Maurilio MENDEZ-MORANCHEL, Petitioner v. John D. ASHCROFT, Attorney General of the United States of America; James W. Ziglar, Commissioner of the Immigration and Naturalization Service, Respondent.
No. 02-2146.
United States Court of Appeals, Third Circuit.
Argued January 21, 2003. Filed July 29, 2003.
338 F.3d 176
Michael P. Lindemann, John M. McAdams, Jr., Russell J.E. Verby, (Argued), David V. Bernal, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.
Before NYGAARD, AMBRO, and BECKER,1 Circuit Judges.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
1 Maurilio Mendez-Moranchеl, a nonresident deportable alien, challenges the government‘s denial of discretionary cancellation of deportation. The Board of Immigration Appeals found that Mendez met three of the four initial requirements for consideration of cancellation of deportation under
I.
2 Our decision is based on the narrow question of whether we have jurisdiction to review the decision of the Immigration Law Judge and the Board that Mendez‘s U.S. citizen children would not suffer an extreme and unusual hardship as a result of Mendez‘s deportation. Mendez, a native and citizen of Mexico, has resided in the United States since 1982. In 1998, the INS issued Mendez a Notice to Appear, alleging he violated the Immigration and Nationalization Act by entering the United States without inspection. See
3 Mendez is the father of three children, all U.S. citizens, and resides with two of his children and thеir mother. Mendez claims that if the INS removes him, his family, particularly his oldest son, will suffer an exceptional and extremely unusual hardship. It is on this basis that Mendez seeks cancellation of removal. If removed, Mendez will have to take his family with him to Mexico, or be separated from them. He argues that either would result in hardship. Mendez provides the sole financial support for his sons. He has been away from Mexico for several years and testified that he will be unable to earn a living in Mexico. Therefore, he argues that he will neither be able to support his family in Mexico if they accompany him, nor be able to send them money to support them in the United States if they stay. In addition, Mendez argues that his oldest son‘s disability militates against his removal. Mendez‘s son apparently suffers from a disability that requires him to receive special language instruction. Because of this disability, his son does not speak English or Spanish well. Mendez argues that if he takes his son to Mexico, he will be denied an appropriatе education.
4 The Immigration Judge found that Mendez met the first three requirements for cancellation of removal: residency, good moral character, and no conviction for disqualifying crime.
II.
5 Mendez sought cancellation of removal under
6 The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for pеrmanent residence, an alien who is inadmissible or deportable from the United States if the alien —
7 (A) has been physically present in the United States for a continuous period of not less than 10 years immеdiately preceding the date of such application;
8 (B) has been a person of good moral character during such period;
9 (C) has not been convicted of an offense under seсtion 212(a)(2), 237(a)(2), or 237(a)(3) [8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)] (except in a case described in section 237(a)(7) [8 U.S.C. § 1227(a)(7)] where the Attorney General exercises discretion to grant a waiver); and
10 (D) establishes that removal wоuld result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
11
8 U.S.C. § 1229b(b)(1) .
12 The Board upheld the Immigration Judge‘s decision that Mendez failed to meet the threshold requirement for consideration of cancellation of deportation. We must first determine whether we have jurisdiction to review this decision in light of
13 This is an issue of first impression in our circuit. However, we are not the first to address this question. In Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2002), the Ninth Circuit considered the meaning of “judgment” related to a different aspect of the hardship requirement under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The initial issue before the court was whether it had jurisdiction to review the Board‘s “purely legal and hence non-discretionary question whether [the Appellant‘s] adult daughter qualifies as a `child’ for the purposes of [§ 1229b]....” Id. at 1140. As here, the Board had denied the appellant‘s request for cancellation finding that he did not meet the statute‘s threshold requirements.
14 The court started by recognizing that “judgment” was ambiguous because it was not defined in the statute, and “could either mean `any decision’ or `any decision involving the exercise of discretion.‘” Id. at 1140. The court reviewed the Immigration and Naturalization Act and determined that throughout “judgment” was used in one of two ways, either to refer to a formal ordеr from a court, or to refer to the exercise of discretion. Id. From this, the court concluded it was unlikely Congress would intend a third meaning for “judgment,” applying it to any decision involving the exercise of discretion.
15 Next, the court considered the structure of thе statute. First, the term “judgment” was placed in the phrase “judgment regarding the granting of relief.” Thus, the term refers “only to a judgment regarding the order or decision.” Id. at 1142. In other words, the term refers to an exercise of disсretion regarding the order or decision. “Child” is defined in the INA, and therefore “[n]o judgment is exercised with respect to the mere eligibility for discretionary relief....” Id. Because the determination of whether thе daughter met the statutory definition of “child” was not a judgment, the court could review this determination. The court went on to conclude that the daughter did not meet the statutory definition of “child” and upheld the BIA‘s dеcision.
16 The Seventh Circuit conducted a similar analysis of “judgment” in the jurisdiction stripping statute,
III.
17 We now turn to whether the judgment that an alien will suffer an “exceptional and extremely unusual hardship” is discretionary. As discussed above, § 1229b sets out the eligibility requirements to qualify for discretionary cancеllation of deportation. The hardship requirement requires that the alien “establish[] that removal would result in exceptional and extremely unusual hardship....” The determination of whether the alien has established the requisite hardship is a quintessential discretionary judgment.
18 A review of the cases addressing both the present “exceptional and extremely unusual” hardship requirement and the predecessor “extreme hardship” requirement supports the conclusion that the hardship determination is discretionary. For example, the Ninth Circuit addressed whether each element of the predecessоr2 to § 1229b was or was not discretionary in Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997). The court concluded that the hardship determination is left to the Attorney General‘s discretion and is not subject to review. See id. at 1152 (citing Torres-Guzman v. INS, 804 F.2d 531, 533 (9th Cir.1986)).
20 More recent cases addressing “exceptional and extremely unusual” reach the same conclusion. See Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir.2003) (“We lack jurisdiction to review the BIA‘s discretionary determination that an alien failed to satisfy the `exceptional and extremely unusual hardship’ requirement for cancellation of removal.“); Gonzalez-Oropeza v. Attorney General, 321 F.3d 1331, 1333 (11th Cir.2003) (per curiam) (“[T]he exceptional and extremely unusual hardship determinаtion is a discretionary decision not subject to review.“).
IV.
21 We hold that § 1252(a)(2)(B)(i) strips us of jurisdiction to review certain discretionary decisions under the Immigration and Nationalization Act as enumerated by the stаtute. The decision whether an alien meets the hardship requirement in