NIJC - 6th Cir: BIA failure to file precedent not w/n its discretion, so 1252(a)(2)(B) does not bar review

6th Cir: BIA failure to file precedent not w/n its discretion, so 1252(a)(2)(B) does not bar review

Tuesday, 29 July 2008

Aburto-Rocha v. Mukasey (6th Cir. 7/28/08)

SUTTON Moore Aldritch (dct)

In a non-LPR Cancellation case, the Petitioner argued that the Board failed to apply its own precedent - Matter of Recinas - which would have led to a finding of extraordinary hardship. The CtApp found that Board failure to follow precedent is not a discretionary decision, so 1252(a)(2)(B) didn't bar review - thus, no need to reach whether failure to file precedent is a question of law under 1252(a)(2)(D). (Note that the 6th Cir treats 1252(a)(2)(B) as barring only review over discretionary questions.) However, the CtApp found that such review must be deferential, and limited to whether the Board made a reasonable application of its precedent to this particular case.

Read opinion here:

1. 1252(a)(2)(B) only applies to discretionary decisions, and the Board's failure to follow precedent isn't a discretionary option - so no need to consider whether it's a "question of law," it simply doesn't fall within 1252(a)(2)(B).

Before undertaking this inquiry, we must determine our jurisdiction over it. Aburto-Rocha faces two jurisdictional hurdles. Section 1252(a)(2)(B)(i) of Title 8 prevents us from reviewing denials of applications for cancellation of removal, and § 1252(a)(2)(B)(ii) prevents us from reviewing “any other decision or action of the Attorney General which is specified” to be in his or her “discretion.” The two provisions at first glance seem to lead to a jurisdictional dead end: Aburto-Rocha is seeking review of the denial of an application for cancellation of removal, and that decision generally rests in the discretion of the Attorney General. See Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007); Valenzuela-Alcantar v. INS, 309 F.3d 946, 949–50 (6th Cir. 2002) (holding that a BIA decision on the hardship requirement is a discretionary decision not subject to judicial review).

Yet two exceptions to these provisions—one explicitly drawn by the statute, one inferred from its general framework—modify the (seemingly) categorical imperative of the statute. First, the statute elsewhere explicitly permits us to review “constitutional claims or questions of law.” See 8 U.S.C. § 1252(a)(2)(D). Second, as the heading of the underlying provision suggests, see id. § 1252(a)(2)(B) (“Denials of discretionary relief”), the statute prevents us from reexamining onlydiscretionary decisions by the agency, including discretionary denials of an application for cancellation of removal. “[N]on-discretionary decisions,” by contrast, are within our purview, even where they “underlie determinations that are ultimately discretionary.” Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004); see also Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005) (holding that § 1252(a)(2)(B) “divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal,” but does not remove jurisdiction to review the non-discretionary fact of an alien’s continuous presence in the United States).

Aburto-Rocha insists that his challenge to the BIA’s hardship decision—premised on the theory that the BIA failed to follow its own precedent—presents a question of law falling within the first exception. He may be correct, and we have suggested as much before. See Billeke-Tolosa, 385 F.3d at 711–12 (describing an alien’s claim that the BIA failed to follow its own precedent as an assertion of “legal error” and noting that such a failure was barred by the BIA’s own regulations and potentially the alien’s due process rights). But we need not (and therefore do not) resolve the point today, because his claim comes within the exception for non-discretionary decisions.

No doubt, we (like every other circuit) have held that the BIA’s hardship decision is a discretionary one and that, as a result, it generally lies beyond our jurisdiction. See Valenzuela- Alcantar, 309 F.3d at 949–50 (adopting this rule and citing other circuits’ decisions to the same effect); Hermez v. Gonzales, 227 F. App’x 441, 443–44 & n.1 (6th Cir. Mar. 28, 2007) (holding that the BIA’s decision on the hardship prong is a discretionary decision beyond our jurisdiction and that it does not fall within the exception for constitutional and legal claims). But the choice by the BIA to disregard its own binding precedent—even when deciding an issue that is within its discretion—is not itself a discretionary decision Congress has excluded from review. See Billeke-Tolosa, 385 F.3d at 711–12. The BIA’s regulations themselves indicate that adherence to precedent is a nondiscretionary act, as they require the agency to follow its own precedents except to the extent they are modified or overruled by the BIA or the Attorney General. See 8 C.F.R. § 1003.1(g). We have jurisdiction, in short, over this challenge to a non-discretionary error.

2. Although CtApp has jurisdiction to review Board failure to follow precedent, review is deferential.

That we may review a claim that the BIA ignored its own precedent in ruling on a hardship application, however, does not give us authority to second guess every choice the agency makes about how to apply uncertain or even conflicting precedents in a given context. While the application of precedent to a dispute may be “non-discretionary” in one sense, that does not make it mechanical in all settings and does not mean that reviewing courts are free to override the BIA’s decision on the basis of what they perceive as a better reading of the agency’s own precedent. * * * [S]tringently scrutinizing the BIA’s determinations of which precedents apply in which contexts (and with what force) could easily devolve into—or even serve as a mask for—replacing the BIA’s hardship judgment with our own. In reviewing Aburto-Rocha’s challenge, we thus confine ourselves to asking whether the BIA reasonably construed and applied its own precedents in this case.

3. Found Board's decision to focus on Monreal and Andazola instead of Recinas was reasonable.

Although the BIA would have done well to mention and distinguish Recinas, its failure to do so was not unreasonable. The order cited the decisions that Recinas itself acknowledged are controlling. * * *

To be sure, as the IJ candidly observed, there is room to argue that Recinas is “to some extent . . . seemingly inconsistent” with the two prior decisions. JA 71. But even if that is true, it is not for us to dictate to the BIA how it must mediate that tension in cases at the margin. Nor are we in a position to require it to offer a detailed justification for why it chose to cite certain cases but omit to distinguish others in each of its opinions. Given the material differences between the facts presented here and those presented in Recinas, at any rate, Aburto-Rocha has offered no basis for thinking that the balance the BIA struck here—one premised on the application of Monreal- Aguinaga’s general rule, not Recinas’s narrow, fact-specific exception—was unreasonable.

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