Alvarado v. Holder, Jr. , 743 F.3d 271 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1322
JORGE ALBERTO ALVARADO; IRMA YOLANDA CARDOZA,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Lipez,
Circuit Judges.
John P. Garan on brief for petitioners.
Stuart F. Delery, Assistant Attorney General, Civil Division,
John S. Hogan, Senior Litigation Counsel, Office of Immigration
Litigation, and Robbin K. Blaya, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
February 14, 2014
THOMPSON, Circuit Judge. Petitioners Jorge Alberto
Alvarado and Irma Yolanda Cardoza, husband and wife, left their
rural Guatemalan village and entered the United States illegally
through the Arizona desert in the mid-1990s. They petition for
review of the Board of Immigration Appeals' (BIA) decision
upholding an Immigration Judge's (IJ) denial of their application
for cancellation of removal. After careful consideration, we deny
their petition in part and otherwise dismiss it for want of
jurisdiction.
I. Background
Alvarado and Cardoza have lived and worked in Rhode
Island and Massachusetts for over fifteen years. They have two
sons: Jorge, born in Guatemala in 1993, and Brian, born in the
United States in 1998. In 2008, the couple applied for asylum,
which alerted immigration authorities to their presence. Their
application was denied, and removal proceedings began shortly
thereafter.
In a hearing before an IJ, Alvarado and Cardoza conceded
removability but sought cancellation of removal based on the
hardship that their departure would cause for their son Brian. To
be eligible for cancellation of removal, petitioners must show,
among other things, that their removal would result in "exceptional
and extremely unusual hardship" to a qualifying relative, such as
an American-citizen child. 8 U.S.C. § 1229b(b)(1)(D). Petitioners
-2-
testified that Brian, who was twelve years old on the day of the
hearing, would accompany them to Guatemala if they were ordered
removed. Having been born in the United States and never having
visited Guatemala, Brian, they explained, would face several
formidable obstacles in Guatemala.
First, as a gifted student, Brian would not be able to
reach his full potential in Guatemala because of the lack of
educational opportunities available there. Sallie D'Agostino
Pisaturo, a certified school psychologist with a master's degree in
mental health counseling, testified on petitioners' behalf. After
conducting a psycho-educational evaluation of Brian, speaking with
his parents, and contacting his school, Pisaturo concluded that, in
terms of academic skill, Brian was one grade level or higher than
his peers and possessed "superior intellectual ability." Pisaturo
had never been to Guatemala, but she had read widely about the
Guatemalan school system. Based on her research, she was concerned
that Brian would not receive an appropriate education in Guatemala
due to the lack of quality teachers and enrichment programs for
high-achieving students, particularly in rural regions. She
testified that Brian's needs are "as specialized as those of a
child with a learning disability or a developmental disorder
because he is gifted." She warned that Brian could become
discouraged and develop behavioral problems if not placed in a
program that offers the stimulation he requires.
-3-
Second, although Brian tested very well in some areas,
Pisaturo found that Brian has "weaknesses with getting overloaded
easily and [has] some memory difficulties." Brian's parents worry
that he is suffering from attention deficit hyperactivity disorder,
though it is unclear whether he has ever been diagnosed. They
claim his deficiencies require specialized educational
interventions that are widely available in the United States but
not in Guatemala.
Third, Brian's inability to read, write, or fluently
speak Spanish would further hinder his ability to receive an
education in Guatemala. Although Brian's parents speak Spanish at
home, Brian resists speaking Spanish and has been educated entirely
in English. Brian's poor Spanish skills would make it difficult
for him to succeed in school, socialize with his peers, and find a
good job in Guatemala.
Fourth, if the family returned to Joyabaj, Guatemala, the
rural area where petitioners were born, Brian and his family would
have to overcome steep practical hurdles. For example, Brian would
have to travel at least an hour by bus to reach the nearest school.
Besides, Alvarado testified, he could never afford to pay Brian's
tuition and bus fare with his income as a farmer in Guatemala.
Finally, and worst of all, Alvarado said, he would fear
for Brian's safety in Guatemala, where kidnappings, gangs, and
-4-
violent crime are rampant, especially because Brian lacks "street
smarts" and does not speak the language.
Taking all this into consideration, the IJ nevertheless
found that petitioners had not established that Brian would suffer
"exceptional and extremely unusual hardship" if his parents were
removed to Guatemala. She acknowledged Pisaturo's testimony that
Brian was gifted and might not have access to as good an education
in Guatemala as he would in the United States. However, she said,
simply because Brian could receive a higher level of education in
the United States did not mean that he had the right to expect a
comparable level of education in Guatemala. Moreover, petitioners
had not shown that an appropriate education did not exist for Brian
in Guatemala; rather, Brian's family might have to send him to
school far away from their rural village or pay private school
tuition to obtain the education best-suited to his needs. The fact
that a high-quality education might be more difficult or more
expensive to get in Guatemala than in the United States did not
trigger "exceptional and extremely unusual hardship" for Brian.
As to the other roadblocks cited by petitioners, the IJ
concluded that "[b]asically, there is absolutely nothing else,
other than the normal difficulties that individual[s] have to go
through when relocating to another country, to base this
exceptional and extremely unusual hardship upon." Accordingly, she
found that Brian's parents had failed to meet the hardship
-5-
eligibility requirement for cancellation of removal. She therefore
denied their application and ordered them removed to Guatemala.
On appeal, the BIA dismissed the couple's petition for
relief because it discerned no clear error in the IJ's factual
findings and agreed with the IJ's legal and discretionary
determinations. Hoping to reverse this trend, Alvarado and Cardoza
ask us to review the BIA's decision.
II. Discussion
Petitioners say the BIA committed legal error when it
affirmed the IJ's denial of their application for cancellation of
removal. The government counters that we lack jurisdiction to
evaluate petitioners' claim.
We begin our discussion with a basic overview of the
relief petitioners seek. Cancellation of removal is a form of
discretionary relief which, if granted, permits an otherwise
removable non-resident alien to remain in the United States. Ayeni
v. Holder, 617 F.3d 67, 70 (1st Cir. 2010). It is available only
if an alien: (a) has resided in the United States for a continuous
period of at least ten years immediately preceding his application;
(b) has been a person of good moral character during that period;
(c) has not been convicted of certain enumerated offenses; and (d)
has established that removal would result in exceptional and
extremely unusual hardship to a qualifying family member, such as
-6-
an American-citizen child. Id. (citing 8 U.S.C. § 1229b(b)(1));
Toribio-Chavez v. Holder, 611 F.3d 57, 64 (1st Cir. 2010).
The first three requirements are not at issue here.1
Accordingly, we proceed to the fourth prong: whether petitioners
have shown that their American-citizen son Brian is likely to
suffer exceptional and extremely unusual hardship if his parents
are removed to Guatemala. See 8 U.S.C. § 1229b(b)(1)(D).
This is a high bar to clear. It requires petitioners to
demonstrate that Brian would suffer hardship that is "substantially
different from, or beyond, that which would normally be expected
from the deportation" of a close relative, though it need not be
"unconscionable." See Matter of Monreal-Aguinaga, 23 I. & N. Dec.
56, 60, 65 (BIA 2001); see also Matter of Gonzalez Recinas, 23 I.
& N. Dec. 467, 468 (BIA 2002).
Statutes narrowly circumscribe our review on this point.
Courts generally lack jurisdiction to review a judgment concerning
discretionary relief sought under the cancellation of removal
provision. 8 U.S.C. § 1252(a)(2)(B)(i); see Ayeni, 617 F.3d at 70;
Toribio-Chavez, 611 F.3d at 64. Constitutional claims and
questions of law, however, are excepted from this prohibition.
8 U.S.C. § 1252(a)(2)(D); see Ayeni, 617 F.3d at 70; Toribio-
1
The IJ found that petitioners "definitely established" good
moral character, but only Alvarado (not Cardoza) had demonstrated
continuous presence for the required ten-year period. Because this
petition is resolved by our review of the hardship prong, we need
not address the continuous-presence element further.
-7-
Chavez, 611 F.3d at 64. Thus, we have jurisdiction to consider
this petition only if it raises a question of constitutional or
legal dimension. See Ayeni, 617 F.3d at 70.
The presence of a constitutional or legal question "is a
matter of substance, not a function of labeling." Id. at 70-71.
Styling a factual claim as constitutional or legal error will not
transform an unreviewable issue of fact into a reviewable issue of
law. Id. at 71; Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007).
Rather, only a "colorable" claim of constitutional or legal error
— i.e., a constitutional or legal argument that is at least
potentially valid — can give rise to our jurisdiction. Pan, 489
F.3d at 84; see also Ayeni, 617 F.3d at 71.
Generally, whether a petitioner satisfies the hardship
requirement for cancellation of removal is a factual, not legal,
inquiry. See Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir. 2007).
For this reason, we typically decline to review a determination of
whether a petitioner has met this burden. Castro v. Holder, 727
F.3d 125, 128 (1st Cir. 2013). While we retain jurisdiction over
claims that the IJ or the BIA imposed a new or incorrect legal
standard, see Ayeni, 617 F.3d at 71, we lack jurisdiction to
evaluate the relative evidentiary weight or level of detail
accorded to specific facts in the agency's hardship determination,
see, e.g., Hasan v. Holder, 673 F.3d 26, 32-33 (1st Cir. 2012) (no
jurisdiction to review a claim that the BIA made only a "cursory"
-8-
mention of petitioners' fear for their daughter's safety); Ayeni,
617 F.3d at 72-73 (no jurisdiction to determine whether the BIA
"neglected adequately to weigh the seriousness of [petitioner's]
eldest child's asthma"); Elysee v. Gonzales, 437 F.3d 221, 223-24
(1st Cir. 2006) (no jurisdiction to evaluate whether the BIA erred
by "complete[ly] disregard[ing]" certain hardships to petitioner's
children and giving "unfair weight" to other facts).
Here, in an effort to avoid the jurisdictional bar,
petitioners attempt to frame their claims from a legal perspective.
First, petitioners say the IJ ignored relevant case law because she
did not cite Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA
2001) ("Monreal"), which has been described as one of the BIA's
"seminal interpretations" of the "exceptional and extremely unusual
hardship" requirement. Recinas, 23 I. & N. Dec. at 472-73. This
omission, petitioners claim, led the IJ to commit legal error
because she "completely misunderstood the educational needs
hardship" that they alleged Brian would experience. Second,
petitioners say the IJ "ignored other factors that should have been
included in her analysis" and failed to "weigh[] the hardships to
Brian in the aggregate" as precedent requires.
The government counters that petitioners' true quarrel is
not with the legal framework applied by the IJ, but with the IJ's
factual determination that the hardship Brian would suffer as a
gifted student did not qualify his parents for cancellation of
-9-
removal. At best, the government says, petitioners challenge the
way the IJ weighed the evidence. Because we are not empowered to
second-guess either an IJ's finding of fact, see Ayeni, 617 F.3d at
71-73, or her balancing of the evidence, see Elysee, 437 F.3d at
223-24, the government contends that we lack jurisdiction to decide
petitioners' claims.
It is difficult to pigeonhole the issues raised by
petitioners as either factual or legal. However, though our
jurisdiction turns on this question, we need not resolve it. If
the issues are factual, we have no jurisdiction; conversely, if the
issues are legal, for the reasons that follow, the decision of the
BIA affirming the IJ must be upheld. Consequently, we believe that
this is a case in which we should sidestep the jurisdictional
question and proceed directly to the arguments on the merits.
We pause momentarily to note that, ordinarily, federal
courts may not exercise "hypothetical jurisdiction." Royal Siam
Corp. v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007). In other
words, we usually "may not assume the existence of jurisdiction in
order to decide the merits of a case or controversy." Id. But
unlike Article III jurisdiction, which we may never dodge, we may
occasionally bypass statutory jurisdiction. Id. at 144 (citing
Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 426 &
n.11 (1st Cir. 2007); Nisselson v. Lernout, 469 F.3d 143, 150–51
(1st Cir. 2006); Parella v. Ret. Bd. of R.I. Emps.' Ret. Sys., 173
-10-
F.3d 46, 54 (1st Cir. 1999)). In the immigration context, we have
put aside ambiguous jurisdictional questions when precedent clearly
dictates the result on the merits. See, e.g., Royal Siam Corp.,
484 F.3d at 144; Rivera-Martinez v. Ashcroft, 389 F.3d 207, 209 n.7
(1st Cir. 2004) (per curiam); Seale v. INS, 323 F.3d 150, 152, 157
(1st Cir. 2003). Here, the question of whether we possess
statutory jurisdiction under 8 U.S.C. § 1252(a)(2)(D) is not easily
answered, but the outcome on the merits is quite straightforward.
Thus, without further ado, we pass over the jurisdictional issue
and press on with the substance of petitioners' claims.
First, petitioners say that the IJ improperly ignored
critical case law when she did not cite Monreal in her analysis.
In Monreal, the BIA laid out the factors to be considered when
assessing "exceptional and extremely unusual hardship" in
cancellation of removal cases, including the age, health, and
circumstances of the qualifying relative. 23 I. & N. Dec. at 63.
The BIA cribbed these factors from its earlier decision, Matter of
Anderson, 16 I. & N. Dec. 596 (BIA 1978), which described the
rubric for evaluating "extreme hardship" in suspension of
deportation cases.2 Monreal, 23 I. & N. Dec. at 63. As an example
2
In 1996, Congress replaced the provisions providing for
suspension of deportation, 8 U.S.C. § 1254(a)(1) (1994) (repealed
1996), with provisions providing for cancellation of removal,
8 U.S.C. § 1229b(b). Monreal, 23 I. & N. Dec. at 58. "Under the
prior law regarding suspension of deportation, an alien . . .
seeking that form of relief had to establish that he or his
qualifying relative would suffer 'extreme hardship' if deported."
-11-
of someone who might be able to demonstrate the requisite level of
hardship based on these factors, the BIA said a "strong applicant
might have a qualifying child with . . . compelling special needs
in school." Id. (emphasis added).
Because the IJ did not cite Monreal, petitioners aver
that she did not consider whether Brian's needs as a gifted student
could be deemed "compelling special needs in school" for the
purpose of establishing "exceptional and extremely unusual
hardship." They say the IJ instead misconstrued their argument as
asserting that Brian would suffer in Guatemala because he would not
receive the same level of education there as he would in the United
States — a deprivation which the BIA repeatedly has found does not
rise to the level of "exceptional and extremely unusual hardship."
See, e.g., Matter of Andazola-Rivas, 23 I. & N. Dec. 319, 323 (BIA
2002).
While it is true that the IJ did not refer to Monreal by
name, it is clear that she followed its precepts in her analysis.
Like the BIA in Monreal, she listed the factors to be considered
when assessing "exceptional and extremely unusual hardship" in
cancellation of removal cases, citing Anderson as the source. See
Monreal, 23 I. & N. Dec. at 63. Moreover, as part of her balancing
Id. (citing 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996)).
Congress intended to tighten the hardship standard by moving from
"extreme hardship" to "exceptional and extremely unusual hardship."
Id. at 59 (citing H.R. Conf. Rep. No. 104-828 (1996)).
-12-
of those factors, she explicitly considered Brian's heightened
educational needs as a gifted child, but concluded that (1) the
fact that Brian might receive a better education in the United
States did not mean that he had a right to receive a comparable
education in Guatemala, and (2) petitioners had not shown that
Brian could not obtain an adequate education in Guatemala, though
it might be more costly or less convenient for his family to
procure it. And though petitioners spill much ink explaining how
gifted students, as well as students with learning disabilities,
can have "compelling special needs in school" capable of supporting
an "exceptional and extremely unusual hardship" finding, the IJ
here never suggested the contrary. Rather, the IJ found that the
hardship that Brian in particular would suffer as a gifted student
if his parents were removed would not be "exceptional and extremely
unusual."
As a result, we cannot agree with petitioners that the IJ
applied an inappropriate version of the "exceptional and extremely
unusual hardship" standard with respect to Brian's educational
needs in her analysis. And, to the extent petitioners disagree
with the IJ's factual determination that the hardship Brian would
suffer as a gifted student did not qualify as "exceptional and
extremely unusual," we lack jurisdiction to review their claim.
Second, petitioners say the IJ did not adequately
consider the hardships Brian would face outside the classroom if
-13-
his parents were removed to Guatemala, including separation from
his community in the United States, financial detriment, lack of
health insurance, and the language barrier in Guatemala. They
further argue that the IJ failed to weigh those hardships to Brian
in the aggregate as precedent requires.
However, as the BIA rightly noted, the IJ did, in fact,
consider the relevant hardship factors cumulatively. When
outlining the applicable legal standards, the IJ acknowledged that
"[r]elevant factors, though not exceptional and extremely unusual
in and of themselves, can be considered in the aggregate when
determining whether or not exceptional and extremely unusual
hardship exists." (Emphasis added.) She went on to say that
"while political and economic conditions in a home country are
relevant, they do not justify a grant of relief unless there is an
additional factor which, combined, make removal extremely and
unusually hard on the qualifying relative." (Emphasis added.)
When the IJ finally denied petitioners' application, she did so
"based on all of the facts and circumstances."
Thus, to the extent petitioners' argument is that the IJ
erred by analyzing the relevant factors causing hardship to Brian
individually and not in the aggregate, the claim must fail.
Furthermore, to the extent petitioners' argument is a bare attack
on the relative weight the IJ accorded particular factors in her
-14-
hardship-balancing analysis, we have no jurisdiction to hear their
claim. See Elysee, 437 F.3d at 224.
III. Conclusion
Before we conclude, we take a moment to express our
regret that we can do nothing more for petitioners and their
children. The record amply confirms the IJ's finding that
petitioners have established good moral character: they perform
community service with their church, have won volunteer awards, and
have consistently filed their tax returns and W-2s. Moreover,
petitioners' now fifteen-year-old American-citizen son, Brian, has
never known life outside the United States. Uprooting him at this
stage of his development seems particularly harsh. But the law as
it now stands is not on petitioners' side, and so we are duty-bound
to find as we do.
For the foregoing reasons, the petition is denied in part
and otherwise dismissed for lack of jurisdiction.
-15-