Luis Sepulveda v. Alberto Gonzales, Attorney General of the United States, 1

Citations: 407 F.3d 59; 2005 U.S. App. LEXIS 7700; 2005 WL 1030122Docket: 04-0187-

Court: Court of Appeals for the Second Circuit; May 4, 2005; Federal Appellate Court

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Luis Sepulveda, a Colombian citizen, faced removal proceedings and sought relief through cancellation of removal and voluntary departure under U.S. immigration law. The Immigration Judge (IJ) denied his applications, concluding that Sepulveda could not demonstrate good moral character due to having served over 180 days in jail for criminal convictions, as required by 8 U.S.C. § 1101(f)(4). Consequently, he was deemed legally ineligible for cancellation of removal. Although the IJ did not deny voluntary departure on statutory grounds, he exercised discretion against it due to Sepulveda's history of driving under the influence.

Sepulveda appealed the IJ's decision to the Board of Immigration Appeals (BIA) and simultaneously filed a motion to reopen his case to apply for adjustment of status under 8 U.S.C. § 1255(i), citing an approved visa petition based on his marriage to a U.S. citizen. The BIA dismissed his appeal, ruling that he was ineligible for adjustment of status because he had not been inspected and admitted into the U.S. The BIA also stated that his visa petition was filed after the cutoff date of April 30, 2001, further precluding him from eligibility for a waiver of the inspection requirement. The BIA upheld the IJ's denial of cancellation of removal, confirming that Sepulveda's jail time barred him from relief. The Court of Appeals determined that it had jurisdiction to review the BIA’s orders, as the issues of eligibility were nondiscretionary.

In May 2003, Sepulveda, through new counsel, filed a motion to reopen his removal proceedings, claiming his previous attorney's negligence in not filing a visa petition before April 30, 2001, should allow him to seek adjustment of status. The Board of Immigration Appeals (BIA) denied this motion in August 2003, concluding that Sepulveda failed to demonstrate egregious conduct by his former attorney and did not have an agreement to file the visa on time. A subsequent motion to reconsider was also denied in December 2003, with the BIA stating it lacked the authority to extend filing deadlines even if Sepulveda faced ineffective assistance of counsel.

In September 2003, Sepulveda petitioned the court to review the BIA’s August order, followed by a second petition in January 2004 regarding the December order. The Government moved to dismiss both petitions, contending that the motions were based on claims for relief under 8 U.S.C. § 1229b and § 1255, which are not subject to judicial review under 8 U.S.C. § 1252(a)(2)(B). 

Section 1252(a)(2)(B), amended by the AEDPA and IIRIRA, restricts court jurisdiction over judgments related to relief under specific immigration statutes. Sepulveda is seeking discretionary relief through cancellation of removal under § 1229b, which requires continuous physical presence in the U.S. for ten years, good moral character, no serious criminal convictions, and proof of exceptional hardship to a qualifying relative. An alien cannot demonstrate good moral character if they have been incarcerated for 180 days or more. Additionally, § 1255(i)(1)(B)(i) allows certain aliens with approved visa petitions filed before April 30, 2001, to apply for adjustment of status.

The Government argues that 8 U.S.C. § 1252(a)(2)(B) prohibits judicial review of any order related to relief under 8 U.S.C. § 1229b and § 1255, regardless of whether such relief is denied on discretionary grounds or due to nondiscretionary factors. This position is rejected based on the strong presumption favoring judicial review of administrative actions and the principle of interpreting ambiguities in deportation statutes in favor of the alien. It is determined that § 1252(a)(2)(B) does not eliminate courts' jurisdiction to review nondiscretionary decisions regarding an alien's eligibility for relief. Other circuits support this view, establishing that while the decision to grant relief is discretionary and not subject to review, courts can assess whether the law was correctly applied to the facts affecting eligibility. Specifically, factual determinations, such as continuous physical presence, are non-discretionary and therefore reviewable. Additional circuit cases reinforce that similar analyses apply to eligibility under § 1255, affirming that legal determinations affecting eligibility are subject to judicial review.

In July 1999, the Immigration Judge (IJ) denied Sepulveda's application for cancellation of removal relief, citing his failure to establish good moral character, which is a legal requirement under 8 U.S.C. § 1229b. The IJ's decision was based on statutory ineligibility rather than discretion, as he also found Sepulveda ineligible for voluntary departure relief under 8 U.S.C. § 1229c. The Board of Immigration Appeals (BIA) affirmed this determination, confirming that Sepulveda was barred from eligibility for both cancellation of removal and adjustment of status under § 1255(i) due to statutory ineligibility, referencing 8 C.F.R. § 245.10(a)(2)(i). Additionally, the BIA stated it lacked the authority to extend filing deadlines, further emphasizing the nondiscretionary nature of its determinations.

The court has jurisdiction to review these legal determinations. The denial of Sepulveda's motions to reopen and reconsider does not impact the court's decision, as established in Durant v. INS and Santos-Salazar v. United States Dep't of Justice, which held that such motions are sufficiently connected to final orders of removal and thus subject to the same jurisdictional bars. The BIA's rejections affirmed previous decisions denying Sepulveda's applications based on statutory ineligibility. Consequently, since § 1252(a)(2)(B) does not preclude review of nondiscretionary grounds, the court denies the motion to dismiss Sepulveda's petitions and orders the Government to respond, with further scheduling to be issued by the Clerk of Court.