91 F.4th 1289
9th Cir.2023Background
- Jesus Figueroa Ochoa, a Mexican national, conceded removability in 2017 and applied for cancellation of removal (8 U.S.C. § 1229b(b)) and adjustment of status (8 U.S.C. § 1255).
- The government alleged three California drug-related convictions: 1996 (possession), 1999 (under the influence), and 2000 (possession).
- Figueroa Ochoa sought to vacate the 2000 conviction under Cal. Penal Code § 1473.7 and asked the immigration judge (IJ) for a continuance pending the state-court ruling; the IJ denied the continuance, concluding the 1999 conviction was his and therefore bars relief.
- The state court later vacated the 2000 conviction; Figueroa Ochoa appealed the IJ’s rulings to the Board of Immigration Appeals (BIA), which affirmed denial of the continuance and denied a remand, relying on the 1999 conviction as an independent bar. The BIA made a scrivener’s reference to a “1996 conviction” but meant the vacated 2000 conviction.
- Figueroa Ochoa petitioned this Court, arguing the agency erred in attributing the 1999 conviction to him; he contends that if the 1999 conviction were not his, vacatur of the 2000 conviction could make him eligible for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA/IJ denials of a continuance and remand based on the agency’s factual finding that Figueroa Ochoa committed the 1999 drug offense | Figueroa Ochoa: procedural rulings (continuance/remand) are reviewable; the agency misattributed the 1999 conviction to him, so review is needed | Government: 8 U.S.C. § 1252(a)(2)(B)(i) bars review of any judgment "regarding the granting of relief," including procedural rulings tied to discretionary relief; Patel controls | Held: No jurisdiction. Under Patel, § 1252(a)(2)(B)(i) precludes review of agency judgments relating to discretionary relief, including factual findings; petition dismissed |
| Whether the § 1252(a)(2)(D) exception (constitutional claims/questions of law) permits review | Figueroa Ochoa did not invoke a legal or constitutional claim on the 1999-identity question | Government: the dispute is a historical, factbound question not a legal issue; § 1252(a)(2)(D) therefore does not apply | Held: Exception inapplicable because the contested question—who was convicted in 1999—is a factual determination, not a pure question of law or constitutionality |
Key Cases Cited
- Patel v. Garland, 142 S. Ct. 1614 (2022) (interprets § 1252(a)(2)(B)(i) to bar review of any judgments regarding discretionary immigration relief, including factual findings)
- Kucana v. Holder, 558 U.S. 233 (2010) (construed a different jurisdiction-stripping provision; distinguished in Patel)
- Perez v. Garland, 67 F.4th 254 (5th Cir. 2023) (applies Patel to bar court review of BIA’s refusal to remand to consider evidence for discretionary relief)
- Flores-Alonso v. United States Att’y Gen., 36 F.4th 1095 (11th Cir. 2022) (per curiam) (under Patel, courts must accept BIA factual findings as true when assessing whether any legal error remains)
- Arrey v. Barr, 916 F.3d 1149 (9th Cir. 2019) (court may not rely on unclear or misstated aspects of BIA opinions to fill gaps)
- Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006) (discusses circumstances where denial of reopening for cancellation might be reviewable; court declined to apply it here)