# Petition for Writ of Certiorari — Rangel-Perez v. Holder > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2867%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 563 U.S. 935 ## Text ; a ) Supreme Court U.S. | No.10- 10-78° DEC 9- 2010 Inti OFFICE OF THE CLERK Supreme Court of the United States ROSENDO BENITO RANGEL-PERIEZ, Petrtioner ERIC H. HOLDER, JK., U.S. ATTORNEY GENICRAL, et al, Respondent. On PETITION FOR A Writ OF CERTIORARE TO THE UNITED Srares Court or APPEALS FOR THE ELEVENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI CHRISTOPHER W. HE.r, Esq. Counsel of Record THE Hetr Law Group, LLC. 1754 West Lunt Avenue Chicago, Illinois 60626 (888) 739-6794 heltlaw@comeast.net Counsel for Petitioner 222 R(M5 ce COUNSEL PRESS 800) 274-8321 © (800) 359-6859 QUESTION PRESENTED 1. Whether the circuit courts of appeal are stripped of jurisdiction to review cancellation of removal matters for non-permanent residents under 8 U.S.C. § 1229b(b)(1)(D) decided by the Board of Immigration Appeals? PARTIES TO THE PROCEEDING Petitioner is Rosendo Benito Rangel-Perez, the petitioner below. Respondent is United States Attorney General Eric H. Holder, Jr, respondent below. TABLE OF CONTENTS QUESTION PRESENTED PARTIES TO THE PROCEEDING .. TABLE OF CONTENTS TABLE OF APPENDICES ...... TABLE OF CITED AUTHORITIES OPINIONS BELOW JURISDICTION STATEMENT OF THE CASE REASONS FOR GRANTING THE PETITION . THE ELEVENTH CIRCUIT DID NOT FOLLOW OTHER CIRCUITS COURTS OF CONTROLLING AUTHORITY TO BE ACCORDED CANCELLATION OF REMOVAL MATTERS IN IMMIGRATION PROCEEDINGS iV Contents A. THE QUESTION PRESENTED IS OF EXCEPTIONAL IMPORTANCE BECAUSE IT HAS FAR REACHING IMPLICATIONS FOR ALL IMMIGRANTS UNDER THE ELEVENTHCIRCUIT’S JURISDICTION AND IT IS LENO ogo ck enh bes cen eee a B. THE ELEVENTH CIRCUIT HAD JURISDICTION TO REVIEW THE DECISION OF THE BIA .... 9 SME oo a eas sae heave rakes 17 TABLE OF APPENDICES Page APPENDIX A— PETITION FOR REVIEW IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED SEP ITMBGR 10,2010 ... 2... cee ccc ce cess la APPENDIX B — DECISION OF THE BOARD OF IMMIGRATION APPEALS, U.S. DEPARTMENT OF JUSTICE jeg Fa eS Sr nner En 5a APPENDIX C — DECISION OF THE BOARD OF IMMIGRATION APPEALS VATED OCTOBER 21, 2006 ...... ccc. cece 9a vi TABLE OF CITED AUTHORITIES Page CASES Aburto-Rocha v. Mukasey, 535 F:3d 500 (6th Cir. 2008) ................ 15 Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) ..........2000. 10 Arias v. U.S. Att’y Gen, 482 F.3d 1281 (11th Cir. 2007) ............ 5,6, 10 Augustin v. Att’y Gen., 620 F.aG 264 Ga Cir, BOOB) nw. cc ccc cece es 1] Barco-Sandoval v. Gonzales, BIG Foc 36 (le Cie. BOOB) onc ccc cc cc ccccess 10 Bencosme de Rodriguez v. Gonzales, 455 F3q 168 (lat Cir, BO0G) .........0.00005- 10 Carachuri-Rosendo v. Holder, 130 S.Ct. 2577, 09-60 (June 14, 2010) ....... 16 Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) ............... 10 Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008) .............. 12, 13 Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) .............. 10 Cited Authorities Gomez-Perez v. Holder, 569 F.3d 370 (8th Cir. 2009) Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) In re O-J-O-, 21 1&N Dec. 381 (BIA 1996) Leyva v. Ashcroft, 380 F.3d 303 (7th Cir. 2004) Martinez v. U.S. Att'y Gen., 446 F.3d 1219 (11th Cir. 2006) Matter of Almanza-Arenas, 24 IK&N Dec. 771 (BIA 2009) Matter of Andazola, 23 IK&N Dec. 319 (BIA 2002) Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) Mbea v. Gonzales, 482 F'3d 276 (4th Cir. 2007) Page 10 Of VILE Cited Authorities Page Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) ............. 13, 14, 15 Mireles v. Gonzales, 433 F.3d 965 (7th Cir. 2006) ............6.. 11,18 Vartinez-Rosas v. Gonzales, 424 F.3d 926 (Sth Cir. 2005) ..........cccee 10 Mejia-Rodriguez v. Holder, S558 F.20 46 (lat Cis, BOUB) 2... ccccccnccreces 11 Mendez-Moranchel v. Ashcroft, 838 F.3d 176 (8d Cir. 2008) ............0006- 10 Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005) .............. , 10 Obi v. Holder, 558 F.3d 609 (7th Cir. 2009) ................ 10 Rodriguez v. Gonzales, 451 F.3d GO (2a Cie BOO6) nk cca ve vdsecccsas 13 Rueda v. Ashcroft, 380 F.3d 831 (Sth Cir. 2004) ..........2cece- 10 Santana-Albarran v. Ashcroft, 093 F.3d 699 (6th Cir. 2005) .......... 10 1X Cited Authorities Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) .............000 es Singh v. Gonzalez, 451 F'3d 400 (6th Cir. 2006) ....... Tang v. U.S. Att'y Gen., 578 F.3d 1270 (11th Cir. 2009) ..... Todorovic v. Att'y. General, 09-11652 (11th Cir. Sept. 27, 2010) . Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. 2009) ..... Zacarias-Velasquez v. Mukasey, 509 F.3d 429 (8th Cir. 2007) STATUTES U.S. Const. art. I, § 8, cl. 4 .... INA § 237(a)(2)(B)(1) ......... are 6) ee Bree B SAOMLOKI MC) ... cece ccceces: Page 16 1Q Sere ; 10 j ( ife@d futhoritia 5 ray INA § 242(a)(2)(B)Q1) Y INA § 242(a)(2)(D) g 8 U.S.C. § 1228b > 8 U.S.C. § 1229b(b)(1) 8 U.S.C. § 1252(a)(2)(B)() 9 8 U.S.C. § 1182(a)(6)(A)(1) 8 U.S.C. § 1182(a)7)(a)(1)C) ( 8 U.S.C. § 1252(a)(2)(D) 28 U.S.C. § 1254(1) [Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub L. No. 104-208, 110 Stat. 3009-546 ... 1] OPINIONS BELOW The opinion of the court of appeals is unreported. The decision of the Board of Immigration Appeals dismissing Petitioner’s appeal, and the decision of the immigration judge also is unreported. JURISDICTION The jurisdiction of the Supreme Court is invoked pursuant to 28 U.S.C. § 1254(1). The petition for Writ of Certiorari is being filed within ninety days of the above- referenced decision of the Eleventh Circuit Court of Appeals. STATEMENT OF THE CASE Rosendo Benito Rangel-Perez, a native and citizen of Mexico, entered the United States in May of 1997 and has remained permanently in the United States ever since. He is married to a United States citizen, Anna Roque and has a United States citizen step-son, Maury Roque. His wife owned and operated a grocery store, La Mexicana, which sold over the counter medications. See Appendix C. In 2008, Rangel-Perez was convicted of a “regulatory offense related to the sale of prescription drugs.” See Appendix C. Specifically, petitioner was convicted in the State of Florida for the delivery of drugs without a prescription, and sale of contraband. /d. The federal government then detained him and placed him in removal proceedings on the basis of his unlawful entry into the United States. On September 19, 2007, he government sought his removal under 8 USC § 1182 (a)(6)(A)(i) (present without being admitted or paroled), 8 USC § 1182 (a)(7)(a)(i)(1) (Immigrant-no valid visa or entry document), then amending the charges in May 2008, additionally for having been convicted of a crime involving moral turpitude, and for having been convicted of a crime involving a controlled substance. At his removal hearing at the Krome Detention Center in Miami, Florida, Perez-Rangel conceded the factual allegations for 237(a)(2)(B)QGi) and sought cancellation of removal under INA removal under INA § 240(A)(b). A grant of this relief by the immigration judge would result in lawful permanent residency to him. To qualify for cancellation of removal for non-permanent residents, an alien must demonstrate: (1) that he has been physically present in the United States continuously for a period of not less than ten years; (2) has been a person of good moral character; has not been convicted of certain offenses; and (3) can establish that his removal would result in exceptional and extremely unusual hardship to his spouse, parent or child who is a citizen or resident of the United States. See Immigration Judge’s opinion and order, Appendia C Rangel-Perez testified at his removal hearing that while he had been formally married his wife for 3 years, they have lived together and man and wife for much longer and had raised his wife’s biological son as his own son since the age of 4. /d. Rangel-Perez, his wife and step-son all testified that Rangel-Perez cared for his wife over the course of many years for many serious afflictions and medical procedures, including assisting with his wife’s bouts with depression, her obesity, gastric bypass surgery and ovarian cancer. The immigration judge found him statutorily eligible for cancellation of removal for certain non-permanent residents, found he was not removable as an alien convicted of a crime involving moral turpitude or one convicted of using a controlled substance, and ordered him released on bond that same day. The immigration judge later issued a written decision entering a removal order against him on October 21, 2008 and denying his request for cancellation of removal, as a matter of discretion, inter alia. Id. Rangel-Perez appealed the opinion and order to the Board of Immigration Appeals. Rangel-Perez argued that he was entitled to cancellation of removal, and raised a number of statutory and constitutional arguments. The BIA affirmed the immigration judge’s decision and dismissed Rangel-Perez’s appeal on July 22, 2009. Petitioner then filed a timely petition for review with the Eleventh Circuit Court of Appeal! On September 10, 2010, the Eleventh Cireuit Court of Appeals denied petitioner’s petition for review. In doing so, the court relied on the invocation of jurisdictional bars under 8 U.S.C. § 1228b, which were acknowledged by the petitioner, but petitioner argued did not apply in all cases wherein a circuit court reviews matters involving denials of discretionary relief in immigration proceedings. Petitioner further submitte: that the Eleventh Circuit Court nevertheless retained jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review constitutional claims and questions of law. Petitioner further argued that the BIA applied the wrong legal standard and it erred as a matter of law by failing to examine the “cumulative hardship” visited upon the petitioner, much more than the weight the BIA assigned to his evidence. These issues were never addressed, however, because the Eleventh Circuit invoked the jurisdictional bar to hearing these issues. In failing to review, on the merits, the request by petitioner to apply the appropriate law in his BIA appeal and rule that the BIA in fact erred in failing to follow its own precedent set forth in Jn re O-J-O-, 21 1 & N Dec. 381 (BIA 1996), the court held it could not did consider what petitioner felt was critical chronological and legal issues which supported petitioner’s petition for review. The Eleventh Circuit finally held that petitioner posited an un reviewable “abuse of discretion argument” finding petitioner was requesting the court to “reevaluate the evidence presented to the IJ about his wife’s depressive condition, and to review whether the BIA’s hardship was correct in light of that evidence.” See Eleventh Circuit Court Opinion, Septemb« r 10, 2010 [In uphelding the BIA’s decision, the Kleventh Circuit Court also cited the BIA’s brief reference to the petitioner spouse's health problems finding BIA decision “was not utterly lacking in evidentiary support.” /d ~ o REASONS FOR GRANTING THE PETITION THE ELEVENTH CIRCUIT DID NOT FOLLOW OTHER CIRCUITS COURTS OF CONTROLLING AUTHORITY TO BE ACCORDED CANCELLATION OF REMOVAL MATTERS IN IMMIGRATION PROCEEDINGS A. THE QUESTION PRESENTED IS OF EXCEPTIONAL IMPORTANTACE BECAUSE IT HAS FAR REACHING IMPLICATIONS FOR ALL IMMIGRANTS UNDER THE ELEVENTH CIRCUIT’S JURISDICTION AND IT IS RECURRING. The decision of the Eleventh Circuit court must not stand because that court relied on the government’s erroneous conclusion that jurisdiction does not exit in these matters. The Eleventh Circuit Court should not have made such a conclusion, as the BIA must still review the cumulative effect of all evidence submitted in cancellation cases under its own precedent-setting case of In re O-J-O-, and the failure to do so permitted the Eleventh Circuit to review said agency’s decision to dismiss petitioner’s appeal, notwithstanding certain jurisdictional bars cited by the Eleventh Circuit (the Eleventh Circuit relying on Anas v. U.S. Att’y Gen., 482 F.3d 1281 (11" Cir. 2007), for example). The Eleventh Cireuit certainly had jurisdiction to render a decision on the merits in this matter as do other courts of appeal nationwide. Given the issues presented in Rangel-Perez’ petition for review, this conclusion does not accurately reflect 6 the prevailing law in other circuits and the decision sets a dangerous precedent for other immigrants seeking review of cancellation decisions made by the Board of Immigration Appeals within that circuit’s jurisdiction’. In fact, in nearly every other circuit, an identically situated alien would have an opportunity to obtain cancellation of removal and remain lawfully in the United States. There is no justification for permitting that stark disparity of treatment to continue in the Eleventh Circuit, particularly in view of the Constitution’s contemplation of a “uniform Rule of Naturalization.” U.S. Const. art. [ § 8, el. 4 Cancellation of removal for nonpermanent residents (“non-LPR cancellation”) allows qualifying individuals with no ability to adjust status via family or employment means to obtain permanent residence in the United States by a federal immigration judge. To become eligible for non-LPR cancellation, an applicant must establish, inter alia, that his or her removal would cause exceptional and extremely unusual hardship to a qualifying relative. Matter of Monreal, 23 I&N Dec. 56, 60 (BIA 2001). The Eleventh Circuit here as it had done in other cases such as Arias v. U.S. Att’y Gen., 482 F.3d 1281 (11th Cir. 2007), the court declined to exercise jurisdiction over many hardship determinations. However, other circuit courts have found that in certain instances, the determination whether an alien has established exceptional and extremely unusual hardship can present a legal question over which the court has 1. The Eleventh Circuit Court of Appeals has jurisdiction over all BIA decisions reviewing all immigration judge decisions made in Alabama, Florida, Georgia North Carolina and South Carolina. jurisdiction. Therefore, because the Eleventh Circuit refuses to apply this standard there is no uniformity with regard to federal immigration law within this jurisdiction. Again, there is no justification for permitting that stark disparity of treatment with cancellation of removal cases reviewed by the Eleventh Circuit Court of Appeals. Obtaining non-LPR cancellation by an immigrant in removal proceedings requires an applicant to establish four statutory elements: (A) physical presence in the United States for a continuous period of 10 years; (B) good moral character during that period of time; (C) no convictions for certain criminal offenses; and (D) exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence. § 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1). The statute states that if these requirements are met, the “Attorney General may cancel removal of .. . an alien who is inadmissible or deportable from the United States.” /d. There are only three decisions, however, published by the Board of Immigration Appeals to guide that agency in reviewing cancellation cases. See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, 23 1&N Dee. 56 (BIA 2001). In denying the respondent’s application for non-LPR cancellation in Matter of Monreal (citation znfra), the BIA determined that the hardship the respondent’s children would face if the respondent were removed to Mexico would not rise to the level of exceptional and extremely unusual hardship. The BIA noted that the children were in good health, 8 that the oldest child could speak, read, write, and understand Spanish, and that they would be reunited with family upon their return. Similarly, in Matter of Andazola (citation infra), the BIA denied the application of a 30-year-old Mexican single mother of two United States citizen children. In that case, the mother had been in the United States for 16 years, had no family in Mexico, and expressed concerns about discrimination and the limited opportunities she and her children would face if removed. In vacating the decision of the Immigration Judge granting her application, the BIA stated that “the hardships the respondent... outlined are simply not substantially different from those that would normally be expected upon removal to a less developed country.” Matter of Andazola, 23 I&N Dec. at 324. Matter of Recinas, 23 I&N Dec. at 470, on the other hand, identified “the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.” In finding that a Mexican applicant had shown the requisite level of hardship, the BIA highlighted the fact that the respondent was a 39-year-old single mother of six children, four of whom were United States citizens. In addition, the applicant’s family had been in the United States for 14 years, and her entire family, including her siblings, resided lawfully in the United States. /d. Moreover, the children spoke little Spanish, the applicant relied heavily upon her family to care for the children while she worked, and no similar support existed in Mexico. The BIA emphasized that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Jd. Thus there are clear ground rules 9 and guidance to decide these immigration applications by aliens. B. THE ELEVENTH CiRCUIT HAD JURISDICTION TO REVIEW THE DECISION OF THE BIA. Petitioner acknowledged before the Eleventh Circuit that § 242(a)(2)(B)(i) of the Act, 8 U.S.C. § 1252(a)(2)(B Xi), that, notwithstanding other provisions of the law, the circuit courts may not retain jurisdiction to review “any judgment regarding the granting of relief under” several provisions of the INA, including section 240A, which governs cancellation of removal. Petitioner further acknowledged that § 242(a)(2)(B)(i) bars circuit courts from reviewing “any other decision or action of the Attorney General ... the authority for which is specified under this title to be in the discretion of the Attorney General,” except for asylum. However, judicial review of legal and constitutional, as opposed to factual determinations, is permitted under § 242(a)(2)(D), which states that no provision of the Act “shall be construed as precluding review of constitutional claims or questions of law.” Jd. In general, circuit court decisions reviewing the merits of non-LPR cancellation determinations have been rare and clearly the BIA has characterized non- LPR cancellation as a discretionary form of relief from removal. Matter of Almanza-Arenas, 24 I&N Dec. 771, 774 (BIA 2009). In addition, petitioner is also aware that every circuit court has held that in at least certain instances, the determination whether an alien has met his or her burden to establish the requisite hardship is considered a discretionary determination outside of a . 10 circuit court’s jurisdiction to review. See, e.g., Arambula- Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009); Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-39 (2d Cir. 2008); Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222-23 (11th Cir. 2006); Bencosme de Rodriguez v. Gonzales, 433 F.3d 163, 164 (1st Cir. 2005); Obioha v. Gonzales, 431 F.3d 400, 405 (4th Cir. 2005); Martinez- Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004); Leyva v. Ashcroft, 380 F.3d 303, 305-06 (7th Cir. 2004); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). However, jurisdiction does exist to review certain legal determinations with respect to applications for cancellation of removal, despite the Eleventh Circuit Court’s reliance on Arnas v. U.S. Att'y Gen., 482 F.3d 1281 (11" Cir. 2007). Other circuits clearly disagree with the Eleventh Circuit’s position: Garcia v. Holder, 584 F'3d 1288, 1289 n.2 (10th Cir. 2009) (concluding that the alien’s conviction for third-degree assault rendered him ineligible for cancellation of removal); Castillo-Cruz v Holder, 581 F.3d 1154, 1157 (9th Cir. 2009) (remanding from a determination that the alien’s crimes rendered him ineligible for cancellation of removal); Vasquez- Martinez v. Holder, 564 F.3d 712, 717-19 (5th Cir. 2009) (holding that the alien’s Texas conviction for possession of cocaine with intent to deliver was for an aggravated felony, rendering the alien ineligible for cancellation of removal); Obi v. Holder, 558 F.3d 609, 612 (7th Cir. 2009) (holding that INA § 240A(b)(1)(C) is not impermissibly retroactive when applied to a conviction that occurred 1] prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546); Mejia- Rodriguez v. Holder, 558 F.3d 46 (1st Cir. 2009) (finding the alien not eligible for the petty offense exception and therefore ineligible for cancellation of removal); Augustin v. Att’y Gen., 520 F.3d 264 (3d Cir. 2008) (finding that the BIA did not err in refusing to impute the father’s years of continuous residence to his son for purposes of establishing the requisite continuous residence for cancellation of removal); Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007) (finding that the malicious burning of property in violation of the D.C. criminal code is a crime of violence, rendering the alien ineligible for cancellation of removal); Singh v. Gonzalez, 151 F.3d 400, 406-07 (6th Cir. 2006) (remanding after the BIA imputed to the minor petitioners certain fraudulent actions of their parents). Nationwide, circuit courts have found jurisdiction to examine an Immigration Judge’s determination whether a qualifying relative will suffer exceptional and extremely unusual hardship if the petitioner is removed. The Eleventh Circuit, therefore, was flatly incorrect. Specifically, other circuit courts have found jurisdiction to examine whether the immigration judge or the BIA either: (1) used an incorrect legal standard in this determination; or (2) misapplied the Board’s precedent. In Mireles v. Gonzales, 433 F.3d 965 (7th Cir. 2006), the petitioner argued that the immigration judge made a legal error in understanding the meaning of exceptional and extremely unusual hardship. The United States Court of Appeals for the Seventh Circuit determined that it retained jurisdiction to review the petitioner’s 12 argument. /d. at 969. In Gomez-Perez v. Holder, 569 F.3d 370, 371 (8th Cir. 2009), the petitioner, a native and citizen of Guatemala, argued before the Immigration Court that his removal would result in exceptional and extremely unusual hardship to his United States citizen children. In denying the petitioner’s application, the Immigration Judge noted that the hardship to the children would be largely economic, since the petitioner said his children would remain with their mother in this country. On appeal, the petitioner claimed that the Immigration Judge erred by applying an incorrect standard in determining whether his children would suffer exceptional and extremely unusual hardship and argued that the Immigration Judge looked at the children’s present circumstances, instead of looking to future hardship. The Eighth Circuit held that whether an Immigration Judge has applied the correct legal standard is a question of law within the court’s jurisdiction to review. The petitioner also claimed that the Immigration Judge and the Board “applied an licorrect legal standard by failing to adequately consider certain factors [regarding hardship] that have been considered relevant in other BIA decisions.” /d. at 373. In Figueroa v. Mukasey, 543 F.3d 487, 491-92 (9th Cir. 2008), petitioner asserted that the Immigration Judge misapplied the legal standard in evaluating the hardship for non-LPR cancellation, in that he required petitioners to show hardship that was “unconscionable.” The petitioner also argued that the Immigration Judge further erred in only considering the present medical conditions (Attention Deficit Hyperactivity Disorder, depression, ocular disorder, astigmatism) experienced by the petitioner’s children and failed to analyze whether the children would suffer future hardship. In reaching a decision that it retained jurisdiction, the Ninth Cireuit looked to the Seventh Circuit’s decision in Mireles v. Gonzales (citation supra), for guidance on whether to assume jurisdiction. The Ninth Circuit also looked to other areas of immigration law where a circuit court has jurisdiction over the analysis of a legal issue, even when the overarching decision is a discretionary one, as in this matter. In ruling that it had jurisdiction to review the hardship determination, the Ninth Circuit stated in Figueroa that even if an Immigration Judge’s decision is discretionary, it is not outside a court’s purview to review the agency’s decision if the agency misapplies the law. Id. at 495-96 (citing Hernandez v Ashcroft, 345 F.3d 824, 846-47 (9th Cir. 2003) (the BIA “must exercise its discretion within the constraints of the law’”’)). In Mendez v. Holder, 566 F.3d 316 (2d Cir 2009), the Second Circuit declined to find the hardship determination reviewable as a matter of law but remanded the case to the Board on account of other legal errors. In its decision, that court referenced tw prior Second Circuit cases, Rodriguez v. Gonzales, 451 K.3d 60, 62 (2d Cir. 2006), and Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005), which described the adjudication of a non-LPR cancellation application as a two-part process. That is, the Immigration Judge must first determine whether an individual is statutorily eligible for the relief and, second, he or she must determine whether the alien merits that relief as an exercise of discretion. In Rodriguez, the court found it had jurisdiction to evaluate whether the petitioner had committed certain crimes that would render him ineligible for non-LPR cancellation. The Mendez court found that it retained jurisdiction to review the 14 petitioner’s application because the Immigration Judge erred as a matter of law in analyzing his claim. The court found that the Immigration Judge failed to address certain evidence presented by the petitioner, including: (1) the specialized piece of medical equipment the petitioner’s United States citizen daughter used; (2) the number of asthma attacks the daughter experienced yearly; (3) the long-term prognoses of the daughter's asthma; (4) the specialized medical doctor the petitioner’s son visited annually; (5) the unavailability of a specialized medical doctor for the petitioner’s son in Mexico; and (6) the petitioner’s ability to pay for highly specialized care in Mexico. The court also found that the Immigration Judge failed to evaluate all the evidence submitted and therefore did not appropriately address whether the petitioner’s removal would result in exceptional and extremely unusual hardship to hi: two United States citizen children. The court stated We readily acknowledge that the agency doe not commit an “error of law” every time ar item of evidence is not explicitly considered or is described with imperfect accuracy, but where, as here, some facts important to the ubtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked other and have been eriously mischaracterized, we conclude that an error of law has occurred hat court noted that the immigration judge had not made an adverse credibility finding and stated that 11 was “not confident that, after taking the overlooked evidence into account and describing it accurately,” the agency would again conclude that the petitioner failed to establish exceptional and extremely unusual hardship. /d. Therefore, the court remanded the case to the BIA for a new determination on the question of hardship. In this case, the petitioner cited to a plethora of instances wherein the IJ failed to examine hardship evidence. All examples were also brought to the attention of the Eleventh Circuit which also fell on deat ear In yet another case clearly demonstrating a circuit court’s jurisdiction to review cancellation o! removal cases, the Sixth Circuit, in Aburto-Rocha Mukasey, 535 F.3d 500 (6th Cir. 2008), held that it had jurisdiction to review whether the BIA incorrectly applied its own precedent regarding exceptional and extremely unusual hardship. In accepting jurisdiction, the court stated that “the choice by the BIA to disregard its own binding precedent—even when deciding an issu that is within its discretion—is not itself a discretionary decision Congress has excluded from review.” /d. at 503 The court went on to say that because it did not want to econd guess” how the BIA weighed the evidence, if would only look to whether the Board “reasonably construed and applied its own precedents.” /d. In thi precedent setting case, the BIA also erroneously concluded that petitioner here “waived appeal” on challenging the adverse creditability finding. Here, while the petitioner clearly demonstrated that he did not waive any issues, the KJeventh Circuit was silent on this issue as well, which petitioner believed was critical to his petition for review. Thus petitioner's testimony 16 as addressed by the BIA, should have also been addressed by this Eleventh Circuit. The Eleventh Circuit is well aware that, based on its own precedent, “Ifan alien’s testimony is credible, it may be sufficient, without corroboration, to satisfy [his] burden of proof in establishing [his] eligibility for relief from removal.” Todorowme v Att'y Cie neral, O09 11652 ( | he Coir. sept