immediately preceding the date of such application;
    (B) has been a person of good moral character during
    such period;
    (C) has not been convicted of an offense under section
    212(a)(2), 237(a)(2), or 237(a)(3) [8 U.S.C. §§ 1182(a)(2),
    1227(a)(2), or 1227(a)(3)] (except in a case described in
    section 237(a)(7) [8 U.S.C. § 1227(a)(7)] where the
    Attorney General exercises discretion to grant a
    waiver); and
    (D) establishes that removal would result in
    exceptional and extremely unusual hardship to the
    alien’s spouse, parent, or child, who is a citizen of the
    United States or an alien lawfully admitted for
    permanent residence.
8 U.S.C. § 1229b(b)(1).
   The Board upheld the Immigration Judge’s decision that
Mendez failed to meet the threshold requirement for
consideration of cancellation of deportation. We must first
determine whether we have jurisdiction to review this
decision in light of 8 U.S.C. § 1252. Section 1252(a)(2) sets
out    those    matters    under     the    Immigration     and
Naturalization Act that are not subject to judicial review.
Section 1252(a)(2)(b) removes jurisdiction for “denials of
discretionary relief.” Subsection (a)(2)(b)(i) purports to strip
jurisdiction concerning “any judgment regarding the
granting of relief under section . . . [8 U.S.C. § 1229b].” The
issue before us is whether the Board’s determination that
Mendez does not satisfy the hardship requirement is a
judgment regarding the granting of relief under § 1229b.
  This is an issue of first impression in our circuit.
However, we are not the first to address this question. In
Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir.
2002), the Ninth Circuit considered the meaning of
                              5


“judgment” related to a different aspect of the hardship
requirement under the transitional rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996. The initial issue before the court was whether it had
jurisdiction to review the Board’s “purely legal and hence
non-discretionary question whether [the Appellant’s] adult
daughter qualifies as a ‘child’ for the purposes of [§ 1229b]
. . . .” Id. at 1140. As here, the Board had denied the
appellant’s request for cancellation finding that he did not
meet the statute’s threshold requirements.
   The court started by recognizing that “judgment” was
ambiguous because it was not defined in the statute, and
“could either mean ‘any decision’ or ‘any decision involving
the exercise of discretion.’ ” Id. at 1140. The court reviewed
the Immigration and Naturalization Act and determined
that throughout “judgment” was used in one of two ways,
either to refer to a formal order from a court, or to refer to
the exercise of discretion. Id. From this, the court
concluded it was unlikely Congress would intend a third
meaning for “judgment,” applying it to any decision
involving the exercise of discretion.
   Next, the court considered the structure of the statute.
First, the term “judgment” was placed in the phrase
“judgment regarding the granting of relief.” Thus, the term
refers “only to a judgment regarding the order or decision.”
Id. at 1142. In other words, the term refers to an exercise
of discretion regarding the order or decision. “Child” is
defined in the INA, and therefore “[n]o judgment is
exercised with respect to the mere eligibility for
discretionary relief. . . .” Id. Because the determination of
whether the daughter met the statutory definition of “child”
was not a judgment, the court could review this
determination. The court went on to conclude that the
daughter did not meet the statutory definition of “child” and
upheld the BIA’s decision.
   The Seventh Circuit conducted a similar analysis of
“judgment” in the jurisdiction stripping statute, 8 U.S.C.
§ 1252(a)(2)(B), and came to the conclusion that the statute
“only bars review of actual discretionary decisions to grant
or deny relief under the enumerated sections.” Iddir v. INS,
301 F.3d 492, 497 (7th Cir. 2002). We join the other
                                 6


circuits and conclude that, for nondiscretionary factors, the
Court maintains jurisdiction, but as to discretionary
decisions we lack jurisdiction.

                                III.
   We now turn to whether the judgment that an alien will
suffer an “exceptional and extremely unusual hardship” is
discretionary. As discussed above, § 1229b sets out the
eligibility requirements to qualify for discretionary
cancellation of deportation. The hardship requirement
requires that the alien “establish[ ] that removal would
result in exceptional and extremely unusual hardship. . . .”
The determination of whether the alien has established the
requisite hardship is a quintessential discretionary
judgment.
  A review of the cases addressing both the present
“exceptional and extremely unusual” hardship requirement
and the predecessor “extreme hardship” requirement
supports the conclusion that the hardship determination is
discretionary. For example, the Ninth Circuit addressed
whether each element of the predecessor2 to § 1229b was or
was not discretionary in Kalaw v. INS, 133 F.3d 1147 (9th
Cir. 1997). The court concluded that the hardship
determination is left to the Attorney General’s discretion
and is not subject to review. See id. at 1152 (citing Torres-
Guzman v. INS, 804 F.2d 531, 533 (9th Cir. 1986)).
   The court had no difficulty deciding that this requirement
was discretionary and unreviewable. Id. All other circuits
considering the issue agree. As noted by the Sixth Circuit
in Valenzuela-Alcantar v. INS, 309 F.3d 946 (6th Cir. 2002),
“In addition to the Ninth Circuit in Kalaw, every other
circuit to have considered the question has concluded that
the ‘extreme hardship’ determination under § 244 is a
discretionary one.” Id. at 949 (citing Kalkouli v. Ashcroft,
282 F.3d 202, 204 (2d Cir. 2002); Okpa v. INS, 266 F.3d

2. The prior statute stated that the Attorney General could suspend
deportation if the alien “is a person whose deportation would, in the
opinion of the Attorney General, result in extreme hardship. . . .” 8
U.S.C. § 1254(a)(1) (repealed).
                                7


313, 317 (4th Cir. 2001); Al Najjar v. Ashcroft, 257 F.3d
1262, 1298 (11th Cir. 2001); Escalera v. INS, 222 F.3d 753,
755 (10th Cir. 2000); Bernal-Vallejo, 195 F.3d at 63; Moosa
v. INS, 171 F.3d 994, 1012 (5th Cir. 1999); Skutnik v. INS,
128 F.3d 512, 514 (7th Cir. 1997)).
  More recent cases addressing “exceptional and extremely
unusual” reach the same conclusion. See Romero-Torres v.
Ashcroft, 327 F.3d 887 (9th Cir. 2003) (“We lack
jurisdiction to review the BIA’s discretionary determination
that an alien failed to satisfy the ‘exceptional and extremely
unusual hardship’ requirement for cancellation of
removal.”); Gonzalez-Oropeza v. Attorney General, 321 F.3d
1331, 1333 (11th Cir. 2003) (per curiam) (“[T]he exceptional
and extremely unusual hardship determination is a
discretionary decision not subject to review.”).

                               IV.
   We hold that § 1252(a)(2)(B)(i) strips us of jurisdiction to
review    certain   discretionary    decisions    under     the
Immigration and Naturalization Act as enumerated by the
statute. The decision whether an alien meets the hardship
requirement in 8 U.S.C. § 1229b is such a discretionary
judgment. Therefore, we lack jurisdiction to review the
issue Mendez presents on appeal—whether the Board and
Immigration Judge were correct in determining that he does
not meet the hardship requirements for cancellation of
deportation. We will dismiss the appeal accordingly.

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit
