de la Cruz Orellana v. Sessions , 878 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2106
MELVI AYDE DE LA CRUZ-ORELLANA; ALFREDO FLORES,
Petitioners,
v.
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Selya, and Lipez,
Circuit Judges.
Stephen M. Born on brief for petitioners.
Carmel A. Morgan, Trial Attorney, Office of Immigration
Litigation, Chad A. Readler, Principal Deputy Assistant Attorney
General, and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
December 18, 2017
LIPEZ, Circuit Judge. Petitioners Melvi Ayde de la Cruz-
Orellana and Alfredo Flores are a wife and husband who seek review
of a decision denying their applications for voluntary departure
to Guatemala and Mexico, respectively. An Immigration Judge ("IJ")
denied petitioners' applications on discretionary grounds, and the
Board of Immigration Appeals ("BIA") affirmed the IJ's decision.
Petitioners timely sought review in this court. We now dismiss
for want of jurisdiction.
I.
Alfredo Flores entered the United States without proper
entry documentation in 1986, and Melvi Ayde de la Cruz-Orellana
did the same three years later.1 The two met in California, and
they were married in approximately 1994. At the time of these
immigration proceedings, they resided in Providence, Rhode Island,
with their son, Jonathan Flores.
Appearing at a removal hearing in March 2009, the couple
submitted written petitions to the IJ requesting cancellation of
their removal and, alternatively, voluntary departure.2 To be
statutorily eligible for cancellation of removal, petitioners had
1 The record reflects some uncertainty over whether Cruz-
Orellana entered the United States in 1989 or 1992. As her date
of entry is immaterial to our decision, we will accept arguendo
Cruz-Orellana's representation that she entered the United States
in 1989.
2 The written petitions originally requested several other
forms of relief that petitioners dropped before the IJ issued his
decision.
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to show (amongst other factors) that they had been "person[s] of
good moral character" for at least ten years, and that their
removal "would result in exceptional and extremely unusual
hardship" to their United States-citizen child. 8 U.S.C.
§ 1229b(b)(1). They similarly had to show -- again, amongst other
factors -- that they had been persons of good moral character for
at least five years to be statutorily eligible for voluntary
departure. 8 U.S.C. § 1229c(b)(1). Statutory eligibility,
however, does not guarantee success. The IJ could deny
petitioners' requests for cancellation of removal and voluntary
departure as a matter of discretion. See 8 U.S.C. §§ 1229b(b)(1),
1229c(b)(1) (stating that the Attorney General "may" cancel an
immigrant's removal and "may" permit him to depart voluntarily).
In an oral decision in November 2014, the IJ rejected
petitioners' requests for both forms of relief. First, he found
that Cruz-Orellana had "given false testimony for the purpose of
obtaining" immigration benefits, and was therefore not a person of
good moral character for cancellation of removal purposes. 8
U.S.C. § 1101(f)(6). Specifically, Cruz-Orellana completed an
application for asylum in 1993, representing that she had been
tortured by guerrillas in Guatemala, and was married to a guerrilla
commandant known as El Gallo Giro. She reaffirmed the accuracy of
her application when she appeared before an asylum officer in
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August 2007. However, in a hearing before the IJ, Cruz-Orellana
admitted that the information in her asylum application was false.
In denying cancellation of removal to Cruz-Orellana, the
IJ found that she could not benefit from the "recantation
doctrine." That doctrine provides that false testimony will not
prevent an immigrant from establishing her good moral character
when she timely recants the false testimony.3 See Matter of Namio,
14 I. & N. Dec. 412, 414 (BIA 1973); Matter of M-, 9 I. & N. Dec.
118, 119 (BIA 1960). According to the IJ, Cruz-Orellana did not
recant her false testimony in a "timely" manner. The IJ then
offered another reason to reject Cruz-Orellana's request for
cancellation of removal, which also applied to Flores's request
for the same. The couple could not show that their son would incur
"exceptional and extremely unusual hardship" upon their removal,
a prerequisite to obtaining relief. 8 U.S.C. § 1229b(b)(1)(D).
Turning to Cruz-Orellana's request for voluntary
departure, the IJ began by incorporating his prior discussion
"regarding her false oral testimony before the Asylum Officer."
He considered the false testimony "a significant factor that
3There is some disagreement in the case law over what
constitutes a "timely" recantation. Some courts have focused on
the voluntariness of the recantation, while others assess
timeliness based on the duration between the false testimony and
the recantation. See, e.g., Ruiz-Del-Cid v. Holder, 765 F.3d 635,
640-41 (6th Cir. 2014). As we lack jurisdiction to review the
IJ's discretionary decision to deny Cruz-Orellana voluntary
departure, we have no occasion to weigh in on the matter.
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reflects upon her bad character." The IJ then weighed Cruz-
Orellana's false testimony against certain positive factors and
declined to grant her voluntary departure as a matter of
discretion.4 Lastly, the IJ also denied voluntary departure to
Flores as a matter of discretion. In doing so, the IJ relied in
part upon a police report from a 2000 domestic violence incident
involving Flores and Cruz-Orellana.
Petitioners appealed the IJ's decision to the BIA. The
BIA first noted that petitioners' son, Jonathan, had turned 21
during the pendency of their appeal, leaving them unable to show
that their removal would result in exceptional and extremely
unusual hardship to their "child." 8 U.S.C. § 1101(b)(1) (defining
"child" as, in relevant part, "an unmarried person under twenty-
one years of age"). It then upheld the IJ's discretionary
decisions to deny petitioners' requests for voluntary departure.
In their petition for review to this court, petitioners
concede that their son's age makes them ineligible for cancellation
4The IJ did not expressly address whether Cruz-Orellana was
statutorily eligible for voluntary departure, though we could
infer a finding of statutory ineligibility based on his
determination that Cruz-Orellana was not a person of good moral
character for cancellation of removal purposes. See 8 U.S.C.
§§ 1229b(b)(1)(b), 1229c(b)(1)(b) (establishing "good moral
character" requirements for both forms of relief). In any event,
since the IJ declined to afford Cruz-Orellana voluntary departure
as a matter of discretion, his finding regarding statutory
eligibility is ultimately immaterial. As discussed infra, IJs
have discretion to deny immigrants the privilege of voluntary
departure even when they are statutorily eligible for the benefit.
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of removal. They maintain, however, that the IJ erred in denying
their requests for voluntary departure. Cruz-Orellana argues that
the recantation doctrine should have prevented the IJ from
considering her false testimony in denying her voluntary departure
as a matter of discretion. Flores asserts that the IJ's reliance
on the 2000 domestic violence police report violates due process
because it contains hearsay. We do not reach the merits of these
contentions, however, because we lack jurisdiction to do so.
II.
Our jurisdiction to review decisions denying immigrants
the privilege of voluntary departure is narrowly circumscribed.
See Arias-Minaya v. Holder, 779 F.3d 49, 52 (1st Cir. 2015).
Indeed, we are statutorily prohibited from reviewing the "denial
of a request for an order of voluntary departure," 8 U.S.C.
§ 1229c(f); see also 8 U.S.C. § 1252(a)(2)(B)(i), unless the
petition for review involves "constitutional claims or questions
of law," 8 U.S.C. § 1252(a)(2)(D). A "bare allegation of either
a constitutional shortfall or legal error" is not sufficient.
Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010). To confer
jurisdiction, "the claim of constitutional or legal error must at
least be colorable." Id.; see also Arias-Minaya, 779 F.3d at 52
("Whether a claim fits within the confines of one of these
exceptions depends on substance, not on form."). This
jurisdictional limitation is fatal to petitioners' claims.
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A. Petitioner Cruz-Orellana
Cruz-Orellana's reliance on the recantation doctrine
misapprehends the relevance of that doctrine to the IJ's
discretionary determination to deny her the benefit of voluntary
departure. Specifically, she fails to appreciate the distinction
between an IJ's finding of statutory ineligibility, and an IJ's
decision to deny relief as a matter of discretion.
An IJ may deny an immigrant's request for voluntary
departure by finding that the immigrant is statutorily ineligible
for that relief. As discussed supra, an immigrant who "has given
false testimony for the purpose of obtaining" immigration benefits
is statutorily ineligible for voluntary departure, unless she had
timely recanted her testimony. See 8 U.S.C. §§ 1101(f)(6),
1229c(b)(1)(B); Matter of Namio, 14 I. & N. Dec. at 413-14. If
the immigrant timely recanted her false testimony, the recantation
doctrine prevents the IJ from finding her statutorily ineligible
based on the testimony.
However, even if the IJ determines that the immigrant is
statutorily eligible for voluntary departure -- or assumes that
she is eligible -- the IJ can weigh the equities and deny relief
as a matter of discretion. See 8 U.S.C. § 1229c(b)(1) (stating
that the Attorney General "may" permit an immigrant to depart
voluntarily); Arias-Minaya, 779 F.3d at 51-52. Indeed, this was
the approach taken by the IJ here. He denied voluntary departure
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to Cruz-Orellana under his discretionary authority, not based on
her statutory ineligibility for the relief.
When an IJ denies voluntary departure as a matter of
discretion, the recantation doctrine does not prevent him from
using an immigrant's timely recanted false testimony as a basis
for denying relief. One of the seminal recantation-doctrine cases
demonstrates this principle precisely. In Matter of M-, the BIA
applied the recantation doctrine and found that the immigrant had
timely recanted his prior false testimony. 9 I. & N. Dec. at 119.
He was, therefore, "not barred . . . from establishing his good
moral character," and was "statutorily eligible for [voluntary
departure]." Id. Nonetheless, the BIA upheld the denial of the
immigrant's "application for voluntary departure . . . as a matter
of administrative discretion." Id. at 120. While the recantation
doctrine made the immigrant statutorily eligible for voluntary
departure, it did not prevent the BIA from subsequently denying
voluntary departure as a matter of discretion.
Thus, even if the application of the recantation
doctrine made Cruz-Orellana statutorily eligible for voluntary
departure, her recantation would become only one factor among many
for the IJ to consider in weighing the equities of her request for
voluntary departure. Since the IJ was not bound by the recantation
doctrine in denying voluntary departure to Cruz-Orellana as a
matter of discretion, the substance of her claim does not involve
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a question of law under 8 U.S.C. § 1252(a)(2)(D). Instead, she
effectively asks us to review the IJ's purely discretionary
decision, made after weighing the equities of the situation, to
deny her voluntary departure regardless of her statutory
eligibility for relief. This is exactly the type of decision that
we lack jurisdiction to review.
B. Petitioner Flores
Flores asserts that the IJ violated his due process
rights by relying on a police report that contained hearsay in
denying him voluntary departure as a matter of discretion.
Flores's invocation of the Due Process Clause does not create a
constitutional claim for the purpose of 8 U.S.C. § 1252(a)(2)(D).
We have held repeatedly that the "privilege" of voluntary departure
involves "no property interest" and "no cognizable liberty
interest" because it is "essentially discretionary." Jupiter v.
Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005); see also Kandamar v.
Gonzales, 464 F.3d 65, 69 (1st Cir. 2006). Since "[a] due process
claim requires that a cognizable liberty or property interest be
at stake," Flores's petition fails to raise a colorable
constitutional claim. Kandamar, 464 F.3d at 69 (quoting DaCosta
v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006)). We therefore lack
jurisdiction to review the IJ's denial of voluntary departure.
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III.
For the foregoing reasons, we dismiss the petitions for
want of jurisdiction.
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