Domingo Solis v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: MICHAEL J. MELLOY, DUANE BENTON and JAMES E. GRITZNER. Duane Benton, Authoring Judge (PUBLISHED) [3812184] [10-3675]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3675
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Domingo Solis,

*
*
Petitioner,
*
* Petition for Review of
v.
* an order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney General
*
of the United States,
*
*
Respondent.
*
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Submitted: May 10, 2011
Filed: July 28, 2011
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Before MELLOY and BENTON, Circuit Judges, and GRITZNER1, District Judge.
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BENTON, Circuit Judge.
Domingo Solis Mendoza petitions for review of the Board of Immigration
Appeals’ decision denying his application for cancellation of removal. Having
jurisdiction under 8 U.S.C. § 1252(a), this court denies the petition.
Solis, a native and citizen of Guatemala, entered the United States in 1992
without inspection. A month later, he applied for asylum and withholding of
1

The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.

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removal. In 2006, the Department of Homeland Security initiated removal
proceedings, issuing a Notice to Appear, charging him with removability as an alien
present in the United States without admission or parole. See 8 U.S.C. §
1182(a)(6)(A)(i). At a preliminary removal hearing, Solis admitted the facts alleged
and renewed his request for cancellation of removal. The Attorney General has
discretion to cancel removal of an alien (A) physically present in the U.S.
continuously for at least 10 years before the application, (B) with good moral
character during that period, (C) not convicted of certain offenses, and (D) whose
“removal would 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.” 8 U.S.C. 1229b(b)(1). After a merits hearing,
the Immigration Judge found that Solis satisfied these requirements and granted
cancellation of removal. On review, the BIA vacated the decision, determining that
the IJ applied the wrong legal standard to whether Solis proved that his return to
Guatemala would result in “exceptional and extremely unusual hardship.” The BIA
denied cancellation of removal, and granted Solis’s request for voluntary departure.
As a threshold matter, the government argues that this court has no jurisdiction
over the petition. Section 1252(a)(2)(B)(i) of the Immigration and Nationality Act
states: “Notwithstanding any other provisions of law . . . no court shall have
jurisdiction to review any judgment regarding the granting of [cancellation of
removal] relief under section . . . 1229b.” Even so, this court has jurisdiction of
“constitutional claims or questions of law raised upon a petition for review.” See 8
U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . shall be construed as
precluding review of constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals in accordance with this
section.”); see also Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008)
(noting that although this court lacks “jurisdiction to review the discretionary denial
of cancellation of removal under § 1229b, . . . [it has] jurisdiction to review
constitutional claims or questions of law raised in a petition for judicial review”).
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This court, thus, has jurisdiction to review the nondiscretionary determinations
underlying a denial of an application for cancellation of removal, such as the
“predicate legal question whether the [BIA] properly applied the law to the facts in
determining an individual’s eligibility to be considered for the relief.” SolanoChicas v. Gonzales, 440 F.3d 1050, 1055 (8th Cir. 2006), quoting Reyes-Vasquez v.
Ashcroft, 395 F.3d 903, 906 (8th Cir. 2005) (alterations in original).
According to Solis, the BIA incorrectly ruled that the IJ applied the wrong legal
standard in determining “exceptional and extremely unusual hardship.” Whether the
IJ applied the correct legal standard is irrelevant here. The IJ’s findings are
reviewable only to the extent that they have been adopted by the BIA. See Fofanah
v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006) (“Only the BIA order is subject to
[this court’s] review, including the IJ’s findings and reasoning to the extent they were
expressly adopted by the BIA.”). When the BIA vacates the IJ’s decision and makes
a de novo order, only the BIA decision is the subject of this court’s review. See
Cherichel v. Holder, 591 F.3d 1002, 1010 (8th Cir. 2010) (where the BIA vacated the
IJ’s decision, this court examined the BIA’s conclusions, not the IJ’s findings);
Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005) (“Because the BIA’s decision
is the final decision of the agency, it is the subject of [this court’s] review.”).
Solis further contends that the BIA applied the incorrect legal standard by
failing to adequately consider certain factors that the BIA has considered relevant in
other decisions. Solis essentially argues that the BIA “improperly weighed the factors
in the proper balancing test.” See Gomez-Perez v. Holder, 569 F.3d 370, 373 (8th
Cir. 2009), quoting Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008). Despite
characterizing this as a question of law, Solis really challenges the discretionary
conclusion of the BIA against him. Such a finding that the evidence “failed to prove
that his removal would cause an exceptional and extremely unusual hardship . . . . ‘is
precisely the discretionary determination that Congress shielded from [this court’s]
review.’” Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007),
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quoting Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam).
Because Solis does not challenge the legal standard applied by the BIA, he does not
raise an issue within this court’s jurisdiction.
The petition for review is denied.
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