The Seventh Circuit on Guerrero-Lasprilla & Cancellation of Removal

Immigration law generally strips the courts of appeals of jurisdiction to review a variety of decisions made in immigration proceedings. A savings clause adds that they retain jurisdiction to review legal and constitutional issues. Until recently, most (if not all) courts of appeals broadly read the jurisdiction-stripping provisions to bar appellate review in a variety of contexts. But in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that the savings clause preserves jurisdiction to review mixed questions of law and fact.

Guerrero-Lasprilla has required many courts of appeals to reexamine their earlier caselaw. Last week, in Martinez-Baez v. Wilkinson, the Seventh Circuit discussed the matter at some length and seemed open to holding that Guerrero-Lasprilla applied in cancellation-of-removal context. Although the cancellation-of-removal decision is discretionary, mixed questions of law and fact can underly that decision. So a holding that Guerrero-Lasprilla applies just as much in the cancellation-of-removal context would allow more thorough review of cancellation denials.

The court ultimately did not have to address the question, as it could grant the petition for review on other grounds. But it’s an issue on which the circuits appear to have already split. We’ll have to wait and see what the Seventh Circuit ultimately holds when the issue is squarely presented.

The Petition in Martinez-Baez

The petitioner in Martinez-Baez had been ordered removed (read: deported) after allegedly spending over a decade in the United States. He admitted that he was removable. But he sought cancellation of removal—a discretionary form of relief that requires (among other things) 10 continuous years of presence in the United States and showing that removal will cause “exceptional and extremely unusual hardship” to certain members of the petitioner’s family. An immigration judge denied the petitioner’s request, and the Board of Immigration Appeals affirmed. The petitioner then sought review in the Seventh Circuit, arguing that the immigration judge did not adequately consider the evidence.

Immigration’s Jurisdiction-Stripping and -Preserving Provisions

Before addressing that argument, the Seventh Circuit discussed its jurisdiction at some length. Appellate jurisdiction in immigration cases can get intricate. A series of provisions strip the courts of appeals of jurisdiction to review certain issues while stating that they retain jurisdiction to address others. Relevant to the present discussion are three subsections of 8 U.S.C. § 1252(a)(2). Subsection (B) generally bars appellate review of certain discretionary determinations. Subsection (C) generally bars review of removal orders when the petitioner has been convicted of certain crimes. But both of these subsections bar review “except as provided in subparagraph (D),” which states that the courts of appeals have jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.”

Before Guerrero-Lasprilla, most (if not all) courts of appeals held that they lacked jurisdiction to review the application of law to fact in cancellation-of-removal cases. The Seventh Circuit was among them:

We reasoned that the mere presence of a “legal standard” on which the IJ or Board based its decision could not give rise to a justiciable “legal question” under section 1252(a)(2)(D). Our restraint has been founded on a belief that if we were to proceed otherwise, nearly all factual determinations would fall within our jurisdiction despite Congress’ mandate to the contrary. To avoid that result—one that we have deemed inconsistent with the statutory scheme—we have taken the position that a “question of law” does not arise when the issue relates to the application of a legal standard to the facts of the case—i.e. a mixed question of law and fact.

(Cleaned up.)

Guerrero-Lasprilla has drawn this earlier caselaw into question. The case involved the application of subsection (C)—the general prohibition on review when a petitioner has been convicted of certain crimes—and the question of whether the petitioners exercised the diligence necessary to equitably toll a deadline to reopen. The Supreme Court said that the diligence question was a mixed question of law and fact. And subsection (D) preserved appellate jurisdiction to review the application of law to facts. So the court of appeals had jurisdiction to address whether the petitioners’ conduct amounted to sufficient diligence.

The Seventh Circuit on Guerrero-Lasprilla

Martinez-Baez noted that the Seventh Circuit might “have drawn too strict a line” in barring review of cancellation-of-removal denials. Granted, the Attorney General contends that Guerrero-Lasprilla applies only to subsection (C) and not subsection (B). The Third, Fifth and Tenth Circuits have agreed. But the Sixth and Eleventh Circuits have held that, after Guerreo-Lasprilla, they can review whether a petitioner has shown sufficient hardship for cancellation of removal.

The Seventh Circuit suggested that the courts allowing appellate review have the better side of the argument. Both subsections (B) and (C) generally bar review except as provided in subsection (D). And subsection (D) says that “nothing in subparagraphs (B) or (C) . . . shall be construed as precluding review” of legal questions. Further, allowing review of legal questions in the cancellation-of-removal context “would not wreak havoc with the statutory scheme”:

Many discretionary decisions will be unaffected by a nonfrivolous question of law, and thus they will continue to be unreviewable pursuant to the general rule of subparagraph (B) or (C). Discretion normally has some boundaries, however, and courts are authorized under subparagraph (D) to ensure that those statutory limits are respected. The Guerrero-Lasprilla Court was concerned about the risk of unduly constricting the scope of section 1252(a)(2)(D), which it dubbed the Limited Review Provision. The Court ruled as it did in order to preserve the respective roles of sections 1252(a)(2)(D) and the two subparagraphs that it affects. To hold that review is never possible so long as the Board accurately recites the letter of the law, the Court warned, would permit the Board perpetually to evade review of a great number of legal issues.

The Seventh Circuit ultimately avoided deciding the issue. The petition in Martinez-Baez could be decided without resolving the effect on Guerrero-Lasprilla on readings of subsection (B). But it will be interesting to see what a future panel does with the discussion in Martinez-Baez.

Martinez-Baez v. Wilkinson, 2021 WL 321375 (7th Cir. Feb. 1, 2021), available at the Seventh Circuit and Westlaw.