Ayala Chapa v. Garland ( 2023 )

Case: 21-60039 Document: 00516650814 Page: 1 Date Filed: 02/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 20, 2023
No. 21-60039
Lyle W. Cayce
Clerk
Jorge Armando Ayala Chapa,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A044 330 761
Before Richman, Chief Judge, and Elrod and Oldham, Circuit
Judges.
Andrew S. Oldham, Circuit Judge:
The Government ordered Jorge Arman Ayala Chapa removed from
the United States because he’s an alien convicted of a controlled substance
offense. He applied for cancellation of removal. An immigration judge denied
his application. The Board of Immigration Appeals dismissed his appeal and
denied his motion to reconsider. We lack jurisdiction to review either
decision.
Case: 21-60039 Document: 00516650814 Page: 2 Date Filed: 02/20/2023
No. 21-60039
I.
Jorge Armando Ayala Chapa is a citizen of Mexico. From 2005 to
2020, Ayala Chapa was arrested and convicted for several crimes. In 2005,
he was arrested for possession of marijuana, charged as a juvenile, and
granted deferred probation. In 2006, he was arrested for possession of
marijuana and for unlawfully carrying a weapon; these charges were
dismissed. In 2011, he pled guilty to delivering cocaine on two separate
occasions. In 2017, he was convicted of marijuana possession. In 2020, he
was convicted of possession of a controlled substance.
On February 27, 2020, the Department of Homeland Security
charged him with removability under the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(2)(B)(i). Ayala Chapa admitted the factual
allegations and conceded the charge of removability.
Ayala Chapa applied for cancellation of removal, withholding of
removal, and protection under the Convention Against Torture. The
immigration judge (“IJ”) denied his application for all claims. Ayala Chapa
appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed
the appeal. Ayala Chapa petitioned for review in this court. He only
preserved his cancellation of removal claim. See Arulnanthy v. Garland, 17
F.4th 586, 593 n.1 (5th Cir. 2021).
Ayala Chapa also filed a timely motion with the BIA to reconsider.
The BIA denied relief. Ayala Chapa again sought review in this court.
Both petitions are before us. He raises several claims. Before reaching
the merits, however, we must assess our jurisdiction on a claim-by-claim
basis. See Fakhuri v. Garland, 28 F.4th 623, 627 (5th Cir. 2022).
2
Case: 21-60039 Document: 00516650814 Page: 3 Date Filed: 02/20/2023
No. 21-60039
II.
We begin with Ayala Chapa’s cancellation of removal claim. All agree
that Ayala Chapa is statutorily eligible to apply for cancellation, so that’s not
at issue here. Cf. Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Mireles-
Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003). Rather, the only question is
whether Congress gave us jurisdiction to review the BIA’s purely
discretionary decision to deny cancellation. It did not.
Cancellation of removal is authorized by 8 U.S.C. § 1229b. Congress
expressly stripped our jurisdiction, however, over “any judgment regarding
the granting of relief under section . . . 1229b.” Id. § 1252(a)(2)(B)(i). As the
Supreme Court “has repeatedly explained,” the words “any” and
“regarding” have “an expansive meaning” in this context. Patel v. Garland,
142 S. Ct. 1614, 1622 (2022) (quotation omitted). The § 1252(a)(2)(B)(i)
jurisdiction strip encompasses not just discretionary judgments but any
“judgments of whatever kind . . . relating to the granting of relief.” Ibid.
(quotation omitted). True, we retain jurisdiction over “constitutional claims
or questions of law.” 8 U.S.C. § 1252(a)(2)(D). And reviewable questions of
law can include “the application of a legal standard to undisputed or
established facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020).
But subsection (D) does not give us jurisdiction over BIA decisions that are
unconstrained by any legal standard. See, e.g., Castillo-Gutierrez v. Garland,
43 F.4th 477, 481 (5th Cir. 2022) (no jurisdiction to review whether an alien
meets the “exceptional and extremely unusual hardship” standard of 8
U.S.C. § 1229b(b)(1)(D)); Hernandez-Castillo v. Sessions, 875 F.3d 199, 206
(5th Cir. 2017) (no jurisdiction to review BIA decision declining to reopen
removal proceedings sua sponte).
Discretionary decisions to deny cancellation of removal under
§ 1229b(a) are standardless and hence unreviewable. See Monsonyem v.
3
Case: 21-60039 Document: 00516650814 Page: 4 Date Filed: 02/20/2023
No. 21-60039
Garland, 36 F.4th 639, 646 n.1 (5th Cir. 2022) (per curiam). The statute
merely says the Attorney General “may cancel removal” if a lawful
permanent resident satisfies certain conditions. 8 U.S.C. § 1229b(a)
(emphasis added). But it does not require the Attorney General to do
anything. See Barton v. Barr, 140 S. Ct. 1442, 1445 (2020) (“If a lawful
permanent resident meets [the § 1229b(a)] eligibility requirements, the
immigration judge has discretion to (but is not required to) cancel removal and
allow the lawful permanent resident to remain in the United States.”
(emphasis added)); Carachuri-Rosendo v. Holder, 560 U.S. 563, 581 (2010)
(Even if an alien can satisfy the eligibility requirements and “may” seek
cancellation of removal under § 1229b(a), “[a]ny relief he may obtain
depends upon the discretion of the Attorney General.”).
Ayala Chapa cites no regulations or cases that provide a legal standard
for § 1229b(a) claims. Instead, he postulates that Matter of C-V-T-, 22 I&N
Dec. 7 (BIA 1998), supplies a legal standard. But he’s wrong. Even if a BIA
decision could provide a legal standard, this one merely advises IJs to look to
the “totality of the evidence” and consider a non-exhaustive, permissive list
of factors “upon review of the record as a whole” to decide if the applicant
“warrants a favorable exercise of discretion.” 22 I&N Dec. at 14. Such
totality-of-the-circumstances standards are tantamount to no standard at all.
See Falek v. Gonzales, 475 F.3d 285, 289 n.2 (5th Cir. 2007) (concluding
BIA’s application of a totality-of-the-circumstances standard is unreviewable
because it’s a “discretionary decision, which is not a question of law”
(quotation omitted)).
Ayala Chapa also argues that we have jurisdiction over his cancellation
of removal claim because he’s challenging the BIA’s “application of law to
settled facts.” Guerrero-Lasprilla, 140 S. Ct. at 1069. But here too, Ayala
Chapa is missing a legal standard. Rather, he claims the BIA failed to
recognize hardships to his family and mischaracterized his criminal activities,
4
Case: 21-60039 Document: 00516650814 Page: 5 Date Filed: 02/20/2023
No. 21-60039
drug use, and rehabilitation efforts as negative factors. That’s just another
way of saying the BIA erred in its factual analysis and its discretionary
weighing of the facts. See Tibakweitira v. Wilkinson, 986 F.3d 905, 911 (5th
Cir. 2021) (foreclosing jurisdiction when an alien “essentially asks us to
reweigh the facts” in a discretionary determination by “contend[ing] that the
IJ and BIA erred by giving weight to certain facts related to his crime and
declining to give weight to other facts”); Nastase v. Barr, 964 F.3d 313, 319
(5th Cir. 2020) (“To the extent [the alien’s] petition presents the issue of
whether the BIA should have weighed the equities of his case more favorably
to him, we are without jurisdiction to consider it . . . .”).
So we have no jurisdiction over Ayala Chapa’s cancellation of removal
claim.*
III.
Ayala Chapa next contends that even if the BIA’s decision was
discretionary and hence insulated from review by § 1252, we should
nonetheless grant the petition for a procedural reason. Specifically, he
contends the BIA acted ultra vires by allowing a temporary board member to
sign the order dismissing Ayala Chapa’s appeal after the board member’s six-
*
At times, Ayala Chapa also seems to contest the IJ’s treatment of his cancellation
of removal claim, separate and apart from the BIA’s. We only have jurisdiction, however,
to review “final order[s] of removal.” 8 U.S.C. § 1252(a)(1). This means “we have
authority to review only the BIA’s decision because only that decision constitutes final
agency action.” Qorane v. Barr, 919 F.3d 904, 909 n.1 (5th Cir. 2019). Our jurisdiction does
not extend to IJ decisions. See Moreira v. Mukasey, 509 F.3d 709, 713 (5th Cir. 2007)
(“[T]his court does not have jurisdiction to review the IJ decision independently” because
it’s not a “final order of removal.”); Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.
1991) (“This Court is authorized to review only the order of the Board, not the decision of
the immigration judge.”).
5
Case: 21-60039 Document: 00516650814 Page: 6 Date Filed: 02/20/2023
No. 21-60039
month term had expired. Here too, however, our precedent requires us to
dismiss for lack of jurisdiction.
The INA requires an alien to “exhaust[] all administrative remedies
available to [him] as of right.” 8 U.S.C. § 1252(d)(1). Where an alien fails to
properly exhaust a claim, he cannot raise it before our court. See Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam).
Section 1252(d)(1)’s exhaustion requirement applies to claims
alleging defects in the BIA proceedings that the BIA “never had a chance to
consider” because they arise “only as a consequence of the Board’s error.”
Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022) (quotation
omitted). This rule extends to claims of BIA procedural errors that fall short
of due process violations. See Omari v. Holder, 562 F.3d 314, 320 (5th Cir.
2009); Roy, 389 F.3d at 137; Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th
Cir. 2001). Moreover, “[w]hen a petitioner seeks to raise a claim not
presented to the BIA and the claim is one that the BIA has adequate
mechanisms to address and remedy, the petitioner must raise the issue in a
motion to reopen prior to resorting to review by the courts.” Goonsuwan, 252
F.3d at 390; see also Morales-Morales v. Barr, 933 F.3d 456, 462 (5th Cir.
2019); Dale v. Holder, 610 F.3d 294, 298 (5th Cir. 2010); Toledo-Hernandez
v. Mukasey, 521 F.3d 332, 334 (5th Cir. 2008); Wang v. Ashcroft, 260 F.3d
448, 452–53 (5th Cir. 2001).
Ayala Chapa failed to meet these requirements. He never presented
his ultra vires claim to the BIA, even though he could have raised it in his
motion to reconsider. Moreover, Ayala Chapa seeks the exact relief the BIA
could’ve awarded him on reconsideration—namely, a new decision by a
board member serving an unexpired term. Accordingly, we lack jurisdiction
over this claim.
6
Case: 21-60039 Document: 00516650814 Page: 7 Date Filed: 02/20/2023
No. 21-60039
IV.
Ayala Chapa raises one last challenge to the BIA’s denial of his motion
for reconsideration. While his reconsideration motion was pending, Ayala
Chapa filed a supplemental brief before the BIA to argue that his removal
proceedings should be terminated under Niz-Chavez. In denying this claim,
the BIA held (1) Ayala Chapa forfeited the argument by failing to raise a
timely objection, (2) Niz-Chavez did not require the agency to terminate the
proceedings, and (3) Ayala Chapa did not show prejudice. ROA.666–67.
In his brief before our court, however, Ayala Chapa only contests the
first determination. He does not challenge the BIA’s reading of Niz-Chavez
or the BIA’s finding that he did not show prejudice. The Government argues,
and Ayala Chapa does not object, that he forfeits these arguments on appeal.
Since he failed to assert them in his briefs, he abandoned them. See
Arulnanthy, 17 F.4th at 593 n.1. Because Ayala Chapa forfeited two of the
three arguments he needs to prevail on his Niz-Chavez claim, anything we
might say about his one preserved argument would be purely advisory. See
Correspondence of the Justices, in R. Fallon, J. Manning, D. Meltzer
& D. Shapiro, Hart and Wechsler’s The Federal Courts
and the Federal System 50–52 (7th ed. 2015).
DISMISSED.
7