Jesus Humberto Leon-Leon v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS HUMBERTO LEON-LEON,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71058
Agency No. A202-009-831
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2021**
San Francisco, California
Before: McKEOWN, FORREST, and BUMATAY, Circuit Judges.
Concurrence by Judge BUMATAY
Jesus Humberto Leon-Leon, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from
the Immigration Judge’s (“IJ”) decision denying his application for cancellation of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal under 8 U.S.C. § 1229b(b)(1). Because we lack jurisdiction over Leon-
Leon’s petition, we dismiss it.
Leon-Leon argues that the IJ and BIA “committed legal error in failing to
correctly apply the exceptional and extremely unusual hardship standard.” See 8
U.S.C. § 1229b(b)(1)(D). But as we have held, “we lack jurisdiction to review the
IJ’s subjective, discretionary determination that [a petitioner] did not demonstrate
‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D).”
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); see also 8 U.S.C.
§ 1252(a)(2)(B)(i) (“Notwithstanding any other provision of law[,] . . . no court
shall have jurisdiction to review . . . any judgment regarding the granting of relief
under section . . . 1229b, [the cancellation of removal provision].”).
Leon-Leon cites to the Supreme Court’s recent decision in Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062 (2020), to suggest that his challenge falls within
the exception to the jurisdictional bar set out in 8 U.S.C. § 1252(a)(2)(D), which
provides that the limitation on judicial review in 8 U.S.C. § 1252(a)(2)(B)(i) “shall
[not] be construed as precluding review of constitutional claims or questions of
law.” 8 U.S.C. § 1252(a)(2)(D). Specifically, Leon-Leon argues that, because
Guerrero-Lasprilla holds that questions of law includes “the application of a legal
standard to undisputed or established facts,” 140 S. Ct. at 1067, it also provides for

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judicial review of whether the BIA failed to “correctly apply” the “exceptional and
extremely unusual hardship” standard to the facts of his case.
Not so. Long before the Court concluded in Guerrero-Lasprilla that the
phrase “questions of law” in § 1252(a)(2)(D) includes “the application of a legal
standard to undisputed or established facts,” id., we concluded the same. See
Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Accordingly, the
principle announced by the Supreme Court in Guerrero-Lasprilla has long
coexisted with our jurisprudence under § 1252, including our holding that the
hardship determination is a subjective, discretionary determination that we lack
jurisdiction to review. Thus, though we concluded nearly 15 years ago that we
possess jurisdiction under § 1252(a)(2)(D) to review questions involving the
application of statutes or regulations to undisputed facts, neither Ramadan’s
holding, nor by extension the Court’s holding in Guerrero-Lasprilla, “infringe[s]
upon the rule that discretionary determinations are beyond our review.” De
Mercado v. Mukasey, 566 F.3d 810, 815 n.3 (9th Cir. 2009). Because we lack
jurisdiction to review the agency’s determination that Leon-Leon failed to establish
that his removal would result in exceptional and extremely unusual hardship to his
qualifying relatives, we dismiss his petition for review.
PETITION DISMISSED.

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Leon-Leon v. Garland, No. 20-71058
BUMATAY, Circuit Judge, concurring:
As a matter of text, structure, and history, the “exceptional and extremely
unusual hardship” determination under 8 U.S.C. § 1229b(b)(1)(D) appears to be a
mixed question of law and fact. See Trejo v. Garland, 3 F.4th 760, 766–74 (5th Cir.
2021); Singh v. Rosen, 984 F.3d 1142, 1150–54 (6th Cir. 2021). Under recent
Supreme Court precedent, we retain jurisdiction over such questions. See Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062 (2020).
I still concur with the court’s decision to dismiss this petition for lack of
jurisdiction, however, because binding precedent dictates that we treat the hardship
determination as a discretionary question. See Romero-Torres v. Ashcroft, 327 F.3d
887, 892 (9th Cir. 2003). We are accordingly precluded from reviewing petitioner’s
claim. See 8 U.S.C. § 1252(a)(2)(B).
FILED
AUG 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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