ETTIENNE v. Holder
2011 U.S. App. LEXIS 20133
| 6th Cir. | 2011Background
- Ettienne, a Trinidadian citizen, entered the U.S. in 1987 at age 16 for track competition and remained beyond visa validity.
- She later participated in a marriage fraud scheme; a sham marriage to Thomas Bumpus was admitted in affidavits in 1990.
- Ettienne later married U.S. citizen Jarion Bradley in 1999 and has two U.S. citizen sons; her family is financially settled in the U.S.
- She sought adjustment of status in 2001 based on marriage to a U.S. citizen, but was denied due to prior marriage fraud under 8 U.S.C. § 1154(c).
- In 2001 Ettienne was served a Notice to Appear alleging removability for unauthorized presence and separately for marriage fraud; she conceded removability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA denial of cancellation of removal. | Ettienne argues §1252(a)(2)(B)(i) does not bar review because the BIA ignored precedent. | Government contends the statutory bar precludes review of cancellation-denial determinations, even if precedent was misapplied. | Lack of jurisdiction; statutory bar applies. |
| Whether Ettienne’s claim falls within a non-discretionary or legal-standards exception to the jurisdictional bar. | Ettienne contends the BIA failed to apply Gonzalez Recinas, affecting the aggregate hardship analysis. | Court: such challenges to weighting are not reviewable; Aburto-Rocha does not override the bar here. | No jurisdiction under the cited framework. |
| Whether the IJ/BIA properly weighed hardship factors in light of Gonzalez Recinas. | Ettienne asserts the IJ failed to weigh the totality of hardship on family. | Court: reviewing the weighing would amount to second-guessing discretionary determinations. | Not reviewable; dismissal for lack of jurisdiction. |
| Whether precedents like Aburto-Rocha authorize review of the weighting under §1252(a)(2)(D) for nondiscretionary issues. | Aburto-Rocha permits review of claimed misapplication of precedent. | Aburto-Rocha does not permit bypassing the jurisdictional bar for discretionary weighing. | No jurisdiction to review on these terms. |
Key Cases Cited
- Aburto-Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008) (limits and interpretation of the §1252(a)(2) bar and review of BIA precedents)
- Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011) (analyzes statutory language and applicability to cancellation of removal)
- In re Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002) (deadhand of totality of factors standard in hardship determinations)
- Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008) (review of BIA precedent alignment in hardship standards)
- In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001) (BIA hardship evaluation standards regarding cancellation of removal)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (nonreviewability of certain factual and discretionary determinations in asylum/cancellation contexts)