Rosario v. Holder (2010)

See Castro v. Holder, 727 F. 3d 125 , 128–129 (CA1 2013); Rosario v. Holder, 627 F. 3d 58, 61 (CA2 2010); Arambula- Medina v. Holder, 572 F. 3d 824, 828 (CA10 2009).

Our jurisdiction to review the agency’s denial of special rule cancellation of removal is limited to constitutional claims and questions of law. 8 U.S.C. § 1252 (a)(2)(B), (D); Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010).

In doing so, we “determine our jurisdiction by looking at the underlying nature of the [agency’s] determination rather than any gloss offered by the parties” and ask “whether the [agency] is expressing legal doctrine or whether it is engaged in the factfinding and factor- balancing that are at the core of its discretion.” Rosario, 627 F.3d at 62 (emphasis omitted); see also Nouritajer v. Jaddou, 18 F.4th 85, 89 (2d Cir. 2021) (rejecting plaintiff’s attempt to cast challenges…

See Barrios v. Holder, 581 F.3d 849, 857 (9th Cir.2009) (per curiam) (citation omitted); cf. Rosario v. Holder, 627 F.3d 58, 62 (2d Cir.2010).

Therefore, like the “extreme hardship” determination over which we lack jurisdiction, see, e.g., Santanar-Medina, 616 F.3d at 52 , “whether an alien has been ‘battered or subjected to extreme cruelty’ ... generally entails a factual judgment, not a legal prescription,” Rosario v. Holder, 627 F.3d 58, 63 (2d Cir.2010); see also Wilmore v. Gonzales, 455 F.3d 524, 527 (5th Cir.2006) (stating that the term “extreme cruelty” is discretionary because it “is not self-explanatory” a…

Insofar as Singh argues that the BIA was required to apply a presumption of credibility to its review of Singh’s testimony and that of his ex-wife because the IJ had not expressly found them non-credible, see 8 U.S.C. § 1229a(c)(4)(C) (“[I]f no adverse credibility determination is explicitly made, the applicant or witness shall have a rebutta-ble presumption of credibility on appeal.”), he presents a legal argument over which we retain jurisdiction, see Rosario v. Holder, 62…

See Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir.2005) (“Decisions that involve a ‘judgment call’ by the agency, or for which there is ‘no algorithm’ on which review may be based, are considered discretionary .... ”); Rosario v. Holder, 627 F.3d 58, 62 (2d Cir.2010) (“We ask whether the BIA is expressing legal doctrine or whether it is engaged in the factfinding and factor-balancing that are at the core of its discretion.”) Section 1229b(b)(2)’s requirement that …

See Barco-Sandoval, 516 F.3d at 39 (“[W]e remain deprived of jurisdiction to review decisions under the [Immigration and Nationality Act] when the petition for review essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of law.” (internal quotation marks omitted)); 2 see also Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010) (holding that agency’s “factfinding, factor…

Patel, 971 F.3d at 1280 (“[T]he BIA’s factfinding, factor-balancing, and USCA11 Case: 20-14738 Date Filed: 06/03/2022 Page: 9 of 9 20-14738 Opinion of the Court 9 exercise of discretion normally do not involve legal or constitu- tional questions, so we lack jurisdiction to review them.” (quoting Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010) (internal quota- tion marks omitted)); Alvarez Acosta, 524 F.3d at 1196–97.

Congress explicitly limited our jurisdiction to review “any judgment regarding the granting of relief under” § 1255 and included among those judgments are factual determinations regarding inadmissibility. 41 Case: 17-10636 Date Filed: 08/19/2020 Page: 42 of 86 pointed out in Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010), the “two characterizations” are “congruent: BIA statutory interpretation pursuant to an eligibility determination is nondiscretionary and therefore revi…

Congress explicitly limited our jurisdiction to review “any judgment regarding the granting of relief under” § 1255 and included among those judgments are factual determinations regarding inadmissibility. 40 Case: 17-10636 Date Filed: 08/19/2020 Page: 42 of 86 pointed out in Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010), the “two characterizations” are “congruent: BIA statutory interpretation pursuant to an eligibility determination is nondiscretionary and therefore revi…

Both petitions raise issues of “legal prescription or statutory interpretation,” which “we unambiguously have jurisdiction to review.” Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010); see Harbin, 860 F.3d at 63 (adjudicating petition concerning eligibility for cancellation of removal). 3 .

Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010).

Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010) (“[T]he BIA’s factfinding, factor-balancing, and exercise of discretion normally do not involve legal or constitutional questions, so we lack jurisdiction to review them.”).

Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010) (“[T]he BIA’s factfinding, factor-balancing, and exercise of discretion normally do not involve legal or constitutional questions, so we lack jurisdiction to review them.”).

See 8 U.S.C. § 1252 (a)(2)(D); Rosario v. Holder, 627 F.3d 58, 61, 62 (2d Cir.2010).

The IJ concluded, and the BIA agreed, that Morris was ineligible for cancellation because it found that Morris’s assault conviction constitutes an “aggravated felony.” Although we lack jurisdiction to review a factual determination by the BIA that an alien is ineligible for cancellation of removal, see Rosario v. Holder, 627 F.3d 58, 64 (2d Cir.2010), we retain jurisdiction to consider an alien’s claim that he is eligible for such relief where that claim presents an issue of…

Although the BIA obviously balanced the factors differently than the IJ, it was entitled to do so on de novo review, see Matter of A-S-B-, 24 I. & N. Dec. 493, 497 (B.I.A.2008) (citing 8 C.F.R. *54 § 1003.1(d)(3)), and we lack jurisdiction to review “factor-balancing” that is “at the core of its discretion.” Rosario v. Holder, 627 F.3d 58, 62 (2d Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 3061 , 180 L.Ed.2d 888 (2011).

Mixed questions of law and fact are reviewable where, inter alia, the “underlying factual determination is flawed by an error of law.” Rosario, 627 F.3d at 62 (citations omitted).

The BIA will entertain any number of non-constitutional arguments to continued detention, including “factfinding, factor-balancing, and exercise of discretion.” Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010).

See Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010) (“The REAL ID Act of 2005 amended the [INA] to obviate . . .

See Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010).

We lack jurisdiction to review a BIA determination that removal would not cause exceptional and extremely unusual hardship, “except in those rare cases where the BIA decision on whether this kind of hardship exists is made without rational justification or based on an erroneous legal standard or rests on fact-finding which is flawed by an error of law.” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir.2009) (citations and internal quotation marks omitted); accord Rosario v. Holde…

See Rosario v. Holder, 627 F.3d 58, 62 (2d Cir. 2010) (holding that we have jurisdiction to review the BIA’s factual determinations when they are “flawed by an error of law”).

See Reyes v. Holder, 410 Fed.Appx. 935 , 939 n. 7 (6th Cir. 2011) (citing Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010)).

See Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010).

See 8 U.S.C. §§ 1252 (a)(2)(B)© (cancellation of removal), 1229c(f) (voluntary departure); see also Rosario v. Holder, 627 F.3d 58, 62 (2d Cir.2010) (cancellation of removal); Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d Cir.2007) (voluntary departure).

The IJ may consider “various positive and negative discretionary factors” when making this determination, in cluding a criminal record, which can “weigh[ ] strongly against granting ... discretionary relief.” Ledesma v. Holder, 450 Fed.Appx. 51, 53 (2d Cir.2011); see also Rosario v. Holder, 627 F.3d 58, 62 (2d Cir.2010) (noting that “fact-finding and factor-balancing ... are at the core of [the IJ’s] discretion”).

See Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010) ("These two characterizations, which may appear to be two separate avenues of jurisdiction, are congruent: BIA statutory interpretation pursuant to an eligibility determination is nondiscre-tionary and therefore reviewable precisely because it presents a legal question.

See Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) (finding that district court did not have jurisdiction over petition to review the BIA's cancellation of petitioners' application to cancel removal); Delgado, 643 F.3d at 55 52 (finding that the district court did not have jurisdiction to compel the USCIS to consider petitioner's I-212 application).

See also Sandhu v. United States , 916 F.Supp.2d 329 , 333 (E.D.N.Y. 2013) ("[C]ourts lack jurisdiction to review USCIS's 'factfinding, factor-balancing, and exercise of discretion' under § 1252(a)(2)(B) [.]" (quoting Rosario v. Holder , 627 F.3d 58 , 61 (2d Cir. 2010) ).

See Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010) (distinguishing nondiscretionary agency decisions that are reviewable and discretionary agency decisions that are not); Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.2006); see also Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005); Pinho v. Gonzales, 432 F.3d 193, 203-04 (3d Cir.2005).