Castganeda-Corona v. Atty Gen USA , 100 F. App'x 110 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-8-2004
Castganeda-Corona v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3395
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3395
ANGELICA CASTANEDA-CORONA,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States of America,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A73-520-634)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 19, 2004
Before: SCIRICA, Chief Judge, GARTH and BRIGHT*, Circuit Judges
(Filed June 8, 2004 )
OPINION OF THE COURT
*The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.
At issue is a challenge to the Board of Immigration Appeals’ use of the
streamlining provisions, 8 C.F.R. § 3.1(a)(7), to summarily affirm an Immigration Judge’s
decision and a challenge to the denial of suspension of deportation relief. We will deny
Angelica Castaneda-Corona’s petition for review.
I.
On May 9, 1996, deportation proceedings were initiated against Castaneda-
Corona, a native and citizen of Mexico who entered the United States on July 29, 1989
without inspection. The Immigration and Naturalization Service charged her with
deportability under former section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B)
(1994). On January 31, 1997, Castaneda-Corona appeared before an Immigration Judge
and conceded deportability but sought relief in the form of suspension of deportation
under former section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1) (1994). In an oral
decision dated July 15, 1998, the Immigration Judge denied Castaneda-Corona’s
application for suspension of deportation but granted her request for voluntary departure.
She filed a timely notice of appeal with the Board of Immigration Appeals. On July 31,
2002, the Board issued an order summarily affirming the decision of the Immigration
Judge under 8 C.F.R. § 3.1(a)(7). Castaneda-Corona appeals, contending the Board’s
application of the streamlining provisions to her case deprived her of an individualized
determination and violated her due process rights.
2
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, deportation proceedings initiated prior
to April 1, 1997, for which a final order of deportation is issued after October 30, 1996,
are subject to “transitional rules of judicial review.” The transitional rules apply here
because the deportation proceedings were initiated on May 9, 1996, and the Immigration
Judge’s Deportation Order was issued on July 15, 1998.
II.
Castaneda-Corona’s challenge to the constitutionality of the streamlining
procedures is foreclosed by Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc).1
Castaneda-Corona appeals the Board’s denial of suspension of deportation relief
under former section 244. Under former section 244, the Attorney General may offer
suspension of deportation to an alien who has been physically present in the United States
for at least seven years, possesses good moral character, and “whose deportation would,
in the opinion of the Attorney General, result in extreme hardship to the alien or to [a
qualifying relative] who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994) (emphasis added).
The use of the phrase “in the opinion” indicates that the determination of whether the
applicant will face extreme hardship is at the discretion of the Attorney General. See
1
To prevail in a facial challenge to a regulation, a petitioner “must establish that no set
of circumstances exists under which the [regulation] would be valid.” Reno v. Flores,
507 U.S. 292, 301 (1993) (internal quotation omitted).
3
Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). IIRIRA’s transitional rules provide that
“there shall be no appeal of any discretionary decision under” section 244 of the INA as
in effect as of the date of the enactment of the Act. IIRIRA § 309(c)(4)(E). 2
Accordingly, we lack jurisdiction to review Castaneda-Corona’s challenge to the
determination that she failed to establish extreme hardship under former section 244.
Castaneda-Corona also challenges the Board’s decision to apply the streamlining
regulations to her particular case. To decide whether streamlining is appropriate, we
would necessarily be engaged in a merits analysis of the extreme hardship claim. See
Carriche v. Ashcroft, 350 F.3d 845, 854 (9th Cir. 2003). Because we lack jurisdiction to
review the merits of the discretionary decision regarding the extreme hardship
requirement, we are also without jurisdiction to evaluate the discretionary decision of
whether streamlining was appropriate.
III.
For the foregoing reasons, we will deny Castaneda-Corona’s petition for review.
2
In Urena-Tavarez v. Ashcroft, No. 03-1013, 2004 U.S. App. LEXIS 8980 (3d Cir.
May 7, 2004), we held that 8 U.S.C. § 1252(a)(2)(B)(ii) bars us from reviewing the
discretionary denial of waivers when Congress has expressly informed us of its intent. Id.
at *11-12, *22. We noted that “‘many provisions of IIRIRA are aimed at protecting the
Executive’s discretion from the courts – indeed, that can fairly be said to be the theme of
the legislation.’” Id. at *12 (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525
U.S. 471, 486-87 (1999)).
4