Bravo, et al v. Ashcroft, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 02-41427
_______________
HERMILO BRAVO AND MARIA BRAVO-RUBIO,
Petitioners-Appellants,
VERSUS
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL;
ANNE ESTRADA,
DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 9:02-CV-247
_________________________
Before DAVIS, SMITH, and DUHÉ,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Hermilo Bravo and Maria Bravo-Rubio,
husband and wife and citizens of Mexico, ap-
peal the denial of their 28 U.S.C. § 2241
petition for writ of habeas corpus challenging
their deportation order. Relying on INS v. St.
Cyr, 533 U.S. 289, 326 (2001), they contend
the district court erred by dismissing for lack
of jurisdiction. We affirm.
I.
The Bravos are natives and citizens of Mex-

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ico who entered the United States in 1985. In
1997, they were placed in removal proceedings
pursuant to § 212(a)(6)(A)(i) of the
Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(a)(6)(A)(i), for having entered
without inspection. They conceded remov-
ability and applied for cancellation of removal
pursuant to 8 U.S.C. § 1229b(b)(1) or,
alternatively, voluntary departure.
The immigration judge (“IJ”) accepted the
Bravos’ evidence that they (1) had been physi-
cally present in the United States for a contin-
uous period of not less than ten years; (2) were
persons of good moral character; and (3) had
not been convicted of any of the proscribed
offenses listed in the cancellation statute,
8 U.S.C. § 1229b(b)(1)(A)-(C). For purposes
of the statute’s final requirement, however, the
IJ determined that the Bravos had failed to
establish that their child, a United States citi-
zen, would be subject to “exceptional and ex-
tremely unusual hardship” if returned to Mex-
ico with his parents. 8 U.S.C. § 1229b(b)-
(1)(D). Accordingly, the IJ denied the Bravos’
application for cancellation of removal and
granted their application for voluntary de-
parture.
The Bravos appealed the decision to the
Board of Immigration Appeals (“BIA”), which
summarily affirmed without opinion. There-
after, the Bravos filed the instant petition seek-
ing habeas and injunctive relief. Relying on St.
Cyr, they sought review of the IJ’s de-
termination that the “exceptional and extreme-
ly unusual hardship” prong of § 1229b(b)(1) is
inapplicable.
The Immigration and Naturalization Service
(“INS”) moved to dismiss, arguing that the
district court lacked jurisdiction to review the
“discretionary” decision to deny the Bravos’
application for cancellation of removal. The
district court agreed, finding that the case was
distinguishable from St. Cyr because the IJ’s
adverse “hardship” ruling did not present a
pure question of law.
II.
We review de novo the district court’s legal
determinations regarding jurisdiction. Reque-
na-Rodriguez v. Pasquarell, 190 F.3d 299,
302 (5th Cir. 1999). Section 1229b(b)(1)
states:
The Attorney General may cancel
removal of, and adjust to the status of
an alien lawfully admitted for permanent
residence, an alien who is inadmissible
or deportable from the United States if
the alienSS
(A) has been physically present in
the United States for a continuous pe-
riod of not less than 10 years immediate-
ly preceding the date of such appli-
cation;
(B) has been a person of good mor-
al character during such period;
(C) has not been convicted of an of-
fense under section 1182(a)(2), 1127-
(a)(2), or 1227(a)(3) of this title; and
(D) establishes that removal would
result in exceptional and extremely un-
usual hardship to the alien’s spouse, par-
ent, or child, who is a citizen of the
United States or an alien lawfully ad-
mitted for permanent residence.
8 U.S.C. § 1229b(b)(1). Though the Bravos
concede removability on the first three prongs,
they argue that the IJ used the wrong standard

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in evaluating whether their child, a U.S. citi-
zen, would be subject to “exceptional and ex-
tremely unusual hardship” if deported.1
The government argues that the district
court lacked jurisdiction under § 1252(a)-
(2)(B), which states, inter alia, that “no court
shall have jurisdiction to reviewSS(i) any judg-
ment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or
1255 of this title.” 8 U.S.C. § 1252(a)(2)-
(B)(i). Had the Bravos petitioned this court
for direct review, the plain language of
§ 1252(a)(2)(B) would divest us of jurisdiction
to review the IJ’s denial of § 1229b(b)(1)
cancellation. Molina-Estrada v. INS, 293 F.3d
1089, 1093 (9th Cir. 2002).
Absent “a clear statement of congressional
intent,” however, the divestment of “judicial
review” does not preclude habeas corpus re-
view. St. Cyr, 533 U.S. at 298. In St. Cyr, the
Court addressed whether the district court in
that case had jurisdiction to review the Attor-
ney General’s decision to apply the Illegal Im-
migration Reform and Immigrant Responsibil-
ity Act’s (“IIRIRA’s”) automatic deportation
provisions retroactively.2 The government had
argued that 8 U.S.C. §§ 1252(a)(1), (a)(2)(C),
and (b)(9)SSsubsections that, like
§ 1252(a)(2)(B), concern IIRIRA’s jurisdic-
tional reachSSstripped the district court of ha-
beas jurisdiction. Although the Court agreed
that the barring of “judicial review” precluded
direct review of the Attorney General’s deci-
sion, it found that the respondent had properly
sought a § 2241 petition, which may be used
broadly to challenge orders of deportation as
being “in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3).
Importantly, the habeas petition in St. Cyr,
533 U.S. at 308, challenged a “pure question
of law”SSwhether new IIRIRA provisions
should be applied retroactively. In construing
the reach of habeas review, the Court noted
the traditional “distinction between eligibility
for discretionary relief, on t he one hand, and
the favorable exercise of discretion, on the
other hand.”3 Id. at 307. Although federal
courts retain habeas jurisdiction to review
statutory and constitutional claims, there is no
jurisdiction to review denials of discretionary
1 In his oral decision, the IJ stated: “I do not
find that the evidence even remotely comes close to
establishing any semblance of hardship to this U.S.
citizen child as a consequence of going back to
Mexico. His youth, the fact that he’s apparently
fluent in Spanish for his age, suggest that he will
[develop] an ability to acclimate to life in Mexico
. . . .”
2 In St. Cyr, the respondent, who had been ad-
mitted to the United States ten years previously as
a lawful permanent resident, pleaded guilty to a
controlled substance crime. At the time he pleaded,
St. Cyr was eligible to apply for a § 212(c) depor-
(continued...)
2(...continued)
tation waiver. The INS, however, placed him in
removal proceedings approximately one year
laterSSafter § 212(c) had been repealed by
IIRIRA. In his habeas petition, St. Cyr argued that
§ 212(c) remained available to aliens who had
pleaded guilty to a deportable crime before
IIRIRA’s enactment.
3 See also St. Cyr, 533 U.S. at 314 n.38 (“[A]s
we have noted, the scope of review on habeas is
considerably more limited than on APA-style re-
view. Moreover, this case raises only a pure
question of law as to respondent’s statutory eli-
gibility for discretionary relief, not, as the dissent
suggests, an objection to the manner in which
discretion was exercised.”).

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relief. Finlay v. INS, 210 F.3d 556, 557 (5th
Cir. 2000).4 This distinction comports with
the historical understanding of the writ of ha-
beas corpus as a mechanism for remedying for
an official’s refusal to exercise discretion, but
not a “substantively unwise exercise of dis-
cretion.” St. Cyr, 533 U.S. at 307.
In interpreting the transitional rules in effect
before enactment of IIRIRA’s permanent
provisions,5 a determination of “exceptional
and extremely unusual hardship” is “clearly a
discretionary act.”6 Moosa v. INS, 171 F.3d
994, 1012 (5th Cir. 1999) (quoting Kalaw v.
INS, 133 F.3d 1147, 1152 (9th Cir. 1997)).
Based on the Bravos’ child’s age and fluency
in Spanish, the IJ found that he would not suf-
fer hardship as a consequence of going to
Mexico. The Bravos argue that the IJ failed to
account for other factors that would support a
finding of extreme hardship; they do not raise
statutory or constitutional arguments. As a
discretionary decision, the IJ’s determination
is not a proper subject of habeas review.7
AFFIRMED.
4 See Sol v. INS, 274 F.3d 648, 651 (2d Cir.
2001) (“[F]ederal jurisdiction over § 2241 petitions
does not extend to review of discretionary
determinations by the IJ and BIA.”); Bowrin v.
INS, 194 F.3d 483, 490 (4th Cir. 1999) (“Only
questions of pure law will be considered on § 2241
habeas review. Review of factual or discretionary
issues is prohibited.”); Catney v. INS, 178 F.3d
190, 195 (3d Cir. 1999) (“Following passage of
AEDPA and IIRIRA, we no longer have
jurisdiction to review a denial of discretionary
relief to a criminal alien.”).
5 The transitional rules governed challenges to
BIA decisions issued on or after October 31, 1996,
in deportation proceedings initiated before April 1,
1997. Rodriguez-Silva v. INS, 242 F.3d 243, 246
(5th Cir. 2001).
6 Before enactment of IIRIRA, INA § 244,
8 U.S.C. § 1254(a)(1) (now repealed), provided
that the Attorney General, “in [his] discretion,”
could suspend the deportation of an otherwise de-
portable alien if the alien: (1) had been physically
present in the United States for seven years;
(2) was of good moral character; and (3) whose
removal would, “in the opinion of the Attorney
General, result in exceptional and extremely un-
usual hardship to the alien or to his spouse, parent,
or child, who is a citizen of the United States or an
(continued...)
6(...continued)
alien lawfully admitted for permanent residence.”
7 The Bravos also contend that the BIA’s sum-
mary affirmance of the IJ’s decision was improper.
We have rejected this argument, holding that the
summary affirmance procedures of 8 C.F.R.
§ 3.1(a)(7) do not violate due process, nor deprive
a district court of jurisdiction. Soadjede v. Ash-
croft, 324 F.3d 830, 832-33 (5th Cir. 2003).

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