Montero-Martinez v. Ashcroft: 9th Circuit Overrules Earlier Decision to Find Jurisdiction Over Issues of Eligibility for Discretionary Relief from Removal

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

MONTERO-MARTINEZ V. ASHCROFT: 9TH CIRCUIT OVERRULES EARLIER DECISION TO FIND JURISDICTION OVER ISSUES OF ELIGIBILITY FOR DISCRETIONARY RELIEF FROM REMOVAL
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The U.S. Court of Appeals for the Ninth Circuit has withdrawn an earlier opinion and issued a new decision in a case that concerns the scope of the court's jurisdiction to review decisions concerning discretionary relief from removal. In the opinion that has now been withdrawn, Montero-Martinez v. Ashcroft, 249 F.3d 1156 (9th Cir. 2001), the court held that section 242(a)(2)(B)(i) of the Immigration and Nationality Act deprived the court of jurisdiction over any decisions concerning cancellation of removal, adjustment of status, or the other forms of relief listed in the statute, even for statutory eligibility issues. In the new opinion, the court holds that this jurisdictional bar applies only to decisions made in the exercise of discretion. The court retains jurisdiction over issues such as the one presented in this case, which was whether the respondents were statutorily eligible for cancellation of removal. On the merits, the court rejected the petitioners' argument that an adult daughter should be considered a "child" for purposes of qualifying for cancellation of removal and denied the petition for review.

The respondents in this case are a father and son who entered the United States from Mexico without inspection in 1986. They were placed in removal proceedings in 1997 and appeared before an immigration judge in 1998. Before the IJ, the respondents initially sought to apply for cancellation of removal but subsequently withdrew their applications, conceding through counsel that the father's adult permanent resident daughter was too old to be a qualifying relative for purposes of eligibility for cancellation. The IJ then granted them sixty days voluntary departure. Representing themselves, the respondents then appealed to the Board of Immigration Appeals, contending that they should be granted cancellation of removal. The BIA ruled that they were statutorily ineligible for cancellation and that the IJ had properly accepted the withdrawal of their applications. They then filed a petition for review with the Ninth Circuit.

In the initial decision on appeal, a three-judge panel of the Ninth Circuit ruled that INA section 242(a)(2)(B)(i) barred the court from exercising jurisdiction over the appeal. Section 242(a)(2)(B) provides that "no court shall have jurisdiction to review – (i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or (ii) any other decision" for which the attorney general has discretionary authority, except for asylum. The INS argued, and a majority of the panel agreed, that subparagraph (i) deprives the appellate court of jurisdiction to review any determinations concerning the forms of relief listed in the subparagraph, including cancellation of removal under INA section 240A(b). Judge Pregerson wrote a strong dissent, maintaining that the use of the term "judgment" in subparagraph (i), and the overall language and structure of the statute, limit the statute's jurisdictional bar to determinations that are made in the exercise of discretion. Since the determination whether the respondents are eligible for cancellation of removal is not an exercise of discretion, Judge Pregerson argued that the jurisdictional bar should not apply in this case.

The respondents, together with amici curiae NILC and the National Immigration Project of the National Lawyers' Guild, then filed a petition for rehearing. In response, the government filed a brief stating that the solicitor general had reviewed the case and determined that its initial position was in error, in light of the Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001). St. Cyr confirmed two important principles: that there is a strong presumption in favor of judicial review and that any ambiguities in deportation statutes must be construed in favor of the alien. It also established that the bars to judicial review enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) did not deprive federal courts of jurisdiction to review deportation cases by means of habeas corpus. Thus, were the INS correct that the court of appeals had no jurisdiction to review statutory eligibility determinations such as the one in this case, immigrants nonetheless could obtain review of such issues by means of habeas petitions in federal district court. In light of St. Cyr, the government asked the court to withdraw its prior opinion and to find that it has jurisdiction over issues of statutory eligibility.

On Dec. 28, 2001, the court withdrew the original opinion, and on Jan. 16, 2002, the panel issued a new decision, authored by Judge Pregerson. The court held that INA section 242(a)(2)(B) bars only review of decisions made in the exercise of discretion and does not apply to determinations of statutory eligibility.

Turning to the merits of the respondents' claim that an adult daughter should be considered a "child" for purposes of cancellation, the court noted that the respondents may have waived this claim when they withdrew their cancellation applications and conceded that they were not eligible for cancellation. The court concluded that the definition of "child" in the cancellation statute is governed by INA section 101(b), which states, in pertinent part, that the term "child" "means an unmarried person under twenty-one years of age." The court therefore denied the petition.

Montero-Martinez v. Ashcroft, No. 99-70596 (9th Cir. Jan. 16, 2002).