Navarro v. Holder , 525 F. App'x 739 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 16, 2013
Elisabeth A. Shumaker
Clerk of Court
SILVIA GURROLA NAVARRO,
Petitioner,
v. No. 12-9561
(Petition for Review)
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Silvia Gurrola Navarro petitions this court for review of an order of the Board
of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ) order that
denied her application for cancellation of removal. We dismiss the petition for lack
of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
petition for review. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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
Ms. Gurrola is a native of Mexico who illegally entered the United States in
1995 without being admitted or paroled. Her husband is a lawful permanent resident
(LPR) and she and her husband have two United-States-citizen children: Sahid, born
in 2005, and Alexandra, born in 2006. As an infant, Sahid suffered from a medical
condition that required intestinal surgery, but he has had no subsequent problems.
In February of 2008, the Department of Homeland Security issued Ms. Gurrola
a notice to appear charging her with inadmissibility as an alien present in the United
States without being admitted or paroled. She conceded the charge of
inadmissibility, but applied for cancellation of removal based on exceptional and
extremely unusual hardship to her husband and children if she were removed to
Mexico. The IJ held a hearing at which Ms. Gurrola and her husband testified
concerning her application. At the conclusion of the hearing, the IJ denied
cancellation of removal. He found that Ms. Gurrola had failed to show exceptional
and extremely unusual hardship to her LPR husband and United-States-citizen
children.
Ms. Gurrola appealed to the BIA. The BIA affirmed the IJ’s decision that she
had failed to demonstrate the requisite exceptional and extremely unusual hardship if
she were removed to Mexico. Ms. Gurrola now appeals to this court.
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II. ANALYSIS
A nonpermanent resident alien may receive cancellation of removal if she:
(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of such
application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3) of this title [except in a case described in
section 1227(a)(7) of this title where the Attorney General exercises
discretion to grant a waiver]; and
(D) establishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent
residence.
8 U.S.C. § 1229b(b)(1).
As noted, the BIA determined that Ms. Gurrola failed to establish the
“exceptional and extremely unusual hardship” required under the statute. Under
8 U.S.C. § 1252(a)(2)(B)(i), this court lacks jurisdiction to review the BIA’s
discretionary finding that an alien “has failed to demonstrate that removal would
cause exceptional and extremely unusual hardship.” Sabido Valdivia v. Gonzales,
423 F.3d 1144, 1148 (10th Cir. 2005) (internal quotation marks omitted).1
Consequently, this court may not review the BIA’s discretionary hardship decision.
This court does, however, have jurisdiction to review “constitutional claims or
questions of law” presented in a petition for review. 8 U.S.C. § 1252(a)(2)(D). To
1
This court ordered the parties to brief the jurisdictional issue.
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obtain review of the BIA’s denial of her application for cancellation of removal,
Ms. Gurrola must present a “substantial constitutional issue” for our review.
Alvarez-Delmuro v. Ashcroft, 360 F.3d 1254, 1256 (10th Cir. 2004) (internal
quotation marks omitted). In an attempt to circumvent the jurisdictional bar of
§ 1252(a)(2)(B)(i), Ms. Gurrola argues that the BIA violated her due-process rights
by failing to follow its own precedential decisions.2 But she argues merely that her
circumstances demonstrated exceptional and extremely unusual hardship as compared
to other BIA cases, and that if the agency had correctly evaluated the evidence, it
would have granted her application for cancellation of removal. This does not state a
due-process claim. “In order to make out a claim for a violation of due process, a
claimant must have a liberty or property interest in the outcome of the proceedings.
But in immigration proceedings, a petitioner has no liberty or property interest in
obtaining purely discretionary relief.” Arambula-Medina v. Holder, 572 F.3d 824,
828 (10th Cir. 2009) (citation and internal quotation marks omitted). Aliens are
entitled only to “the minimal procedural due process rights [of] an opportunity to be
heard at a meaningful time and in a meaningful manner.” Id. at 828 (internal
quotation marks omitted). Ms. Gurrola “has not argued that [she] was deprived
of these minimal procedural safeguards. Thus, [she] has not asserted a
non-frivolous constitutional claim sufficient to give [this court] jurisdiction.”
2
Ms. Gurrola also mentions “equal protection” together with her due-process
claim. See, e.g., Aplt. Jurisdictional Br. at 6, 11. She has not presented an argument
to support an equal protection claim, so we do not address such a claim.
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Salgado-Toribio v. Holder, __ F.3d __, No. 12-9578, 2013 WL 1731220, at *3
(10th Cir. Apr. 23, 2013).
III. CONCLUSION
The petition for review is therefore dismissed for lack of jurisdiction.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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