Bravo v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2003
In the
Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________

No. 02-41427
_______________

HERMILO BRAVO AND MARIA BRAVO-RUBIO,

Petitioners-Appellants,

VERSUS

JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL;
ANNE ESTRADA,
DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE,

Respondents-Appellees.

_________________________

Appeal from the United States District Court
for the Eastern District of Texas
m 9:02-CV-247
_________________________

Before DAVIS, SMITH, and DUHÉ, petition for writ of habeas corpus challenging
Circuit Judges. their deportation order. Relying on INS v. St.
Cyr, 533 U.S. 289, 326 (2001), they contend
JERRY E. SMITH, Circuit Judge: the district court erred by dismissing for lack
of jurisdiction. We affirm.
Hermilo Bravo and Maria Bravo-Rubio,
husband and wife and citizens of Mexico, ap- I.
peal the denial of their 28 U.S.C. § 2241 The Bravos are natives and citizens of Mex-
ico who entered the United States in 1985. In application for cancellation of removal. The
1997, they were placed in removal proceedings district court agreed, finding that the case was
pursuant to § 212(a)(6)(A)(i) of the distinguishable from St. Cyr because the IJ’s
Immigration and Nationality Act (“INA”), 8 adverse “hardship” ruling did not present a
U.S.C. § 1182(a)(6)(A)(i), for having entered pure question of law.
without inspection. They conceded remov-
ability and applied for cancellation of removal II.
pursuant to 8 U.S.C. § 1229b(b)(1) or, We review de novo the district court’s legal
alternatively, voluntary departure. determinations regarding jurisdiction. Reque-
na-Rodriguez v. Pasquarell, 190 F.3d 299,
The immigration judge (“IJ”) accepted the 302 (5th Cir. 1999). Section 1229b(b)(1)
Bravos’ evidence that they (1) had been physi- states:
cally present in the United States for a contin-
uous period of not less than ten years; (2) were The Attorney General may cancel
persons of good moral character; and (3) had removal of, and adjust to the status of
not been convicted of any of the proscribed an alien lawfully admitted for permanent
offenses listed in the cancellation statute, residence, an alien who is inadmissible
8 U.S.C. § 1229b(b)(1)(A)-(C). For purposes or deportable from the United States if
of the statute’s final requirement, however, the the alienSS
IJ determined that the Bravos had failed to
establish that their child, a United States citi- (A) has been physically present in
zen, would be subject to “exceptional and ex- the United States for a continuous pe-
tremely unusual hardship” if returned to Mex- riod of not less than 10 years immediate-
ico with his parents. 8 U.S.C. § 1229b(b)- ly preceding the date of such appli-
(1)(D). Accordingly, the IJ denied the Bravos’ cation;
application for cancellation of removal and
granted their application for voluntary de- (B) has been a person of good mor-
parture. al character during such period;

The Bravos appealed the decision to the (C) has not been convicted of an of-
Board of Immigration Appeals (“BIA”), which fense under section 1182(a)(2), 1127-
summarily affirmed without opinion. There- (a)(2), or 1227(a)(3) of this title; and
after, the Bravos filed the instant petition seek-
ing habeas and injunctive relief. Relying on St. (D) establishes that removal would
Cyr, they sought review of the IJ’s de- result in exceptional and extremely un-
termination that the “exceptional and extreme- usual hardship to the alien’s spouse, par-
ly unusual hardship” prong of § 1229b(b)(1) is ent, or child, who is a citizen of the
inapplicable. United States or an alien lawfully ad-
mitted for permanent residence.
The Immigration and Naturalization Service
(“INS”) moved to dismiss, arguing that the 8 U.S.C. § 1229b(b)(1). Though the Bravos
district court lacked jurisdiction to review the concede removability on the first three prongs,
“discretionary” decision to deny the Bravos’ they argue that the IJ used the wrong standard

2
in evaluating whether their child, a U.S. citi- argued that 8 U.S.C. §§ 1252(a)(1), (a)(2)(C),
zen, would be subject to “exceptional and ex- and (b)(9) SS subsections that, like
tremely unusual hardship” if deported.1 § 1252(a)(2)(B), concern IIRIRA’s jurisdic-
tional reachSSstripped the district court of ha-
The government argues that the district beas jurisdiction. Although the Court agreed
court lacked jurisdiction under § 1252(a)- that the barring of “judicial review” precluded
(2)(B), which states, inter alia, that “no court direct review of the Attorney General’s deci-
shall have jurisdiction to reviewSS(i) any judg- sion, it found that the respondent had properly
ment regarding the granting of relief under sought a § 2241 petition, which may be used
section 1182(h), 1182(i), 1229b, 1229c, or broadly to challenge orders of deportation as
1255 of this title.” 8 U.S.C. § 1252(a)(2)- being “in violation of the Constitution or laws
(B)(i). Had the Bravos petitioned this court or treaties of the United States.” 28 U.S.C.
for direct review, the plain language of § 2241(c)(3).
§ 1252(a)(2)(B) would divest us of jurisdiction
to review the IJ’s denial of § 1229b(b)(1) Importantly, the habeas petition in St. Cyr,
cancellation. Molina-Estrada v. INS, 293 F.3d 533 U.S. at 308, challenged a “pure question
1089, 1093 (9th Cir. 2002). of law”SSwhether new IIRIRA provisions
should be applied retroactively. In construing
Absent “a clear statement of congressional the reach of habeas review, the Court noted
intent,” however, the divestment of “judicial the traditional “distinction between eligibility
review” does not preclude habeas corpus re- for discretionary relief, on t he one hand, and
view. St. Cyr, 533 U.S. at 298. In St. Cyr, the the favorable exercise of discretion, on the
Court addressed whether the district court in other hand.”3 Id. at 307. Although federal
that case had jurisdiction to review the Attor- courts retain habeas jurisdiction to review
ney General’s decision to apply the Illegal Im- statutory and constitutional claims, there is no
migration Reform and Immigrant Responsibil- jurisdiction to review denials of discretionary
ity Act’s (“IIRIRA’s”) automatic deportation
provisions retroactively.2 The government had
2
(...continued)
tation waiver. The INS, however, placed him in
1
In his oral decision, the IJ stated: “I do not removal proceedings approximately one year
find that the evidence even remotely comes close to laterSSafter § 212(c) had been repealed by
establishing any semblance of hardship to this U.S. IIRIRA. In his habeas petition, St. Cyr argued that
citizen child as a consequence of going back to § 212(c) remained available to aliens who had
Mexico. His youth, the fact that he’s apparently pleaded guilty to a deportable crime before
fluent in Spanish for his age, suggest that he will IIRIRA’s enactment.
[develop] an ability to acclimate to life in Mexico
3
. . . .” See also St. Cyr, 533 U.S. at 314 n.38 (“[A]s
we have noted, the scope of review on habeas is
2
In St. Cyr, the respondent, who had been ad- considerably more limited than on APA-style re-
mitted to the United States ten years previously as view. Moreover, this case raises only a pure
a lawful permanent resident, pleaded guilty to a question of law as to respondent’s statutory eli-
controlled substance crime. At the time he pleaded, gibility for discretionary relief, not, as the dissent
St. Cyr was eligible to apply for a § 212(c) depor- suggests, an objection to the manner in which
(continued...) discretion was exercised.”).

3
relief. Finlay v. INS, 210 F.3d 556, 557 (5th 994, 1012 (5th Cir. 1999) (quoting Kalaw v.
Cir. 2000).4 This distinction comports with INS, 133 F.3d 1147, 1152 (9th Cir. 1997)).
the historical understanding of the writ of ha- Based on the Bravos’ child’s age and fluency
beas corpus as a mechanism for remedying for in Spanish, the IJ found that he would not suf-
an official’s refusal to exercise discretion, but fer hardship as a consequence of going to
not a “substantively unwise exercise of dis- Mexico. The Bravos argue that the IJ failed to
cretion.” St. Cyr, 533 U.S. at 307. account for other factors that would support a
finding of extreme hardship; they do not raise
In interpreting the transitional rules in effect statutory or constitutional arguments. As a
before enactment of IIRIRA’s permanent discretionary decision, the IJ’s determination
provisions,5 a determination of “exceptional is not a proper subject of habeas review.7
and extremely unusual hardship” is “clearly a
discretionary act.”6 Moosa v. INS, 171 F.3d AFFIRMED.

4
See Sol v. INS, 274 F.3d 648, 651 (2d Cir.
2001) (“[F]ederal jurisdiction over § 2241 petitions
does not extend to review of discretionary
determinations by the IJ and BIA.”); Bowrin v.
INS, 194 F.3d 483, 490 (4th Cir. 1999) (“Only
questions of pure law will be considered on § 2241
habeas review. Review of factual or discretionary
issues is prohibited.”); Catney v. INS, 178 F.3d
190, 195 (3d Cir. 1999) (“Following passage of
AEDPA and IIRIRA, we no longer have
jurisdiction to review a denial of discretionary
relief to a criminal alien.”).
5
The transitional rules governed challenges to
BIA decisions issued on or after October 31, 1996,
in deportation proceedings initiated before April 1,
1997. Rodriguez-Silva v. INS, 242 F.3d 243, 246
(5th Cir. 2001).
6
Before enactment of IIRIRA, INA § 244,
8 U.S.C. § 1254(a)(1) (now repealed), provided
that the Attorney General, “in [his] discretion,” 6
(...continued)
could suspend the deportation of an otherwise de- alien lawfully admitted for permanent residence.”
portable alien if the alien: (1) had been physically
7
present in the United States for seven years; The Bravos also contend that the BIA’s sum-
(2) was of good moral character; and (3) whose mary affirmance of the IJ’s decision was improper.
removal would, “in the opinion of the Attorney We have rejected this argument, holding that the
General, result in exceptional and extremely un- summary affirmance procedures of 8 C.F.R.
usual hardship to the alien or to his spouse, parent, § 3.1(a)(7) do not violate due process, nor deprive
or child, who is a citizen of the United States or an a district court of jurisdiction. Soadjede v. Ash-
(continued...) croft, 324 F.3d 830, 832-33 (5th Cir. 2003).

4