HORTENCIA RUIZ-PEREZ v. MERRICK GARLAND, U.S. Attоrney General
No. 20-61133
United States Court of Appeals for the Fifth Circuit
September 30, 2022
Petition for Review of an Order of the Board of Immigration Appeals No. A 028 896 887
Before SMITH, DUNCAN, and OLDHAM, Circuit Judges.
Does cancelation of an alien‘s removal order count as immigration “relief“? Cancelation of removal provides benefits superior
Hortencia Ruiz-Perez petitions for review of a decision that she is ineligible to have her removal order canceled. But Ruiz-Perez is ineligible for any relief because her removal order was reinstated after she illegally reentered the country following a prior removal. Having concluded that cancelation of removal is relief, we deny her petition for review.
I.
A.
Ruiz-Perez is a Mexican citizen who seeks permanent U.S. residence. She first came to the United States in 1999. At the border, she gave immigration officers a false name. The officers arrested her and returned her to Mexico.
The next day, Ruiz-Perez again tried to cross the border. She told immigration officers she was an American citizen. The officers knew she was lying, so they arrested her again. This time, the government charged her with “Attempted Illegal Entry by False and Misleading Representation.” She pleaded guilty, and a federal court sentenced her to 75 days’ imprisonment.
The Immigration and Naturalization Service ordered Ruiz-Perez removed. It deemed her inadmissible because she had lied about having U.S. citizenship. It removed Ruiz-Perez to Mexico after her incarceration.
Two years later, Ruiz-Perez illegally rеentered the United States. She settled with her husband—a lawful permanent U.S. resident—and oldest son near San Antonio. They lived there together for about seven years and had two more children.
Ruiz-Perez says she and her children endured serious abuse from her husband. Most of the abuse she recounts happened in the United States, though she describes two incidents in Mexico. In one of the U.S. incidents, Ruiz-Perez‘s youngest son suffered a serious injury.
After that, Ruiz-Perez separated from her husband and has not lived with him, although she sometimes sees him in public in the San Antonio area, where she has continued to live for more than a decade.
A few years ago, however, the Bexar County Sheriff‘s Office arrested Ruiz-Perez for assaulting her neighbor‘s children during a property-line dispute. The district attorney charged Ruiz-Perez with a crime but later dismissed the charges after he could not convince a witness to testify. The arrest alerted immigration officials to Ruiz-Perez‘s presence in the United States.
The Department of Homeland Security reinstated Ruiz-Perez‘s removal order. It concluded she was eligible for reinstatement because she was an “alien who has illegally reentered the United States after having previously been removed.” It told Ruiz-Perez she could “contest [that] determination by making a written or oral statement to an immigration officer” but said she had no “right to a hearing before an immigration judge.”
B.
Ruiz-Perez never contested that reinstatement order. Instead, she applied for two alternative procedures. First, she asked the Executive Office for Immigration Review to cancel her removal order and to adjust her immigration status to make her a lawful permanent resident. Second, she requested withholding of removal and protection under the Convention Against Torture
During an initial hearing, the government claimed that Ruiz-Perez was ineligible for cancelation of removal because she was subject to a reinstated removal order. The I.J. allowed Ruiz-Perez to testify in support of her application for withholding of removal and directed further briefing on the cancelation issue. The government then moved to pretermit Ruiz-Perez‘s application for cancelation.
Ruiz-Perez countered that, because of her husband‘s abuse, the Violenсe Against Women Act (“VAWA“) makes her eligible for cancelation even after a reinstated removal order. VAWA, she said, prescribes rules “different than those for general permanent or nonpermanent residents.” She pointed to language from a 2006 amendment that explains that immigration officials “shall continue to have discretion to consent to an alien‘s reapplication for admission after a previous order of removal, deportation, or exclusion.”1
(Discretion To Consent to an Alien‘s Reapplication for Admission). Statutory notes are binding law. SEC v. Hallam, 42 F.4th 316, 335 n.76 (5th Cir. 2022).The I.J. denied Ruiz-Perez‘s applications for cancelation and withholding of removal. He explained that the 2006 amendment is irrelevant because an application for cancelation is not a reapplication for admission. He concluded that he lacked jurisdiction to decide Ruiz-Perez‘s cancelation application and so did not “discuss” it. Separately, he reasoned that Ruiz-Perez was ineligible for withholding of removal or CAT protection. Accordingly, he ordered her removed to Mexico.
Ruiz-Perez appealed to the Board of Immigration Appeals (“BIA“) on both grounds. Regarding the jurisdictional holding, she said an application for cancelation of removal should be treated as a reapplication for admission.
The BIA dismissed the appeal. It agreed with the I.J. that he lacked jurisdiction to consider Ruiz-Perez‘s cancelation application. But it offered a different reason: Ruiz-Perez is ineligible to apply for cancelation because the INA forbids an alien subject to a reinstated removal order to receive any immigration “relief.” It also concluded that the I.J.‘s factfindings supported his denial of Ruiz-Perez‘s application for withholding of removal and CAT protection.
Ruiz-Perez petitioned this court for review. She abandons her bid for withholding of removal and challenges only the BIA‘s conclusion that she is ineligible for cancelation of removal. She asks that we vacate the BIA‘s decision and remand for consideration of whether she satisfies the remaining criteria for cancelation under VAWA.
II.
We begin with a brief note on our jurisdiction. We can review “final order[s] of removal.”
We have held that a reinstatement order is not final until an application for withholding of removal or CAT protection is decided. Ponce-Osorio v. Johnson, 824 F.3d 502, 505-07 (5th Cir. 2016) (per curiam). More recently, however, the Supreme Court called that holding into question. We now know an order denying CAT protection does not count as a “final order
The story is the same for orders that deny withholding of removal. Those are not “final order[s] of removal” because granting withholding leaves a removal order “in full force.” Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2285 (2021). The government retains “numerous options” for removing an alien subject to a withholding order. Ibid. So an application for withholding of removal does not mean that a removal decision is still “pending.” Id. at 2286. Instead, “removal orders and withholding-only proceedings address two distinct questions,” and “the finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings.” Id. at 2287.
Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order—without waiting for withholding-only proceedings to conclude. Thаt‘s what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190-95 (2d Cir. 2022).
But even that conclusion relies on the premise that a reinstatement order is a “final order of removal” under Section 1252. Id. at 195-96. Again, we have held that it is. Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002).
That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a “final order concluding that the alien is deportable or ordering deportation,” Nasrallah, 140 S. Ct. at 1691 (quotation omitted), because a reinstatement order presupposes a “prior order of removal” and because the statute does not authorize a new removal order—it “reinstate[s] [one] from its original date,”
Even if that‘s true, a panel of this court would need to conclude that Nasrallah and Johnson “unequivocally overrule[d] prior precedent” before applying new jurisdictional rules to our rеview of reinstatement orders. Bonvillian Marine Serv. v. Pellegrin (In re Bonvillian Marine Serv., Inc.), 19 F.4th 787, 792 (5th Cir. 2021) (quotation omitted). That standard sets a high bar—our rule of orderliness is “strict and rigidly applied.” Ibid.
We flag these questions for future litigants because, although we are obliged to “assess our own jurisdiction before exercising [our] judicial power,” Mejia v. Barr, 952 F.3d 255, 261 (5th Cir. 2020) (quotation omitted), adversarial briefing helps. And soon we must decide whether to reassess the
extent of our jurisdiction to hear challenges to reinstatement decisions.
But today is not the day. Ruiz-Perez does not challenge her reinstatement order. Instead, she says the BIA legally erred in deciding that she was ineligible to be considered for cancelation of removal. Such decisions count as “final orders of removal” within our jurisdiction. Trejo v. Garland, 3 F.4th 760, 766, 773 (5th Cir. 2021) (quoting
Accordingly, we have jurisdiction to review Ruiz-Perez‘s petition. On to the merits.
III.
Ruiz-Perez applied for cancelation of removal under the “[s]pecial rule for battered spouse[s]” codified at
The BIA held that another statute—the reinstatement statute, codified at
Ruiz-Perez responds to the BIA by pointing to two statutes that she says give the I.J. discretion to decide her application for special-rule cancelation. First, she again relies on the 2006 amendment recognizing that officials “shall continue to have discretion to consent to an alien‘s reapplication for admission after a previous order of removal.”3 Second, she observes that the inadmissible-aliens statute permits the “Secretary of Homeland Security” to waive inadmissibility for some “VAWA self-petitioner[s].”
Our analysis proceeds in two parts. First, we examine the relationship between the reinstatement statute and the two statutes on which Ruiz-Perez relies and conclude that the reinstatement statute controls. Second, we analyze whether cancelation of removal is a form of relief forbidden by the reinstatement statute and conclude that it is.
A.
Implicit in Ruiz-Perez‘s position is the notion that VAWA, its amendments, and the inadmissible-aliens statute supersede any limitation on relief that the reinstatement statute otherwise imposes. She has never contradicted the government‘s interpretation of the reinstatement statute. Instead, she says VAWA represents an “exception[ ]” to the usual rule. That theory is unsupportable.
The reinstatement statute speaks in absоlute terms: “If . . . an alien has reentered the United States illegally after having been removed . . . , the alien is not eligible and may not apply for any relief under this chapter.”
None of the statutes Ruiz-Perez cites contains rights-creating language that
By its own terms, the 2006 amendment did nothing new; it notes that executive officials ”continue to have discretion” to grant relief.4 That section of the bill followed an amendment that expanded the definition of “[e]xceptional [c]ircumstances” to include “extreme” domestic abuse.5 That definition limits when an alien may be excused for failing to appear. See
In that context, the portion of the amendment Ruiz-Perez cites may reflect Congress‘s desire to clarify that even if an alien‘s situation does not qualify as an “exceptional circumstance[ ]“,6 he is not completely out of luck: He may “reappl[y] for admission,” even if he has been “remov[ed]“, and immigration officials “continue to have discretion” to consider his application.7 In any event, that amendment says nothing about what happens when a removal order is reinstated.
The other statute on which Ruiz-Perez principally relies is even less relevant. In general, an alien is “ineligible to receive visas and ineligible to be admitted to the United States” if he “has been ordered removed” and he “enters or attempts to reenter the United States without being admitted.” 8
If it were true that the waiver-of-inadmissibility statute “explicitly permits the I.J. to consider a VAWA cancellation of removal application,”9 one might expect the statute to mention cancelation applications. But it doesn‘t. “VAWA self-petitioner” is a defined term, and it concerns aliens who qualify for relief under seven enumerated statutes—but not the cancelation-of-removal statute. See
Moreover, like the 2006 amendment, the waiver-of-inadmissibility statute gives the executive branch ultimate discretion whether to grant relief, even for an applicant who satisfies the statutory criteria.10 The story is the same for the cancelation-of-removal statute—special rule or no.11
It‘s significant that all those statutes rely on executive discretion. That attribute dispels any possible inference that the only limitations on cancelation-of-removal are contained in the cancelation-of-removal statute. See Ramirez-Mejia, 794 F.3d at 490.
The reinstatement statute, by contrast, leaves no discretion. Once an alien satisfies the criteria for reinstatement, the order “is
laws even though Congress did not “amend[ ] another section specifically dealing with [that] subject.” Ramirez-Mejia, 794 F.3d at 490.
So too here. The reinstatement statute applies to all aliens who have “reentered the United States illegally after having been removed.”
The reinstatement statute thus controls. Ruiz-Perez‘s appeal turns on whether cancelation of removal is a form of “relief” precluded by that statute. We turn now to that question.
B.
In Ramirez-Mejia, 794 F.3d at 489-90, we held that the reinstatement statute‘s bar on “any relief” “broadly denies all forms of redress from removal” (quoting
Asylum was the form of immigration benefit at issue in Ramirez-Mejia. We explained that “[a]sylum is a form of redress from removal because . . . it prevents the removal from going forward.” Id. at 489. We contrasted asylum with withholding of removal and CAT protection, noting that the latter are merely “forms of protection.” Ibid. That‘s because they do not “prevent[ ] the removal from going forward.” Ibid. They just prevent removal to a particular country. Nasrallah, 140 S. Ct. at 1691; Johnson, 141 S. Ct. at 2286.
Cancelation of removal is more like asylum than like withholding of
removal. In fact, cancelation‘s benefits are supеrior to asylum‘s.
When the government grants an alien asylum, he gets three benefits. First, he cannot be removed to his “country of nationality” or, if he has “no nationality,” his “last habitual residence.”
All those benefits are conditional. Asylum “does not convey a right to remain permanently in the United States.”
Cancelation of removal is permanent. A successful application means that an alien is “lawfully admitted for permanent residence” in the United States.
Cancelation‘s permanence means that it gives an alien “redress or benefit[s].” Ramirez-Mejia, 794 F.3d at 489 (quotation omitted). Not only does it “prevent[ ] the removal from going forward,” ibid., but it also prevents it from restarting. And, compared to asylum, it gives the alien greater autonomy in his U.S. residence. So it follows from Ramirez-Mejia that cancelation counts as “relief” under the reinstatement statute.
Ordinary use of the term “relief” bolsters that conclusion. Take, for example, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). There, the Court did not consider whether cancelation counts as relief, so its discussion of the subject is neither a holding nor dictum. But it twice described cancelation as “relief.” See id. at 42 n.9; 44 n.10. At least two of our sister circuits have
done the same.12 So have we. Trejo, 3 F.4th at 766. And so do other portions of the immigration laws.13
Accordingly, we conclude that cancelation of removal is a form of “relief” unavailable to aliens who are subject to reinstatement orders under
* * *
The BIA correctly determined that Ruiz-Perez is ineligible to be considered for cancelation of removal. She has never challenged the order reinstating her removal. The reinstatement statute prevents her from getting any immigration “relief.” And cancelation of removal is a form of relief.
It follows that the petition for review is DENIED.
ANDREW S. OLDHAM, Circuit Judge, dissenting:
The question presented is whether we have jurisdiction over Hortencia Ruiz-Perez‘s petition for review of a reinstatement order. As far as I can tell, we do not. I therefore respectfully dissent.
I.
I (A) start with background on removal orders. Then I (B) turn to reinstatement orders.
A.
Removal orders first. “In the deportation[1] context, a final ‘order of removal’ is a final order ‘concluding that the alien is deportable or ordering deportation.‘” Nasrallah v. Barr, 140 S. Ct. 1683, 1691 (2020) (quoting
Orders on withholding of removal are not removal orders. That‘s because there are two ways to seek withholding, but
It therefore follows that a withholding determination neither constitutes a removal order nor merges with one.
B.
Next, reinstatement orders. “Congress has created an expedited process for aliens who reenter the United States without authorization after having already been removed.” Id. at 2282. The relevant statute provides:
(5) Reinstatement of removal orders against aliens illegally reentering
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of rеmoval is reinstated from its original date and is not subject to being reopened or reviewed, the
alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
The reinstatement statute applies “to all illegal reentrants, and it explicitly insulates the removal orders from review, while also generally foreclosing discretionary relief from the terms of the reinstated order.” Ibid. (quotation omitted). “It does not, however, preclude an alien from pursuing withholding-only relief to prevent DHS from executing his removal to the particular country designated in his reinstated removal order.” Ibid.
To seek withholding-only relief, the alien must express to DHS a fear of returning to the country of removal.
Neither the asylum officer‘s reasonable-fear determination nor the BIA‘s withholding-only-proceedings decision is an order of removal. Again, those decisions cannot affect the validity of the underlying removal order. They only “relate[ ] to where an alien may be removed“; they say “nothing . . . about the antecedent question whether an alien is to be removed from the United States.” Johnson, 141 S. Ct. at 2286.
II.
I now turn to our jurisdiction in this case. Section 1252 grants circuit courts jurisdiction to “review . . . a final order of removal.”
We lack jurisdiction here for two alternative reasons: First, a reinstatement decision is not a “final order of removal” under
A.
A reinstatement decision is not an order of removal, so we lack jurisdiction here. I (1) explain the best reading of the applicable provisions. I then (2) explain why the rule of orderliness does not bar adopting the best interpretation.
1.
The best reading of the applicable provisions is that a reinstatement decision is not an order of removal.
First consider the INA‘s distinction between removal orders and reinstatement decisions. The INA specifies that “a final ‘order of removal’ is a final order ‘concluding that the alien is deportable or ordering deportation.‘” Nasrallah, 140 S. Ct. at 1690 (quoting
Moreover, “an alien subject to a reinstated order of removal will not have any removal proceedings.” Johnson, 141 S. Ct. at 2282-83. So as a matter of ordinary meaning, it would be odd for a reviewable removal order to come from a non-removal proceedings.
Some circuits (including ours) have concluded otherwise. But the opinions’ rationales reinforce that a reinstatement decision is not an order of removal. For example, the Ninth Circuit (and ours)
decisions “give effect to previously issued [removal] orders.” Castro-Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir. 2001); see also Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002) (exercising jurisdiction to review a reinstatement decision despite concluding that “a reinstatement [decision] is not literally an ‘order of removal‘“). Other circuits have said that § 1252 grants jurisdiction to review a reinstatement decision because “[t]he reinstatement itself operates as the functional equivalent of a final order of removal.” Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) (emphasis added). These circuits thus concede that reinstatement decisions are not removal orders. That alone pretermits our jurisdiction.
And it‘s not as if Congress gave us jurisdiction over things that are not-quite-but-perhaps-related-to removal orders. Section 1252 provides jurisdiction only over a petitiоn to review a “final order of removal,” and § 1101(a)(47) provides a specific definition of that term. Neither § 1252 nor § 1101(a)(47) addresses the “functional equivalent” of an order of removal. Arevalo, 344 F.3d at 9. Nor do they address an order that “give[s] effect to previously issued [removal] orders.” Castro-Cortez, 239 F.3d at 1044.
Bottom line: “An order is either a ‘final order of removal’ or it is not.” Bhaktibhai-Patel v. Garland, 32 F.4th 180, 196 (2d Cir. 2022). Reinstatement decisions are not, so Ruiz-Perez must rely on the removal order from 1999 for the “final order of removal” that her petition challenges. The consequence is that her petition is 20 years too late.
2.
Our rule of orderliness is no obstacle to the correct result. Under the “well-settled rule of orderliness,” “[t]hree-judge panels abide by a prior Fifth Circuit decision until the decision is overruled, expressly or implicitly, by either the United States Supreme Court or by the Fifth Circuit sitting en banc.” Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018) (quotation
omitted). “Fifth Circuit precedent is implicitly overruled if a subsequent Supreme Court opinion establishes a rule of law inconsistent with that precedent.” Ibid. (quotation omitted). Put another way, “a latter panel must simply determine that a former panel‘s decision has fallen unequivocally out of step with some intervening change in the law.” In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021).
Nasrallah and Johnson “fundamentally change[d] the focus of the relevant analysis.” Ibid. (quotation omitted). Nasrallah focused on the plain and ordinary meaning of “order of removal” in § 1252—the relevant jurisdictional provision at issue here. It made clear that rulings that do not “affect the validity of the final order” of removal are not part of the order. Nasrallah, 140 S. Ct. at 1691. Johnson built on Nasrallah‘s what-is-a-removal-order foundation but in the context of reinstatement decisions. In fact, Johnson was the Supreme Court‘s first meaningful description of reinstatement decisions and how the Government implements them. And the Court made clear that reinstatement decisions are not the product of removal proceedings. Johnson, 141 S. Ct. at 2282-83 (“But because an alien subject to a reinstated order of removal will not have any removal proceedings, the process begins for him only if he expresses a fear to DHS of returning to the country of removal.“).
It‘s true that the Supreme Court in Johnson did not expressly interpret
Respondents do argue, however, that some lower courts’ interpretation of the phrase “final order of removal” as it is used in
8 U. S. C. § 1252(b)(1) requires that this Court adopt respondents’ interpretation of§ 1231 here. We express no view on whether the lower courts are correct in their interpretation of§ 1252 , which uses different language than§ 1231 and relates to judicial review of removal orders rather than detention.
Id. at 2285 n.6 (quotation omitted). But under our rule of orderliness, “the overriding consideration is the similarity of the issues decided.” Gahagan, 911 F.3d at 303; see also In re Bonvillian, 19 F.4th at 792 (reaffirming that principle). And even though there might be some differences between the statutes, the language and analytical questions are critically similar. They both involve the plain and ordinary meaning of “order of removal” and when orders become final. Compare, e.g.,
B.
Even if a reinstatement decision is an order of removal, Ruiz-Perez filed her petition for review later than 30 days after the decision became final, so it‘s untimely. I (1) explain when a reinstatement decision is final. I then (2) explain why our contrary precedent is no longer binding.
1.
A reinstatement decision becomes final once the immigration officer—not an IJ or the BIA—determines that the alien meets the requirements of reinstatement. The Second Circuit recently came to this conclusion in Bhaktibhai-Patel. And I would join our sister circuit.
As the Second Circuit pointed out, “[t]he definition of finality in § 1101(a)(47)(B) does not squarely apply to that decision because an illegal reentrant may not appeal a reinstatement decision to the BIA (or even to an immigration judge).” Bhaktibhai-Patel, 32 F.4th at 192 (citing
the final stage of agency review available as of right to aliens in regular removal proceedings,” the Second Circuit determined “that a reinstatement decision becomes final once the agency‘s review process is complete.” Ibid. Agency review is complete when an immigration officer decides to reinstate the prior order because that action is not subject to further review within the agency. See id. at 192-93. The only additional review is withholding-only proceedings, which do not affect the order of removal. The upshot is that “review may be available when the withholding-only proceedings conсlude within 30 days of DHS‘s reinstatement decision and the reentrant files a petition for review before that period expires.” Id. at 195 n.21.
Here, an immigration officer reinstated the prior order of removal on June 11, 2019. Ruiz-Perez petitioned for review in December 2020. That‘s well after the 30-day deadline.
2.
Contrary Fifth Circuit precedent, again, is no obstacle. It‘s true that our court previously concluded that reinstatement
Specifically, we once wrote:
The term “final” in its usual legal sense means ending a court action or proceeding leaving nothing further to be determined by the court or to be done except the administrative execution of the court‘s finding, but not precluding an appeal. With regard to agency action generally, the Supreme Court has said that to be final, agency action must mark the consummation of the agency‘s decisionmaking process, and it must determine rights or obligations or occasion legal consequences.
When an alien pursues reasonable fear [and withholding of removal] proceedings, the reinstated removal order is not final in the usual legal sense because it cannot be executed until further agency proceedings are complete. And, although the reinstated removal order itself is not subject to further agency review, an IJ‘s decision on an application for relief from that order is appealable to the BIA. Thus, the rights, obligations, and legal consequences of the reinstated removal order are not fully determined until the reasonable fear and withholding of removal proceedings are complete.
Id. at 505-06 (quotation omitted). But again, Nasrallah and Johnson have fundamentally changed the focus of the finality analysis.
Since 2016, the Supreme Court has made clear that the order of removal is separate from statutory-withholding decisions (i.e., withholding-of-removal and CAT relief). See Nasrallah, 140 S. Ct. at 1690 (explaining that
Thus, for purposes of finality, whether the alien will be removed is the only thing that matters. Otherwise, an order distinct from the order of
removal could affect whеther the removal order is final. It makes no sense for finality of an order to depend on a separate order that can‘t change the first one.
C.
Two final counterarguments merit discussion.
First, the majority suggests we can review any BIA decision that renders an alien “ineligible to be considered for cancelation of removal.” Ante, at 7. For this proposition, the majority cites Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021). But in that case, the alien asked us to review a final order of removal that resulted from ordinary removal proceedings. Such an order
Second, Ruiz-Perez suggests that she has the right to seek cancelation of removal by pointing to provisions that might provide discretionary relief of reapplication for admission and waiver of inadmissibility. Even assuming Ruiz-Perez could seek cаncelation of removal under
The Supreme Court recently suggested this result. As the Supreme Court noted, it‘s not unusual for “USCIS denials of discretionary relief” to be “made outside of the removal context.” Patel v. Garland, 142 S. Ct. 1614, 1626 (2022); see also ibid. (“Those decisions are made outside of the removal context, and subparagraph (D) preserves review оf legal and constitutional questions only when raised in a petition for review of a final order of removal.” (emphases added)). The likely consequence is that courts of appeals lack jurisdiction to review denials of such relief. After all, Congress intended to foreclose direct review of such decisions because they are discretionary and made outside removal proceedings. See id. at 1626-27 (“The post-St. Cyr amendments expressly extended the jurisdictional bar to judgments made outside of removal proceedings at the same time that they preserved review of legal and constitutional questions made within removal proceedings. And foreclosing judicial review unless and until removal proceedings are initiated would be consistent with Congress’ choice to reduce procedural protections in the context of discretionary relief.” (quotation omitted)).
For these reasons, I would hold that Ruiz-Perez failed to establish our jurisdiction over the petition for review.
we lack jurisdiction over any denial outside removal proceedings of such discretionary relief.