           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 20, 2008
                                     No. 07-60808
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

CESAR LUCIO

                                                  Petitioner

v.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A90453823


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
       Cesar Lucio, a native and citizen of Mexico, petitions for review of the
decision of the Board of Immigration Appeals (BIA) denying his motion to
reconsider and reopen the denial of his application for cancellation of removal
under 8 U.S.C. § 1229b(a). The case has a long history, and we previously
remanded it for reconsideration in light of Lopez v. Gonzales, 127 S. Ct. 625
(2006). The BIA determined on remand that the Immigration Judge (the “IJ”)
correctly determined in his original decision that Lucio’s prior conviction for

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 07-60808

possession of marijuana was not an aggravated felony and that the IJ denied
Lucio’s application for cancellation of removal as a matter of discretion. The
issue before us now is whether we have jurisdiction to review the decision by the
BIA.1
        This is not the first time we have confronted a question about our
jurisdiction to review the BIA’s refusal to reconsider, or reopen and remand, a
case. We have previously said that “where a final order of removal is shielded
from judicial review by a provision of § 1252(a)(2), so, too, is the BIA’s refusal to
reopen that order.”         Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004)
(internal quotation marks omitted). “It is axiomatic that if we are divested of
jurisdiction to review an original determination by the [BIA]” on a matter within
its discretion, “we must also be divested of jurisdiction to review the [BIA’s]
denial of a motion to reopen” that rests solely on a matter within its discretion.
Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001). Thus, in order to
determine whether we possess jurisdiction to review Lucio’s motion to reopen
and remand, it is necessary to determine whether we have jurisdiction to review
the underlying decision of the BIA.
        We have already determined that this court lacks jurisdiction to review a
discretionary decision regarding cancellation of removal under 8 U.S.C. §
1229b(b)(1).2 See Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004); 8 U.S.C.

        1
         Lucio urges us to view this case through the lens of our remand in light of Lopez. The
argument is good as far as it goes—if there were any issue in this appeal as to the BIA’s
interpretation of Lopez, we would have jurisdiction. But the BIA’s interpretation of Lopez does
not aggrieve Lucio in the sense that we require for appellate standing. The BIA has now
determined that Lucio is eligible for cancellation of removal, as the IJ did initially. The legal
question that permitted us to hear Lucio’s first appeal, whether he had statutory eligibility for
cancellation of removal, is no longer present. The IJ made the correct determination initially,
and the BIA’s error, affirming the IJ on an alternative, and incorrect, ground, was remedied
by its reconsideration after our remand. Instead, Lucio is aggrieved by the BIA’s affirmance
of the IJ’s discretionary decision not to cancel removal. The issue before us, therefore, is one
of discretion, not statutory eligibility.
        2
        That is, of course, unless we are presented with a question of law or a constitutional
issue. See 8 U.S.C. § 1252(a)(2)(D) (Supp. V 2005).

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                                        No. 07-60808

§ 1252(a)(2)(B)(i). But we have not, in a published opinion,3 grappled with the
precise issue at hand, whether the jurisdictional bar of § 1252(a)(2)(B)(i) also
applies to discretionary decisions regarding cancellation of removal under 8
U.S.C. § 1229b(a).        There is not, however, any principled reason, on the
arguments before us, to treat discretionary decisions under § 1229b(b)(1) and §
1229b(a) differently.4 Section 1252(a)(2)(B)(i) provides that “no court shall have
jurisdiction to review any judgment regarding the granting of relief under
section . . . 1229b . . . of this title.” We do not see a parsing of that language,
which on its face does not distinguish between subsections of § 1229b, that
admits a different result for § 1229(b)(a) than we have already reached for §
1229(b)(b)(1).
       Accordingly, because we do not have jurisdiction over the underlying
discretionary issue, we also do not have jurisdiction over the appeal of the
instant decision to deny the motion to reconsider or reopen and remand. See
Rodriguez, 253 F.3d at 800. But as in Assaad, we do not today attempt to
“resolve the thorny question whether § 1252(a)(2)(B)(ii) precludes judicial review
of all motions to reopen.” The petition for review is DISMISSED.




       3
         We did address the issue in Mancha-Chairez v. Reno, No. 99-60157, 2000 WL 992442,
at *2 (5th Cir. 2000) (per curiam), an unpublished opinion.
       4
         Though not briefed in the case before us, and so we do not reach the issue, we have
previously noted that there is an argument that the language “any judgment regarding the
granting of relief,” in § 1252(a)(2)(B)(i) strips only our jurisdiction over judgments that grant
relief. We did reject that argument in Mancha-Chairez, but that is not a precedential
resolution of the issue under 5TH CIR. R. 47.5.4.

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