Rodriguez

MEMORANDUM **

Juan Almaraz-Rodriguez (“Rodriguez”), a native and citizen of Mexico, appeals the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition challenging the Board of Immigration Appeals’s (“BIA’s”) summary affirmance of the Immigration Judge’s (“IJ’s”) denial of cancel *917 lation of removal under 8 U.S.C. § 1229b(b). Under the Real ID Act of 2005, Pub.L. 109-13, habeas relief is barred, so we treat Rodriguez’s appeal as a petition for review, see 8 U.S.C. § 1252 (a)(5), reviewing the constitutional claims or questions of law raised within it. See 8 U.S.C. § 1252 (a)(2)(D).

The IJ did not violate due process in determining Rodriguez failed to prove three independent requirements for cancellation of removal. First, the IJ used the correct preponderance of the evidence standard for determining continuing physical presence, and did not misapply the law. Second, Rodriguez is per se excluded from establishing good moral character because of the alien-smuggling provision, 8 U.S.C. § 1182 (a)(6)(E)(i), and does not qualify for an exception under 8 U.S.C. § 1182 (a)(6)(E)(ii) because he did not smuggle his spouse before May 5, 1988. Third, Rodriguez has…

concurring in part, dissenting in part.

I respectfully dissent from the majority’s denial of Juan Almaraz-Rodriguez’s (“Rodriguez”) petition for review for the reason that the Board of Immigration Appeals’ (“BIA”) summary affirmance prevents this Court from properly determining its jurisdiction and the issues before it. Because we do not know whether the BIA affirmed the Immigration Judge’s (“IJ”) decision on a reviewable or an unreviewable basis, the proper course of action is to remand to the BIA so that it can identify the ground on which it relied in summarily affirming the IJ’s rejection of Rodriguez’s cancellation of removal application under 8 U.S.C. § 1229b(b). See Lanza v. Ashcroft, 389 F.3d 917 (9th Cir.2004). I concur, however, that we should affirm the District Court’s refusal to permit Erick Rodriguez from intervening in his father’s case.

This case presents the situation where the BIA affirmed without opinion, and there is no way of knowing on which ground or grounds the BIA rejected Rodriguez’s cancellation of removal application. The IJ denied Rodriguez’s application on three independent grounds: failure to prove (1) continuous physical presence, (2) good moral…