Antillon-Mendez v. Holder ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 1, 2013
Elisabeth A. Shumaker
Clerk of Court
TOMAS ELI ANTILLON-MENDEZ,
Petitioner,
v. No. 13-9528
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.
Tomas Eli Antillon-Mendez petitions for review of an order by the Board of
Immigration Appeals, which denied his motion to reopen removal proceedings. We
dismiss the petition for lack of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
A native citizen of Mexico, Mr. Antillon came to the United States when he
was twelve. At the time, he and his parents were admitted to the country as
nonimmigrant visitors. With this status, Mr. Antillon was allowed to visit the area
within 25 miles of the Texas-Mexico border for a maximum of 72 hours.
Mr. Antillon remained in the United States after that authorized period, and the
government initiated removal proceedings against him in January 2004. Shortly
thereafter, Mr. Antillon married a United States citizen. They later had two children,
who are United States citizens.
When appearing before an immigration judge, Mr. Antillon conceded
removability but sought adjustment of status and cancellation of removal. Following
hearings and an administrative appeal, the Immigration Judge ordered removal and
found Mr. Antillon ineligible for adjustment of status. As a result, the judge
addressed the application for cancellation of removal.
Under 8 U.S.C. § 1229b(b), an alien who is not a permanent resident must
demonstrate, among other things, that he “has been a person of good moral character”
during the ten-year period before his application and that his “removal would result
in exceptional and extremely unusual hardship” to his spouse, parent, or children who
are United States citizens or lawful permanent residents. 8 U.S.C. § 1229b(b)(1)(B)
& (D). The Immigration Judge denied cancellation of removal, reasoning that:
 Mr. Antillon had failed to show an inability for his family to live safely
in Mexico (outside of Juarez),
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 he had transferrable job skills and would be able to earn a living in
Mexico, and
 his assets in the United States could be sold to fund relocation of his
family and allow his wife to continue her education.
In an administrative appeal, the BIA dismissed the appeal for cancellation of
removal and ordered removal. Mr. Antillon moved to reopen the proceedings based
on new unpublished decisions of the BIA and evidence regarding violent conditions
in Mexico. The BIA construed Mr. Antillon’s motion as one to reopen and
reconsider. Construing the motion this way, the BIA denied the motion for
reconsideration as untimely because Mr. Antillon had failed to file the motion within
30 days of the BIA’s decision to dismiss the appeal. The BIA also denied the motion
to reopen, explaining:
The respondent has attached to his motion recent county
conditions evidence that includes evidence of violence in Mexico and
specifically Chihuahua. However, the respondent has not explained in
his motion how this evidence would support a different result in his
case. The Board’s last decision affirmed that portion of the Immigration
Judge’s decision finding the respondent failed to demonstrate that his
removal would result in exceptional and extremely unusual hardship to
his family. The Immigration Judge’s analysis specifically considered
the violence in Mexico. The Immigration Judge observed that the
respondent had failed to show that he had to live in Juarez and had also
failed to show there was no place in Mexico where he would be able to
take his family and earn a living. The respondent’s current motion does
not mention these findings and does not claim that the new evidence
would alter these findings.
Id. at 4 (citations omitted).
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II. Review of the Denial of the Motions to Reconsider and to Reopen
In the petition, Mr. Antillon appeals the BIA decision. Because we lack
jurisdiction, we dismiss the petition.
A. Reconsideration
A motion to reconsider was due within 30 days of the BIA’s decision.
See 8 C.F.R. § 1003.2(b)(2). The BIA issued its decision on September 26, 2012, and
Mr. Antillon moved to reopen 61 days later. The motion was considered as one for
either reconsideration or reopening. As a motion for reconsideration, the filing was
considered late and denied on this basis. And Mr. Antillon does not challenge this
portion of the BIA’s decision.
B. Reopening
The BIA also denied the motion construed as one to reopen, and Mr. Antillon
challenges this decision. But we lack jurisdiction to consider this claim.
Federal law precludes judicial review over a discretionary decision to deny
relief under 8 U.S.C. § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i) (stating that “no court
shall have jurisdiction to review . . . any judgment regarding the granting of relief
under section . . . 1292b”). And, cancellation of removal falls under § 1229b. Thus,
federal law would preclude us from entertaining the appeal if the BIA’s refusal to
reopen the proceedings had involved an exercise of discretion. It had, and we lack
the power to second-guess the BIA’s discretionary decision.
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We addressed a similar issue in Alzainati v. Holder, 568 F.3d 844, 848
(10th Cir. 2009). There too the immigration judge denied an application for
cancellation of removal, and the alien asked the BIA to reopen the proceedings based
on new evidence of exceptional and extremely unusual hardship. See id. The BIA
declined to reopen and the alien appealed. See id. We held that we lacked
jurisdiction to consider the decision if the BIA had declined to reopen the
proceedings based on a discretionary decision that the claimant had “not produced
sufficient evidence to warrant a finding of exceptional and extremely unusual
hardship.” Id. at 850. Review would have been allowable only if the alien had raised
a constitutional claim or a question of law involving statutory construction. Id.
Alzainati governs here and prevents us from entertaining the appeal over the
BIA’s refusal to reopen the proceedings. The BIA refused to reopen the proceedings
on the ground that Mr. Antillon had failed to show a likelihood of a different
outcome before the immigration judge based on the new evidence of violence in
Mexico. This discretionary decision is unreviewable under Alzainati.
Mr. Antillon supplements his evidentiary arguments with reference to three
new BIA decisions. We can entertain these arguments only if they include a
colorable claim involving the federal constitution or statutory construction.1
1
See Alzainati v. Holder, 568 F.3d 844, 850-51 (10th Cir. 2009) (stating that the
claim must be “colorable”); Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006)
(limiting jurisdiction to claims that address the constitution or a narrow category of
issues involving statutory construction).
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Mr. Antillon makes two passing references to constitutional provisions. But
he does not develop arguments of constitutional error, and we decline to construct a
constitutional theory based on these citations. See Murrell v. Shalala, 43 F.3d 1388,
1389 n.2 (10th Cir. 1994) (holding “perfunctory” allegations of error that “fail to
frame and develop an issue” are insufficient to invoke appellate review).
In addition to these passing references to the constitution, Mr. Antillon argues
that new BIA decisions would have justified a more searching inquiry into potential
hardship and violence in Mexico. But in his appeal brief, Mr. Antillon does not raise
any issues involving statutory construction. Thus, we lack jurisdiction to consider
Mr. Antillon’s appellate arguments based on the BIA’s unpublished decisions.
III. Conclusion
The BIA construed Mr. Antillon’s motion as one for reconsideration and
reopening. Construed in this manner, the motion was denied. Mr. Antillon does not
challenge the BIA’s denial of the motion for reconsideration, and we lack jurisdiction
over denial of the motion to reopen. Thus, the petition is denied.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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