Jose Manuel Arce-Martinez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL ARCE-MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73483
Agency No. A200-963-651
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2022
San Francisco, California
Before: McKEOWN and KOH, Circuit Judges, and SESSIONS,** District Judge.
Jose Manuel Arce-Martinez (“Arce-Martinez”), a native and citizen of
Mexico, petitions for review of a decision of the Board of Immigration Appeals
(“BIA”) affirming an order of an Immigration Judge (“IJ”) denying cancellation of
removal. We deny the petition for review.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
To the extent that Arce-Martinez argues that the Agency erred by placing
too much weight on his alternative means of immigrating, we do not have
jurisdiction to review this determination. See 8 U.S.C. § 1252(a)(2)(B)(i); Mendez-
Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (holding that courts of
appeals do not have jurisdiction to re-weigh the hardship factors in cancellation of
removal cases). The BIA considered several facts, including medical issues and
compelling educational needs, when determining whether Arce-Martinez’s family
would suffer exceptional and extremely unusual hardship upon his removal from
the United States. The BIA also considered that Arce-Martinez has an alternative
path for obtaining lawful immigration status. The IJ posited that such alternative
path was likely to be approved. The BIA concurred, finding that because of his
alternative path to lawful status, Arce-Martinez’s separation from his family would
not necessarily be permanent. In the end, the BIA affirmed the denial of
cancellation of removal based upon the totality of circumstances. We have no
jurisdiction to review that factual determination. Patel v. Garland, 142 S. Ct. 1614,
1627 (2022) (“the text and context of § 1252(a)(2)(B)(i)—which is, after all, a
jurisdiction-stripping statute—clearly indicate that judicial review of fact
determinations is precluded in the discretionary-relief context”).
To the extent that Arce-Martinez argues that it was legal error for the BIA to
apply a categorical rule, we have jurisdiction because this is a question of law. See

-- 2 of 3 --

3
8 U.S.C. § 1252(a)(2)(D); Mendez-Castro, 552 F.3d at 979 (“whether an IJ failed
to apply a controlling standard governing a discretionary determination is a
question over which we have jurisdiction”). Consideration of Arce-Martinez’s
alternative path to lawful immigration status did not constitute legal error under
Arteaga-De Alvarez v. Holder, 704 F.3d 730 (9th Cir. 2012). There, the BIA ruled
that such an alternative path undercut the petitioner’s cancellation of removal
claim. Id. at 735. Arteaga-De Alvarez held that in doing so, “the BIA committed
an error of law by relying on a categorical rule that the alternative means of
immigration factor necessarily undercuts an applicant’s claimed hardship in every
case.” Id. at 741–42. Here, there was no such application of a categorical rule. The
IJ and BIA did not state that an alternative path always or necessarily undercuts a
noncitizen’s claim of exceptional and extremely unusual hardship. Instead, the IJ
and the BIA conducted an individualized review and appropriately determined that,
based on Arce-Martinez’s particular circumstances, his alternative path was one
factor that weighed against a determination of hardship. See id. at 741 (“We do not
mean to suggest that alternative means of immigrating to the United States can
never be a negative factor in a hardship determination.”).
PETITION DENIED.

-- 3 of 3 --