Fermin Monroy v. Loretta E. Lynch , 821 F.3d 1175 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERMIN LEONARDO MONROY, AKA No. 14-73933
Fermin Leonardo Monroy-
Rodriguez, Agency No.
Petitioner, A070-811-553
v.
ORDER
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 4, 2016*
Filed May 11, 2016
Before: William C. Canby, Jr., Edward Leavy,
and Sandra S. Ikuta, Circuit Judges.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MONROY V. LYNCH
SUMMARY**
Immigration
The panel granted the Attorney General’s motion to
dismiss Fermin Leonardo Monroy’s petition for review of the
Board of Immigration Appeals’ order denying, as a matter of
discretion, his application for special rule cancellation of
removal under the Nicaraguan Adjustment and Central
American Relief Act.
The panel concluded that this court lacks jurisdiction
pursuant to 8 U.S.C. § 1252(a)(2)(B)(i) to review the BIA’s
discretionary denial of NACARA special rule cancellation of
removal.
COUNSEL
Fermin Leonardo Monroy, Los Angeles, California, pro se
Petitioner.
Aaron D. Nelson, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MONROY V. LYNCH 3
ORDER
Fermin Leonardo Monroy, a native and citizen of El
Salvador, petitions for review of an order of the Board of
Immigration Appeals (“BIA”) that denied, as a matter of
discretion, Monroy’s application for special rule cancellation
of removal under § 203 of the Nicaraguan Adjustment and
Central American Relief Act (“NACARA”). We conclude
that we lack jurisdiction over this petition for review, and
therefore grant the Attorney General’s motion for dismissal.
1. Special rule cancellation of removal under NACARA
NACARA provides various immigration benefits and
relief from removal to certain nationals of Central American
and former Soviet Bloc countries. See NACARA, Pub. L.
No. 105-100, 111 Stat. 2160 (Nov. 19, 1997), amended by
Pub. L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997). As
relevant here, NACARA amended the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), by adding a
“special rule for cancellation of removal” for certain classes
of aliens. See NACARA § 203(b), 111 Stat. 2198. This
amendment to IIRIRA allowed qualified individuals to apply
for special rule cancellation of removal under the more
lenient standards that existed before the passage of IIRIRA.
See Barrios v. Holder, 581 F.3d 849, 856–57 (9th Cir. 2009).1
1
The special rule for cancellation of removal has been implemented by
means of two regulations, 8 C.F.R. § 1240.61 (describing which aliens
may apply for NACARA special rule cancellation), and 8 C.F.R.
§ 1240.66 (describing eligibility requirements for special rule
cancellation). See Barrios, 581 F.3d at 857 & n.7, 858 & n.11.
4 MONROY V. LYNCH
Under NACARA’s special rule cancellation of removal,
the Attorney General has discretion under 8 U.S.C. § 1229b
to cancel the removal of, and adjust to lawful permanent
resident status, certain Salvadoran nationals who establish
that (1) they are not inadmissible or deportable for having
committed certain offenses; (2) they have been physically and
continuously present in the United States for at least seven
years before applying for the relief; (3) they have been
persons of good moral character during those seven years;
and (4) their removal would result in extreme hardship to
themselves or to qualifying relatives. See NACARA
§ 203(b), 111 Stat. 2198 (amending IIRIRA § 309(f)(1)); see
also 8 C.F.R. § 1240.66(b).
2. Facts and procedural history
Monroy is a native and citizen of El Salvador. He was
admitted to the United States on November 22, 1989, on a
nonimmigrant visa with authorization to remain in the
country until May 21, 1990. Monroy overstayed his visa and
has resided in the United States continuously since his 1989
admission.
In 2006, the government charged Monroy with
removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being
present in the United States without being admitted or
paroled.2 He applied for NACARA cancellation as an alien
who is the unmarried son of a parent who has been granted
2
In 2007, the government withdrew this charge of removability and
lodged a new charge, under 8 U.S.C. § 1227(a)(1)(B), that Monroy was
present in the United States in violation of the Immigration and
Nationality Act or another law of the United States, or that his
nonimmigrant visa had been revoked.
MONROY V. LYNCH 5
NACARA cancellation of removal. See 8 C.F.R.
§ 1240.61(a)(5)(i). Monroy also applied for voluntary
departure.3
The IJ found Monroy removable as charged and denied
his application for NACARA cancellation of removal on two
grounds. First, the IJ held that Monroy was not statutorily
eligible for this relief because he had not met his burden of
establishing that his removal would result in extreme
hardship to himself or his qualifying relatives. See NACARA
§ 203(b), 111 Stat. 2198 (amending IIRIRA § 309(f)(1)(A));
see also 8 C.F.R. § 1240.66(b)(4). Second, the IJ held that
Monroy was not entitled to NACARA special rule
cancellation of removal as a matter of discretion because the
“unfavorable factors outweigh his equities.” In reaching this
conclusion, the IJ considered Monroy’s positive equities,
including his relationships with family members, the
immigration status of his family members, his education and
employment history, and the testimony of a psychologist who
had diagnosed Monroy with a major depressive disorder. The
IJ also noted Monroy’s negative factors, including his
“extensive criminal history” and his “drinking problem.” The
IJ found that Monroy is “a danger to the community,” and
denied NACARA cancellation “as a matter of discretion
based upon his criminal history.”4
On appeal, the BIA affirmed the IJ’s decision to deny
Monroy’s application for special rule cancellation of removal
as a matter of discretion. After reviewing Monroy’s positive
3
In addition, Monroy applied for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1), but he later withdrew that application.
4
The IJ granted Monroy’s application for voluntary departure.
6 MONROY V. LYNCH
and negative factors, the BIA concluded that the negative
outweighed the favorable equities and that “given [Monroy’s]
criminal history and insufficient evidence of rehabilitation,
[Monroy] has not demonstrated that he warrants special rule
cancellation of removal as a matter of discretion.” The BIA
declined to address whether Monroy was statutorily eligible
for NACARA special rule cancellation of removal.5
Proceeding pro se, Monroy filed this petition for review.
He argues that the IJ and BIA “erred and abused their
discretion and incorrectly applied the law to the facts” in
denying his application for NACARA cancellation. Monroy
asserts that, in light of his strong positive equities, “[t]he IJ
and the BIA erred in determining that the unfavorable factors
outweighed the favorable factors.”6
3. Jurisdiction
We lack jurisdiction to review the BIA’s discretionary
denial of special rule cancellation of removal. Section 203(b)
of NACARA provides that “the Attorney General may, under
[8 U.S.C. § 1229b] 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 meets certain eligibility requirements.
5
The BIA did, however, reinstate the IJ’s grant of voluntary departure.
6
Monroy also argues that he is statutorily eligible for special rule
cancellation of removal because he established that his removal would
result in extreme hardship to himself and qualifying relatives. Because we
dismiss his petition for lack of jurisdiction to review the BIA’s
discretionary decision, and the BIA did not rely on statutory ineligibility
as a ground for its denial of relief, we need not consider this argument
here.
MONROY V. LYNCH 7
NACARA § 203(b), 111 Stat. 2198 (amending IIRIRA
§ 309(f)(1)). We have long held that 8 U.S.C.
§ 1252(a)(2)(B)(i) bars us from reviewing “any judgment
regarding the granting of relief” under § 1229b. See Vilchez
v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012); Bermudez v.
Holder, 586 F.3d 1167, 1169 (9th Cir. 2009) (per curiam).
Therefore, as with non-NACARA cancellation of removal,
§ 1252(a)(2)(B)(i) bars us from reviewing the BIA’s
discretionary denial of NACARA cancellation of removal.
We accordingly lack jurisdiction to address Monroy’s
challenge to the BIA’s exercise of its discretion.
We do retain jurisdiction to review colorable
constitutional claims and questions of law raised in a petition
for review of a discretionary denial of NACARA
cancellation. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in
subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims or questions of law . . . .”); cf. Vilchez,
682 F.3d at 1198 (holding that we lack jurisdiction to review
“the merits of a discretionary decision to deny cancellation of
removal” but retain jurisdiction to review legal and
constitutional questions); Bermudez, 586 F.3d at 1169
(“Petitioner has not set forth a colorable constitutional claim
over which we otherwise could exercise jurisdiction.”).
Monroy, however, has not raised any such issues in this
petition for review. Instead, he simply disagrees with the
agency’s weighing of his positive equities and the negative
factors, a matter over which we lack jurisdiction. See
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
8 MONROY V. LYNCH
2005). Therefore, we grant the Attorney General’s motion to
dismiss this petition for review for lack of jurisdiction.
DISMISSED.