Wanjiku v. Holder , 562 F. App'x 708 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 22, 2014
Elisabeth A. Shumaker
Clerk of Court
MARGARET WANJIKU,
Petitioner,
v. No. 13-9585
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.
Margaret Wanjiku, proceeding pro se on appeal, petitions for review of an
order of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s
(IJ) decision to deny her application for cancellation of removal. Wanjiku also seeks
to proceed on appeal in forma pauperis (IFP). We deny her IFP request and 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
appeal. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Wanjiku is a native of Kenya who entered the United States in February of
1999 as a nonimmigrant visitor. She was authorized to stay for three months, but she
did not depart. In April of 2009, the Department of Homeland Security placed her in
removal proceedings because she had overstayed her visitor’s visa and had violated
the terms of the visa by accepting employment in the United States. Wanjiku
conceded removability but applied for cancellation of removal based on exceptional
and extremely unusual hardship to her two children if she were removed to Kenya.
Her children are United States citizens: Gitonga, born in 2002, and Ridge, born in
2010.
The IJ held a hearing at which Wanjiku testified concerning her application.
Also testifying were a character witness and Wanjiku’s cousin, who testified in
support of her character and also about the dangers to children in Kenya. At the
conclusion of the hearing, the IJ denied cancellation of removal. He found Wanjiku
had failed to show good moral character and exceptional and extremely unusual
hardship to her United-States-citizen children. Wanjiku appealed to the BIA, which
affirmed the IJ’s order, concluding she had failed to demonstrate the requisite
exceptional and extremely unusual hardship if she were removed to Kenya.
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II. Cancellation of Removal
An 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).
The BIA determined Wanjiku failed to establish the “exceptional and
extremely unusual hardship” required under the statute; the BIA did not address
whether she had good moral character. Under 8 U.S.C. § 1252(a)(2)(B)(i), this court
lacks jurisdiction to review the BIA’s discretionary finding of an alien’s “fail[ure] 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). 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
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obtain review of the BIA’s denial of her application for cancellation of removal,
Wanjiku 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), Wanjiku first argues the BIA adopted a vague legal standard for
extreme and unusual hardship. She has provided no argument to support this claim,
however, so it is waived. See Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197,
1209-10 (10th Cir. 2006) (stating issues not supported in the opening brief by
argument, legal authority, and record citations are waived). And her pro se status on
appeal does not preclude application of the waiver doctrine. Cf. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (stating allowances are
made for pro se litigant’s filings, but pro se litigant must follow “the same rules of
procedure that govern other litigants” (internal quotation marks omitted)).
Wanjiku also contends the BIA violated her due-process rights by failing to
follow its own precedential decisions and by failing to assess correctly the dangerous
conditions in Kenya noted in the 2012 United States Department of State Human
Rights Report for Kenya (Country Report).1 This argument is merely a disagreement
1
Wanjiku also faults the BIA for denying her claim based on the Country
Report, rather than remanding to the IJ for him to evaluate whether the report
warranted relief. She asserts the BIA lacked the authority to consider the report in
the first instance. On the contrary, by regulation the BIA is authorized to review
de novo discretionary decisions and take “administrative notice of commonly known
(continued)
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with the agency’s adverse finding on her attempt to demonstrate exceptional and
extremely unusual hardship. She asserts 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.
(internal quotation marks omitted). Wanjiku “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.”
Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013).
III. IFP Motion
Wanjiku has moved for leave to proceed on appeal without payment of costs or
fees. “In order to succeed on [her] motion, an appellant must show a financial
inability to pay the required filing fees and the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.”
facts such as current events or the contents of official documents.” 8 C.F.R.
§ 1003.1(d)(3)(ii), (iv).
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DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Wanjiku has not
made the required showing of financial inability to pay, so we do not address whether
her appeal is frivolous. Although Wanjiku’s IFP motion filed with this court states
her monthly income as $1,000 and her assets as only $300, the administrative record
contains contrary financial information. She submitted her tax returns for several
years, all showing substantial income. For tax year 2009, the most recent tax return
submitted, Wanjiku’s income was more than $36,000. Part of her income was
investment income. At her administrative hearing, she testified she had held the
same job for several years. The IJ found she was paid over $40,000 a year and had
assets of $20,000. Wanjiku has not made the required showing of a financial
inability to pay the required filing fees.
IV. Conclusion
Wanjiku’s IFP motion is denied; she is directed to pay the appellate filing fee
in full. The petition for review is dismissed for lack of jurisdiction.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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