Thonyly Oung v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THONYLY OUNG,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1927
Agency No.
A095-866-860
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2023**
Pasadena, California
Before: M. SMITH, LEE, and VANDYKE, Circuit Judges.
Petitioner seeks review of a Board of Immigration Appeals (BIA) decision
denying his application for adjustment of status. We generally have jurisdiction
under 8 U.S.C. § 1252, and we dismiss the petition.
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Section 1252(a)(2)(B)(i) bars review of “any judgment regarding the granting
of relief under section … 1255,” which includes adjustment of status under section
1255(a). The Supreme Court recently interpreted this jurisdiction-stripping
provision in Patel v. Garland and concluded that it “encompasses not just ‘the
granting of relief’ but also any judgment relating to the granting of relief,” which
“plainly includes factual findings.” 596 U.S. 328, 339 (2022). Any factual
determination made by the immigration judge (IJ) “relating to” Petitioner’s
application for adjustment of status is therefore outside this panel’s jurisdiction.
While this panel retains jurisdiction to review “constitutional claims or
questions of law,” 8 U.S.C. § 1252(a)(2)(D), Petitioner has not raised such a question
in this case. See Safaryan v. Barr, 975 F.3d 976, 989 (9th Cir. 2020) (concluding
that section 1252(a)(2)(B)(i) “eliminates our jurisdiction to review discretionary
decisions … ‘unless the petition raises a cognizable legal or constitutional question
concerning that determination’” (quoting Fernandez v. Gonzales, 439 F.3d 592, 596
(9th Cir. 2006))). Instead, the only question raised by Petitioner is whether a
preponderance of the evidence supports the IJ’s determination that Petitioner
“knowingly made a frivolous application for political asylum.” This question is a
factual one: does the evidence in the record factually show that Petitioner “fabricated
[his] asylum application[]”? Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 2008).

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Nor does the fact that the IJ’s frivolousness determination was adjunct to the
primary question of whether to grant or deny Petitioner’s application for adjustment
of status place this issue within the court’s jurisdiction. As the Supreme Court
explained in Patel, section “1252(a)(2)(B)(i) does not stop at just the grant or denial
of relief; it extends to any judgment ‘regarding’ that ultimate decision.” 596 U.S. at
344 (emphasis added). Here, the IJ answered the factual question of whether
Petitioner filed a frivolous application in order to determine whether to grant or deny
the relief sought. This determination was an authoritative decision on the subject and
so constituted a “judgment” for purposes of Patel and section 1252(a)(2)(B)(i). Id.
at 337 (“‘[J]udgment’ means any authoritative decision.”). This judgment was
“regarding” the discretionary relief sought because it was made in the course of
deciding whether to grant or deny such relief—indeed, it determined Petitioner’s
eligibility for the relief. Because the IJ’s judgment was regarding its “ultimate
decision” to grant or deny Petitioner’s application for adjustment of status, it falls
within the reach of section 1252(a)(2)(B)(i)’s jurisdictional bar. Id. at 344.
PETITION DISMISSED.

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