Martinez-Rosas v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA MARTINEZ-ROSAS, 
Petitioner-Appellant, No. 04-36150
v.
 D.C. No.
CV-04-00152-EFS
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
August 4, 2005—Seattle, Washington
Filed September 9, 2005
Before: David R. Thompson, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
12827
MARTINEZ-ROSAS v. CHERTOFF 12829
COUNSEL
Nicholas Marchi, Carney & Marchi, P.S., Seattle, Washing-
ton, for the petitioner.
James A. McDevitt, United States Attorney, and William H.
Beatty, Assistant United States Attorney, Spokane, Washing-
ton, for the respondent.
OPINION
WARDLAW, Circuit Judge:
Maria Martinez-Rosas, a native and citizen of Mexico,
appeals the district court’s order dismissing her 28 U.S.C.
§ 2241 habeas corpus petition, which challenged the order of
removal entered by an immigration judge (“IJ”) and affirmed
by the Board of Immigration Appeals (“BIA”). We treat
Martinez-Rosas’ appeal as a petition for review pursuant to
section 106(a) of the REAL ID Act of 2005, Pub. L. No. 109-
13, Div. B., 119 Stat. 231 (2005), and dismiss in part and
deny in part.
I.
Martinez-Rosas entered the United States without inspec-
tion in 1987. On March 20, 1998, she was issued a Notice to
Appear. At her hearing, Martinez-Rosas admitted unlawful
entry, but requested cancellation of removal pursuant to 8
U.S.C. § 1229b. The IJ denied her request for cancellation of
removal on the ground that she failed to establish that “re-
moval would result in exceptional and extremely unusual
12830 MARTINEZ-ROSAS v. CHERTOFF
hardship to [her] 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)(D).
The BIA affirmed the IJ’s decision without opinion pursu-
ant to 8 C.F.R. § 1003.1(d)(2)(i). Martinez-Rosas then filed a
petition for review, which we dismissed for lack of jurisdic-
tion.
On May 7, 2004, Martinez-Rosas filed a Complaint for
Declaratory Relief and Injunctive Relief and Petition for Writ
of Habeas Corpus in the United States District Court for the
Eastern District of Washington, claiming that (1) the IJ denied
her right to due process by misapplying the applicable law to
the facts of her case; and (2) the BIA denied her right to due
process by summarily affirming the IJ’s decision pursuant to
8 C.F.R. § 1003.1(d)(2)(i). Respondent the Department of
Homeland Security (“DHS”) successfully moved to dismiss
her petition. The district court ruled that it lacked jurisdiction
to review the IJ’s subjective, discretionary determination that
Martinez-Rosas failed to demonstrate “exceptional and
extremely unusual hardship” under 8 U.S.C. § 1229b(b)
(1)(D). It stated, however, that construed liberally, Martinez-
Rosas’ petition alleged constitutional error in the removal pro-
cess, which it had jurisdiction to review. The court therefore
proceeded to review Martinez-Rosas’ constitutional claims,
but ultimately dismissed those claims on the merits.
II.
[1] On May 11, 2005, while this appeal was pending, the
President signed into law the REAL ID Act of 2005, Pub. L.
No. 109-13, Div. B., 119 Stat. 231 (2005). Section
106(a)(1)(B) of the Act amends 8 U.S.C. § 1252 by adding a
new provision, § 1252(a)(5), as follows:
Exclusive Means of Review.—Notwithstanding any
other provision of law (statutory or nonstatutory),
MARTINEZ-ROSAS v. CHERTOFF 12831
including section 2241 of title 28, United States
Code, or any other habeas corpus provision, and sec-
tions 1361 and 1651 of such title, a petition for
review filed with an appropriate court of appeals in
accordance with this section shall be the sole and
exclusive means for judicial review of an order of
removal entered or issued under any provision of this
Act, except as provided in subsection (e) [of this sec-
tion].
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B.,
§ 106(a)(1)(B), 119 Stat. 231, 310 (2005). Section 106(b) fur-
ther provides that the amendments made by subsection (a)
apply retroactively. Id. at 311. Therefore, under the new judi-
cial review regime imposed by the Act, a petition for review
is now the exclusive means for challenging final removal
orders by the BIA, except those issued pursuant to 8 U.S.C.
§ 1225(b)(1).
[2] To implement this new regime, section 106(c) of the
Act provides that all habeas petitions brought by aliens that
were pending in the district courts on the date of the Act’s
enactment are to be converted to petitions for review and
transferred to the appropriate courts of appeals. Id. The Act
does not, however, expressly address appeals from district
courts’ habeas decisions pending on the date of the Act’s
enactment. Because the Act is ambiguous, we look to its leg-
islative history for congressional intent. See United States v.
Daas, 198 F.3d 1167, 1174 (9th Cir. 1999). The Act’s legisla-
tive history demonstrates that Congress intended a petition for
review to be the exclusive means for judicial review of a final
order of removal as of the date of the Act’s enactment. See
H.R. Rep. No. 109-72, at 301 (2005) (Conf. Rep.) (“[T]he bill
would eliminate habeas review . . . over challenges to removal
orders.”). Moreover, treating appeals already pending in this
court and cases transferred from the district courts in the same
manner would obviate claims of disparate treatment by peti-
tioners in either group. Therefore, we treat Martinez-Rosas’
12832 MARTINEZ-ROSAS v. CHERTOFF
appeal as a petition for review. See Cordes v. Gonzales, ___
F.3d ___, 2005 WL 2060851, *1 (9th Cir. Aug. 24, 2005)
(holding that habeas appeals challenging final removal orders
that were pending when the Act took effect should be treated
as petitions for review); Alvarez-Barajas v. Gonzales, ___ F.
3d ___, 2005 WL 1906672, *2 (9th Cir. Aug. 11, 2005)
(same). Two of our sister circuits have reached the same con-
clusion. See Marquez-Almanzar v. INS, ___ F.3d ___, 2005
WL 1864071, *1 (2d Cir. Aug. 8, 2005); Bonhometre v. Gon-
zales, 414 F.3d 442, 445-46 (3d Cir. 2005).
III.
[3] Before the enactment of the REAL ID Act of 2005, we
held that we lacked jurisdiction to review the denial of a
request for cancellation of removal based on a rejected claim
of “exceptional and extremely unusual hardship.” See
Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.
2003). We held that whether an alien demonstrated “excep-
tional and extremely unusual hardship” under 8 U.S.C.
§ 1229b(b)(1)(D) was a discretionary determination and was
therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i). See
id. at 890-91.
[4] The REAL ID Act of 2005 did not alter our jurisdiction
in this regard. Section 106(a)(1)(A)(iii) of the Act provides:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (other than this section) which
limits or eliminates judicial review, shall be con-
strued as precluding review of constitutional claims
or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accor-
dance with this section.
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B.,
§ 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005). “By this
amendment, Congress restored judicial review of constitu-
MARTINEZ-ROSAS v. CHERTOFF 12833
tional claims and questions of law presented in petitions for
review of final removal orders.” See Fernandez-Ruiz v. Gon-
zales, 410 F.3d 585, 587 (9th Cir. 2005). However, 8 U.S.C.
§ 1252(a)(2)(B)(i) continues to provide that “[n]otwith-
standing any other provision of law . . . no court shall have
jurisdiction to review . . . any judgment regarding the granting
of relief under section . . . 1229b [the cancellation of removal
provision].” 8 U.S.C. § 1252(a)(2)(B)(i). Therefore, we lack
jurisdiction to review the IJ’s subjective, discretionary deter-
mination that Martinez-Rosas did not demonstrate “excep-
tional and extremely unusual hardship” under 8 U.S.C.
§ 1229b(b)(1)(D).
IV.
[5] We do have jurisdiction, however, to review Martinez-
Rosas’ due process claims. See Fernandez-Ruiz, 410 F.3d at
587. We review such constitutional claims de novo. Torres-
Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).
[6] Although we retain jurisdiction to review due process
challenges, a petitioner must allege at least a colorable consti-
tutional violation. Id. “To be colorable in this context, the
alleged violation need not be substantial, but the claim must
have some possible validity.” Id. (citations and quotations
omitted). Martinez-Rosas’ claim that the IJ denied her right to
due process by misapplying the facts of her case to the appli-
cable law does not meet this requirement. She does not con-
tend that she was prevented from presenting her case before
the IJ, denied a full and fair hearing before an impartial adju-
dicator, or otherwise denied a basic due process right. Rather,
she contends that the IJ erred in finding that she did not meet
the requirement of “exceptional and extremely unusual hard-
ship.” Such an assertion is nothing more than an argument
that the IJ abused his discretion, a matter over which we have
no jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)(i). Therefore,
we dismiss this claim. See Torres-Aguilar, 246 F.3d at 1271.
12834 MARTINEZ-ROSAS v. CHERTOFF
[7] Martinez-Rosas also argues that the BIA denied her
right to due process by summarily affirming the IJ’s decision
pursuant to 8 C.F.R. § 1003.1(d)(2)(i). In Falcon Carriche v.
Ashcroft, 350 F.3d 845 (9th Cir. 2003), we held that the BIA
does not deny a petitioner’s right to due process by summarily
affirming an IJ’s decision that he does not meet the statutory
requirements for cancellation of removal, including the
requirement that a qualifying United States citizen or lawfully
admitted alien relative would suffer “exceptional and
extremely unusual hardship” if the petitioner were removed.
Id. at 848. Therefore, Martinez-Rosas’ claim that the BIA
denied her right to due process lacks merit.
V.
In summary, habeas appeals challenging final removal
orders that were pending on the date the REAL ID Act of
2005 became effective shall be treated as petitions for review.
Although we have jurisdiction to review constitutional claims
and questions of law presented in petitions for review of final
removal orders, we lack jurisdiction to review the subjective,
discretionary determination that an alien failed to satisfy the
“exceptional and extremely unusual hardship” requirement for
cancellation of removal. Furthermore, traditional abuse of dis-
cretion challenges recast as alleged due process violations do
not constitute colorable constitutional claims that would
invoke our jurisdiction. Finally, our holding in Falcon Carri-
che forecloses Martinez-Rosas’ challenge to the summary
affirmance procedure adopted by the BIA. Therefore, we dis-
miss the petition in part and deny the petition in part.
PETITION DISMISSED IN PART AND DENIED IN
PART.