Armendariz-Gonzalez v. Mukasey , 298 F. App'x 776 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
October 31, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ELENA ARMENDARIZ GONZALEZ,
Petitioner,
v. No. 07-9585
(Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.
Elena Armendariz-Gonzalez is a Mexican native and citizen who entered
the United States in 1989 without inspection. In 2002, immigration officials
charged her with being present in this country without having been admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). She conceded the charge but sought
cancellation of removal under 8 U.S.C. § 1229b(b)(1). That provision permits the
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Attorney General to cancel removal proceedings against an alien who has been
continuously present in the United States not less than ten years, is of good moral
character, has not been convicted of certain enumerated offenses, and
demonstrates that removal would result in exceptional and extremely unusual
hardship to a spouse, parent, or child, who is a citizen or lawfully admitted
permanent resident. See 8 U.S.C. § 1229b(b)(1).
After a hearing, an Immigration Judge (IJ) agreed that Ms. Armendariz-
Gonzalez met the first three elements of § 1229b(b)(1), but found that she failed
to meet the standard for exceptional and extremely unusual hardship because her
three American children would suffer the same level of hardship as anyone else
whose parent was removed to Mexico. The IJ therefore ordered that she be
removed or voluntarily depart. Ms. Armendariz-Gonzalez appealed, but while her
appeal was pending before the Board of Immigration Appeals (BIA), she moved
to remand her case to the IJ in light of new evidence that her children had been
physically and sexually abused. She claimed this new evidence would have
changed the outcome of the case. The BIA denied the motion for remand and
affirmed the IJ’s removal order. Ms. Armendariz-Gonzalez subsequently
petitioned this court for review, arguing that the IJ denied her due process and the
BIA improperly denied her motion for remand. The government, in turn, moved
to dismiss the petition for lack of jurisdiction. We grant the government’s motion
and dismiss the petition for review.
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Notwithstanding our jurisdiction to review constitutional claims and
questions of law raised upon a petition for review, 8 U.S.C. § 1252(a)(2)(D), this
court lacks jurisdiction to review discretionary aspects of cancellation of removal,
see id. § 1252(a)(2)(B)(i); Perales-Cumpean v. Gonzales, 429 F.3d 977, 981-82
(10th Cir. 2005), including whether a petitioner demonstrates exceptional and
extremely unusual hardship, Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262
(10th Cir. 2003). Ms. Armendariz-Gonzalez contends she is not challenging any
discretionary decision, but rather the IJ’s denial of due process. She claims the IJ
denied relief based on his political ideology and prosecutorial demeanor, not the
governing legal standard as set forth in In re Recinas, 23 I. & N. Dec. 467 (BIA
2002). She asserts this constitutional claim confers upon us jurisdiction to review
her application for cancellation of removal. We are not persuaded.
Where, as here, “a single BIA member issues a brief order, affirming . . .
the IJ’s order under [8 C.F.R. § 1003](e)(5),” we “will not affirm on grounds
raised in the IJ decision unless they are relied upon by the BIA in its affirmance.”
See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (quotations
omitted). The BIA concluded that Ms. Armendariz-Gonzalez failed to meet the
standard for exceptional and extremely unusual hardship. In so concluding, the
BIA explicitly found that under Recinas and other relevant authority,
Ms. Armendariz-Gonzalez did not show the requisite level of hardship. Because
the “BIA decision contains a discernible substantive discussion that stands on its
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own and does not explicitly incorporate or reference the IJ’s reasoning, our
review extends no further.” Id. (quotations and alterations omitted).
Nonetheless, Ms. Armendariz-Gonzalez may not circumvent the
jurisdictional bar of § 1252(a)(2)(B)(i) by recasting her claim in constitutional
terms so as to fall within the parameters of § 1252(a)(2)(D). See Perales-
Cumpean, 429 F.3d at 982 (rejecting “petitioner’s attempt to recast the BIA’s
decision . . . as a pure question of law” because it “involve[d] the exercise of
agency discretion”); see also Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 190
(3d Cir. 2007) (“Recasting challenges to . . . discretionary determinations as due
process or other constitutional claims is clearly insufficient to give this Court
jurisdiction under § 125[2](a)(2)(D).”). Although she styles her claim a due
process violation, her contention is that the IJ failed to follow Recinas. This
argument essentially asks us to reevaluate the agency’s hardship determination in
hopes of achieving a more favorable outcome. Indeed, she plainly asserts that
because circumstances in this case are similar to those in Recinas, where relief
was granted, relief ought to have been granted to her as well. But this is precisely
the sort of discretionary decision Congress chose to divest courts of jurisdiction
to review. We may not exceed the bounds of our jurisdiction simply to reweigh
the evidence.
Moreover, to the extent Ms. Armendariz-Gonzalez suggests that her claim
involves a question of law, we reject her argument. The provision for questions
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of law contained 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) (quotation omitted). Although Ms. Armendariz-
Gonzalez contends the agency misapplied or misinterpreted the statutory hardship
standard, she does not ask us to interpret any statute. Instead, she asks us to
reconsider the facts of her case under Recinas. But again, such “challenges
directed solely at the agency’s discretionary and factual determinations” are
“outside the scope of judicial review.” Id. at 1281. Therefore, absent a
constitutional claim or question of law, we are without jurisdiction to consider the
claim.
Nor do we have jurisdiction to review the denial of the motion for remand.
A motion for remand is substantively treated the same as a motion to reopen. See
8 C.F.R. § 1003.2(c)(4); In re L-V-K, 22 I. & N. Dec. 976, 978 (BIA 1999).
Although we normally review the denial of a motion to reopen for an abuse of
discretion, our jurisdiction to do so extends only as far as our jurisdiction over the
underlying removal order. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62
(10th Cir. 2004). Here, although the BIA did not so explicitly state, it clearly
denied the motion for remand on the same grounds it denied the underlying
application for cancellation of removal – because even with the additional
evidence, Ms. Armendariz-Gonzalez still failed to satisfy the hardship standard.
See Mickeviciute, v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003) (recognizing that
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the BIA may deny a motion to reopen on the same grounds that it denies “the
underlying substantive relief sought” (quotation omitted)). As we have explained,
the BIA’s finding that Ms. Armendariz-Gonzalez failed to establish the requisite
level of hardship was a discretionary decision beyond our review. And since the
denial of the motion to remand related solely to that discretionary merits
determination, it follows that we have no jurisdiction to review the denial of the
motion for remand.
Accordingly, the government’s motion to dismiss is GRANTED. The
petition for review is DISMISSED for lack of jurisdiction.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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