Carlos Ortiz-Gonzalez v. Atty Gen USA , 424 F. App'x 119 ( 2011 )

IMG-111 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2527
___________
CARLOS ORTIZ-GONZALEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-006-772)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.
(Filed: April 21, 2011)
___________
OPINION
___________
PER CURIAM
Petitioner seeks review of the decision of the Board of Immigration Appeals
(“BIA”), dismissing his appeal from the Immigration Judge‟s (“IJ”) denial of his
application for relief. The Government has filed a motion to dismiss the petition for lack
of jurisdiction. For the reasons that follow, we will dismiss in part and deny in part the
petition for review.
Petitioner, Carlos Ortiz-Gonzalez, is a native and citizen of Mexico. He entered
the United States without authorization in April 1995 and has resided here continuously
since that time. He and his girlfriend have four children, all of whom are American
citizens. Ortiz-Gonzalez was placed into removal proceedings in 2008. He conceded
removability and requested relief in the form of cancellation of removal under 8 U.S.C.
§ 1229b(b)(1). Following a hearing at which Ortiz-Gonzalez testified, the IJ denied
cancellation of removal and granted voluntary departure. The BIA agreed and dismissed
the appeal. Through counsel, Ortiz-Gonzalez filed a petition for review. The Attorney
General filed a motion to dismiss the petition for review for lack of jurisdiction.
The Attorney General argues, and Ortiz-Gonzalez concedes, that we lack
jurisdiction over the IJ‟s discretionary decision to deny cancellation of removal. See
8 U.S.C. § 1252(a)(2)(B)(i); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.
2003). This includes the IJ‟s determination that Ortiz-Gonzalez failed to demonstrate
that “exceptional and extremely unusual hardship” would accrue to his U.S.-citizen
children in the event of his removal. See id. However, we retain jurisdiction over
constitutional claims or questions of law pursuant to 8 U.S.C. § 1252(a)(2)(D). See
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).
Ortiz-Gonzalez advances three claims on appeal. First, he maintains that the IJ
erred in applying the hardship factors to the circumstances of his case by failing to
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consider his U.S.-citizen children‟s lack of knowledge of another way of life. However,
as the Attorney General notes, Ortiz-Gonzalez consistently indicated that his children
would remain in the United States should he be removed. (A.R. 106-07; 154-55.) He
also submitted an affidavit from Gloria Ortiz, the mother of his children, stating that she
and the children would remain in the United States in the event he was removed. (A.R.
209.) Thus, the IJ acted properly in not considering this factor. See Pareja v. Attorney
Gen., 615 F.3d 180, 189 (3d Cir. 2010). Next, he argues that the IJ failed to apply the
factors set out in In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2002), such as the
respondent‟s age, family ties, health, and the political and economic conditions in the
country of return, nor did she consider how these factors might impact his children. See
In re Recinas, 23 I. & N. Dec. 467, 471 (BIA 2002) (“In addition to the hardship of the
United States citizen children, factors that relate only to the respondent may also be
considered to the extent that they affect the potential level of hardship to her qualifying
relatives.”); Monreal-Aguinaga, 23 I. & N. Dec. at 63 (reciting factors). The IJ
considered the potential of a lower standard of living for the U.S.-citizen children in this
case, and found that it alone was insufficient to demonstrate exceptional and extremely
unusual hardship. Ortiz-Gonzalez did not argue that any of the remaining factors were
relevant to his situation. Finally, Ortiz-Gonzalez asserts in passing that the IJ failed to
consider all of the hardship factors cumulatively. Not only does Ortiz-Gonzalez fail to
support this assertion, but his “arguments amount to nothing more than „quarrels over the
exercise of discretion and the correctness of the factual findings reached by the agency.‟”
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Cospito v. Attorney Gen., 539 F.3d 166, 170-71 (3d Cir. 2008) (quoting Emokah v.
Mukasey, 523 F.3d 110, 119 (2d Cir. 2008)). Thus, we lack jurisdiction over this claim.
Next, Ortiz-Gonzalez maintains that the IJ denied him due process by failing to
elicit testimony and documentation that would provide her with the basis to render a
proper decision. Specifically, he criticizes the lack of a medical expert, psychological
documentation, or information regarding the financial circumstances of the family.
Ortiz-Gonzalez testified at the hearing and the record does not reflect that any limitation
was placed on the type of evidence he could have introduced. As the Attorney General
points out, it is Ortiz-Gonzalez‟s burden to prove that he is eligible for cancellation of
removal. See Pareja, 615 F.3d at 185. To the extent Ortiz-Gonzalez argues that the IJ
failed to properly weigh the factors in violation of his right to due process, he is simply
restating the issues raised unsuccessfully in connection with his first claim.
Finally, Ortiz-Gonzalez argues that the BIA‟s opinion amounted to no more than
an Affirmance Without Opinion. We agree with the Attorney General that the BIA‟s
decision comported with the requirements of 8 C.F.R. § 1003.1(e)(5).
Based on the foregoing, we will dismiss the petition for review to the extent it
challenges the discretionary determination of the IJ, and deny it to the extent it can be
read to raise any questions of law. Accordingly, the Government‟s motion to dismiss is
granted in part and denied in part.
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