* Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for

Michael B. Mukasey as the respondent in this appeal.

** After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

June 18, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SANTIAGO CASTELLON-GUZMAN,

Petitioner,

v.

ERIC H. HOLDER, JR.,*

United States Attorney General,

Respondent.

No. 08-9559

(Petition for Review)

ORDER AND JUDGMENT**

Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and

GORSUCH, Circuit Judge.

Santiago Castellon-Guzman (Castellon), proceeding on appeal pro se,

petitions for review of an order of the Board of Immigration Appeals (BIA)

affirming the immigration judge’s (IJ) denial of his application for cancellation of
-2-

removal, pursuant to 8 U.S.C. § 1229b(b). He has filed a motion to proceed in

this court in forma pauperis (IFP). We grant the IFP motion, but we must deny

the petition for review.

Background

Castellon is a citizen of Mexico who entered the United States on or about

March 15, 1993, without inspection. He conceded that he is a removable alien,

but requested the relief of cancellation of removal for nonpermanent residents,

pursuant to 8 U.S.C. § 1229b(b). Under that section, the Attorney General may

cancel removal of an alien who is inadmissible or deportable from the United

States if the alien satisfies four criteria: (1) he has been physically present in the

United States for a continuous period of not less than ten years immediately

preceding the date of his application; (2) he has been a person of good moral

character during that period; (3) he has not been convicted of certain offenses;

and (4) “removal would result in exceptional and extremely unusual hardship to

the alien’s spouse, parent, or child, who is a citizen of the United States or an

alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1). The IJ

did not address the first three criteria because he determined that Castellon did

not meet the fourth criterion since he did not have any qualifying relatives.

Castellon argued that he met the fourth criterion because he is the sole

provider for his minor American-citizen brother and sister. The IJ ruled that the
-3-

statute did not include siblings as qualifying relatives and denied cancellation of

removal. The BIA dismissed the appeal in a decision issued by a single member.

Analysis

I. Jurisdiction

We must first determine the threshold issue of this court’s jurisdiction. See

Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th Cir. 2005). The

Immigration and Nationality Act (the Act) provides that “no court shall have

jurisdiction to review . . . any judgment regarding the granting of relief under

section . . . 1229b.” 8 U.S.C. § 1252(a)(2)(B). This court has held that

§ 1252(a)(2)(B)(i) bars appellate review of the discretionary aspects of a BIA

decision concerning cancellation of removal. Sabido Valdivia, 423 F.3d at

1148-49. In contrast, this court has jurisdiction to review non-discretionary

decisions relating to cancellation of removal. See id. at 1149 (agreeing with other

circuits that have held that “courts retain jurisdiction to review non-discretionary

decisions reached under § 1229b”). Accordingly, we have jurisdiction over the

legal question whether Castellon’s siblings qualify as “children” for purposes of

§ 1229b(b)(1). See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.

2002) (holding court of appeals had jurisdiction over “the purely legal and hence

non-discretionary question whether [the alien’s] adult daughter qualifie[d] as a

‘child’” under § 1229b(b)(1)).
1 The BIA’s decision does not contain the language required for an

affirmance without opinion, see 8 C.F.R. § 1003.1(e)(4)(ii), nor was it drafted by

a three-member panel, see id. § 1003.1(e)(6).

-4-

II. Standards of Review

The BIA’s single-member decision clearly was issued pursuant to 8 C.F.R.

§ 1003.1(e)(5).1

 “Therefore, we review the BIA’s decision as the final agency

determination and limit our review to issues specifically addressed therein. We

will resort to the IJ’s reasoning as necessary . . . .” Diallo v. Gonzales, 447 F.3d

1274, 1279 (10th Cir. 2006) (footnote omitted). We review de novo the sole legal

question presented. See id. Because Castellon appears pro se, we have broadly

construed his brief. See Sabido Valdivia, 423 F.3d at 1147.

III. Merits

The BIA ruled that Castellon’s minor sister and brother did not qualify as

his children within the meaning of § 1229b(b)(1)(D). It pointed out that Castellon

presented no evidence that he legally adopted them or that their parents had

relinquished their parental rights. 

The Act defines “child” for purposes of cancellation of removal. 8 U.S.C.

§ 1101(b)(1). The definition does not include an alien’s sister or brother. It does

include “a child adopted while under the age of sixteen years if the child has been

in the legal custody of, and has resided with, the adopting parent or parents for at

least two years.” Id. § 1101(b)(1)(E)(i). 
2 On appeal, Castellon seeks a determination that his siblings will suffer

extreme hardship if he is removed to Mexico. Even if the IJ had addressed the

issue of extreme hardship, this court would be without jurisdiction to review such

a decision. Sabido Valdivia, 423 F.3d at 1148 (“[W]e lack jurisdiction to review

a BIA decision that a petitioner has failed to demonstrate that removal would

cause exceptional and extremely unusual hardship.” (quotation omitted)). He also

informs us that his father died in December 2007, after the IJ’s March 2007

decision was issued. But this court is limited to a review of the pleadings and

evidence presented to the agency, so we may not consider this information. See

8 U.S.C. § 1252(b)(4)(A) (“[The] court of appeals shall decide the petition [for

review] only on the administrative record on which the order of removal is

based.”). 

-5-

“As in all cases of statutory construction, our foremost duty is to ascertain

the congressional intent and give effect to the legislative will.” Ribas v. Mukasey,

545 F.3d 922, 929 (10th Cir. 2008) (quotation omitted). The literal language of

the statute controls, absent ambiguity or irrational result. Id.

Although Castellon’s siblings are under the age of sixteen years and they

resided with him for at least two years, he did not adopt his sister and brother. 

Therefore, because Castellon’s brother and sister do not meet the statutory

definition of “child,” we must affirm the BIA’s determination that Castellon did

not meet the requirements for cancellation of removal under § 1229b(b). See

Moreno-Morante v. Gonzales, 490 F.3d 1172, 1175 (9th Cir. 2007) (holding

language of § 1101(b)(1) is unambiguous; therefore, statutory definition of

“child” did not include alien’s grandchildren).2
-6-

Conclusion

The motion to proceed IFP is GRANTED. The petition for review is

DENIED. 

Entered for the Court

Terrence L. O’Brien

Circuit Judge