Montero-Martinez v. Ashcroft

TALLMAN, Circuit Judge: Gregorio Pedro Montero-Hernandez and Hector Montero-Martinez (Petitioners) seek review of a final order of removal issued by the Board of Immigration Appeals (BIA). The BIA determined that Petitioners were statutorily ineligible for cancellation of removal as non-permanent residents under 8 U.S.C. § 1229b(b)(1) because neither had a qualifying relative for the purposes of § 1229b(b)(1)(D). We dismiss the petition for lack of jurisdiction. I. FACTS AND PRIOR PROCEEDINGS. Montero-Hernandez and Montero-Mar-tinez are father and son. They are natives and citizens of Mexico who entered the United States in 1986. In April 1997, the Immigration and Naturalization Service (INS) served upon Petitioners a Notice to Appear, alleging that Petitioners were removable under 8 U.S.C. § 1182(a)(6)(A)(i) because they had entered the United States without inspection. Petitioners admitted the allegations contained in the Notice and conceded remova-bility. As they had no other viable options for remaining in the United States, they applied for cancellation of removal pursuant to § 1229b(b)(1). Petitioners appeared before an Immigration Judge (IJ) in April 1998. At the hearing, they both conceded that they did not have a qualifying relative under § 1229b(b)(1)(D). Although Montero-Hernandez had an adult daughter who was a lawful permanent resident, he acknowledged that she was too old to qualify as a child under the INS regulations. The IJ found Petitioners statutorily ineligible for cancellation of removal and allowed them to voluntarily depart within 60 days. Petitioners appealed to the BIA arguing that they were entitled to cancellation of removal. The BIA found them statutorily ineligible on the same grounds as did the IJ — because neither had a qualifying relative for the purposes of § 1229b(b)(1)(D). Petitioners now ask this Court to review the BIA’s decision. They argue in their petition that the BIA and IJ erred in concluding that Montero-Hernandez’s adult daughter is not a “child” for the purposes of § 1229b(b)(1)(D) and that the BIA denied them procedural due process [1158] by “fail[ing] to evaluate the Petitioners [sic] claim for relief.” II. JURISDICTION. A. Judicial Review Under IIRIRA. We have no jurisdiction to review “any judgment regarding the granting of relief under section ...1229b....” 8 U.S.C. § 1252(a)(2)(B)(i). We therefore do not have jurisdiction to review the petition in this case if we find that the decision that an alien is not statutorily eligible for relief under § 1229b is a “judgment” within the meaning of § 1252(a)(2)(B)(i). We initially note that § 1252(a)(2)(B)(i), by its plain terms, appears to encompass all decisions regarding cancellation of removal, including determinations of statutory eligibility. Petitioners and Amici,1 however, urge us to interpret the term “judgment” to encompass only the discretionary decision by the Attorney General to grant or deny cancellation of removal, and not to include determinations of statutory eligibility. According to their interpretation, we would have jurisdiction to determine whether an adult daughter can qualify as a “child” under § 1229b(b)(1)(D) because such a determination is not a discretionary decision but a “pure question of law.” We decline to adopt their narrow interpretation. We believe for two reasons that the term “judgment” as it is used in § 1252(a)(2)(B)(i) encompasses a broader range of decisions than merely discretionary decisions. First, when Congress passed the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which included the jurisdiction stripping provisions of § 1252, it simultaneously passed transitional rules to govern cases in which final orders of deportation or exclusion were entered between October 30, 1996, and March 31, 1997. See IIRIRA, Pub.L. No. 104-208, § 309(a), 110 Stat. 3009, 3009-625 (1996); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). The permanent rules, including § 1252, were to govern removal proceedings initiated by the INS on or after April 1, 1997. Id. Among the transitional rules was IIRIRA § 309(c)(4)(E), the predecessor to the permanent jurisdiction stripping provision of § 1252(a)(2)(B)(i). Section 309(c)(4)(E) provided that “there shall be no appeal of any discretiona'ry decision ” under, inter alia, the predecessor to § 1229b. Had Congress intended to preclude review only of discretionary decisions under § 1252(a)(2)(B)(i), it would have used the same language, “discretionary decision,” as it used in the transitional rules. But it did not. Rather, it broadened the language to preclude review of “any judgment regarding the granting of relief....”2 Our broad [1159] interpretation comports with the interpretation of § 1252(a)(2)(B)(i) adopted by the First Circuit, which stated, in dicta: The INS correctly points out that the prohibition in [§ 1252(a)(2)(B)(i)], the permanent rule, is broader than the prohibition in IIRIRA § 309(c)(4)(E), the transitional rule. [Section 1252(a)(2)(b)(i)] bars review of ‘any judgment regarding the granting of relief under enumerated sections of the INA, while IIRIRA § 309(c)(4)(E) precludes judicial review of ‘discretionary decisions under’ enumerated sections of the INA. Thus, the permanent rules remove more than ‘discretionary decisions’ from review in the courts of appeals. Prado v. Reno, 198 F.3d 286, 290 (1st Cir.1999) (holding, nonetheless, that § 1252(a)(2)(B)(i) did not preclude review of the BIA’s dismissal of an appeal from the denial of a motion to reopen under 8 C.F.R. § 3.2, an INS regulation distinct from the enumerated provisions in § 1252(a)(2)(B)(i) (emphasis added). Our second reason for declining to adopt the narrow interpretation of “judgment” offered by Petitioners and Amici is that such an interpretation would render § 1252(a)(2)(B)(i) superfluous in the context of its companion provision, § 1252(a)(2)(B)(ii). While subsection (i) precludes judicial review of “any judgment regarding the granting of relief’ under five enumerated provisions of Title 8, subsection (ii) precludes judicial review -of “any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a).... ” Subsection (ii) thus covers any discretionary decision by the Attorney General that is not subsumed by the enumerated provisions in subsection (i) (with the exception of § 1158(a) (“Authority to Apply for Asylum”)). Petitioners and Amici place strong emphasis on the term “other” in subsection (ii), arguing that (i), like (ii), must refer to discretionary decisions or the term “other” would be meaningless. Although this argument has some force, reading subsection (i) the way Petitioners and Amici do would create a far more substantial problem of superfluity — it would render subsection (i) superfluous in the context of subsection (ii). In other words, there would be no need for Congress to enumerate the provisions in subsection (i) if it only applied to discretionary decisions, because the judicial review of those enumerated provisions would then be governed by subsection (ii), which covers the Attorney General’s remaining discretionary decisions (with the one exception). [1160] We hold that § 1252(a)(2)(B)(i) precludes judicial review of the statutory eligibility for cancellation of removal in addition to the discretionary decision of whether to grant cancellation of removal under § 1229b. We do not have jurisdiction to review Petitioners’ claim that an adult daughter can qualify as a “child” under § 1229b(b)(1)(D). B. Hypothetical Jurisdiction. In the absence of jurisdiction under IIRIRA, Petitioners ask us to exercise hypothetical jurisdiction over the merits of their case. The doctrine of hypothetical jurisdiction is not a permissible basis upon which to exercise jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). C. Habeas Corpus Jurisdiction. Amici urge us, in the absence of subject matter jurisdiction under IIRIRA, to hold that Petitioners still have the avenue of habeas corpus review open to them. They argue that Petitioners must have a forum to present their procedural due process claim. Because this is not a petition for habeas corpus review, however, the issue of habeas corpus jurisdiction is not properly before us. Accordingly, we do not decide at this time whether that avenue is available to Petitioners. III. CONCLUSION. Section 1252(a)(2)(B)© precludes judicial review of Petitioners’ claims. We therefore dismiss the petition for lack of jurisdiction. DISMISSED. Footnotes [1] We permitted the National Immigration Law Center and the National Immigration Project of the National Lawyers Guild to file a Brief Amicus Curiae in this case. [2] The dissent argues that the term "judgment” is only used in the INA to refer either to formal decisions by a court or to discretionary decisions. Dissent at 6501-2 n. 9. The term, as it is used in § 1252(a)(2)(B)(i), does not refer to a formal decision of a court, the dissent argues; therefore, it must refer to a discretionary decision because we presume, pursuant to a canon of statutory interpretation, that "where Congress uses the same word or phrase throughout a statute, Congress generally intends the word or phrase to have the same meaning each time Congress uses it.” Dissent at 6502. Although this argument does have some force, on closer scrutiny it fails. All of the portions of the INA cited by the dissent that use "judgment” as a discretionary decision clearly indicate that "judgment” means "discretionary decision,” whereas § 1252(a)(2)(B)(i) does not. See Dissent at 6501-2 n. 9. In those provisions, either the term "discretionary” precedes the term "judgment” or the term "judgment” directly refers to the judgment of an individual, indicating that the "judgment” is a discretionary [1159] decision by an individual. Section 1252(a)(2)(B)(i), however, does not utilize the term "discretionary'' to modify the term "judgment,” nor does it refer to the "judgment” of a specified person. Compare, e.g., 8 U.S.C. § 1153(d)(5) (referring to "the use of independent judgment” in defining a supervisor and her duties); 8 U.S.C. § 1537(b)(2)(A) (using the phrase "in the judgment of the Attorney General”), with § 1252(a)(2)(B)(i) (precluding judicial review of "any judgment regarding the granting of relief ...” without reference to a specific individual). Rather, § 1252(a)(2)(B)(i) contains no modifying phrases that would indicate that "judgment” refers exclusively to a discretionary decision. The dissent’s use of the canon of statutory interpretation that like words in a statute generally mean the same thing throughout the statute is not persuasive where, as here, the word is contextually different in the statutory section being interpreted from the other statutory sections.