Lopez v. Holder
740 F.3d 207
1st Cir.2014Background
- Lopez petitions for review of a BIA removal order adopting an IJ decision denying I-751 waivers for removal of conditions on residency; waivers argued on extreme hardship and good faith grounds due to marriage to a U.S. citizen.
- She married Andres Lopez, a U.S. citizen, in 1996 and had conditional permanent residence; that status was terminated two years later.
- She filed multiple Form I-751 petitions (2004 denial after divorce, 2006 extreme hardship denial, 2009 good-faith denial) and faced removal proceedings.
- Her 2007 theft conviction led to a state court disposition and was noted for discretionary considerations; the IJ cited moral character concerns.
- The IJ denied both discretionary waivers on weighed factors (marital bona fides, hardship) and removed her, with the BIA adopting.
- The First Circuit dismissed for lack of jurisdiction under 8 U.S.C. §1252(a)(2)(B), holding discretionary decisions fall outside judicial review absent colorable legal claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review discretionary waivers | Lopez argues the weighing of factors supports relief. | The government contends §1252(a)(2)(B) bars review of discretionary determinations. | No jurisdiction; discretionary decisions not reviewable absent colorable claims. |
| Whether Lopez raises colorable legal claims under §1252(a)(2)(D) | Lopez asserts legal/constitutional challenges to weighing. | No colorable legal claims presented. | Dismissed for lack of colorable legal claims. |
Key Cases Cited
- Kinisu v. Holder, 721 F.3d 29 (1st Cir. 2013) (reviewing IJ while confirming discretionary limits on review)
- Ortega v. Holder, 736 F.3d 637 (1st Cir. 2013) (Purely discretionary BIA decisions not reviewable)
- Urizar-Carrascoza v. Holder, 727 F.3d 27 (1st Cir. 2013) (no colorable legal claims to offset review bar)
- De Araujo v. Gonzales, 457 F.3d 146 (1st Cir. 2006) (reaffirmed limits on reviewing discretionary relief)
- Elysee v. Gonzales, 437 F.3d 221 (1st Cir. 2006) (addressed procedural posture in review of discretionary rulings)