FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS FIGUEROA OCHOA, No. 20-72510 Petitioner, Agency No. A092-693-089 v. MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 4, 2022 Portland, Oregon Filed June 20, 2023 Before: John B. Owens and Eric D. Miller, Circuit Judges, and David A. Ezra,* District Judge. Opinion by Judge Miller * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2 FIGUEROA OCHOA V. GARLAND SUMMARY** Immigration Dismissing Jesus Figueroa Ochoa’s petition for review of a decision of the Board of Immigration Appeals that upheld the denial of a continuance and denied a motion to remand, the panel concluded that it lacked jurisdiction. Figueroa Ochoa had sought cancellation of removal and adjustment of status. An immigration judge denied relief because of Figueroa Ochoa’s criminal record, and the Board of Immigration Appeals affirmed. Figueroa Ochoa’s challenge hinged on his contention that the agency erred factually in attributing a criminal conviction to him, arguing that it truly belonged to his brother. The panel concluded it lacked jurisdiction to review that claim because—with an exception not at issue here— Congress forbade judicial review of “any judgment regarding the granting of relief under” the provisions governing cancellation and adjustment. 8 U.S.C. § 1252(a)(2)(B)(i). The panel was guided by Patel v. Garland, 142 S. Ct. 1614 (2022), in which the Supreme Court held that the jurisdiction-stripping language in § 1252(a)(2)(B)(i) “encompasses any and all decisions relating to the granting or denying of discretionary relief.” The panel explained that this jurisdictional bar applied even though Figueroa Ochoa sought review of the denial of a continuance and a motion to remand, rather than review of the denial of the underlying relief. The panel noted that its ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FIGUEROA OCHOA V. GARLAND 3 interpretation accords with that of the Fifth Circuit, while the Eighth and First Circuits have adopted a narrower view of § 1252(a)(2)(B)(i). Finally, the panel noted that, under Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006), a court may review the denial of a motion to reopen proceedings for cancellation in certain circumstances, including if the new evidence submitted addresses a hardship ground so distinct from that considered previously as to make the motion a request for new relief. The panel concluded that it need not decide whether that holding survives Patel, explaining that, even on its own terms, Fernandez does not help Figueroa Ochoa because he did not present a request for new relief within the meaning of Fernandez. COUNSEL Carlos A. Cruz (argued), Law Offices of Carlos A. Cruz, Alhambra, California, for Petitioner. Jenny C. Lee (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Brian Boynton, Acting Assistant Attorney General, Civil Division; Office of Immigration Litigation, United …
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