Miguel Lopez Arellano v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL LOPEZ ARELLANO, No. 20-71223
Petitioner, Agency No. A201-021-940
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2023**
Phoenix, Arizona
Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.
Petitioner Miguel Lopez-Arellano, a native and citizen of Mexico, entered
the United States in 1994 without inspection. He conceded removability but
sought cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Board of
Immigration Appeals (“BIA”) dismissed his appeal from an immigration judge’s
*
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).
(“IJ”) denial of his request for cancellation of removal. Petitioner timely seeks our
review. We deny the petition in part and dismiss it in part.
1. Petitioner challenges the IJ’s determination that he is ineligible for
cancellation of removal because he failed to demonstrate that removal would result
in an exceptional and extremely unusual hardship to his children, who are United
States citizens. We have held that, in the context of cancellation of removal, the
agency’s determination that a noncitizen did not demonstrate “exceptional and
extremely unusual hardship” pursuant to 8 U.S.C. § 1229b(b)(1)(D) is ordinarily
unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i). De La Rosa-Rodriguez v.
Garland, 49 F.4th 1282, 1286–87 (9th Cir. 2022). But we retain jurisdiction to
consider a question of law or a mixed question of law and fact, including whether
the agency applied the correct legal standard in assessing a petitioner’s claim for
discretionary relief. Id. at 1285. Here, Petitioner fails to raise any such issue.
Although Petitioner frames the IJ’s analysis of the hardship issue as a “legal
question,” it is apparent from his brief that he actually seeks a reweighing of the
facts. To the extent that Petitioner disagrees with the agency’s weighing of
hardship factors or its conclusion, we lack jurisdiction to consider those issues.1
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Petitioner also filed a letter pursuant to Federal Rule of Appellate Procedure
28(j), arguing that, under the Supreme Court’s decision in Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021), he should have been permitted to accrue additional
“continuous physical presence” after the date the Notice to Appear was issued.
But Niz-Chavez has no bearing on Petitioner’s eligibility for cancellation of
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2. Petitioner also argues that the IJ lacked jurisdiction to conduct the
removal proceedings because the Notice to Appear failed to include information
about the date and time of the removal proceedings—even though a subsequently
filed Notice of Hearing provided the missing information. Our decision in United
States v. Bastide-Hernandez, 39 F.4th 1187 (9th Cir. 2022) (en banc), ”), cert.
denied, No. 22-6281, 2023 WL 350056 (U.S. Jan. 23, 2023), forecloses that
jurisdictional argument.
PETITION DENIED in part and DISMISSED in part.
removal because his lack of physical presence was not a ground for denying the
application. See 8 U.S.C. § 1229b(b)(1)(A).
3