410 F. App'x 935
6th Cir.2011Background
- Maria Isabel Reyes and Efren Salinas Reyes, Mexican natives, entered the U.S. without inspection in 1993 and 1991 respectively, with their family; several US-citizen children remained in the United States.
- Removal proceedings were initiated against Maria, Efren, and their children after an incident involving Efren during travel to Canada; Efren was paroled back after detention.
- Maria sought cancellation of removal under 8 U.S.C. § 1229b; Efren’s cancellation was dependent on Maria’s outcome as his qualifying relative.
- The IJ denied cancellation, finding eligibility for ten years’ physical presence but concluding lack of substantial hardship and lack of good moral character due to misrepresentation of citizenship.
- The BIA affirmed, holding that hardship to Maria’s citizen children was not exceptional or unusual and that good moral character was not demonstrated; petitioners challenged on appeal.
- The court notes jurisdictional limits under 8 U.S.C. § 1252(a)(2)(B)(i) and addresses whether exceptions for legal questions or non-discretionary determinations apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review cancellation denial | Reyes assert jurisdiction under statutory exceptions. | BIA/Respondents contend §1252(a)(2)(B)(i) precludes review of discretionary cancellations. | Jurisdiction limited; review denied where precluded. |
| Whether the hardship determination can be reviewed as a legal question | Hardship facts should be reviewed as legal questions under exceptions. | Challenge is factual/discretionary, not a legal question; no review. | No jurisdiction to review hardship under the legal-question exception. |
| Whether the BIA’s good-moral-character determination is reviewable | BIA ignored precedent, making a non-discretionary error. | Findings on moral character are discretionary; no review. | Review denied; discretionary determination not subject to review. |
Key Cases Cited
- Garza-Moreno v. Gonzales, 489 F.3d 239 (6th Cir. 2007) (preclusion under §1252(a)(2)(B)(i) with constitutional/legal-review exceptions)
- Abdul v. Holder, 326 F. App’x 344 (6th Cir. 2009) (challenge cloaked as legal question is not jurisdictional)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (constitutional/legal questions exceptions to review)
- Aburto-Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008) (non-discretionary vs discretionary review framework post-REAL ID Act)
- Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997) (moral character findings are discretionary)
- Mateo v. Gonzales, 217 F. App’x 476 (6th Cir. 2007) (moral character and hardship findings are discretionary)