Nunez Rodarte v. Holder, Jr. ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 23, 2010
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
ARTURO NUNEZ RODARTE;
MARIA GUADALUPE NUNEZ,
Petitioners,
v. Nos. 09-9510 & 09-9549
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER
Before TACHA, TYMKOVICH and GORSUCH, Circuit Judges.
These matters are before the court to correct a clerical error. On December 1,
2009, an Order And Judgment issued in proceeding number 09-9510. That case and
number 09-9549 were consolidated procedurally, however, via an order entered on
September 21, 2009. Due to the clerical error, case number 09-9549 was not reflected on
the December 1 caption for the decision. Consequently, we reissue the attached Order
And Judgment, including both case numbers, nunc pro tunc to December 1, 2009. The
mandate for both matters shall issue forthwith.
Entered
for the Court,
ELISABETH A. SHUMAKER
Clerk of Court
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 1, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ARTURO NUNEZ RODARTE; MARIA
GUADALUPE NUNEZ,
Petitioners,
Nos. 09-9510 & 09-9549
v.
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Petitioners-appellants Arturo Nunez-Rodarte and his wife, Maria Guadalupe
Nunez (“petitioners”) petition for judicial review of an order of the Board of Immigration
*
This order and judgment is not binding precedent except under the doctrines of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.
Appeals (“BIA”) denying their motion to reopen their application for cancellation of
removal under Immigration and Naturalization Act (“INA”) § 240A(b)(1), 8 U.S.C.
§ 1229b(b)(1). Respondent-appellee the United States (“respondent”) contends that under
8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to consider the BIA’s denial of petitioners’
motion to reopen. We agree with respondent and therefore DISMISS the petitions for
want of jurisdiction.
I. BACKGROUND
Petitioners are citizens of Mexico and have two children, aged sixteen and thirteen,
who are both citizens of the United States. Mr. Nunez-Rodarte has lived in the United
States unlawfully since 1986; his wife began living here sometime after July 1991. On
July 2, 2001, the United States placed petitioners in removal proceedings. Thereafter,
petitioners applied for cancellation of removal under § 1229b, which provides for
discretionary cancellation of removal when an alien demonstrates that: (1) he has been
physically and continuously present in the United States in the ten years preceding their
application; (2) he has been a person of good moral character during such period; (3) he
has not been convicted of certain criminal offenses; and (4) “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.” INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).
On October 15, 2007, the Immigration Law Judge (“ILJ”) found that petitioners
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had failed to establish the fourth requirement under the statute.1 Specifically, the ILJ
found that the children would suffer by returning with petitioners to an unfamiliar culture
in Mexico, but that this hardship would not be exceptional or extremely unusual. The ILJ
noted that the children did not have any other family or support system in the United
States and that the only hardship they would experience is a lack of educational and
economic opportunities.
Petitioners appealed to the BIA. On July 25, 2008, the BIA dismissed the appeal,
agreeing with the ILJ that petitioners had failed to meet their burden of proof to establish
extreme and unusual hardship to their United States citizen children. On October 15,
2008, petitioners filed a motion to reopen the BIA’s July 25 decision in order to present
new evidence supporting their claim of hardship. On January 5, 2009, the BIA denied the
motion to reopen, stating that “[t]he new facts alleged regarding the . . . children’s
educational difficulties, together with the facts already of record, do not indicate a
reasonable likelihood of success on the merits regarding the issue of exceptional and
extremely unusual hardship so as to make it worthwhile to develop the issues at a
hearing.”
Petitioners now seek judicial review to contest the BIA’s January 5 denial of their
motion to reopen. They argue that the BIA: (1) ignored relevant precedent in determining
1
The ILJ also found that Mr. Nunez-Rodarte’s wife had failed to demonstrate the
first requirement, but this issue is not relevant to these appeals.
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whether they had satisfied the hardship requirement; and (2) failed to articulate the basis
for its decision in anything other than “conclusory statements.”
II. DISCUSSION
As respondent makes clear, the threshold issue is whether we have jurisdiction to
consider the BIA’s denial of petitioners’ motion to reopen. Section 1252(a)(2)(B)
provides that “[n]otwithstanding any other provision of law, . . . no court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under section . . .
1229b . . . of this title.” 8 U.S.C. § 1252(a)(2)(B). This provision precludes jurisdiction
to review the BIA’s denial of an application for cancellation of removal under § 240A of
the INA, 8 U.S.C. § 1229b. See Alvarez-Delmuro v. Ashcroft, 360 F.3d 1254, 1256 (10th
Cir. 2004); Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003). This
provision also applies to a denial of a motion to reopen that is based on a finding that
petitioners’ new evidence did not support a finding of exceptional and extremely unusual
hardship. See Alzainati v. Holder, 568 F.3d 844, 849 (10th Cir. 2009) (“Because
§ 1252(a)(2)(B)(I) precludes our review of an ‘exceptional and extremely unusual
hardship’ determination under § 1229b(b)(1)(D), it also precludes our jurisdiction to
review the BIA’s denial of a motion to reopen because the alien still has failed to show
the requisite hardship.”). Thus, to the extent petitioners challenge the BIA’s denial of
their motion to reopen based on its determination that they had not shown that their
removal would cause their United States children to suffer exceptional and extremely
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unusual hardship, we must dismiss the petition for lack of jurisdiction.
We do, however, have jurisdiction to consider constitutional claims or questions of
law, INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D), but only insofar as such issues are
“colorable.” Alvarez-Delmuro, 360 F.3d at 1256–57; Morales Ventura, 348 F.3d at 1262.
Petitioners suggest that the BIA ignored applicable case law and failed to consider
relevant facts, but we conclude these issues are not subject to review. To the extent these
issues are couched in terms of due process, we have recognized the rule that “‘an alien
has no constitutionally-protected right to discretionary relief or to be eligible for
discretionary relief.’” United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.
2004) (quoting Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir. 2002)).
To the extent these issues are framed in terms of other legal questions, petitioners do not
explain how the BIA ignored relevant legal authority or what facts it ignored. We thus
conclude petitioners have not raised colorable constitutional or legal questions and must
dismiss the petitions for lack of jurisdiction on those grounds as well.
III. CONCLUSION
The petitions are DISMISSED for lack of jurisdiction.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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