NOT RECOMMENDED F OR P UBLICATION File Na me: 12a0819n.06 No. 11-3858 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
CONSUEL O OL I MPI A SOL I S, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) O N P E T I T I O N F O R R E V I E W F R O M T H E U N I T E D S T A T E S BO ARD OF I MMI GRATI ON APPEAL S

Be fore : COOK and STRANCH, Circuit J udg es; STAMP, District J udg e. * COOK, Circuit Judge
. Consuelo O limpia Solis ( “Solis”) petitions for revie w of the B oard of I mmigration Appea ls’ (“B I A”) aff irmance of an I mmigra

tion J udg e’s (“I J ”) decision denying her application for specia l rule canc ellation of remova l under Section 203 of the Nicar aguan Adjustment and Central Americ an Relief Act of 1997 (“N ACARA”), P u b
. L
. No. 105-100, 111 Stat. 2160 (1997), as amende d by Pub. L . No. 105-139, 111 Stat. 2644 (1997). B eca use we lack jurisdiction to revie w the BIA’s decision, we d i s m i s s this appea l. To the extent we have jurisdiction over questions of law ra ised by Solis , we de ny

her pe tition for review
.

*T he Honor abl e Fre der ic k P. Sta m p, J r., Seni or Unit ed Sta te s Dis tr ic t J udge for the Nort her n Dis tr ic t of We st V ir ginia , si tt ing by des ignat ion
.No. 11-3858

Solis v. Holder
I
. Solis is a native and citizen of Guatema la who enter ed the United States without admission
or inspection in Fe bruar

y 1990. I n 2003, the g overnme nt initiated remova l proce eding s ag ainst Solis by filing a Notice to Appea r in immigra tion court char g ing her with remova bility as an alien living in the United States without admission or parole
. See 8 U.S.C. § 1182(a) (6)( A)(i)
. Solis appea red befor e an I J , admitted the fac tual alleg ations in the notice, and conce ded remova bility
. I n an eff

ort to rema in in the United States, howeve r, So l i s applied for asy lum, withholding of remova l, protec tion under the Convention Ag ainst Torture (“CAT” ), and specia l rule canc ellation of remova l. The I J denied Solis ’s applications, and the BI A aff irmed. Solis does not challeng e the denial of her asy lum application, withholding of r emoval or pr otection under the CAT.
Solis is elig ible for special rul e ca ncellation of remova l under NACARA § 203 due to her membership in a class of Guatema lan asy lum s ee k er s who filed a lawsuit ag ainst the former I mmigration and Natura liz ation Service (now known as the United States Citi zenship and I mmigration Service s, or USCI S) claiming unfair adjudications of their asy lum applications. See Am. Baptist Churches v. Thornburgh , 760 F. Supp. 796 (N.D. Cal. 1991). I n settling this lawsuit, the former I

NS ag ree d to (1) abstain fr o m d ep o rting any class member (commonly known as an “AB C class member” ) until he had an opportunity to obtain the benef its of the settlement ag ree ment, (2) provide eac h class member a de novo asy lum interview irrespe ctive of a prior adver se decision, and (3) provide eac h class member work authorization while awa iting these interviews. See Am.
-2-No. 11-3858

Solis v. Holder Baptist Churches , 760 F. Supp. a t 799–800, 804–06. The former I NS de lay ed the implementation of t he settl ement for y ear s, howeve r, and many AB C cla s s m em b ers’ asy lum claims beca me s tale
as conditions in El Salvador and Guatema la improved. See 145 Cong. Rec. S10944 (daily ed. Sept. 15, 1999) (statement of Sen. Durbin) (“Ma ny victims of sever e perse cution came to the United States with very strong asy lum case s, but unfortunate ly these individuals have waited so long for a hear ing they will have difficulty proving their case s beca use they involve incidents which occur red as ear ly as 1980.”)
. Be fore 1996, those AB C class members ha d an alter native recourse : they wer e elig ible for suspension of deporta tion under 8 U.S.C. § 1254, which g ave the Attorney Gene ral discretio n to g rant perma

nent-re sident status to an alien who met cer tain statutory require ments. 8 U.S.C. § 1254, rep e aled by I lleg al I mmigration Reform and I mmigra nt Responsibili ty Act of 1996 (“I I RI RA”), Pub. L
. No. 104-208, 110 Stat. 3009 (1996) (codified as amende d in scattere d sections of 8 U.S.C
. and 18 U.S.C.). The I I RI RA repla ced suspension of depor tation with a much more r estrictive f orm of immigra tion relief

—canc ellation of remova l. See 8 U.S.C. § 1229b. To restore the less restric tive conditions that exis ted prior to I I RI RA’s en ac t m ent for AB C class members, Congr ess passed NACARA. See generally Suspension of Depor tation and Special Rule Cance llation of Removal for C er t ain Nationals of Guatema la, El Salvador, and For mer Soviet Bloc Countries, 64 Fe d. Reg
. 27,856 (May 21, 1999). NACARA § 203 amende d I I RI RA, allowing AB C c lass members to seek relief from deporta tion under conditions approximating pre- I I RI RA law. See id. Such relief is called “spec ial rule c ance llation of removal.” Id. -3-No. 11-3858

Solis v. Holder
I I
. NACARA’s specia l rule canc ellation of remova l is, howeve r, available only to Guatema lan AB C class members “who reg istered for benef its pursuant to such settlement ag ree ment on or befor e Dec ember 31, 1991.” I I RI RA § 309(c) (5)( C)(i)(I )(bb) , Pub. L
. No. 104-208, 110 Stat. 3009 (1996),

as amende d by NACARA § 203, Pub. L
. No. 105-100, 111 Stat. 2 1 6 0 (1997). Fur ther, “[a] deter mination by the Attorney Gene ral as to whether an alien satisfies the [eligibility require ments of I I RI RA § 309(c) (5)( C)(i)] is final and shall not be subject t o re v i ew by any court.” Id. § 309(c) (5)( C)(ii). Her e, beca use Solis challeng es the BI A’s aff irmance of an I J ’s deter

mination that she failed to timely reg ister for benef its of the settlement ag ree ment, we lack jurisdiction. See, e.g., Ruiz v. Gonzales , 455 F.3d 661, 662 (6th Cir. 2006) (per curiam) (dismissing appea l from the BIA’s aff irmance of an I J ’s decision that petitioner failed to timely reg ister for benef its of the AB C settlement ag ree ment); Argueta v. Holder , 617 F.3d 109, 112 n.2 (2d Cir. 2010) (per curiam) ( a c k n o wledg ing that the jurisdictional lang uag e in I I RI RA § 309(c) (5)( C)(ii) “make [s] unrevie w a b le by any co u rt a deter

mination by the Attorney Gene ral as to whether an alien has satisfied the statutory require ments for specia l r ule canc ellation of remova l”); Lanuza v

. Holder , 597 F.3d 970, 972 (9th Cir. 2010) (per curiam) (noting that the lang uag e in I I RI RA § 309(c) (5)( C)(ii) “expressly p r e c lu d e s [c o u

r ts ] f r o m revie wing the BI A’s deter mination of elig ibilit y for NACARA § 203 relief ”); Molina Jere

z v. Holder , 625 F.3d 1058, 1069 (8th Cir. 2010) (holding that the court lacke d subject matter jurisdiction to review alien’s e ligibility

for spe cial rule canc ellation of re moval).

-4-No. 11-3858

Solis v. Holder
W e reta in jurisdiction over the BI A’s decision only if Solis raises constitutional claims or questions of law. See 8 U.S.C. § 1252(a) (2)( D) (expressly g ranting courts of appea l jurisdiction to revie w constitutional claims or quest ions of law notwithstanding other provisions that limit or eliminate j udicial review); Lanuza , 597 F.3d at 972 (“To the extent that we have jurisdi ction, it is pursuant to 8 U.S.C. § 12 5 2
. ”)
. C o u rts consider “the nature of the argument advanc ed in the petition” to determine the extent of jurisdiction unde r 8 U.S.C. § 1252. Molina Jere z , 625 F.3d at 1068 (quoting Purwantono v. G o n z ales , 498 F.3d 822, 824 (8th Cir. 2007)) (interna l quotation marks omitted).
I I I
. Unfortunately for Solis , her argument rises o r fa l l s upon a single critica l fac tual deter mination: whether she reg istered for AB C benef its on or befor e Dec ember 31, 1991. Couching her arg ument in terms of l egal conce pts, Solis arg ues that the BI A’s decision was “manife stly contra ry to the law,
. . . incons i s t en t wi t h the provisions of the AB C settlement ag ree ment, subsequent court decisions, and further violates the policy memorandums issued by the asy lum division of the U.S. D epar tment of Homeland Security .” She cites Chaly-Garcia v. United States , 508 F.3d 1 2 0 1 (9 th Cir. 2007), and an internal USCI S memorandum to support her position. Nonethele ss, the BI A g rounded its dec ision on a fac tual assessment:

Despite [S olis’s leg al] ar gu ment, the responde nt testified that she filed her as y l u m application in 1992.
. . . [T] he responde nt was unsure exactly whi ch application had been filed. I n fac t, at the hear ing, the responde nt’s attorney admitted -5-No. 11-3858

Solis v. Holder

t h at s u ch testimony does not demonstrate that the responde nt timely reg istered for AB C benef

it s . Also, the respondent submitt ed an “Ac knowledg ement of Rece ipt” from the Asy lum Offic e indicating that her reque st for asy lum “wa s rec eive d for proce ssing on 01/21/92.” Fur ther, althoug h the responde nt indicated in the statement attache d to her 2004 asy lum application that she applied for asy lum in 1 9 9 1 and obtained employ

ment authorization in 1992, the employ ment authorization car ds in the re cord a

re dated from 1996, 1997, 1999, a nd 2003. (A.R. at 4, BIA Dec ision) (interna l footnote and citations omitted); see also (A.R. at 33–34, I J Ora l Dec ision) (“The Court does ag ree with the Respondent’s counsel that und er the USCI S policy as instit uted after the Ninth Circuit decision in Chaly-Garcia , that all tang ible evidenc e and cre dible testimony can be considere d in making a determination as t o whether an indi vidual has reg istered for AB C benefits.”) . We thus lack jurisdiction to review the B I A’s dec ision.
Solis never

theless contends that the BI A us ed an incorre ct l ega l standard in adjudg ing her
case . Be cause she complete d her asy lum a pplication form befor e Dec ember 31, 1991, she ar g ues, the law compelled the BI A t o fi n d that she timely reg istered for benef its. “An argument that the ag ency applied an err oneous leg al standard raises a question of law and invokes [courts of appea l’s] jurisdiction.” Leonard-Santana v. U.S. Dep’ t of Justice , 251 F. App’x 12, 14 (2d Cir. 2007) (citing Khan v. Gonzales , 495 F.3d 31, 35 (2d Cir. 2007)). We note that the USCI S policy memorandum includes similar mandatory lang uag e:
Pursuant to the Nint h Circuit’s finding s, . . . a Guatemalan or Salvadora n national, who aff irmatively filed an I -589 application on or afte r the date the cou rt provisionally approve d the Settlement Ag ree ment and prior to the conclusion of the desig nated reg istration period, has indicated the intent to rec eive AB C benef its under the Settlement Ag ree ment and ther efor e should be considere d “registered.” -6-No. 11-3858

Solis v. Holder
U.S. Citi zenship & I mmigrat i o n Service s, HQRAI O 120/9.10a, Making AB C Reg istration Deter minations, Chaly-Garcia v. U.S. , 508 F.3d 1201 (9th Cir. 2007), at 2 (2008) (empha ses added)
. Even apply ing the sta ndard set forth in the USCI S memorandum, we rema in unconvince d that completing an asy lum application form equate s to filing to qualify for the statutory benef it. An asy lum seeke r files his application “on the date it is rec eived by the Service ” or on the date he mails the application if t h e S er v ice did not rec eive the application on time—provided, however, that he can “provide[] clea

r and convin ci n g documentar y evidenc e of mailing the application” within the filing deadline. 8 C.F.R. § 208.4(a) (2)( ii). Her e, the g overnme nt rec eived Solis ’s application afte r Dec ember

31, 1991, and she provides no evidenc e of timely mailing he r application. See(A.R. at 558, Docum en t L i s ting Solis ’s I -589 Rece ipt Dated J anuar y 21, 1992 as Evidence of her Asy lum Application); (A.R. at 617, Gover nment Rece ipt of Solis ’s Asy lum Application Dated J anuar y 21, 1992). Ther efor e, the B I A did not apply an er roneous leg al standar d.
I V.
For these rea sons, we DI SMI SS this appea l. To the extent we have jurisdiction, we DENY the petition for re view and V ACATE the re movability stay
.

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