Jesus Figueroa Ochoa v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS FIGUEROA OCHOA, No. 20-72510

Petitioner, Agency No.

A092-693-089

v.

MERRICK B. GARLAND, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 4, 2022

Portland, Oregon

Filed June 20, 2023

Before: John B. Owens and Eric D. Miller, Circuit Judges,

and David A. Ezra,* District Judge.

Opinion by Judge Miller

*

The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

2 FIGUEROA OCHOA V. GARLAND

SUMMARY**

Immigration

Dismissing Jesus Figueroa Ochoa’s petition for review

of a decision of the Board of Immigration Appeals that

upheld the denial of a continuance and denied a motion to

remand, the panel concluded that it lacked

jurisdiction. Figueroa Ochoa had sought cancellation of

removal and adjustment of status. An immigration judge

denied relief because of Figueroa Ochoa’s criminal record,

and the Board of Immigration Appeals affirmed. Figueroa

Ochoa’s challenge hinged on his contention that the agency

erred factually in attributing a criminal conviction to him,

arguing that it truly belonged to his brother.

The panel concluded it lacked jurisdiction to review that

claim because—with an exception not at issue here—

Congress forbade judicial review of “any judgment

regarding the granting of relief under” the provisions

governing cancellation and adjustment. 8 U.S.C.

§ 1252(a)(2)(B)(i). The panel was guided by Patel v.

Garland, 142 S. Ct. 1614 (2022), in which the Supreme

Court held that the jurisdiction-stripping language in

§ 1252(a)(2)(B)(i) “encompasses any and all decisions

relating to the granting or denying of discretionary relief.”

The panel explained that this jurisdictional bar applied even

though Figueroa Ochoa sought review of the denial of a

continuance and a motion to remand, rather than review of

the denial of the underlying relief. The panel noted that its

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FIGUEROA OCHOA V. GARLAND 3

interpretation accords with that of the Fifth Circuit, while the

Eighth and First Circuits have adopted a narrower view of

§ 1252(a)(2)(B)(i).

Finally, the panel noted that, under Fernandez v.

Gonzales, 439 F.3d 592 (9th Cir. 2006), a court may review

the denial of a motion to reopen proceedings for cancellation

in certain circumstances, including if the new evidence

submitted addresses a hardship ground so distinct from that

considered previously as to make the motion a request for

new relief. The panel concluded that it need not decide

whether that holding survives Patel, explaining that, even on

its own terms, Fernandez does not help Figueroa Ochoa

because he did not present a request for new relief within the

meaning of Fernandez.

COUNSEL

Carlos A. Cruz (argued), Law Offices of Carlos A. Cruz,

Alhambra, California, for Petitioner.

Jenny C. Lee (argued), Trial Attorney; Anthony P. Nicastro,

Assistant Director; Brian Boynton, Acting Assistant

Attorney General, Civil Division; Office of Immigration

Litigation, United States Department of Justice;

Washington, D.C.; for Respondent.

4 FIGUEROA OCHOA V. GARLAND

OPINION

MILLER, Circuit Judge:

Jesus Figueroa Ochoa petitions for review of a final

order of removal of the Board of Immigration Appeals. After

Figueroa Ochoa applied for cancellation of removal and

adjustment of status, the Board upheld an immigration

judge’s denial of those applications and a request for a

continuance, and it denied a motion to remand. In this court,

Figueroa Ochoa challenges the denial of the continuance and

the motion to remand. Applying 8 U.S.C. § 1252(a)(2)(B)(i)

as interpreted by the Supreme Court in Patel v. Garland, 142

S. Ct. 1614 (2022), we conclude that those denials involved

judgments by the agency that we lack jurisdiction to review.

We dismiss the petition.

Figueroa Ochoa is a native and citizen of Mexico. In

2017, the Department of Homeland Security initiated

removal proceedings against him, alleging that he had

entered the United States without inspection at a time and

place unknown to the government. Figueroa Ochoa

conceded that he was removable but applied for cancellation

of removal under 8 U.S.C. § 1229b(b) and adjustment of

status under 8 U.S.C. § 1255.

To be eligible for either of those forms of relief, an

applicant must establish that he has not been convicted of

certain criminal offenses, including any state or federal

offense “relating to a controlled substance.” 8 U.S.C.

§ 1182(a)(2)(A)(i)(II); see id. §§ 1229b(b)(1)(C), 1255(a).

As relevant here, the government alleged that Figueroa

Ochoa had been convicted of three such offenses, all of them

in California state court. First, in 1996, Figueroa Ochoa was

convicted of possession of a controlled substance, in

FIGUEROA OCHOA V. GARLAND 5

violation of California Health & Safety Code section

11350(A). Second, in 1999, he was convicted of being under

the influence of a controlled substance, in violation of

California Health & Safety Code section 11550(A). Third,

in 2000, he was again convicted of possession of a controlled

substance.

At a hearing before an immigration judge, Figueroa

Ochoa explained that he had recently asked a state court to

vacate his 2000 conviction under a provision of state law that

allows a conviction to be vacated if a prejudicial error

impaired the defendant’s “ability to meaningfully

understand, defend against, or knowingly accept the actual

or potential adverse immigration consequences of a”

conviction. Cal. Penal Code § 1473.7(a)(1) (2017) (amended

2022). He requested a continuance so that the state court

could rule on his motion before the immigration judge

considered his application.

The immigration judge denied a continuance. The

immigration judge expressed skepticism about the prospects

for vacatur of the 2000 conviction but also reasoned that

vacatur would not make any difference to Figueroa Ochoa’s

eligibility for cancellation of removal and adjustment of

status because the 1996 and 1999 convictions would be

independent barriers to his eligibility. Figueroa Ochoa

argued that neither the 1996 nor the 1999 conviction should

count as disqualifying offenses. As to the 1996 conviction,

he said that he was granted a diversion by the state court, and

that after he successfully completed the diversion program,

his conviction was “dismissed.” As to the 1999 conviction,

he argued that it was included in his criminal history report

by mistake and that it was actually a conviction of his

brother, not him. The immigration judge rejected both

arguments. Of particular relevance here, the immigration

6 FIGUEROA OCHOA V. GARLAND

judge examined the record of the 1999 conviction and

concluded that it did, in fact, involve Figueroa Ochoa and

not his brother.

Despite the immigration judge’s skepticism, the state

court did vacate Figueroa Ochoa’s 2000 conviction. When

Figueroa Ochoa appealed the immigration judge’s decision

to the Board of Immigration Appeals, he renewed his

argument that the immigration judge should have granted a

continuance, and he asked the Board to remand his case so

that the immigration judge could evaluate the effect of the

state court’s decision on his applications.

The Board affirmed the immigration judge’s denial of

the continuance and denied Figueroa Ochoa’s motion to

remand. In its discussion of Figueroa Ochoa’s convictions,

the Board did not mention the 2000 conviction, but it twice

referred to Figueroa Ochoa’s efforts to vacate the “1996

conviction.” The government suggests, and we agree, that

the context makes clear that the Board meant to discuss the

2000 conviction—the only conviction for which Figueroa

Ochoa had sought vacatur—and that its references to the

1996 conviction were a scrivener’s error. But despite the

vacatur of the 2000 conviction, the Board said that it was

“not persuaded that a remand would change the outcome in

the case” because Figueroa Ochoa’s “1999 drug conviction

. . . would also serve as a bar to cancellation of removal.”

Figueroa Ochoa petitioned for review, challenging the

immigration judge’s denial of the request for a continuance

and the Board’s denial of the motion to remand. His

challenge hinges on his contention that the agency erred in

attributing the 1999 conviction to him. If the 1999 conviction

truly belonged to Figueroa Ochoa’s brother rather than to

Figueroa Ochoa, then the vacatur of the 2000 conviction

FIGUEROA OCHOA V. GARLAND 7

might have made him eligible for relief, thus warranting

either a continuance before the state court ruled or a remand

to the immigration judge after the state court ruled.

Before we proceed to consider that issue, we note one

question that is not before us: whether Figueroa Ochoa’s

1996 conviction might also be a barrier to relief. Although

the Board mentioned a “1996 conviction,” it did so only in

its mistaken references to the 2000 conviction. So far as we

can determine from the Board’s opinion—and as the

government appears to agree—the Board did not say

anything about the actual 1996 conviction. Accordingly, we

cannot rely on it in evaluating Figueroa Ochoa’s eligibility

for relief. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir.

2019); cf. Calcutt v. FDIC, 598 U.S. ----, 143 S. Ct. 1317,

2023 WL 3571460, at *3 (2023) (per curiam).

The question before us is therefore whether the Board

erred in determining that Figueroa Ochoa was convicted of

a drug offense in 1999; that, as a result, he is ineligible for

cancellation of removal or adjustment of status; and that he

accordingly was not entitled to a continuance or a remand.

In seeking review of that question, Figueroa Ochoa invokes

our jurisdiction under 8 U.S.C. § 1252. Although the

government agrees with Figueroa Ochoa that we have

jurisdiction, our jurisdiction is limited to that conferred upon

us by Congress consistent with Article III, and the parties

cannot enlarge it by their agreement. See Negrete v. City of

Oakland, 46 F.4th 811, 813–14 (9th Cir. 2022). We therefore

have a duty to assure ourselves of our jurisdiction even when

neither party has challenged it. See WMX Techs., Inc. v.

Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc).

We conclude that we lack jurisdiction to consider

Figueroa Ochoa’s petition for review. Congress has

8 FIGUEROA OCHOA V. GARLAND

specified that “no court shall have jurisdiction to review . . .

any judgment regarding the granting of relief under” various

provisions of the immigration laws, including sections

1229b and 1255, the provisions governing cancellation of

removal and adjustment of status. 8 U.S.C.

§ 1252(a)(2)(B)(i). In applying section 1252(a)(2)(B)(i), we

are guided by the Supreme Court’s recent decision in Patel,

in which the Court held that the jurisdiction-stripping

provision “encompasses any and all decisions relating to the

granting or denying of discretionary relief,” which “plainly

includes factual findings.” 142 S. Ct. at 1621–22 (internal

quotation marks omitted). We therefore may not review any

factual determinations “relating to” the forms of relief

Figueroa Ochoa sought. Id. at 1621.

Section 1252(a)(2)(D) provides an exception to the

preclusion of jurisdiction by allowing “review of

constitutional claims or questions of law.” Neither party

invokes that exception here, and with good reason.

Sometimes, assessing a prior conviction may require

answering a question of law, such as “Did the alien’s offense

constitute an aggravated felony?” See, e.g., Alfred v.

Garland, 64 F.4th 1025 (9th Cir. 2023) (en banc). But the

question the agency confronted in this case was one of

historical fact: “Who was convicted in 1999—Figueroa

Ochoa or his brother?” That is not a question that can be

answered in a law library; it requires looking at case-specific

records pertaining to Figueroa Ochoa.

That is just what the immigration judge did here. The

immigration judge observed that (1) the name first provided

in the 1999 case was “Jesse Figueroa Ochoa,” which

matched the name provided for Figueroa Ochoa’s 2000

conviction as well as a later conviction for assault with a

deadly weapon; (2) fingerprints taken in 2010 from “Uriel

FIGUEROA OCHOA V. GARLAND 9

Figueroa Ochoa”—the other name given in the 1999 case—

matched Figueroa Ochoa’s fingerprints; (3) Figueroa Ochoa

had the same attorney as the defendant in the 1999 case; and

(4) both Figueroa Ochoa and the defendant in the 1999 case

filed motions for expungement on the same day. In other

words, the immigration judge conducted a factual

assessment involving no legal analysis. The exception in

section 1252(a)(2)(D) therefore does not apply.

Because we cannot review the agency’s finding that

Figueroa Ochoa was convicted of an offense related to a

controlled substance in 1999, we see no error in the agency’s

denial of the continuance or the motion to remand.

Accepting the 1999 conviction as Figueroa Ochoa’s, the

agency correctly reasoned that no matter what happened

with the 2000 conviction, Figueroa Ochoa would remain

ineligible for relief. See, e.g., Flores-Alonso v. United States

Att’y Gen., 36 F.4th 1095, 1100 (11th Cir. 2022) (per

curiam) (holding that Patel requires a court to take the

agency’s factual findings as true and then look at petitioner’s

brief to see if he “has identified any legal error with respect

to the application of the law to those facts established in the

[Board’s] decision”).

The parties emphasize that Patel involved direct review

of the Board’s denial of relief—in that case, adjustment of

status—whereas this case involves the review of the

agency’s denial of a request for a continuance and a motion

to remand. According to Figueroa Ochoa, such “procedural”

decisions are not subject to the jurisdictional bar; as the

government puts it, they are merely “adjunct” to the ultimate

decision whether to grant cancellation of removal or

adjustment of status.

10 FIGUEROA OCHOA V. GARLAND

Patel forecloses that argument. As we have explained,

section 1252(a)(2)(B)(i) bars review of “any judgment

regarding the granting of relief under” the specified

provisions. In Patel, the Court noted that the word

“judgment” could be read in three possible ways. First, it

could mean “any authoritative decision.” 142 S. Ct. at 1621.

Second, it could mean only “a decision that requires the use

of discretion.” Id. at 1622. Third, as Patel suggested, it could

mean “only the ultimate grant or denial of relief.” Id. at 1625.

That last interpretation is essentially the one that Figueroa

Ochoa advances here, but the Court in Patel expressly

rejected it. Instead, the Court concluded, the first

interpretation “is the only one that fits § 1252(a)(2)(B)(i)’s

text and context.” Id. at 1622.

The Court emphasized that the statute “prohibits review

of any judgment regarding the granting of relief under” the

enumerated provisions. Patel, 142 S. Ct. at 1622. It

explained that “the word ‘any’ has an expansive meaning”

and that the word “regarding” likewise “has a broadening

effect, ensuring that the scope of a provision covers not only

its subject but also matters relating to that subject.” Id. (first

quoting Babb v. Wilkie, 140 S. Ct. 1168, 1173 n.2 (2020);

then quoting Lamar, Archer & Cofrin LLP v. Appling, 138

S. Ct. 1752, 1760 (2018)). Patel’s narrower reading, the

Court explained, “reads ‘regarding’ out of the statute

entirely.” Id. at 1625.

That reasoning dictates our decision here. In ruling on

the motion for continuance and the motion to remand, the

agency assessed how the vacatur of the 2000 conviction

would affect Figueroa Ochoa’s eligibility for discretionary

relief. That is why it answered the factual question of

whether Figueroa Ochoa was convicted in 1999 for being

under the influence of a controlled substance. Its answer to

FIGUEROA OCHOA V. GARLAND 11

that question was indisputably a “judgment”—that is, an

“authoritative decision.” Patel, 142 S. Ct. at 1621. And it

was a judgment “regarding the granting of” cancellation of

removal and adjustment of status in at least two senses. First,

it was related to those forms of discretionary relief because

it was made in the course of ruling on procedural motions

that were filed as part of Figueroa Ochoa’s effort to obtain

such relief. Second, it was related to those forms of relief

because making it required the agency to evaluate Figueroa

Ochoa’s eligibility for such relief. The agency’s judgment

about the 1999 conviction was thus a judgment relating to—

that is, “regarding”—the ultimate decision to cancel removal

or adjust status.

For its part, the government relies on Kucana v. Holder,

558 U.S. 233 (2010), but its argument parallels one rejected

in Patel. In Kucana, the Court considered a different

jurisdiction-stripping provision, section 1252(a)(2)(B)(ii),

which states that “no court shall have jurisdiction to review

. . . any other decision or action . . . the authority for which

is specified under this subchapter to be in the discretion of

the Attorney General or the Secretary of Homeland

Security.” The Court in Kucana construed that language to

bar judicial review of only those decisions that are made

discretionary by statute, not those made discretionary by

regulation. 558 U.S. at 247. Kucana had asked the agency to

reopen proceedings (a decision that is discretionary by

regulation) so that he could submit new evidence

establishing his eligibility for asylum (a non-discretionary

determination). The Court held that section 1252(a)(2)(B)(ii)

did not bar review of the agency’s decision on the motion to

reopen. Id. at 249.

In Patel, the government invoked Kucana to argue that

section 1252(a)(2)(B)(i) similarly removed jurisdiction

12 FIGUEROA OCHOA V. GARLAND

“exclusively [for] a decision that requires the use of

discretion.” 142 S. Ct. at 1622, 1624–25. But the Court

rejected that argument, calling Kucana “inapposite” because

it “neither said nor implied anything about review of

eligibility decisions made in the course of exercising th[e]

statutory discretion” referred to in section 1252(a)(2)(B)(i),

such as cancellation of removal or adjustment of status. Id.

at 1625. Accordingly, nothing in Kucana supports the

exercise of jurisdiction here.

Our interpretation of section 1252(a)(2)(B)(i) accords

with that of the Fifth Circuit, which has applied Patel to

conclude that a court “lack[s] jurisdiction to review the

BIA’s decision not to remand to the IJ to consider new

evidence” supporting an application for discretionary relief.

Perez v. Garland, 67 F.4th 254, 257 (5th Cir. 2023). While

some other courts of appeals have adopted a narrower view

of the jurisdiction-stripping provision, we believe that our

interpretation better comports with the statutory text as

interpreted in Patel. See, e.g., Llanas-Trejo v. Garland, 53

F.4th 458, 461–62 (8th Cir. 2022) (relying on Kucana and

holding that Patel is irrelevant in determining whether a

court has jurisdiction over motions to reopen even when

review would be prohibited for the underlying relief);

Moreno v. Garland, 51 F.4th 40, 46 (1st Cir. 2022) (“This

court has jurisdiction to review denials of motions to reopen,

even where the petitioner’s ultimate goal before the agency

was to garner some form of discretionary relief as to which

this court’s jurisdiction has been substantially curtailed by

statute.”).

We note that, before Kucana and Patel, we had held in

Fernandez v. Gonzales that a court may review the denial of

a motion to reopen proceedings for cancellation of removal

in certain circumstances, including if “the evidence

FIGUEROA OCHOA V. GARLAND 13

submitted addresses a hardship ground so distinct from that

considered previously as to make the motion . . . a request

for new relief.” 439 F.3d 592, 603 (9th Cir. 2006). We need

not decide whether that holding survives Patel because, even

on its own terms, Fernandez does not help Figueroa Ochoa.

Throughout this case, Figueroa Ochoa has sought

cancellation of removal and adjustment of status based on

the same theory: that his qualifying relatives would suffer

extraordinary hardship from his removal. And although he

attempted to submit new evidence with his motion to

remand, that evidence related to his 2000 conviction, not the

1999 conviction that formed the basis for the agency’s

decision and that he now challenges, nor to his underlying

claim of hardship. Thus, in the motions whose denial

Figueroa Ochoa asks us to review, he did not present “a

request for new relief” within the meaning of Fernandez. Id.

at 603.

In section 1252(a)(2)(B)(i), Congress forbade us to

review “any judgment regarding the granting of relief under”

the provisions governing cancellation of removal and

adjustment of status except in reviewing constitutional

claims and legal questions. That statute applies to judgments

made in the course of ruling on procedural motions such as

those at issue here. We therefore lack jurisdiction over

Figueroa Ochoa’s challenge to the Board’s decision.

PETITION DISMISSED.