Castro De Mercado v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA DE LOURDES CASTRO DE 
MERCADO,
No. 06-70361
Petitioner,
v.  Agency No.
A98-006-996
MICHAEL B. MUKASEY, Attorney
General,
Respondent.

ILDEFONSO MERCADO MORAN,  No. 06-70366
Petitioner, Agency No.
v. A98-006-997
MICHAEL B. MUKASEY, Attorney  ORDER
General, AMENDING
Respondent. OPINION AND
AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 5, 2008—Pasadena, California
Filed August 21, 2008
Amended May 19, 2009
Before: David R. Thompson, Diarmuid F. O’Scannlain, and
Richard C. Tallman, Circuit Judges.
5977
5978 CASTRO DE MERCADO v. MUKASEY
Order;
Dissent to Order by Judge Pregerson;
Opinion by Judge O’Scannlain
5980 CASTRO DE MERCADO v. MUKASEY
COUNSEL
Joseph Mbacho, El Centro, California, filed briefs on behalf
of the petitioners.
Catherine Carroll, Wilmer Cutler Pickering Hale & Dorr,
Washington, DC, argued the cause for the petitioners as court-
appointed amicus curiae; Jonathan H. Becker, Wilmer Cutler
Pickering Hale & Dorr, Washington, DC, filed briefs as court-
appointed amicus curiae; John A. Rogovin was on the briefs.
Charles Cantor, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Washington, DC,
argued the cause for the respondent; Luis E. Perea, Attorney,
Office of Immigration Litigation, filed a brief; John C. Cun-
ningham, Senior Litigation Counsel, Office of Immigration
Litigation, and Peter D. Keisler, Assistant Attorney General,
Civil Division, were on the brief.
ORDER
The opinion filed in this case on August 21, 2008, is
amended as follows:
At page 11373 of the slip opinion, line 10, after the sen-
tence concluding < scope of our review > delete < Even if the
Mercados could demonstrate that the IJ misunderstood the
CASTRO DE MERCADO v. MUKASEY 5981
support § 1183a requires Mr. Mercado’s brother to provide,
their claim is simply an argument that the IJ underestimated
the hardship their removal would cause. We lack jurisdiction
over such question. >
The panel has unanimously voted to deny the petition for
rehearing. Judge O’Scannlain and Judge Tallman vote to deny
the petition for rehearing en banc and Judge Thompson so
recommends.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to hear the matter
en banc. The matter failed to receive a majority of the votes
of the nonrecused active judges in favor of en banc consider-
ation. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc are DENIED. No further petitions for rehearing or
rehearing en banc may be filed.
PREGERSON, Circuit Judge, dissenting from the denial of
rehearing en banc:
I dissent from our court’s denial of an en banc rehearing in
this case. The panel opinion ignores a well-settled rule of con-
stitutional avoidance. In the final footnote, the panel gratu-
itously and unnecessarily addresses a constitutional issue after
basing its decision on the plain language of the statute at issue
and pre-existing case law. There was absolutely no need for
the panel opinion to grapple with a constitutional argument—
particularly after expressly setting the constitutional question
aside and deciding the case on other grounds.
Under the principle of constitutional avoidance,
[A court] will not pass upon a constitutional question
although properly presented by the record, if there is
5982 CASTRO DE MERCADO v. MUKASEY
also present some other ground upon which the case
may be disposed of . . . . [T]hus, if a case can be
decided on either of two grounds, one involving a
constitutional question, the other a question of statu-
tory construction or general law, the Court will
decide only the latter.
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring); see also Envt’l Def. Ctr., Inc. v.
EPA, 344 F.3d 832, 843 (9th Cir. 2003) (stating that “we
avoid considering constitutionality if an issue may be resolved
on narrower grounds[ ]”) (citing Greater New Orleans Broad.
Ass’n v. United States, 527 U.S. 173, 184 (1999) (stating that
“[i]t is . . . an established part of our constitutional jurispru-
dence that we do not ordinarily reach out to make novel or
unnecessarily broad pronouncements on constitutional issues
when a case can be fully resolved on a narrower ground.”));
United States v. Gurolla, 333 F.3d 944, 953 n.11 (9th Cir.
2003) (declining to express any view on implicated constitu-
tional concerns and noting that the court’s ruling avoided the
necessity of reaching the constitutional questions);
Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1129 (9th Cir.
2001) (explaining that “because we find a statutory violation,
it is not necessary to reach the constitutional question pre-
sented” and citing Ashwander, 297 U.S. at 347 (Brandeis, J.,
concurring)).
I believe the panel gratuitously, unnecessarily and cursorily
addressed a constitutional issue in its final footnote. I dissent.
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to reexamine whether we have jurisdiction to
review an Immigration Judge’s decision which held that the
CASTRO DE MERCADO v. MUKASEY 5983
removal of two aliens, a husband and wife, would not impose
an “exceptional and extremely unusual hardship” on their
United States-born children and the husband’s elderly parents,
both of whom have legal status to reside in the United States.
I
Maria de Lourdes Castro de Mercado and Ildefonso Mer-
cado Moran (the “Mercados”) are natives and citizens of
Mexico who entered the United States without inspection in
1990 and 1989 respectively. The Mercados are married, have
four minor children, and share their home with Mr. Mercado’s
elderly parents. The Mercados’ children are citizens of the
United States. Mr. Mercado’s parents are lawful permanent
residents; their applications were sponsored by Mr. Mercado’s
brother, a U.S. citizen. The Mercados themselves have never
lawfully been admitted to this country.
In 2004, the Department of Homeland Security served Mr.
and Mrs. Mercado with Notices to Appear charging them with
removability as aliens present in the United States without
admission or parol under 8 U.S.C. § 1182(a)(6)(A)(i). The
Mercados conceded the charges but applied for cancellation
of removal, arguing that their departure from this country
would impose an “exceptional and extremely unusual hard-
ship” on their children and on Mr. Mercado’s parents. See id.§ 1229b(b)(1). In 2005, an Immigration Judge (“IJ”) held a
hearing and denied the Mercados’ applications, acknowledg-
ing that their removal would impose a hardship on their rela-
tives, but concluding that such hardship did not rise to such
an extreme level as to warrant relief. The IJ granted their
alternative applications for voluntary departure instead.
The Board of Immigration Appeals (“BIA”) affirmed the
IJ’s decision without opinion, and the Mercados timely filed
5984 CASTRO DE MERCADO v. MUKASEY
petitions for review, arguing that the IJ’s decision was predi-
cated on a legal error and violated their constitutional rights.1
II
[1] Before we reach the merits of the Mercados’ claims, we
must determine whether we have jurisdiction. The Immigra-
tion and Naturalization Act (“INA”) authorizes the Attorney
General to cancel the removal of an otherwise-deportable
alien if he or she meets certain requirements. See 8 U.S.C.
§ 1229b(b).2 One such requirement is that the alien demon-
strate that his or her 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.” Id. § 1229b(b)(1)(D)
(emphasis added). The INA also contains a jurisdiction-
stripping provision, id. § 1252(a)(2)(B)(i) (“Subsection B(i)”),
which deprives us of jurisdiction to review “any judgment
regarding the granting of relief under section . . . 240A [can-
1
Where, as here, the BIA summarily affirms the IJ’s ruling without
opinion, we review the IJ’s decision as the final agency determination. See
Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).
2
Specifically, the Act provides that an alien is eligible for cancellation
of removal if he or she
(A) has been physically present in the United States for a contin-
uous 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
1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to para-
graph (5); 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).
CASTRO DE MERCADO v. MUKASEY 5985
cellation of removal].” Id. We have interpreted this jurisdic-
tional bar to encompass “all discretionary decisions involved
in the cancellation of removal context, including the ultimate
discretionary decision to deny relief.” Romero-Torres v. Ash-
croft, 327 F.3d 887, 890 (9th Cir. 2003). The question
whether an alien’s relatives are likely to suffer an exceptional
and extremely unusual hardship upon the alien’s removal is a
discretionary decision because it is “ ‘a subjective question’
that depends on the value judgment ‘of the person or entity
examining the issue’,” not a legal determination. Id. at 891(quoting Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997));
see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th
Cir. 2005) (“[W]hether an alien demonstrated ‘exceptional
and extremely unusual hardship under 8 U.S.C.
§ 1229b(b)(1)(D) [i]s a discretionary determination and [i]s
therefore unreviewable under [Subsection B(i)].”).
[2] Nevertheless, Subsection B(i) does not deprive us of
jurisdiction over questions pertaining to a petitioner’s statu-
tory eligibility for cancellation of removal, such as whether
certain relatives qualify for consideration in the IJ’s hardship
analysis, because such questions are “purely legal and hence
non-discretionary.” Montero-Martinez v. Ashcroft, 277 F.3d
1137, 1144-45 (9th Cir. 2002); see id. (holding that we have
jurisdiction to review an IJ’s conclusion as to whether an
alien’s adult child is a qualifying relative); Molina-Estrada v.
INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002) (holding that we
have jurisdiction to consider whether an alien’s parent is a
lawful permanent resident). In addition, the Real ID Act of
2005, Pub.L. No. 109-13, div. B, 119 Stat. 231, vests us with
jurisdiction to review “constitutional claims or questions of
law raised upon a petition for review.” 8 U.S.C.
§ 1252(a)(2)(D) (“Subsection D”). Still, we have held that
Subsection D “did not alter our jurisdiction” over the agen-
cy’s denial of an application for cancellation of removal.
Martinez-Rosas, 424 F.3d at 929. We continue to “lack juris-
diction to review the IJ’s subjective, discretionary determina-
5986 CASTRO DE MERCADO v. MUKASEY
tion that [a petitioner] did not demonstrate ‘exceptional and
extremely unusual hardship.’ ” Id. at 930.3
III
Against this backdrop, the Mercados assert three challenges
to the IJ’s assessment of the hardships in their case, arguing
that Subsection D provides us with jurisdiction to review all
three.4
A
First, the Mercados contend that the IJ underestimated the
hardships in this case because it misconstrued Mr. Mercado’s
brother’s statutory obligation to provide financial support to
Mr. Mercado’s parents. They suggest that such error creates
a question of law subject to our review under Subsection D.
Mr. Mercado’s parents gained lawful permanent residency
status as “family-sponsored immigrants” under 8 U.S.C.
§ 1182(a)(4)(C). Their family sponsor was Mr. Mercado’s
brother, who was required to execute an affidavit promising
3
After Martinez-Rosas, we decided Ramadan v. Gonzales, 479 F.3d 646(9th Cir. 2007) (per curiam), reh’g denied, 504 F.3d 973. There, we held
that the “questions of law” over which the Real ID Act vests this court
with jurisdiction include “questions involving the application of statutes or
regulations to undisputed facts,” otherwise known as “mixed questions of
fact and law.” Id. at 650. Nevertheless, Ramadan emphasized that it did
not infringe upon the rule that discretionary determinations are beyond our
review. Id. at 654.
4
We lack jurisdiction over the Mercados’ claim that the IJ failed to
serve as an impartial adjudicator or to afford them a full and fair hearing
because they failed to assert such claim in their brief to the BIA. See 8
U.S.C. § 1252(d)(1) (stating that a “court may review a final order of
removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right”); Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (holding that § 1252(d)(1) requires the alien to exhaust any
claims of “ ‘procedural error’ that an administrative tribunal could reme-
dy” before we may consider such claims upon a petition for review).
CASTRO DE MERCADO v. MUKASEY 5987
to maintain his parents “at an annual income that is not less
than 125 percent of the Federal poverty line.” Id.
§ 1183a(a)(1)(A). Such promise is legally enforceable against
Mr. Mercado’s brother by his parents, the federal or any state
government, or any entity that provides public assistance to
his parents. Id. § 1183a(a)(1)(B).
In evaluating the hardship that would befall Mr. Mercado’s
parents if the Mercados were removed, the IJ considered Mr.
Mercado’s brother’s obligation among other things. In so
doing, the Mercados assert that the IJ incorrectly reasoned
that Mr. Mercado’s brother’s obligation to provide financial
support to his parents would compensate for the emotional,
medical, physical, and financial support the Mercados cur-
rently provide.
[3] We need not consider whether the IJ actually made such
an error because the question whether and to what extent Mr.
Mercado’s brother is likely to support his parents upon the
Mercados’ removal is not a question of law, but an evidenti-
ary determination outside the scope of our review. See
Romero-Torres, 327 F.3d at 887; Torres-Aguilar v. INS, 246
F.3d 1267, 1270 (9th Cir. 2001).
B
[4] Next, the Mercados argue that the IJ abused his discre-
tion by misapplying the facts of their case to the hardship
standard, thereby violating their right to due process.
Although we have jurisdiction to review due process claims
arising from the agency’s denial of cancellation of removal,
such claims “must allege at least a colorable constitutional
violation.” Martinez-Rosas, 424 F.3d at 930. In Martinez-
Rosas, we rejected the argument that an IJ’s application of the
facts of a petitioner’s case to the hardship standard—in other
words, the IJ’s exercise of discretion—creates a colorable
constitutional claim. Id. As we explained, “[s]uch an assertion
is nothing more than an argument that the IJ abused his dis-
5988 CASTRO DE MERCADO v. MUKASEY
cretion, a matter over which we have no jurisdiction.” Id.Therefore, the Mercados’ second argument is foreclosed by
our precedent.
C
Finally, the Mercados assert that, if they are removed, they
will take their children with them to Mexico but leave Mr.
Mercado’s parents behind. As a consequence, they suggest
that the IJ’s denial of their applications for cancellation of
removal impacts the “unity” of their family, which they con-
tend is a “fundamental right.” Although the Mercados’
acknowledge that their removal violates neither their own due
process rights nor those of their family members, see, e.g.,
Rubio de Cachu v. INS, 568 F.2d 625 (9th Cir. 1977), they
argue that the constitution requires judicial review over any
hardship determination by the agency that impacts the unity
of the family of the petitioner subject to removal. Thus, they
argue that we must consider whether the IJ abused its discre-
tion in evaluating the hardships in this case.
[5] Setting aside the questions whether “family unity” is a
constitutionally-protected right or whether it is impacted by
the removal of an alien from the United States, accepting the
Mercados’ argument would require us to ignore our prece-
dent. In Martinez-Rosas, we held that Subsection D does not
provide us with jurisdiction to review the agency’s discretion-
ary determination as to whether a petitioner’s immediate fam-
ily members would suffer an “exceptional and extremely
unusual hardship” upon the petitioner’s removal. 424 F.3d at
929-30. Creating an exception to this rule for any case where
the petitioner’s family unity is implicated would swallow the
rule itself. The plain terms of the cancellation of removal stat-
ute require the IJ to consider whether removal would result in
hardship to the petitioner’s closest relatives—his or her
“spouse, parent[s], or child[ren].” 8 U.S.C. § 1229b(b)(1)(D).
Thus, every hardship determination by the agency affects the
members of the petitioner’s family and, hence, the “family
CASTRO DE MERCADO v. MUKASEY 5989
unity” the Mercados ask us to recognize. We have already
held that we lack jurisdiction to review hardship determina-
tions because they are committed to the discretion of the
agency alone. Martinez-Rosas, 424 F.3d at 930. We lack the
authority to reconsider that rule here. See Hart v. Massanari,
266 F.3d 1155, 1171 (9th Cir. 2001) (“[A] later three-judge
panel considering a case that is controlled by the rule
announced in an earlier panel’s opinion has no choice but to
apply the earlier-adopted rule . . . .”).5
IV
[6] Because we lack jurisdiction for the foregoing reasons,
the Mercados’ petitions for review are
DISMISSED.
5
Moreover, the Mercados’ asserted right to family unity is implausible.
True, the Supreme Court has consistently defined “the freedom of per-
sonal choice in matters of marriage and family life [a]s one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment,”
Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opin-
ion). Indeed, it has held that the Constitution protects freedom of choice
with respect to childbearing, see, e.g., Roe v. Wade, 410 U.S. 113 (1973);
Griswold v. Connecticut, 381 U.S. 479 (1965), the right of parents to cus-
tody of their biological children, Stanley v. Illinois, 405 U.S. 645 (1972),
and parents’ decision-making authority in matters of child rearing and
education, see, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972). The denial
of an application for cancellation of removal implicates none of those
rights, and the Mercados point to no authority to suggest that the Constitu-
tion provides them with a fundamental right to reside in the United States
simply because other members of their family are citizens or lawful per-
manent residents.