Magallon-Almanza v. Holder, Jr. , 450 F. App'x 779 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 14, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JOSE LUIS
MAGALLON-ALMANZA,
Petitioner,
v. No. 11-9514
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
Petitioner Jose Luis Magallon-Almanza, a native of Mexico, seeks review
of the decision of the Board of Immigration Appeals (BIA) affirming the
immigration judge’s (IJ’s) order of removal. In the proceedings before the IJ,
petitioner conceded he was removable, but sought a cancellation of removal under
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
8 U.S.C. § 1229b(b)(1). To be eligible for this discretionary relief, petitioner had
to meet four separate requirements, including that he is a person of good moral
character and that his removal “would result in exceptional and extremely unusual
hardship to [his] spouse, parent, or child, who is a citizen of the United States or
an alien lawfully admitted for permanent residence.” Id. The IJ found petitioner
did not meet either of these requirements and therefore denied petitioner relief
and ordered him removed to Mexico.
Petitioner appealed to the BIA, raising challenges to both the moral
character and the hardship determinations. The BIA examined the evidence of
hardship to petitioner’s United States citizen children and agreed with the IJ that
petitioner did not establish they would suffer exceptional and extremely unusual
hardship if he were removed to Mexico. The BIA also summarily rejected
petitioner’s argument that the IJ applied the wrong legal standards in analyzing
his evidence of hardship. Because petitioner’s failure to establish the requisite
hardship made him ineligible for relief under § 1229b(b)(1), the BIA declined to
address his arguments relating to his good moral character and affirmed the IJ’s
order of removal.
We do not have jurisdiction to review the discretionary aspects of a
decision concerning cancellation of removal, including whether petitioner’s
removal from the United States would result in exceptional and extremely unusual
hardship to his citizen children. See Arambula-Medina v. Holder, 572 F.3d 824,
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828 (10th Cir. 2009). We do, however, have jurisdiction to review constitutional
claims and questions of law, see id., and petitioner has framed his three
challenges to the order of removal in those terms.
Petitioner first contends the IJ applied the wrong legal standard in assessing
his hardship claim by considering the harm to petitioner himself rather than the
harm to his citizen children. Our review of the IJ’s decision shows no support for
petitioner’s argument. The IJ not only recited the correct legal standard several
times, but he discussed at length the evidence directly related to the effect of
petitioner’s removal on his children, whether they stayed in the United States or
returned with him to Mexico, see Admin. R. at 431-33.
The IJ did consider other factors that related to petitioner himself–such as
his prior immigration history, the young age at which he entered the United
States, his family ties to the United States and to Mexico, his ability to find work
in Mexico, and his access to assets he could use either to facilitate the transition
to Mexico or to assist his family if they remained behind–but the IJ’s
consideration of these additional factors was not improper. The BIA has held that
“[i]n addition to the hardship of the United States citizen children, factors that
relate only to the [petitioner] may also be considered to the extent they affect the
potential level of hardship to [his] qualifying relatives.” In re Gonzalez-Recinas,
23 I.&N. Dec. 467, 471 (BIA 2002). And when, as here, a family is (effectively)
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headed by a single parent, 1 “the hardship of their parent inherently translates into
hardship on the rest of the family.” Id. at 472. The IJ did not err in considering
factors relating to petitioner himself in addition to those relating directly to his
children.
Petitioner also contends the IJ denied him due process by excluding the
testimony of five proposed witnesses who would have testified to his good moral
character. “To prevail on a due process claim, an alien must establish not only
error, but prejudice.” Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009).
Petitioner cannot establish prejudice from the exclusion of these witnesses
because the IJ’s determination that petitioner failed to establish the requisite
hardship to his citizen children makes him ineligible for relief regardless of his
good moral character.
Petitioner attempts to surmount this obstacle by arguing that the IJ’s
exclusion of the witnesses “eviscerated the fundamental fairness of the removal
proceeding.” Pet’r. Br. at 23. He contends that had the witnesses been able to
testify and establish his good moral character, it could have affected the IJ’s
assessment of how credible were petitioner’s claims that he could not obtain
adequate medical care for two of his children in Mexico, which would cause them
extreme hardship. But the IJ did not doubt petitioner’s credibility. See Admin.
1
The children’s mother, whom petitioner describes as his common law wife,
does not work and is herself subject to removal.
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R. at 426. To the contrary, the IJ found petitioner was both “candid and direct”
and “he made an earnest effort as best he could to answer the questions in a
forthright way.” Id. The IJ’s exclusion of the testimony did not give rise to a due
process violation.
Finally, petitioner argues the BIA denied him due process by failing to
address all his arguments on appeal. Specifically, the BIA did not address
petitioner’s arguments relating to the IJ’s assessment of his good moral character,
and it rejected in a single sentence petitioner’s contention that the IJ applied the
wrong legal standard in assessing the hardship to his children. Neither of these
gives rise to a colorable due process claim. Petitioner cites no authority to
support the contention that due process requires the BIA to address challenges to
every ground upon which an IJ has denied relief, even when a single ground is
dispositive. And the BIA’s summary rejection of petitioner’s challenge to the
legal standards employed by the IJ, especially given the clear lack of merit, was
sufficient for purposes of due process. See Alzainati, 568 F.3d at 851 (noting that
quarrel about level of detail in BIA decision does not present due process claim).
We therefore affirm the decision of the BIA.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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