PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4598

 

BLANCA BARRALES PAREJA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A098-632-579)

Immigration Judge: Honorable Eugene Pugliese

 

Argued June 23, 2010

Before: SMITH, FISHER and GREENBERG,

Circuit Judges.

(Filed: July 29, 2010)
2

David A. Isaacson (Argued)

2 Wall Street, 6th Floor

New York, NY 10005

Counsel for Petitioner

Linda Y. Cheng (Argued)

W. Daniel Shieh

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

Blanca Barrales Pareja, a Mexican citizen and native,

petitions for review of a final order of removal of the Board of

Immigration Appeals (“BIA”). We will grant the petition in

part, deny it in part, and dismiss it in part and remand this case

to the BIA with instructions.

I.
The transcript of the proceeding before the IJ spells the 1

family’s name as “Shihi,” but Pareja tells us in her brief that the

name is actually spelled “Sheehy,” and the record elsewhere so

reflects. We adopt the latter spelling.

Title 8 U.S.C. § 1182(a)(6)(A)(i) states that “[a]n alien 2

present in the United States without being admitted or paroled,

or who arrives in the United States at any time or place other

than as designated by the Attorney General, is inadmissible.”

3

In March 1991, when she was thirteen years old, Pareja

entered the United States without inspection to reunite with her

parents, who had previously come to the United States from

Mexico. In December 2001, Pareja gave birth to a daughter,

Joanne, with Cesar Garcia. Joanne is a United States citizen and

has never been to Mexico. In 2005, Pareja and Garcia’s

relationship ended. Garcia, who is not a United States citizen,

provides child support for Joanne and sees her about twice a

month. For the last several years, Pareja has worked for the

Sheehy family in Colts Neck, New Jersey, performing childcare

and housework. Pareja and Joanne live with the Sheehys in 1

their home. Joanne attends a local public school.

Pareja received a Notice to Appear in April 2006,

charging that she was removable under 8 U.S.C.

§ 1182(a)(6)(A)(i). Pareja conceded removability but applied 2

for cancellation of removal under 8 U.S.C. § 1229b(b)(1). In

September 2007, an Immigration Judge (“IJ”) held a hearing at

which Pareja spoke about her background and life in the United

States and told the IJ that Joanne would accompany her if she
4

were ordered to return to Mexico. The IJ also heard from Dr.

James Kilroy, a clinical psychologist who testified on Pareja’s

behalf that Joanne is emotionally attached to her mother. Mrs.

Sheehy also appeared on Pareja’s behalf, testifying that Pareja

is loyal and professional and that Joanne becomes anxious when

her mother is not present.

After the hearing, the IJ denied Pareja’s application in an

oral decision, concluding that Pareja did not prove that her

removal would result in “exceptional and extremely unusual

hardship” to Joanne, the fourth requirement for establishing

eligibility for cancellation of removal. See 8 U.S.C.

§ 1229b(b)(1)(D). Relying on the BIA’s decision in Matter of

Monreal, 23 I. & N. Dec. 56 (BIA 2001) (en banc), the IJ

determined that Pareja’s proffer – consisting mainly of evidence

of Mexico’s inferior living conditions and lesser educational

opportunities as well as Joanne’s alleged separation anxiety

when her mother is absent – failed to demonstrate that the

hardship to Joanne would be “substantially beyond that which

would ordinarily be expected to result” from Pareja’s removal.

(App. 62 (quotation marks and citation omitted).) The IJ found

Pareja’s proffer similar to that of the petitioner in Matter of

Andazola, 23 I. & N. Dec. 319 (B.I.A. 2002) (en banc), where

the BIA denied cancellation of removal to a single Mexican

mother of two children with United States citizenship. The IJ

contrasted Pareja’s case from Matter of Recinas, 23 I. & N. Dec.

467 (B.I.A. 2002) (en banc), where the BIA granted cancellation

of removal to a single Mexican mother of six children, four of

whom were United States citizens. On the basis of this case

law, the IJ denied Pareja’s application for cancellation of

removal and granted the government’s application for voluntary
5

departure. The IJ further ordered Pareja to be removed if she

failed to depart voluntarily within a time certain. Pareja

appealed the IJ’s decision to the BIA.

In October 2008, the BIA dismissed Pareja’s appeal. The

BIA found no fault with the IJ’s factual findings and agreed that

Pareja had not met her evidentiary burden of demonstrating

“exceptional and extremely unusual hardship” to Joanne, though

the BIA thought this “a sympathetic case.” (App. 4.) In

summarized form, the BIA determined that Joanne, Pareja’s lone

qualifying relative for hardship purposes under

§ 1229b(b)(1)(D), had no extraordinary emotional or educational

needs; that Joanne’s separation anxiety was not a relevant

consideration given Pareja’s testimony that Joanne would

accompany her to Mexico in the event of removal; and that

Pareja and Joanne, despite some potential difficulty, were

financially able to return to Mexico and to establish themselves

there. In a footnote, the BIA summarily declined to revisit its

rulings in Matter of Recinas, Matter of Andazola, and Matter of

Monreal, which Pareja had attacked as wrongly decided. The

BIA also rejected Pareja’s efforts to establish parallels between

her case and Matter of Recinas and to distinguish her case from

the BIA’s “seminal interpretations,” (App. 4 (quotation marks

and citation omitted)), of the hardship standard articulated in

Matter of Andazola and Matter of Monreal. Accordingly, the

BIA permitted Pareja to depart voluntarily within sixty days

from the date of its order. Failing her voluntary departure

within that time frame, the BIA ordered that she be removed to

Mexico.
6

Pareja has filed a timely petition for review of the BIA’s

decision. After the petition was filed, a panel of this Court

granted Pareja’s motion for a stay of voluntary departure and a

stay of removal. The government thereafter filed a motion to

dismiss the petition for lack of jurisdiction; that motion was

referred to the merits panel. In its brief, the government

reiterates its position that this Court lacks jurisdiction over the

whole of Pareja’s petition.

II.

A. Legislative Background

Before addressing the government’s jurisdictional

challenge or the merits of any portion of Pareja’s petition over

which we have jurisdiction, it is useful at the outset to briefly

review the historical backdrop of the legislation at issue here.

Under the Immigration and Nationality Act of 1952

(“INA”), an alien placed in deportation proceedings could

previously seek relief from deportation by applying for what was

called suspension of deportation. 8 U.S.C § 1254(a)(1) (1952).

An alien could obtain such relief by showing, among other

things, that her deportation “would result in exceptional and

extremely unusual hardship to the alien or” certain qualifying

relatives. Id. Congress amended § 1254(a)(1) in 1962 by

replacing the “exceptional and extremely unusual hardship”

language with “extreme hardship.” 8 U.S.C § 1254(a)(1) (Supp.

IV 1959-62) (repealed 1996).
7

In 1996, Congress passed the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.

No. 104-208, 110 Stat. 3009 (1996). In IIRIRA, Congress,

among other things, did away with “suspension of deportation,”

substituted it with a form of relief called “cancellation of

removal,” and changed the “extreme hardship” standard back to

“exceptional and extremely unusual hardship.” Aoun v. INS,

342 F.3d 503, 506 (6th Cir. 2003); Hernandez-Mezquita v.

Ashcroft, 293 F.3d 1161, 1162 (9th Cir. 2002); Angel-Ramos v.

Reno, 227 F.3d 942, 945 (7th Cir. 2000); Alvidres-Reyes v.

Reno, 180 F.3d 199, 202 (5th Cir. 1999). Congress also limited

the hardship inquiry to whether the alien could show hardship to

a qualifying relative alone; hardship to the alien herself is no

longer a relevant factor. 8 U.S.C. § 1229b(b)(1)(D); see

Karageorgious v. Ashcroft, 374 F.3d 152, 154 n.4 (2d Cir.

2004); Hernandez-Mezquita, 293 F.3d at 1162; Alvidres-Reyes,

180 F.3d at 202.

Under the law as it now stands, then, an alien may obtain

cancellation of removal if she prevails at both steps of what

§ 1229b(b)(1) in effect presents as a two-step process. See

Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir. 2003).

First, the alien shoulders the burden of showing that she is

eligible for cancellation of removal. See, e.g., Okeke v.

Gonzales, 407 F.3d 585, 588 & n.5 (3d Cir. 2005). An alien is

eligible if she

(A) has been physically present in the United

States for a continuous period of not less than 10

years immediately preceding the date of [her]

application; (B) has been a person of good moral
8

character during such period; (C) has not been

convicted of an offense under . . . [8 U.S.C. §

1182(a)(2), 1227(a)(2), or 1227(a)(3)] . . .; and

(D) establishes that 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).

Second, if the alien meets her burden of establishing

eligibility for cancellation of removal, the Attorney General

may, in the exercise of his discretion, cancel the alien’s removal.

8 U.S.C. § 1229b(b)(1); see Mendez-Reyes v. Att’y Gen. of the

United States, 428 F.3d 187, 189 (3d Cir. 2005).

In this case, the BIA did not reach the second step of the

cancellation-of-removal inquiry because it denied Pareja relief

based on its conclusion that she did not demonstrate that she was

eligible for cancellation of removal. The parties do not dispute

that the first three criteria of § 1229b(b)(1) are met; only the

fourth criterion is in play. As noted, the fourth criterion requires

that the alien “establish[] that removal would result in

exceptional and extremely unusual hardship to” a qualifying

relative. 8 U.S.C. § 1229b(b)(1)(D). There is no dispute that

Joanne is Pareja’s only qualifying relative.
Other than a fleeting reference to Chevron deference and 3

citations to cases that support its cause only in the abstract, the

government elected not to cover its bases by rebutting the merits

of almost any portion of Pareja’s petition. The government

evidently presumed that we would agree that we lack

jurisdiction over the entirety of her petition. At oral argument,

we brought the deficiencies in the government’s brief to the

attention of the attorney for the government and asked her to

convey our concerns to her superiors. We trust she has done so,

but we think our message is important enough to deserve a

written reminder. The government has every right – a duty,

even – to tell us when it believes we lack jurisdiction over a

particular case. But when the government seeks to remove an

individual from this country – a result the Supreme Court has

recognized as “a drastic measure and at times the equivalent of

banishment or exile,” Fong Haw Tan v. Phelan, 333 U.S. 6, 10

(1948) (citation omitted) – it seems to us that the government

has an especial obligation to explain, in the event its

jurisdictional challenge fails, why the petitioner is wrong on the

merits. The government left that obligation largely unfulfilled

here. Quite recently, we confronted a similar circumstance and

underscored the importance of following Rule 31 of the Federal

Rules of Appellate Procedure. Leslie v. Att’y Gen. of the United

States, No. 08-3180, 2010 U.S. App. LEXIS 13952, at *4 n.2

9

B. Jurisdiction

Before we reach the merits of Pareja’s petition, we must

first address the government’s argument that we lack

jurisdiction over any portion of her petition. See, e.g., Jahjaga 3
(3d Cir. July 8, 2010). In Leslie, we also made clear that a

failure to follow that rule could result in the forfeiture of a

party’s argument. That admonition is equally applicable here.

10

v. Att’y Gen. of the United States, 512 F.3d 80, 82 (3d Cir.

2008); Feliz Debeato v. Att’y Gen. of the United States, 505 F.3d

231, 233 (3d Cir. 2007).

This Court lacks jurisdiction to review the denial of

discretionary relief, including cancellation of removal. 8 U.S.C.

§ 1252(a)(2)(B)(i). We may, however, review “constitutional

claims or questions of law raised upon a petition for review

. . . .” Id. § 1252(a)(2)(D). Our jurisdiction in that respect is

“narrowly circumscribed” in that it is limited to “colorable

claims or questions of law.” Cospito v. Att’y Gen. of the United

States, 539 F.3d 166, 170 (3d Cir. 2008) (per curiam) (quotation

marks and citation omitted). To determine whether a claim is

colorable, we ask whether “it is immaterial and made solely for

the purpose of obtaining jurisdiction or is wholly insubstantial

and frivolous.” Arbaugh v. Y & H Corp., 546 U.S. 500, 513

n.10 (2006) (internal quotation marks and citations omitted). “A

petition for review that fails to present . . . a colorable claim is

nothing more than an argument that the IJ abused his discretion

in determining that the petitioner did not meet the requirement

of exceptional and extremely unusual hardship, which is a

matter over which we have no jurisdiction.” Mendez-Castro v.

Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (internal quotation

marks and citation omitted). The question of our jurisdiction

over a colorable legal claim does not turn on whether that claim

is ultimately meritorious. Barco-Sandoval v. Gonzales, 516
11

F.3d 35, 41 n.6 (2d Cir. 2007). If a claim is frivolous, however,

we lack jurisdiction to review it, no matter its label. Jarbough

v. Att’y Gen. of the United States, 483 F.3d 184, 189 (3d Cir.

2007). In other words, a party may not dress up a claim with

legal clothing to invoke this Court’s jurisdiction. Id.

Pareja has identified four main issues for our resolution.

We address our jurisdiction over each one separately. See Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

2006) (a court “need[s] to study the arguments asserted” to

assess its jurisdiction).

1. Whether Matter of Monreal should be

overruled

Pareja first claims that the BIA’s decision in Matter of

Monreal should be overruled because the BIA misinterpreted

the phrase “exceptional and extremely unusual hardship” in

IIRIRA. We have squarely held that because “[t]he decision

whether an alien meets the hardship requirement in 8 U.S.C.

§ 1229b is . . . a discretionary judgment,” we lack jurisdiction to

review such a decision. Mendez-Moranchel v. Ashcroft, 338

F.3d 176, 179 (3d Cir. 2003). In the government’s view,

Pareja’s attack on the legal underpinnings of Monreal is in

reality an attack on the BIA’s discretionary weighing of her

evidence. That view is misguided.

While the government is certainly correct that we may

not rehash the BIA’s hardship calculation, the government

mischaracterizes Pareja’s attack on Monreal. Pareja does not

contend that the BIA gave short shrift to her evidence or failed
12

to adequately account for the hardship she alleges Joanne would

suffer in the event of removal. Instead, Pareja is challenging the

legal standard the BIA uses to determine if an alien in her

circumstances has demonstrated eligibility for cancellation of

removal. Significantly, that challenge requires an analysis of

Monreal’s interpretation of a congressional act and, by

extension, of that act itself. Accordingly, Pareja’s challenge is

clearly a legal question. Cf. Avendano-Espejo v. Dep’t of

Homeland Sec., 448 F.3d 503, 505 (2d Cir. 2006) (per curiam)

(“[A]bsent a specific issue of statutory construction, the term

‘questions of law’ in 8 U.S.C. § 1252(a)(2)(D) does not provide

our Court with jurisdiction to review a petitioner’s challenge to

a decision firmly committed by statute to the discretion of the

Attorney General.” (emphasis added and quotation marks and

citations omitted)). It is just as clearly “colorable” because it

relates solely to the nondiscretionary question whether the BIA’s

binding legal standards are correct. Cf. Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“[T]he alleged

violation need not be substantial, but the claim must have some

possible validity.” (quotation marks and citation omitted)); see,

e.g., Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007)

(“[D]espite the fact that Khan’s legal argument is without merit,

because Khan raises a ‘question of law,’ we conclude that we

have jurisdiction to review his claim.”). As such, Pareja’s

challenge in this respect falls neatly within this Court’s

“narrowly circumscribed” jurisdiction under 8 U.S.C.

§ 1252(a)(2)(D).

2. Whether the BIA erred by attaching weight to

the number of qualifying relatives in its

hardship determination
13

The second issue Pareja submits for our review relates to

the distinction the BIA drew between her case and its decision

in Matter of Recinas. As noted, § 1229b(b)(1)(D) provides that

an alien’s eligibility for cancellation of removal depends in part

on whether she establishes hardship to her “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)(D).

In its decision, the BIA reasoned that, whereas Pareja had only

one qualifying relative (Joanne), the alien in its decision in

Matter of Recinas had four such relatives. Pareja argues that

because § 1229b(b)(1)(D) refers to only one qualifying relative,

the BIA erred in measuring her hardship showing by reference

to the number of her qualifying relatives.

While a hardship determination under § 1229b(b)(1)(D),

like the ultimate decision to grant or deny cancellation of

removal, is discretionary and therefore beyond our jurisdictional

purview, see Mendez-Moranchel, 338 F.3d at 179, where the

BIA is alleged to have made a hardship determination based on

“an erroneous legal standard” or “on fact-finding which is

flawed by an error of law,” Mendez v. Holder, 566 F.3d 316,

322 (2d Cir. 2009) (per curiam) (internal quotation marks and

citation omitted), our jurisdiction to review that determination

is secure. That is precisely the nature of Pareja’s claim. She

posits that the BIA misinterpreted the language of

§ 1229b(b)(1)(D) itself, not that the BIA misapplied that

provision to the facts of her case. We therefore have jurisdiction

to review this claim, as it clearly raises a colorable question of

law. Cf. Gomez-Perez v. Holder, 569 F.3d 370, 372-73 (8th Cir.

2009) (court had jurisdiction where alien argued that the BIA

“applied an incorrect legal standard by focusing on the present
14

circumstances of his children rather than on the future hardships

that they would face if he were removed” because that argument

raised a question of law); Figueroa v. Mukasey, 543 F.3d 487,

492, 495-96 (9th Cir. 2008) (jurisdiction existed to review

alien’s claim that the IJ applied incorrect legal standard “by

considering only the hardship currently suffered by the children

. . . without considering the hardship the children would suffer

in the event that their parents were removed”); Mireles v.

Gonzales, 433 F.3d 965, 969 (7th Cir. 2006) (court had

jurisdiction over argument “that the immigration judge made a

legal error in understanding the meaning of ‘exceptional and

extremely unusual hardship’”).

3. Whether the BIA erroneously made a hardship

determination on the assumption that Joanne

would return to Mexico with her mother

Pareja’s third argument is that the BIA “evaluated the

level of hardship to Joanne based upon the assumption that she

would return to Mexico with her mother, rather than the

assumption that Joanne would remain in the United States . . . .”

(Pet’r’s Br. 50.) Pareja contends that we have jurisdiction to

review this argument because, in her view, it implicates a

constitutional question. Specifically,she asserts, relying on preIIRIRA Sixth Circuit case law, that the BIA improperly failed to

account for the hardship Joanne would suffer if she were forced

to relinquish what Pareja characterizes as her daughter’s

constitutional right, as a United States citizen, to stay in this

country. We are unconvinced.
Although Pareja suggests that, even if she returns to 4

Mexico, Joanne could hypothetically stay in the United States,

never in these proceedings, including in her petition for review,

has Pareja refuted her own testimony that Joanne would in fact

return to Mexico with her in the event of removal. Furthermore,

because Pareja told the BIA in no uncertain terms – and in

uncontroverted testimony – that Joanne would accompany her

to Mexico, we need not resolve her related claim that

§ 1229b(b)(1)(D) imposes a presumption that an alien’s United

States citizen child will remain in the United States if her alien

15

As a preliminary matter, Pareja’s assertion that the BIA

“assumed” that Joanne would return with her to Mexico instead

of staying in the United States is wholly undermined by the

record. Pareja herself affirmatively represented in sworn

testimony before the IJ that her daughter would leave with her

in the event of removal. (E.g., App. 160 (answering “Yes” to

the question, “If you had to return to Mexico, would your

daughter go with you?”).) Her employer, Mrs. Sheehy, said the

same thing in the affidavit she submitted to the IJ on Pareja’s

behalf. (App. 270 (“If [Pareja] is sent back to Mexico, Joanne

will most definitely go with her.”).) In light of this evidence, the

BIA did not, as Pareja maintains, “presum[e] [the] exile of an

American citizen . . . .” (Pet’r’s Br. 54.) Rather, based on

Pareja’s own sworn representations, the BIA concluded that it

did not need to address Pareja’s “arguments that assume [that

her] removal would result in her separation from Joanne.”

(App. 3.) We see no error in the BIA’s having taken Pareja at

her word, especially when the record contains no evidence

contradicting her testimony.4
parent is removed. We note, at any rate, that the statute speaks

only in terms of “exceptional and extremely unusual hardship”

to the qualifying relative; the statute’s plain language nowhere

intimates the presumption that Pareja urges. We do not

necessarily foreclose the possibility that an alien could press the

argument Pareja seeks to advance here if the BIA discounted the

hardship to an alien’s United States citizen child based on pure

speculation that the child would leave the country with her alien

parent. Significantly, that circumstance is not attendant in this

case.

16

Furthermore, Pareja’s reliance on the so-called doctrine

of unconstitutional conditions is misplaced. In basic terms, that

doctrine prohibits the government from conditioning the

discretionary grant of a benefit on an individual’s waiver of a

constitutional right. See Dolan v. City of Tigard, 512 U.S. 374,

385 (1994); Frost & Frost Trucking Co. v. Railroad Com. of

Cal., 271 U.S. 583, 593-94 (1926). Even assuming that that

doctrine applies here and that Joanne has a constitutional right

to stay in the United States – and we express no view on either

point – our precedent makes plain that the BIA’s order of

removal as to her mother would not infringe on any such right.

See Acosta v. Gaffney, 558 F.2d 1153, 1158 (3d Cir. 1977)

(rejecting a claim that a minor United States citizen’s

constitutional right to stay in this country was violated by her

alien parents’ deportation because “her return to Colombia with

her parents, if they decide to take her with them as doubtless

they will, will merely postpone, but not bar, her residence in the

United States if she should ultimately choose to live here”); see

also Gallanosa v. United States, 785 F.2d 116, 120 (4th Cir.
17

1986) (“The courts of appeals . . . have uniformly held that

deportation of the alien parents does not violate any

constitutional rights of the citizen children.” (collecting cases));

Schleiffer v. Meyers, 644 F.2d 656, 662-63 & n.8 (7th Cir. 1981)

(same).

Accordingly, this issue does not raise a colorable legal

question, and we therefore lack jurisdiction to consider it.

4. Whether Mendez-Moranchel v. Ashcroft should

be overruled

Finally, Pareja argues that we should overrule our

decision in Mendez-Moranchel v. Ashcroft, 338 F.3d at 178-79,

where we held that the BIA’s determination of whether an alien

has met the “exceptional and extremely unusual hardship”

standard in the cancellation of removal statute is discretionary

and therefore beyond our jurisdictional mandate. Pareja

concedes that she advances this argument only to preserve it for

en banc or Supreme Court review. Put another way, she

acknowledges that we cannot grant her the relief she requests.

Indeed, this panel cannot overturn a prior panel’s precedential

opinion. Third Circuit Internal Operating Procedure 9.1; see

Mariana v. Fisher, 338 F.3d 189, 201 (3d Cir. 2003). As such,

while this claim may properly be described as legal, it is not

colorable because it is either “made solely for the purpose of

obtaining jurisdiction,” Arbaugh, 546 U.S. at 513 n.10, or has no

“possible validity,” Martinez-Rosas, 424 F.3d at 930 (quotation
It bears mentioning that Mendez-Moranchel is fully 5

consonant with other circuits’ case law on the question of an

appellate court’s jurisdiction to review the BIA’s discretionary

hardship determination. See, e.g., De Lourdes Castro De

Mercado v. Mukasey, 566 F.3d 813, 815 (9th Cir. 2009);

Martinez v. Att’y Gen. of the United States, 446 F.3d 1219,

1221-22 (11th Cir. 2006); Meraz-Reyes v. Gonzales, 436 F.3d

842, 843 (8th Cir. 2006); De La Vega v. Gonzales, 436 F.3d

141, 145-46 (2d Cir. 2006); Mireles v. Gonzales, 433 F.3d 965,

968-69 (7th Cir. 2006); Rueda v. Ashcroft, 380 F.3d 831, 831

(5th Cir. 2004) (per curiam).

18

marks and citation omitted), and therefore lies outside our

jurisdictional bounds.5

C. Merits

Having determined that we have jurisdiction over two of

the issues Pareja has submitted for our review, we now turn to

the merits of those issues.

1. Whether Matter of Monreal should be

overruled

Pareja urges us to “overrule” the BIA’s en banc decision

in Matter of Monreal based on its adoption of what Pareja

characterizes as an erroneous interpretation of the “exceptional

and extremely unusual hardship” standard.
19

In Matter of Monreal, the BIA addressed the meaning of

the “exceptional and extremely unusual hardship” standard in

IIRIRA. The BIA began its analysis by comparing that standard

to the “extreme hardship” standard in the pre-IIRIRA law. The

BIA stated that it was “aware of the general rule that when

‘Congress adopts a new law incorporating sections of a prior

law, Congress normally can be presumed to have had knowledge

of the interpretation given to the incorporated law, at least

insofar as it affects the new statute.’” Monreal, 23 I. & N. Dec.

at 59 (quoting Lorillard v. Pons, 434 U.S. 575, 581 (1978))

(other citation omitted). The BIA decided not to apply that

presumption to IIRIRA on the ground that, while the

“exceptional and extremely unusual hardship” phrase was

included in the INA of 1952, only that phrase, as opposed to a

section of prior law, had been imported into IIRIRA. Therefore,

the BIA studied how that phrase had been interpreted before

IIRIRA’s enactment. The BIA noted that, under the 1952 law,

that phrase applied to all applicants – not just their qualifying

relatives – and that the legislative history evinced congressional

intent to extend suspension of deportation only in

“unconscionable” cases. The BIA declined to apply such a high

standard to cancellation of removal, however, on the ground

that, among other things, there was nothing in IIRIRA’s

legislative history to support the application of such a standard.

The BIA was also unpersuaded by the interpretation of the

phrase in cases from 1953 to 1957, before the INA was amended

in 1962, reasoning that “th[is] case law cover[ed] only that

period of time when the ‘exceptional and extremely unusual

hardship’ standard was applied to all applicants for suspension

of deportation, predating the period during which the standard

was required principally for criminal aliens,” and that “in many
After determining that the new phrase required a 6

heightened showing by aliens seeking cancellation of removal,

the BIA examined what specific factors it would consider to

determine if an alien’s showing was sufficient. The BIA saw no

reason to abandon the factors it had consistently considered

under the suspension of deportation statute’s “extreme hardship”

standard, but reasoned that it would weigh those factors

“according to the higher standard required for cancellation of

20

of these cases the focus was on hardship to the alien, a hardship

element that cannot even be considered under the present

statute.” Id. at 61 (citations omitted). Finally, the BIA pointed

out that “this case law arose in a different overall statutory

context and obviously significantly predated the decades of

interpretation of the ‘extreme hardship’ standard that culminated

in” the 1996 amendments. Id.

In view of these considerations, the BIA held that

“although both the relevant legislative history from the 1952 Act

and the old case law . . . provide an historical context for

evaluating the ‘exceptional and extremely unusual hardship’

standard in applications for cancellation of removal, our

principal focus is on the statutory language itself and the

legislative history of the revisions that were enacted in 1996.”

Id. at 62. Using dictionary definitions to understand and to

distinguish the old and the new standards, the BIA concluded

that “[t]he [exceptional and extremely unusual hardship]

standard requires a showing of hardship beyond that which has

historically been required in suspension of deportation cases

involving the ‘extreme hardship’ standard.” Id.6
removal.” Monreal, 23 I. & N. Dec. at 63. The BIA resolved to

exclude from consideration any factors related to the alien

herself, as the new statute made clear that only hardship to the

qualifying relative, as opposed to the alien herself, could be

considered. Thus, the BIA listed the following factors to be

considered in determining whether an alien has adequately

shown hardship to a qualifying relative: “the ages, health, and

circumstances of qualifying lawful permanent resident[s] and

United States citizen relatives.” Id. The BIA also said that it

would take into account, for example, a qualifying child’s health

problems or compelling school needs, as well as living

conditions in the country of return. In the end, the BIA wrote,

no one factor would be dispositive. Instead, “all hardship

factors should be considered in the aggregate when assessing

exceptional and extremely unusual hardship.” Id. at 64 (citation

omitted). Although Pareja discusses these factors in passing in

her brief, we do not understand her specifically to fault the

BIA’s enumeration or qualification of these factors.

21

BIA Member Rosenberg concurred in part and dissented

in part. While she agreed with the majority that the plain

language of the “exceptional and extremely unusual hardship”

standard suggested “some type of difficulty or burden that is

uncommon, rare, or different from the norm,” id. at 66

(Rosenberg, Board Member, concurring and dissenting),

Member Rosenberg disagreed with the majority’s decision not

to interpret that phrase in line with BIA precedents from the

1950s. Unlike the majority, she saw no basis for departing from

the rule announced in Lorillard v. Pons “merely because

Congress adopted only a phrase and not a whole section of prior
22

law.” Id. (Rosenberg, Board Member, concurring and

dissenting) (citations omitted). In her view, because the 1996

amendments reflected Congress’s awareness of the case law

interpreting the old hardship standard, the majority’s rejection

of that case law was inappropriate.

We ordinarily exercise plenary review over the BIA’s

legal determinations. See, e.g., Yusupov v. Att’y Gen. of the

United States, 518 F.3d 185, 197 (3d Cir. 2008). However,

where, as here, “we are called upon to interpret a statute that is

within the scope of an agency’s rulemaking and lawmaking

authority, our inquiry implicates the principles set forth in

Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984).” Lin-Zheng v. Att’y Gen. of the

United States, 557 F.3d 147, 155 (3d Cir. 2009) (en banc)

(citation omitted). “Chevron deference is required when an

agency construes or interprets a statute that it administers and

the agency’s interpretation is based on a permissible

interpretation of the statute.” Mehboob v. Att’y Gen. of the

United States, 549 F.3d 272, 275 (3d Cir. 2008) (internal

quotation marks and citation omitted).

“Chevron deference involves a two-step inquiry.”

Yusupov, 518 F.3d at 197. “[T]he court asks first if the statute

is silent or ambiguous with respect to the specific issue of law

in the case, using traditional tools of statutory construction to

determine whether Congress had an intention on the precise

question at issue.” Augustin v. Att’y Gen. of the United States,

520 F.3d 264, 268 (3d Cir. 2008) (internal quotation marks,

alteration and citation omitted). If the answer is affirmative,

“the inquiry ends, as both the agency and the court must give
23

effect to the plain language of the statute.” Yusupov, 518 F.3d

at 197 (citation omitted). However, “[i]f Congress’s intention

is not evident, the court moves to the second step, where the

question for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Augustin, 520 F.3d

at 268 (internal quotation marks, other alteration and citation

omitted). “When Congress has left a gap in a statute, implicitly

leaving the administering agency responsible for filling that gap,

a court may not substitute its own construction of a statutory

provision for a reasonable interpretation made by the

administrator of an agency.” Id. (internal quotation marks and

citation omitted).

We begin with Chevron step one. “A basic tenet of

statutory construction is that we must begin with the assumption

that the ordinary meaning of statutory language accurately

expresses the legislative purpose.” Lin-Zheng, 557 F.3d at 155-

56 (internal quotation marks, alterations and citations omitted).

As the BIA recognized, the INA does not define “exceptional

and extremely unusual hardship,” and we think it beyond

peradventure that reasonable people could differ on the meaning

of that phrase. Cf. INS v. Jong Ha Wang, 450 U.S. 139, 144

(1981) (per curiam) (concluding that the “extreme hardship”

standard under the pre-IIRIRA version of the INA was

ambiguous because “[t]hese words are not self-explanatory, and

reasonable men could easily differ as to their construction”);

Hernandez-Patino v. INS, 831 F.2d 750, 753 (7th Cir. 1987)

(“Congress, in refusing to define ‘extreme’ hardship fully,

avoided the substantive policy decision and has deferred to

agency expertise.”); Matter of Hwang, 10 I. & N. Dec. 448, 451

(BIA 1964) (interpreting “extreme hardship” and finding that
24

“[t]he personal privation contemplated in a situation

characterized by ‘extreme hardship’ within the meaning of the

statute is not a definable term of fixed and inflexible content or

meaning”). Given that ambiguity, we turn to the second step of

the Chevron analysis. See Augustin, 520 F.3d at 269.

At Chevron step two, we ask whether the BIA’s

interpretation is permissible. The BIA’s interpretation is

permissible if it is a “reasonable interpretation” of the relevant

statute. Chevron, 467 U.S. at 844. As noted, the BIA began its

analysis by remarking that the “exceptional and extremely

unusual hardship” standard was susceptible to different

meanings. That ambiguity notwithstanding, the BIA

determined, based on the plain language of the phrase as a

whole, that “the hardship standard for cancellation of removal

is a higher one than that under the suspension of deportation,”

Monreal, 23 I. & N. Dec. at 59 (citations omitted), specifying

that the new standard requires an alien to demonstrate hardship

to a qualifying relative that is “‘substantially’ beyond the

ordinary hardship that would be expected when a close family

member leaves this country,” id. at 62. We see nothing

unreasonable in that determination, as it is practically compelled

by a simple juxtaposition of the two phrases themselves. Based

on their plain language, no great intellectual leap is required to

realize that “exceptional and extremely unusual hardship”

requires a greater showing than “extreme hardship.” Cf.

Cortes-Castillo v. INS, 997 F.2d 1199, 1204 (7th Cir. 1993)

(“Relief under the ‘exceptional and extremely unusual hardship’

standard of section [1254(a)(2)] is even more restrictive than the

‘extreme hardship’ requirement of section [1254(a)(1)].”

(footnote and citation omitted)); see Pimentel v. Mukasey, 530
25

F.3d 321, 324 (5th Cir. 2008) (per curiam) (noting that the new

phrase imposes a heightened requirement); Moreno-Morante v.

Gonzales, 490 F.3d 1172, 1177-78 (9th Cir. 2007) (noting that

Congress’s substitution of “extreme hardship” with “exceptional

and extremely unusual hardship” was “prompted by a

weakening of the ‘suspension of deportation’ requirements”);

Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003)

(similar). Accordingly, we perceive no basis for concluding,

based on IIRIRA’s plain language, that the BIA’s interpretation

falls outside the broad range of permissible interpretations

authorized by the statutory language.

Furthermore, as the BIA correctly recognized in Monreal,

its interpretation is buttressed by IIRIRA’s legislative history.

Cf. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.,

515 U.S. 687, 703-04 (1995) (court’s conclusion that agency’s

statutory interpretation was permissible found “further support

from the legislative history of the statute”); United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985) (“An

agency’s construction of a statute . . . is entitled to deference if

it is reasonable . . . in light of the language, policies, and

legislative history . . . .” (emphasis added)). In enacting IIRIRA,

Congress explicitly noted that the impetus for the new law was

what was perceived as the watering-down of the suspension of

deportation statute via administrative decisions:

The managers have deliberately changed the

required showing of hardship from “extreme

hardship” to “exceptional and extremely unusual

hardship” to emphasize that the alien must

provide evidence of harm to his spouse, parent, or
Pareja’s main assignment of error essentially parrots the 7

Monreal dissent. According to Pareja, “[t]he BIA’s disregard of

the Lorillard canon of statutory construction does not represent

a reasonable interpretation of the [cancellation] statute, and thus

is not protected by the deference ordinarily given the BIA in

interpreting the immigration laws.” (Pet’r’s Br. 28-29.) In

Lorillard, the Supreme Court explained that

Congress is presumed to be aware of an

26

child substantially beyond that which ordinarily

would be expected to result from the alien’s

deportation. The “extreme hardship” standard has

been weakened by recent administrative

decisions. . . . Our immigration law and policy

clearly provide that an alien parent may not derive

immigration benefits through his or her child who

is a United States citizen. The availability in truly

exceptional cases of relief under [the cancellation

of removal statute] must not undermine this or

other fundamental immigration enforcement

policies.

H.R. Rep. No. 104-828, at 213-14 (1996).

Given IIRIRA’s plain language and legislative history,

there is no basis for concluding that the BIA’s interpretation of

the “exceptional and extremely unusual hardship” standard is

anything other than “a permissible construction of the statute.”

See Chevron, 467 U.S. at 843-44 & n.11. As a consequence, 7
administrative or judicial interpretation of a

statute and to adopt that interpretation when it

re-enacts a statute without change. . . . So too,

where . . . Congress adopts a new law

incorporating sections of a prior law, Congress

normally can be presumed to have had knowledge

of the interpretation given to the incorporated law,

at least insofar as it affects the new statute.

434 U.S. at 580-81.

Based on Lorillard, Pareja argues that the BIA was

obligated to interpret the “exceptional and extremely unusual

hardship” standard by reference to case law from the 1950s.

Taken out of context, the language in Lorillard that Pareja

spotlights arguably supports her cause. On closer inspection,

however, Pareja’s position loses traction for three interrelated

reasons. First, the Lorillard canon applies only “when judicial

interpretations have settled the meaning of an existing statutory

provision . . . .” Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Dabit, 547 U.S. 71, 85 (2006) (internal quotation marks and

citations omitted). In such a case, “repetition of the same

language in a new statute indicates, as a general matter, the

intent to incorporate its judicial interpretations as well.” Id.

(quotation marks, ellipsis and citations omitted). As Monreal

recognized, and as Pareja does not dispute, the case law

interpreting “exceptional and extremely unusual hardship” under

the 1952 version of the INA spans only about one decade and

settled very little. Indeed, Pareja concedes that those early cases

27
“never reduced their interpretation of ‘exceptional and

extremely unusual hardship’ to a precise verbal formula that one

could substitute for that phrase without losing meaning.”

(Pet’r’s Br. 30.) Clearly, if the 1950s decisions did not

decisively delineate the contours of that phrase, it cannot be

seriously argued that the interpretation of that phrase was so

settled that we should expect Congress to have been on notice

of its meaning some thirty years later. See Fogerty v. Fantasy,

Inc., 510 U.S. 517, 532 (1994) (declining to apply Lorillard

because “[o]ur review of the prior case law itself leads us to

conclude that there was no settled . . . interpretation . . . about

which Congress could have been aware”).

Second, as Lorillard makes plain, the presumption that

Congress is aware of settled interpretations of a law ordinarily

arises where Congress “re-enacts” the same law. See, e.g.,

Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975).

Importantly, here, Congress did not re-enact the same law.

Instead, it enacted a new law that purposefully substituted the

language of the old law with different language that happened

to mirror the language of a law that had been defunct for several

years. These circumstances do not compel the application of the

Lorillard presumption. See, e.g., Nigg v. United States Postal

Serv., 555 F.3d 781, 787 (9th Cir. 2009).

Finally, the rule in Lorillard “must always be qualified by

the observation that evidence of what subsequent Congresses

intend pales in comparison to probative evidence about what the

enacting Congress intended.” Coke v. Long Island Care at

28
Home, Ltd., 376 F.3d 118, 130 n.4 (2d Cir. 2004) (emphasis

added), vacated and remanded on other grounds, 546 U.S. 1147

(2006); accord Henderson v. Shinseki, 589 F.3d 1201, 1215

(Fed. Cir. 2009). As the BIA observed in Monreal, there is

abundant evidence of what Congress actually intended when it

enacted IIRIRA. As noted, Congress was concerned that

administrative decisions had lowered the bar for determining

what constitutes hardship to a qualifying relative and thus

sought to impose a heavier burden on aliens. Under these

circumstances, it was certainly permissible for the BIA to rely

on an unequivocal statement of intent from the Congress that

enacted IIRIRA. See Harvey v. Johanns, 494 F.3d 237, 243 (1st

Cir. 2007) (rejecting reliance on Lorillard because “Congress –

whatever its awareness of the regulations – was unarguably

focused on ameliorating the effects of [a previous judicial]

decision”).

Pareja also attacks the BIA’s en banc decision in Matter 8

of Andazola, where the BIA denied cancellation of removal to

a single Mexican mother of two United States citizens based

largely on the reasoning of Monreal. The BIA in Andazola was

“sympathetic” to the alien’s case, 23 I. & N. Dec. at 322, but

29

we must defer to the BIA under Chevron. See Mehboob, 549

F.3d at 279; Augustin, 520 F.3d at 269-72; Yusupov, 518 F.3d at

200; Briseno-Flores v. Att’y Gen. of the United States, 492 F.3d

226, 231 (3d Cir. 2007). Accordingly, we will deny Pareja’s

petition insofar as it attacks Matter of Monreal and the BIA’s

interpretation of the cancellation of removal statute’s hardship

standard.8
pointed out that “Congress has now imposed a standard of

hardship that is significantly more burdensome than the former

‘extreme hardship’ standard,” id. The BIA found the alien’s

showing – which, like Pareja’s, was limited to mostly economic

detriment and lesser educational opportunities for her children

– inadequate under “the very high standard of the current law.”

Id. Eight Members dissented, arguing that the alien should have

prevailed based on her particular circumstances while

recognizing that this was “a close case,” id. at 329 (Osuna,

Board Member, dissenting), and without calling into question

the soundness of Monreal’s legal foundation. Pareja claims that

in Andazola “[t]he BIA compounded the error of Monreal” by

“double-count[ing] Congressional intent to narrow the class of

eligible aliens, and in so doing exacerbated its unsound

departure from the pre-IIRIRA precedents on the meaning of

‘exceptional and extremely unusual hardship[.]’” (Pet’r’s Br.

41-42.) Pareja’s isolation of the BIA’s statement that Congress,

in the new cancellation of removal statute, “narrowed the class

of aliens who could qualify for relief,” Andazola, 23 I. & N.

Dec. at 58, is for nought. That statement merely reflects the

BIA’s recognition – and accurate recognition at that – that

Congress raised the bar for aliens in IIRIRA. To the extent

Pareja’s assault on Andazola mirrors her attack on Monreal, it

fails for the same reasons we have already cited.

30

2. Whether the BIA erred by attaching weight to

the number of qualifying relatives in its

hardship determination

Pareja argues that the BIA found her ineligible for
31

cancellation of removal based on an impermissible consideration

in its hardship calculation. Specifically, she contends that the

BIA incorrectly focused on the number of her qualifying

relatives and not simply on the hardship to her sole qualifying

relative in the event of removal.

This challenge is again governed by the Chevron

analysis. Thus, we must first determine whether

§ 1229b(b)(1)(D) “is silent or ambiguous with respect to the

specific issue of law in the case, using traditional tools of

statutory construction to determine whether Congress had an

intention on the precise question at issue.” Lin-Zheng, 557 F.3d

at 155 (quoting Augustin, 520 F.3d at 268) (quotation marks

omitted). That provision says that cancellation of removal may

be granted to an alien who “establishes that 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)(D). The statute is clearly written in the

singular, and it speaks without equivocation: hardship may be

established by reference to but one qualifying relative. There is

nothing in § 1229b(b)(1)(D) to suggest that eligibility for

cancellation of removal – as opposed to the discretionary grant

or denial of cancellation of removal – is in any way a function

of how many qualifying relatives an alien has. Because

“congressional intent is clear, ‘the [Chevron] inquiry ends, as

both the agency and [we] must give effect to the plain language

of the statute.’” Lin-Zheng, 557 F.3d at 155 (quoting Yusupov,

518 F.3d at 197). Under the statute, then, whether Joanne was

Pareja’s only qualifying relative or one of several would not

have been a proper focus of inquiry for the purpose of
32

determining Pareja’s eligibility for cancellation of removal. Cf.

Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d

Cir. 2007) (en banc) (finding that the phrase “a person who has

been forced to abort a pregnancy or to undergo involuntary

sterilization” in 8 U.S.C. § 1101(a)(42) “could not be more clear

in its reference to ‘a person,’ rather than ‘a couple,’ who has

been subjected to a forced abortion or involuntary sterilization”),

cited with approval in Lin-Zheng, 557 F.3d at 156.

Here, the BIA began its analysis by determining that

Pareja’s only qualifying relative was Joanne. Having

determined as much, the BIA turned its attention to whether

Pareja had met her burden of showing hardship to Joanne. The

BIA rejected Pareja’s claim that Joanne had serious emotional

problems or compelling educational needs, pointing to a lack of

evidence. The BIA also cited Pareja’s testimony that Joanne

would return to Mexico with her, concluding that Joanne’s

alleged separation anxiety was not a relevant consideration in

light of that testimony. The BIA further noted that Pareja had

some savings that would enable her to gain a footing in Mexico

with Joanne, and that Pareja had failed to establish that Joanne’s

father would cease making child support payments or seeing his

daughter if she returned to Mexico. Significantly, none of these

considerations reflect that the BIA impermissibly concentrated

on the number of Pareja’s qualifying relatives. The portion of

the BIA’s decision on which Pareja principally trains her sights

is its discussion of Matter of Recinas. In that discussion, the

BIA sought to distinguish Recinas from Pareja’s case. The BIA

noted that the Recinas petitioner “was the sole supporter of six

children, . . . [and] had no support from her children’s father
33

. . . .” (App. 4.) “By contrast,” the BIA reasoned, Pareja “has

one qualifying relative . . . .” (Id.)

We agree with Pareja that the BIA’s apparent basis for

differentiating her case from Recinas is potentially problematic,

as it suggests that the BIA may have given weight to an

impermissible factor under § 1229b(b)(1)(D). In our view, the

BIA’s discussion of Recinas is susceptible to at least two broad

interpretations. On the one hand, by citing how many qualifying

relatives the Recinas petitioner had, the BIA simply might have

meant that the Recinas petitioner had established hardship to

each individual qualifying relative because her resources

necessarily would have been spread more thinly than Pareja’s,

as Pareja is financially responsible for only one individual,

Joanne. This approach would have been permissible under

§ 1229b(b)(1)(D). On the other hand, the BIA’s decision also

could be read to mean that the BIA thought Recinas was

distinguishable on the ground that Pareja did not have as many

qualifying relatives as the Recinas petitioner. If this reading

accurately reflects the BIA’s mode of analysis, the BIA

committed legal error. Of course, there may well be other

explanations for the BIA’s treatment of Recinas.

Given our uncertainty over the meaning of the BIA’s

decision in this sole respect and what appears to us as more than

just a remote possibility that the BIA failed to implement

congressional intent by requiring Pareja to establish hardship by

reference to a consideration not contemplated by

§ 1229b(b)(1)(D), we believe the prudent course is to grant

Pareja’s petition in part and remand this case for the limited

purpose of allowing the BIA either to clarify its decision or, in
Judge Greenberg joins in Judge Fisher’s comprehensive 9

opinion in all respects but points out that regardless of whether

or not there was a mistake in the application of Recinas in this

case, and regardless of the number of children impacted by the

denial of an application for cancellation of removal, the

overarching consideration here is whether the alien’s removal,

in this case Pareja, would result in “exceptional and extremely

unusual hardship to” the parent’s child, in this case Joanne.

Judge Greenberg is tempted to say that we should deny the

petition for review because no matter what the BIA concludes

on remand, the hardship here, though undoubtedly severe,

simply cannot be considered to be “exceptional and extremely

unusual” whether or not Joanne accompanies her mother to

Mexico when her mother either departs voluntarily or is

removed. Yet Judge Greenberg recognizes that there are

intricate jurisdictional questions involved in these appellate

proceedings and, in the circumstances, we are taking a wise path

in remanding as the opinion provides. He wants to emphasize,

however, that by remanding we are not implying that we have a

positive view of the merits on the overarching question in this

case, i.e. would the hardship to Joanne from her mother’s

removal be “exceptional and extremely unusual.”

34

the event the BIA determines that it made a mistake in its

application of Recinas to Pareja’s case, to decide anew based on

the current record whether Pareja has established eligibility for

cancellation of removal using the proper hardship standard.9
35

III.

For the foregoing reasons, we will grant Pareja’s petition

to the extent it relates to the BIA’s consideration of the number

of her qualifying relatives, and remand this case to the BIA for

the limited purpose of allowing it to clarify or to reconsider its

application of Matter of Recinas to this case. We will deny

Pareja’s petition to the extent it asks us to overrule Matter of

Monreal. Finally, we will dismiss the balance of the petition for

lack of jurisdiction.