Alvaro Adame v. Eric H. Holder, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 22, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM1 , Circuit Judge
No. 13‐2405
ALVARO ADAME,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Respondent.
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A089 856 290
O R D E R
Petitioner filed a petition for rehearing and rehearing en banc on October 30, 2014,
with an Amicus Brief filed by the National Immigration Lawyers Association in support
of the petition for rehearing and rehearing en banc, and Respondent’s response to the
rehearing en banc filed on January 7, 2015. No judge in regular active service has
requested a vote on the petition for rehearing en banc, and all members of the original
panel have voted to deny rehearing. Judge Hamilton concurs in the denial of the petition
for rehearing en banc for the reasons stated in his separate opinion, which follows this
order. Accordingly,
IT IS ORDERED that the petition for rehearing and rehearing en banc is D ENIED.
1 Judge Joel M. Flaum recused himself from the case on November 14, 2014, and has taken no further
part in the consideration of this case.

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No. 13‐2405 Page 2
HAMILTON , Circuit Judge, concerning the denial of rehearing en banc. The petition for
rehearing en banc in this case presents an important and difficult question about the
scope of our jurisdiction under 8 U.S.C. § 1252(a)(2)(B) and (D) in petitions seeking
judicial review of certain discretionary Board of Immigration Appeals decisions, such as
the decision here denying discretionary cancellation of removal under 8 U.S.C. § 1229b.
The issue is whether subparagraph (D) allows us to consider mixed questions of law and
fact. The panel opinion, the rehearing petition, and answer persuade me that this circuit
stands alone on the wrong side of a circuit split.
Subparagraph (a)(2)(B) of § 1252 imposes limits on federal courts’ jurisdiction to
review discretionary immigration decisions. As pertinent here, it provides that “no court
shall have jurisdiction to review … any judgment regarding the granting of relief under
[8 U.S.C. § 1229b] … [or] any other decision or action of the Attorney General … the
authority for which is specified under this subchapter to be in the discretion of the
Attorney General….” Subparagraph (D) then provides an important limit on that
prohibition: “Nothing in subparagraph (B) … shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review filed with an
appropriate court of appeals….”
The point of controversy is whether subparagraph (D)’s preservation of jurisdiction
to decide “questions of law” extends to “mixed” questions of law and fact involving the
application of statutes or regulations to undisputed facts. Our circuit has said no, many
times. As the panel opinion explained here, we have tried to follow the intent of
subparagraph (B) by declining jurisdiction over such mixed questions because such
review can slide so easily into review of factual issues. Adame v. Holder, 762 F.3d 667, 672
(7th Cir. 2014), citing, e.g., Viracacha v. Mukasey, 518 F.3d 511, 515–16 (7th Cir. 2008).
The panel opinion recognizes, however, that our circuit is now a minority of one.
Disagreeing with us are the First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth
Circuits. 762 F.3d at 671 (collecting cases). Though some of these circuits limit what types
of mixed questions they will review, we alone apply the categorical rule that courts of
appeal can never review mixed questions of law and fact. Id. The panel described this
conflict in the circuits as “a serious one” but one that has stood for some time. Id. at 672.
The petition for rehearing en banc, supported by an amicus brief from the National
Immigrant Justice Center and the American Immigration Lawyers Association, asks us
to reconsider our position and follow the other circuits by holding that § 1252(a)(2)(D)
gives us authority to review mixed questions of law and fact.
Sometimes we are right to stick to a lonely position. See, e.g., Grandberry v. Keever, 735
F.3d 616, 618 (7th Cir. 2013) (declining to modify position to eliminate circuit split). On
this issue, however, there are good reasons beyond respect for the views of our
colleagues in other circuits for us to reconsider. The statutory language of § 1252(a)(2)

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No. 13‐2405 Page 3
does not provide clear guidance in splitting the difference between subparagraphs (B)
and (D), but the conference committee report for what became the REAL ID Act in 2005,
which added subparagraph (D) to § 1252(a)(2), indicates an intent to preserve some
judicial review for mixed questions of fact and law: “When a court is presented with a
mixed question of law and fact, the court should analyze it to the extent there are legal
elements, but should not review any factual elements.” H.R. Rep. No. 72, 109th Cong.,
1st Sess. 175.
In addition, outside the immigration context, the Supreme Court has sometimes but
not always treated language limiting judicial review to questions of law as including
mixed questions of law and fact. See Pullman‐Standard v. Swint, 456 U.S. 273, 289–90 &
n.19 (1982) (applying Fed. R. Civ. P. 52(a) and collecting cases on both sides of question);
Bogardus v. Commissioner, 302 U.S. 34, 38–39 (1937) (applying tax code definition of
tax‐free gift); see generally Ornelas v. United States, 517 U.S. 690 (1996) (once historical
facts are determined, reasonable suspicion to stop and probable cause for warrantless
search are mixed questions of fact and law calling for de novo appellate review). These
considerations and the thoughtful opinions of other circuits provide good reason for this
court to reconsider our approach to § 1252(a)(2)(D). See, e.g., Chen v. United States Dep’t of
Justice, 471 F.3d 315, 323–32 (2d Cir. 2006).
Nevertheless, I have not called for a vote to rehear this case en banc. Even if the en
banc court agreed to exercise jurisdiction over mixed questions of fact and law, I see no
reasonable prospect of changing the outcome of Mr. Adame’s petition for judicial review.
As the panel explained, the immigration judge found that Mr. Adame did not meet
any of the three criteria needed to establish legal eligibility for discretionary cancellation
of removal: physical presence in the United States for ten years; good moral character;
and exceptional and extremely unusual hardship to a U.S. citizen or resident family
member. Adame, 762 F.3d at 669. The physical presence requirement was the only issue
the Board of Immigration Appeals considered. The Board found no error by the
immigration judge, who simply did not believe Mr. Adame’s uncorroborated and
inconsistent testimony. Even if we adopted a broader view of our power under
§ 1252(a)(2)(D), we could not review what would amount to a purely factual issue—the
credibility of Mr. Adame’s testimony—that is clearly beyond the scope of our
jurisdiction. And Mr. Adame has not offered any persuasive reason to find a legal error
in the immigration judge’s handling of the good moral character or extreme hardship
questions.
When adopting the approach of our colleagues in other circuits could change the
outcome of a petition for judicial review, I would find it worthwhile to reconsider this
circuit’s approach to § 1252(a)(2)(D). This is not such a case.

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