71 F.4th 247
5th Cir.2023Background
- Jose Luis Medina Carreon, a Mexican national, entered the U.S. in 1996 and was arrested at a 2011 cockfight; convicted of three misdemeanors (attempted cruelty to livestock, keeping a gambling place, gambling promotion) and served five months.
- He conceded removability and applied for cancellation of removal in 2013; at a 2018 hearing the IJ found negative factors (criminal convictions, hiring undocumented workers, driving on suspended license) outweighed positives (family, long residence, steady work) and denied cancellation for lack of good moral character under 8 U.S.C. § 1101(f)’s catchall.
- The IJ also sua sponte denied voluntary departure; the BIA affirmed.
- Medina Carreon challenged (1) that the BIA panel acted ultra vires because two temporary members’ initial six‑month terms had expired, (2) the BIA’s good‑moral‑character finding, and (3) the denial of voluntary departure and the BIA’s reliance on an AAG decision.
- The Fifth Circuit considered jurisdictional and exhaustion issues, took judicial notice that the Attorney General reappointed the temporary BIA members, dismissed the petition in part and denied it in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ultra vires challenge to BIA panel membership | Two temporary BIA members’ six‑month terms had expired and the Director lacked authority to renew, so BIA acted ultra vires | Gov't: exhaustion/no‑reviewable internal procedure; on merits AG reappointed members and delegation challenge fails | Court reached claim (Santos‑Zacaria), took judicial notice of AG reappointments, rejected ultra vires challenge |
| Denial of cancellation for lack of good moral character | BIA/IJ overweighed cockfighting convictions and failed to credit rehabilitation; misapplied precedent | Gov't: eligibility/discretionary determinations are not reviewable under §1252; Patel forecloses review of factual findings | Court held it lacked jurisdiction under §1252(a)(2)(B) (Patel) to review the good‑moral‑character finding |
| BIA’s reliance on 2019 AAG decision (appointment defect) | AAG was improperly appointed; reliance on that decision was unlawful | Gov't: substantive response; also argued exhaustion/waiver defenses | Court declined to address merits because Medina Carreon inadequately briefed and effectively waived the argument |
| Denial of voluntary departure / use of pre‑5‑year convictions | IJ improperly considered 2011 convictions outside the 5‑year lookback for voluntary departure | Gov't: voluntary departure rulings are barred by §1252(a)(2)(B); exhaustion issues also apply | Court held §1252 bars review of discretionary voluntary‑departure denials; statutory‑interpretation point was unexhausted and not reached |
Key Cases Cited
- Patel v. Garland, 142 S. Ct. 1614 (Supreme Court) (§1252(a)(2)(B) bars review of authoritative factual determinations related to discretionary relief)
- Santos‑Zacaria v. Garland, 143 S. Ct. 1103 (Supreme Court) (no requirement to seek BIA reconsideration to exhaust claims arising from a BIA opinion)
- INS v. Chadha, 462 U.S. 919 (Supreme Court) (scope of review: petitions challenge matters on which final order’s validity is contingent)
- Trejo v. Garland, 3 F.4th 760 (5th Cir.) (distinguished pre‑Patel line treating eligibility findings as reviewable)
- Nastase v. Barr, 964 F.3d 313 (5th Cir.) (agency acts ultra vires when it exceeds authority; such claims are reviewable)
- Jean v. Gonzales, 452 F.3d 392 (5th Cir.) (consideration of ultra vires claims in petition for review)
- Castillo‑Gutierrez v. Garland, 43 F.4th 477 (5th Cir.) (Patel’s application to cancellation provisions and limits on review)
- Omagah v. Ashcroft, 288 F.3d 254 (5th Cir.) (good moral character is a factual finding)