Luis Vilchiz-Soto v. Eric Holder, Jr.
2012 U.S. App. LEXIS 16614
| 9th Cir. | 2012Background
- Vilchiz-Soto and Resendiz-Ledesma, Mexican natives, petition for review of BIA denial of motion to reopen and reconsider cancellation of removal.
- BIA denied the motion to reconsider for lack of error in the 2011 decision, based on failure to show exceptional and extremely unusual hardship to qualifying relatives.
- BIA denied the motion to reopen under 8 C.F.R. § 1003.2(c)(1).
- Government contends this court lacks jurisdiction to review the denial of the motion to reconsider as a discretionary hardship determination.
- Petitioners argue jurisdiction exists to challenge misapplication of law and failure to consider equities in support of cancellation of removal.
- Court dismisses for lack of jurisdiction, holding review of discretionary, fact-based hardship determinations and related motions is barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review motion to reconsider denial | Vilchiz-Soto and Resendiz-Ledesma contend this court has jurisdiction to review reconsideration denial as misapplication of law and equities. | Government argues no jurisdiction over discretionary hardship determinations in reconsideration. | Lacks jurisdiction to review reconsideration denial. |
| Jurisdiction to review motion to reopen denial | Petitioners challenge BIA’s denial of reopening as misweighting hardship evidence and misapplication of law. | Section 1252(g) and caselaw preclude review of discretionary, quasi-prosecutorial decisions and reopenings. | Lacks jurisdiction to review the motion to reopen denial. |
| Review of ineffective assistance claims | Claims of ineffective assistance could render the denial colorably due to due process concerns. | Unexhausted ineffective-assistance claims cannot be reviewed here. | Lacks jurisdiction to review unexhausted claims. |
Key Cases Cited
- Hong v. Mukasey, 518 F.3d 1030 (9th Cir. 2008) (jurisdiction to review final orders under §1252 limited)
- Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003) (exceptional and extremely unusual hardship is discretionary and not reviewable)
- Sarmadi v. INS, 121 F.3d 1319 (9th Cir. 1997) (withdrawal of jurisdiction over motions to reconsider or reopen)
- Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006) (review limits when BIA denial on hardship and reopened relief previously denied)
- Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005) (due process abuse-of-discretion arguments not colorable jurisdictionally)