Arleni-Escobar v. Sessions , 685 F. App'x 656 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 13, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
YANET ARLENI-ESCOBAR,
Petitioner,
v. No. 16-9551
(Petition for Review)
JEFF SESSIONS,* United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
Yanet Arleni-Escobar is a native and citizen of Mexico who entered the United
States without inspection. After she was arrested in Utah for driving under the
influence of alcohol, the Department of Homeland Security charged her with being
present in this country without being admitted or paroled by an immigration officer.
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this
action.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
She conceded the charge, but sought cancellation of removal under 8 U.S.C.
§ 1229b(b)(1). That provision permits the Attorney General to cancel removal
proceedings against an alien who: (A) has been continuously present in the United
States for at least ten years immediately preceding the application for cancellation of
removal, (B) has good moral character, (C) has not been convicted of certain
enumerated offenses, and (D) demonstrates “that removal would result in exceptional
and extremely unusual hardship” to a qualifying relative who is a United States
citizen or lawfully admitted permanent resident. See id.
After a hearing, an Immigration Judge (IJ) found that Ms. Arleni-Escobar had
failed to establish that she was continuously present in the United States for ten years
prior to her application because she had failed to prove her exact date of entry. The
IJ also found that Ms. Arleni-Escobar had failed to demonstrate that her removal
would result in an exceptional and extremely unusual hardship to her United States
citizen daughter. The IJ therefore denied the application for cancellation of removal.
Ms. Arleni-Escobar appealed to the Board of Immigration Appeals (BIA). The
BIA affirmed the IJ’s denial of cancellation of removal based on the IJ’s
determination that Ms. Arleni-Escobar’s daughter would not experience exceptional
or extremely unusual hardship upon her mother’s removal. The BIA determined that
it did not need to address Ms. Arleni-Escobar’s claim that she met the ten-year
continuous-presence requirement because she would not be eligible for cancellation
of removal regardless.
2
Ms. Arleni-Escobar now seeks review of the BIA’s decision in this court.
The government argues that we lack jurisdiction to consider her petition for review.
We agree.
Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review “any
judgment regarding the granting of relief under section . . . 1229b.” “We have
construed the term ‘judgment’ in this subsection as referring to the discretionary
aspects of a decision concerning cancellation of removal,” which includes “the
determination of whether the petitioner’s removal from the United States would
result in exceptional and extremely unusual hardship to a qualifying relative under
8 U.S.C. § 1229b(b)(1)(D).” Arambula-Medina v. Holder, 572 F.3d 824, 828
(10th Cir. 2009) (internal quotation marks omitted). There is, however, a limited
exception to this jurisdictional bar if the petition for review raises “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see also Arambula-Medina,
572 F.3d at 828.
Ms. Arleni-Escobar does not address this obvious jurisdictional problem in her
opening brief, and she did not file a reply brief to attempt to rebut the government’s
argument that this court lacks jurisdiction over her petition for review. She does not
raise any constitutional claims regarding the hardship determination. Her sole
contention is that the agency committed “legal error in its analysis of hardship.”
Pet’r Br. at 13 (capitalization and boldface omitted). To the extent
Ms. Arleni-Escobar may have implicitly intended for this argument to raise a
3
question of law that would permit us to exercise jurisdiction over her petition for
review, we reject such a characterization.
We have determined that that the phrase “questions of law” as used in
§ 1252(a)(2)(D) “grants us jurisdiction to review a narrow category of issues
regarding statutory construction.” Diallo v. Gonzales, 447 F.3d 1274, 1282
(10th Cir. 2006) (internal quotation marks omitted). Ms. Arleni-Escobar contends
that the agency erroneously applied the hardship standard, but this contention does
not involve any issue of statutory construction or interpretation that would permit us
to review her petition. Instead, Ms. Arleni-Escobar wants to challenge the agency’s
consideration of the facts of her case, arguing that “[t]he facts of [her] case are
similar to those in Matter of Gonzalez Recinas, 23 I&N Dec. 467[, 473] (BIA 2002),”
Pet’r Br. at 14, where the BIA granted cancellation of removal after determining that
the alien’s United States citizen children would suffer exceptional and extremely
unusual hardship if their mother was removed. Because Ms. Arleni-Escobar’s
challenge to the hardship determination is “directed solely at the agency’s
discretionary and factual determinations,” it is “outside the scope of judicial review.”
Diallo, 447 F.3d at 1281.
We note that Ms. Arleni-Escobar also seeks to challenge the IJ’s determination
that she did not meet the ten-year continuous-presence requirement, which we would
generally have jurisdiction to review, see Sabido Valdivia v. Gonzales, 423 F.3d
1144, 1149 (10th Cir. 2005). The BIA, however, did not rely on that ground in
affirming the IJ’s decision, and “we review only the BIA’s opinion and not grounds
4
stated in the IJ decision but not relied upon by the BIA,” Velasco v. Holder, 736 F.3d
944, 946 (10th Cir. 2013). Furthermore, Ms. Arleni-Escobar’s inability to mount a
challenge before us to the BIA’s hardship determination due to our lack of
jurisdiction means that determination is controlling and it would independently
preclude cancellation of removal; therefore her challenge to the continuous-presence
determination is moot. See Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th
Cir. 2003) (concluding that jurisdictional bar to review of hardship challenge mooted
challenge to continuous-presence determination).
For the foregoing reasons, we dismiss the petition for review for lack of
jurisdiction. We deny Ms. Arleni-Escobar’s motion for leave to proceed in forma
pauperis.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
5