Torres v. Garland ( 2023 )

Case: 22-60293 Document: 00516741252 Page: 1 Date Filed: 05/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 8, 2023
No. 22-60293 Lyle W. Cayce
____________ Clerk
Servando Torres,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of
the Board of Immigration Appeals
Agency No. A206 551 258
______________________________
Before Richman, Chief Judge, and Stewart and Dennis, Circuit
Judges.
Per Curiam: *
Servando Torres petitions this court for review of an order of the
Board of Immigration Appeals (“BIA”) dismissing his appeal of the decision
of the Immigration Judge (“IJ”) holding that he was ineligible for
cancellation of removal. For the reasons that follow, we DISMISS in part
and DENY in part Torres’s petition for review.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I. FACTUAL & PROCEDURAL BACKGROUND
Torres, a native and citizen of Mexico, entered the United States in
2002. In 2014, after Torres was arrested in Texas for drug possession, the
Department of Homeland Security issued a Notice to Appear that charged
him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen who
entered the United States without being admitted or paroled. In 2015, the
immigration judge (“IJ”) determined that he was removable as charged.
Torres filed an application for cancellation of removal and,
alternatively, for voluntary departure. At a 2019 hearing before the IJ, Torres
presented his own supporting testimony, as well as testimony from his
teenage son, his mother, and his mother-in-law. Torres also provided
documentary evidence, including his financial and criminal records; his
children’s personal, school, and medical records; and, letters from his friends
and family.
Although the IJ concluded that Torres was “largely credible,” it
denied his application for cancellation of removal as a matter of discretion,
reasoning that he failed to establish the requisite exceptional and extremely
unusual hardship to his four U.S. citizen children or his lawful permanent
resident (“LPR”) mother. Additionally, the IJ determined that Torres had
failed to prove that he had not been convicted of a disqualifying criminal
offense. It further observed that he was statutorily ineligible as a person
lacking good moral character due to his admission of drug possession. The IJ
then granted Torres voluntary departure.
Torres appealed to the BIA arguing that the IJ erred in determining
that he had failed to show that his U.S. citizen children would not suffer the
requisite hardship and that he was not disqualified from relief due to his
criminal history. He further asserted that his due process rights were violated
in the proceedings before the BIA because the record was incomplete.
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Specifically, he complained that his arguments on appeal were negatively
impacted by the fact that the transcript of his merits hearing before the IJ
used the word “indiscernible” in place of his, or witness testimony on his
behalf, 71 times.
In April 2022, the BIA dismissed Torres’s appeal and reinstated his
period of voluntary departure. The BIA adopted and affirmed the IJ’s
decision that Torres had failed to demonstrate that his removal would result
in the requisite hardship to his U.S. citizen children. The BIA also noted that
Torres had waived any challenge to the IJ’s finding that he had not
established the requisite hardship to his LPR mother. Additionally, it
declined to reach the IJ’s alternative conclusions that Torres had failed to
establish that he was of good moral character and that he did not have a
disqualifying criminal offense. Finally, it rejected Torres’s due process
argument, reasoning that the record was sufficiently complete to enable
meaningful appellate review. It further pointed out that Torres had failed to
identify any relevant missing testimony or show substantial prejudice based
on the incomplete transcript.
Torres filed this petition for review.
II. STANDARD OF REVIEW
We have authority to review only the BIA’s decision, but we can
consider the IJ’s decision to the extent it influenced the BIA. Singh v.
Sessions, 880 F.3d 220, 224 (5th Cir. 2018) (citation omitted). Factual
findings are reviewed under the substantial evidence test. See Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994). “Under substantial evidence review, we may
not reverse the BIA’s factual determinations unless we find not only that the
evidence supports a contrary conclusion, but that the evidence compels it.”
Id. (citations omitted) (emphasis in original). Questions of law, including
whether this court has jurisdiction, are reviewed de novo. Arulnanthy v.
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Garland, 17 F.4th 586, 592 (5th Cir. 2021). Constitutional challenges, such
as due process challenges, are also reviewed de novo. Nkenglefac v. Garland,
34 F.4th 422, 427 (5th Cir. 2022) (citations omitted).
III. DISCUSSION
On appeal, Torres argues that the BIA erred in adopting the IJ’s ruling
regarding Torres’s failure to prove “exceptional and extremely unusual
hardship” to his qualifying relatives by improperly analyzing the hardship
factors and failing to consider all of the factors in the aggregate. Torres
further asserts that the BIA erred in holding that he was not substantially
prejudiced by the incomplete transcript from the proceedings before the IJ.
We address each argument in turn.
A. Cancellation of Removal
Cancellation of removal is a discretionary form of relief.
See 8 U.S.C. § 1229b(b)(1). To be eligible for a discretionary grant of
cancellation of removal, an applicant must meet certain requirements,
including having no convictions for a crime of moral turpitude. See
§ 1229b(b)(1); § 1182(a)(2). The applicant must also show that his removal
would result in “exceptional and extremely unusual hardship” to a qualifying
relative, namely a spouse, parent, or child who is a citizen or LPR of the
United States. Id. The hardship standard requires “a truly exceptional
situation in which a qualifying relative would suffer consequences
substantially beyond the ordinary hardship that would be expected when a
close family member leaves this country.” Trejo v. Garland, 3 F.4th 760, 775
(5th Cir. 2021) (internal quotation marks and citation omitted).
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), no court shall have
jurisdiction to review the denial of certain types of discretionary relief,
including cancellation of removal under § 1229b. Notwithstanding this
provision, 8 U.S.C. § 1252(a)(2)(D) provides that jurisdiction is expressly
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retained for reviewing courts to address constitutional claims and questions
of law.
Torres contends that he satisfied the requirements for cancellation of
removal and that the BIA legally erred in adopting the IJ’s ruling that he had
failed to show that his U.S. citizen relatives would not suffer exceptional and
extremely unusual hardship if he were removed. According to Torres, the
BIA failed to properly consider the hardship factors as set forth in In re
Gonzalez Recinas, 23 I & N Dec. 467, 471 (BIA 2002), and In re Monreal-
Aguinaga, 23 I & N Dec. 56, 63 (BIA 2001). Specifically, he complains that
the BIA’s decision erroneously failed to properly consider the evidence he
submitted in support of his application relating to: the adverse country
conditions in Mexico and the negative effect they could have on his children,
his inability to support his economically dependent children with a job in
Mexico, his inability to obtain an immigrant visa in the near future, and his
children’s unfamiliarity with Mexico. Id.We are deprived of jurisdiction to address these arguments, however,
under 8 U.S.C. § 1252(a)(2)(B)(i). Relying on the Supreme Court’s decision
in Patel v. Garland, 142 S. Ct. 1614, 1622 (2022), this court in Castillo-
Gutierrez v. Garland, recently held that the hardship determination for
purposes of cancellation of removal “is a discretionary and authoritative
decision” which “is beyond [this court’s] review” under the jurisdiction-
stripping provision of § 1252(a)(2)(B)(i). 43 F.4th 477, 481 (5th Cir. 2022)
(“Importantly here, the Patel majority pointed out that a determination that
a citizen would face exceptional and extremely unusual hardship due to an
alien’s removal is a discretionary and authoritative decision which even the
Government agreed would be barred by § 1252(a)(2)(B)(i), notwithstanding
§ 1252(a)(2)(D).”). Accordingly, we lack jurisdiction to consider Torres’s
challenge to the BIA’s determination that he failed to show the necessary
hardship for cancellation of removal. See Castillo-Gutierrez, 43 F.4th at 481.
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We likewise lack jurisdiction to review Torres’s argument that the
BIA failed to properly consider the hardship factors set forth in In re Gonzalez
Recinas, 23 I & N Dec. at 471, and In re Monreal-Aguinaga, 23 I & N Dec. at
63. See Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014) (holding that a
“claim that the IJ did not properly take into account all the hardship factors
merely asks this [c]ourt to replace the IJ’s evaluation of the evidence with a
new outcome, which falls squarely within the jurisdictional bar of
8 U.S.C. § 1252(a)(2)(B)”); see also Jebril v. Garland, 855 F. App’x 223, 224
(5th Cir. 2021) (stating that “[Petitioner’s] claim[s] that the IJ and BIA failed
to consider all of the factors or assigned improper weight to certain evidence”
were not “constitutional claims or questions of law sufficient to confer
jurisdiction to review the decisions of the IJ and BIA” under § 1252(a)(2)(D)
(citation omitted)).
Accordingly, we dismiss for lack of jurisdiction Torres’s claim that the
BIA erred in dismissing his appeal of the IJ’s decision denying his application
for cancellation of removal. See Castillo-Gutierrez, 43 F.4th at 481; Sattani,
749 F.3d at 372.
B. Incomplete Transcript of Hearing Before the IJ
As previously stated, notwithstanding 8 U.S.C. § 1252(a)(2)(B)(i)’s
jurisdiction-stripping provision, § 1252(a)(2)(D) provides that jurisdiction is
expressly retained for a reviewing court such as this one to address questions
of law and constitutional claims, such as the due process challenge that
Torres advances here. See Castillo-Gutierrez, 43 F.4th at 481. “It is well
established that the Fifth Amendment entitles aliens to due process of law in
deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). “The
Fifth Amendment affords an alien the right to (1) notice of the charges against
him, (2) a hearing before an executive or administrative tribunal, and (3) a
fair opportunity to be heard.” Hadwani v. Gonzales, 445 F.3d 798, 800 (5th
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Cir. 2006) (internal quotation marks and citation omitted). “[A] complete
record shall be kept of all testimony and evidence produced at [a removal]
proceeding.” See 8 U.S.C. § 1229a(b)(4)(C).
To prevail on a due process claim, a petitioner must demonstrate that
he was “substantially prejudiced” by the error. Anwar v. INS, 116 F.3d 140,
144 (5th Cir. 1997). In turn, “[p]roving substantial prejudice requires an alien
to make a prima facie showing that the alleged violation affected the outcome
of the proceedings.” See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir.
2018).
Nevertheless, “[t]he requirements of procedural due process apply
only to the deprivation of interests encompassed by the [Due Process
Clause]’s protection of liberty and property.” Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 569 (1972). Thus, as we have explained, “the failure to
receive relief that is purely discretionary in nature does not amount to a
deprivation of a liberty interest.” Assaad v. Ashcroft, 378 F.3d 471, 475 (5th
Cir. 2004) (internal quotation marks and citation omitted); see also Hallmark
v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (acknowledging that “a statute
which provides no more than a mere hope that the benefit will be obtained is
not protected by due process”) (internal quotation marks, ellipsis, and
citation omitted).
Here, Torres asserts that the BIA erred in rejecting his due process
claim arising from the incomplete transcript of his merits hearing before the
IJ. He contends that he has been “prejudiced by the incomplete transcript
because [he was] unable to reference the ‘exceptional and extremely unusual
hardship’ evidence which [he] and [his] witnesses mentioned during the
hearing,” and that with a complete transcript, he “would likely be able to
properly explain how the [IJ] and the BIA erred in denying [him] relief in the
form of Cancellation of Removal.” Specifically, he complains that the
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transcript was marked “indiscernible” during relevant questioning
concerning his children, the adverse country conditions in Mexico, and his
financial obligations to his family.
The Government disagrees. Relying largely on this court’s reasoning
in Hadwani, 445 F.3d at 801, it counters that since there is no protected
liberty interest in cancellation of removal, Torres’s claim is not actually a
constitutional claim exempted from the jurisdictional bar of § 1252(a)(2)(B)
but is rather “‘an abuse of discretion argument cloaked in constitutional
garb.’” The Government alternatively argues that if Torres’s purported due
process claim is not subject to § 1252(a)(2)(B)’s jurisdictional bar, the BIA
still did not err in its hardship determination. It continues that there is no
protected liberty interest in discretionary forms of relief such as cancellation
of removal; and, even if he could make out a cognizable due process
argument, Torres has failed to show substantial prejudice. We agree with the
Government’s alternative argument.
It is worth noting that the Hadwani court did not expressly deny
jurisdiction to consider the petitioner’s constitutional claims. 445 F.3d at
800-01. Instead, citing the lack of a liberty interest in discretionary relief, the
court “rejected” the petitioner’s constitutional claims as “without merit.”
Id. at 801. Indeed, this court has consistently exercised jurisdiction over due
process claims such as this one, pursuant to § 1252(a)(2)(D), while
subsequently denying relief based on the lack of a protected liberty interest
in discretionary decisions such as a denial of cancellation of removal or
reopening. See Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019) (“[T]his
court has held that no liberty interest exists in a motion to reopen, and
therefore due process claims are not cognizable in the context of reopening
proceedings.”); Luna Esparza v. Garland, No. 21-60959, 2022 WL 16914532,
at *1 (5th Cir. Nov. 14, 2022) (unpublished) (denying Petitioner’s due
process claim because although “[t]his court still has jurisdiction to consider
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constitutional challenges to the denial of cancellation of removal . . . the
failure to receive relief that is purely discretionary in nature does not amount
to a deprivation of a liberty interest” (citations omitted)); Abdul-Khaliq v.
Garland, No. 20-60747, 2022 WL 1792545, at *1 (5th Cir. June 2, 2022)
(unpublished) (holding that Petitioner’s “claim that the BIA’s decision not
to reopen the proceedings violated [his] due-process rights [was] not
cognizable” because “no liberty interest exists in a motion to reopen”);
Reynoso-Ramirez v. Barr, 786 F. App’x 473, 473–74 (5th Cir. 2019)
(unpublished) (explaining that because “[Petitioner did] not have a
constitutionally protected liberty interest in the discretionary relief of
cancellation of removal or in eligibility for that relief . . . her due process
rights [were] not implicated by the [BIA]’s decision” denying her petition
for cancellation of removal).
Falling in step with our prior cases to address this issue, we hold that
Torres’s due process claim is meritless because “the failure to receive relief
that is purely discretionary in nature does not amount to a deprivation of a
liberty interest.” Assaad, 378 F.3d at 475. Even if this was not the case,
Torres has failed to show that the BIA erred in rejecting his due process
argument. As previously noted, the BIA rejected Torres’s argument
regarding the incomplete transcript on grounds that the record was
sufficiently complete to enable meaningful appellate review and because
Torres had failed to identify any relevant missing testimony or show
substantial prejudice. We agree. As the Government points out, Torres has
failed to show how the omitted testimony would have helped his application
for cancellation of removal. Moreover, many of the indiscernible responses
were clarified by subsequent testimony and other record evidence. For
example, numerous responses that Torres gave when asked questions about
his children were marked “indiscernible,” but his children later clarified
those responses with their own discernible testimony. Likewise, when Torres
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was questioned about his financial obligations to his family, his response was
marked indiscernible. Later testimony from Torres’s mother-in-law,
however, adequately responded to the questions by stating that he was the
“only economic support” for his family. In sum, Torres has not shown that
he was substantially prejudiced by the existence of the incomplete transcript
because as the record confirms, the “indiscernible” responses were clarified
through subsequent discernible testimony and other record evidence. See
Anwar, 116 F.3d at 144. Thus, even if the transcript was “complete,” i.e.,
without any “indiscernible” responses, the outcome of the proceedings
would not have changed. See Okpala, 908 F.3d at 971.
Consequently, we hold that the BIA did not err in rejecting Torres’s
due process claim. See 8 U.S.C. § 1229b(b)(1).
IV. CONCLUSION
For the foregoing reasons, Torres’s petition for review is
DISMISSED in part and DENIED in part.
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James L. Dennis, Circuit Judge, specially concurring:
I concur in the majority opinion’s assessment that binding circuit
precedent requires us to conclude an alien has no liberty interest in
cancellation of removal because it is a discretionary form of relief and thus
also requires us to reject the Petitioner’s due process claim. See, e.g.,
Gutierrez-Moralez v. Homan, 461 F.3d 605, 609 (5th Cir. 2006); see also
Reynoso-Ramirez v. Barr, 786 F. App’x 473, 473 (5th Cir. 2019)
(unpublished); Cruz-Vizacarra v. Lynch, 609 F. App’x 257, 258 (5th Cir.
2015) (unpublished); Osuagwu v. Holder, 351 F. App’x 973, 974 (5th Cir.
2009) (unpublished); Singh v. Holder, 338 F. App’x 477, 480 (5th Cir. 2009)
(unpublished). However, I write separately to explain how this precedent is
unsound—as well as inconsistently applied—and should be reconsidered.
The Fifth Amendment protects a person from deprivation of life,
liberty, or property without due process of law. U.S. Const., amend. V.
Therefore, in order to succeed on a due process claim, a person must show,
as relevant here, “deprivation of a liberty interest.” Mendias-Mendoza v.
Sessions, 877 F.3d 223, 228 (5th Cir. 2017) (citing Assaad v. Ashcroft, 378 F.3d
471, 475 (5th Cir. 2004)). A liberty interest “may arise from the Constitution
itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise
from an expectation or interest created by [federal] laws or policies.” See
Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016) (quoting Wilkinson v.
Austin, 545 U.S. 209, 221 (2005)) (Fourteenth Amendment due process); see
also Butts v. Martin, 877 F.3d 571, 589 (5th Cir. 2017) (similarly noting for
Fifth Amendment due process, “a plaintiff must show that he was deprived
of a liberty interest protected by the Constitution or statute”).
The Supreme Court has called it “well established that the Fifth
Amendment entitles aliens to due process of law in deportation
proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993) (citing Yamataya v.
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Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100–101 (1903)). “The
Due Process Clause applies to all ‘persons’ within the United States,
including aliens, whether their presence here is lawful, unlawful, temporary,
or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Thus, “once an
alien gains admission to our country and begins to develop the ties that go
with permanent residence his constitutional status changes,” Landon v.
Plasencia, 459 U.S. 21, 32 (1982), and those “aliens who have once passed
through our gates, even illegally, may be expelled only after proceedings
conforming to traditional standards of fairness encompassed in due process
of law.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
We have noted that the Supreme Court has frequently framed this due
process right in terms of “liberty” 1 and have stated that this treatment
“broadly suggest[s] that the nature of the private interest affected by
deportation is encompassed in the concept of ‘liberty’ as that term is used in
the due process clause.” Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1037
_____________________
1
See, e.g., The Japanese Immigrant Case, 189 U.S. at 100-01 (“[T]his court has
never held, nor must we now be understood as holding, that administrative officers, when
executing the provisions of a statute involving the liberty of persons, may disregard the
fundamental principles that inhere in ‘due process of law’ as understood at the time of the
adoption of the Constitution. One of these principles is that no person shall be deprived of
his liberty without opportunity, at some time, to be heard, before such officers, in respect
of the matters upon which that liberty depends . . . . Therefore, it is not competent for the
Secretary of the Treasury or any executive officer, at any time within the year limited by
the statute, arbitrarily to cause an alien who has entered the country, and has become
subject in all respects to its jurisdiction, and a part of its population, although alleged to be
illegally here, to be taken into custody and deported without giving him all opportunity to
be heard upon the questions involving his right to be and remain in the United States”);
Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“Here the liberty of an individual is at stake. . .
. Though deportation is not technically a criminal proceeding, it visits a great hardship on
the individual and deprives him of the right to stay and live and work in this land of
freedom.”); Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 70 (1950) (“A deportation
hearing involves issues basic to human liberty and happiness and, in the present upheavals
in lands to which aliens may be returned, perhaps to life itself.”).
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n.30 (5th Cir. Unit B 1982); see also Chike v. I.N.S., 948 F.2d 961, 961 (5th
Cir. 1991) (describing the interest at issue during deportation as a “significant
liberty interest”).
However, as noted, we have held that, because there is no liberty
interest in discretionary relief, these well-established due process protections
in removal proceedings do not extend to requests for such discretionary relief
as a good-faith marriage waiver of removal, Assaad, 378 F.3d at 476;
cancellation of removal, Gutierrez-Morales, 461 F.3d at 609; or adjustment of
status, De Hoyos v. Mukasey, 551 F.3d 339, 343 (5th Cir. 2008). 2 This view
has its roots in Supreme Court cases holding prisoners have no liberty
interest in decisions left by statute or regulation to the discretion of
administrators, such as assignment of prisoners to particular prisons,
Meachum v. Fano, 427 U.S. 215, 229 (1976); Olim v. Wakinekona, 461 U.S.
238, 249 (1983); commutation of sentences when there is “no limit” in the
statute on criteria to consider, Conn. Bd. of Pardons v. Dumschat, 452 U.S.
458, 466 (1981); or exclusion of specific visitors, Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 463–65 (1989). 3
We are not alone in finding no liberty interest in the discretionary
relief available in removal proceedings, as the First, Fourth, Sixth, Seventh,
Eighth, and Eleventh circuits follow the same reasoning. See, e.g., Rivera v.
Sessions, 903 F.3d 147, 151 (1st Cir. 2018); Yuen Jin v. Mukasey, 538 F.3d 143,
156–57 (2d Cir. 2008); Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002);
_____________________
2
We have found no liberty interest in motions to reopen for the same reason. See,
e.g., Ramos-Portillo v. Barr, 919 F.3d 955, 963 (5th Cir. 2019).
3
See, e.g., Assaad, 378 F.3d at 476 (citing Dumschat, 452 U.S. at 465). These cases,
in turn, can trace back to the holding in Board of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972), that, in order to have a property interest protected by due process, a person
must “have a legitimate claim of entitlement” to the benefit, not merely “an abstract need
or desire for it” or “a unilateral expectation of it.”
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Ashki v. I.N.S., 233 F.3d 913, 921 (6th Cir. 2000); Pinos-Gonzoles v. Mukasey,
519 F.3d 436, 441 (8th Cir. 2008); Scheerer v. U.S. Att’y Gen., 513 F.3d 1244,
1253 (11th Cir. 2008). However, even these circuits have at times
inconsistently considered due process arguments when discretionary relief
was at issue. See, e.g., Rusu v. U.S. I.N.S., 296 F.3d 316, 321 & n.8 (4th Cir.
2002) (asylum); Garza-Moreno v. Gonzales, 489 F.3d 239, 241–42 (6th Cir.
2007) (cancellation of removal); Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1275–76 (11th Cir. 2009) (asylum). We have been similarly guilty of such
inconsistency. See, e.g., Maniar v. Garland, 998 F.3d 235, 241–42 (5th Cir.
2021) (waiver of inadmissibility); Monteon-Camargo v. Barr, 918 F.3d 423,
430 (5th Cir. 2019) (cancellation of removal); Anwar v. I.N.S., 116 F.3d 140,
144–45 (5th Cir. 1997) (asylum).
However, not all circuits entirely bar consideration of process. Some
circuits agree there is no liberty interest in discretionary relief but still find
ways to examine procedural fairness. The Seventh Circuit has held aliens “do
not have a right to due process in hearings for discretionary relief” but
frequently “construe[s] such claims as arguments ‘that the IJ’s hearing
violated [the] statutory and regulatory provisions’ applicable to the hearing
in question.” Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012) (second
alteration in original) (quoting Apouviepseakoda v. Gonzales, 475 F.3d 881, 885
(7th Cir. 2007)). The Seventh Circuit has also suggested in dicta that
“[t]here may be an important distinction between an alien’s claim that she
has a right to seek discretionary relief, and the very different claim that she
has a right to have that discretion exercised in a particular way. Depending
on the nature of the underlying interest implicated, denial of the first might
violate basic principles of due process, even though it is clear that no claim
can be stated with regard to the latter.” United States v. Roque-Espinoza, 338
F.3d 724, 730 (7th Cir. 2003). The Tenth Circuit has similarly held that,
while a “petitioner has no liberty or property interest in obtaining purely
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discretionary relief,” he or she must still be afforded “the minimal
procedural due process rights for an ‘opportunity to be heard at a meaningful
time and in a meaningful manner’” as to this relief. Arambula-Medina v.
Holder, 572 F.3d 824, 828 (10th Cir. 2009) (first quoting Dave v. Ashcroft, 363
F.3d 649, 653 (7th Cir. 2004); and then quoting de la Llana–Castellon v.
I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994)); see also Barrera-Quintero v.
Holder, 699 F.3d 1239, 1248–49 (10th Cir. 2012) (analyzing such minimal
procedural due process).
Finally, still other circuits routinely address due process claims in
petitions despite the discretionary nature of the relief sought. The Ninth
Circuit has stated that “procedural due process . . . , which [is] predicated on
the right to a full and fair hearing, [is] not affected by the nature of the relief
sought,” including “discretionary relief” in a removal proceeding. Fernandez
v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006) (citation omitted). 4
Recently, the Third Circuit rejected the argument that there is no liberty
interest in discretionary relief, holding “petitioners seeking discretionary
relief are entitled to fundamentally fair removal proceedings, which
constitutes a protected interest supporting a due process claim.” Calderon-
Rosas v. Att’y Gen. U.S., 957 F.3d 378, 385–86 (3d Cir. 2020). It reasoned
that “recogni[zing] . . . due process claims by petitioners seeking
discretionary relief is consistent with bedrock principles of Supreme Court
case law” extending due process protections to aliens in deportation
proceedings. Id. at 385. Moreover, the argument that due process does not
protect discretionary relief “conflates the existence of a statutory entitlement
with the fairness of the process by which a petitioner may be deprived of it.”
Id. at 386. “[W]hen Congress directs an agency to establish a procedure . . .
_____________________
4
However, the Ninth Circuit has found no liberty interest in voluntary departure.
Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004).
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it can be assumed that Congress intends that procedure to be a fair one.” Id.(quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
Echoing the Third Circuit’s reasoning, the Supreme Court, in
describing the historical practice in immigration law, has noted the
“distinction between eligibility for discretionary relief, on the one hand, and
the favorable exercise of discretion, on the other hand.” I.N.S. v. St. Cyr, 533
U.S. 289, 307 (2001) (holding that district courts could review via habeas
corpus constitutional or legal challenges to final orders of removal),
superseded by statute on other grounds, REAL ID Act of 2005, Pub. L. No. 109-
13, 119 Stat. 231. “Eligibility that was ‘governed by specific statutory
standards’ provided ‘a right to a ruling on an applicant’s eligibility,’ even
though the actual granting of relief was ‘not a matter of right under any
circumstances, but rather is in all cases a matter of grace.’” Id. (quoting Jay
v. Boyd, 351 U.S. 345, 353–354 (1956)). As an example, the Court noted that
in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), “even
though the actual suspension of deportation authorized by § 19(c) of the
Immigration Act of 1917 [that the alien had applied for] was a matter of
grace,” the Court had “held that a deportable alien had a right to challenge
the Executive’s failure to exercise the discretion authorized by the law.” Id.
Of particular note, the Court in Accardi stated it was affording the alien the
“due process required by the regulations in such proceedings.” 347 U.S. at
268.
We have in fact embraced a liberty interest of the sort described by the
Third Circuit and Supreme Court—the opportunity to present a claim for
discretionary relief—but the case concerned only the opportunity to seek
asylum. Haitian Refugee Ctr., 676 F.2d at 1037–39. We held that, while a
previous decision had found an alien had “no constitutionally protected right
to political asylum itself,” aliens have a separate “right to petition” for
asylum. Id. at 1039. Specifically, the court “f[ound] in the federal regulations
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establishing an asylum procedure—regulations duly promulgated pursuant
to congressional delegation of authority to the Attorney General and having
the force and effect of law—, when read in conjunction with the United
States’ commitment to resolution of the refugee problem as expressed in the
United Nations Protocol Relating to the Status of Refugees and in 8 U.S.C.
§ 1253(h), a clear intent to grant aliens the right to submit and the opportunity
to substantiate their claim for asylum.” Id. at 1038. Accordingly, the court
“identified . . . an entitlement created by the federal government” by which
an alien “may at least send his message and be assured of the ear of the
recipient.” Id. at 1039 & n.39. “Whether this minimal entitlement be called
a liberty or property interest, . . . it [was] sufficient to invoke the guarantee of
due process.” Id. at 1039.
Following the reasoning of the Third Circuit in Calderon-Rosas, the
Seventh Circuit in Roque-Espinoza, the Tenth Circuit in Arambula-Medina,
the Supreme Court in St. Cyr and Accardi, and our court in Haitian Refugee
Center, I am persuaded that, when Congress establishes a set procedure for
an alien to submit and substantiate a claim for discretionary relief in removal
proceedings, the alien has a liberty interest in fairly presenting his or her case,
which is distinct from an interest in the discretionary relief itself. In this case,
Congress has allowed aliens to apply for cancellation of removal and
established specific criteria the Attorney General must find in order to grant
such cancellation, in his discretion. 8 U.S.C. § 1229b. Congress has
established a procedure by which an immigration judge decides applications
for relief from removal such as cancellation of removal, and this procedure
places the burden of proof on the alien. 8 U.S.C. § 1229a(a), (c)(4). During
these proceedings, relevant to the Petitioner’s complaint in this case, “a
complete record shall be kept of all testimony and evidence produced at the
proceeding.” Id. § 1229a(b)(4)(C); see also 8 C.F.R. § 1240.9. In my view,
these procedures give an alien a right to apply for cancellation of removal and
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present evidence to substantiate his or her claim. See Calderon-Rosas, 957
F.3d at 385–86; Arambula-Medina, 572 F.3d at 828; cf. St. Cyr, 533 U.S. at
307; Accardi, 347 U.S. at 268; Haitian Refugee Ctr., 676 F.2d at 1037-39;
Roque-Espinoza, 338 F.3d at 730. Surely, were the Attorney General to decide
applications arbitrarily rather that in conformity with the process Congress
has provided—say, by granting any application submitted on a Tuesday and
denying the rest—we would not say this comports with due process.
However, there is another dimension to consider as well. Several
commentators have taken a different perspective on the issue of the process
due to aliens seeking discretionary relief, focusing not on the discretionary
relief but the ultimate decision whether or not to deport the alien. See Gerald
L. Neuman, Discretionary Deportation, 20 Geo. Immigr. L.J. 611, 635–37
(2006); Christen Chapman, Relief from Deportation: An Unnecessary Battle,
44 Loy. L.A. L. Rev. 1529, 1555–60 (2011); Paige Taylor, Immigration
Law, 39 Tex. Tech. L. Rev. 829, 837 (2007). Because the Supreme Court
has recognized that aliens are entitled to due process in deportation
proceedings and has frequently suggested deportation affects a liberty
interest, these commentators argue the decision whether to grant
discretionary relief should be recontextualized as a decision whether or not
to deport the alien—i.e., deprive the alien of this liberty interest—and, in that
way, even if the alien is not entitled to discretionary relief, he or she is still
entitled to a fair hearing to avoid deportation by presenting their applications
for relief. Neuman, supra, at 636–38; Chapman, supra, at 1558–59. They
analogize the proceeding to a criminal sentencing, which must satisfy due
process concerns, even though the ultimate sentence is in the discretion of
the judge. Neuman, supra, at 637; Chapman, supra, at 1559; see Gardner v.
Florida, 430 U.S. 349, 358 (1977) (“[I]t is now clear that the sentencing
process, as well as the trial itself, must satisfy the requirements of the Due
Process Clause. . . . The defendant has a legitimate interest in the character
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of the procedure which leads to the imposition of sentence even if he may
have no right to object to a particular result of the sentencing process.”). This
reasoning reinforces my view that aliens have an interest in the opportunity
to present their applications for relief. Indeed, the Third Circuit pointed to
this underlying liberty interest as support for extending due process
protections to applications for discretionary relief. Calderon-Rosas, 957 F.3d
at 385 (reasoning that “recogni[zing] . . . due process claims by petitioners
seeking discretionary relief is consistent with bedrock principles of Supreme
Court case law” extending due process protections to aliens in deportation
proceedings). This reasoning is also quite similar to the Tenth Circuit’s
approach of finding “no liberty or property interest in obtaining purely
discretionary relief,” but still examining “the minimal procedural due
process rights for an ‘opportunity to be heard at a meaningful time and in a
meaningful manner.’” Arambula-Medina, 572 F.3d at 828 (first
quoting Dave, 363 F.3d at 653; and then quoting de la Llana–Castellon, 16
F.3d at 1096); see also Barrera-Quintero, 699 F.3d at 1248–49.
For these reasons, I specially concur. While we are bound by
precedent to conclude the Petitioner has no liberty interest in the
discretionary relief of cancellation of removal, a survey of cases reveals this
precedent is not only in tension with Supreme Court precedent as to the due
process rights of aliens subject to deportation proceedings but also
inconsistently applied among—as well as within—the circuits. This issue
implicates the fairness owed to an often-vulnerable group, and we as a
society—much more as judges—should ensure a consistent approach to the
due process owed to aliens subject to deportation—a right that has been
recognized for over a century. See The Japanese Immigrant Case, 189 U.S. at
100–01. I urge our court to reconsider its own jurisprudence and for the
Supreme Court to bring consistency to the varied approaches nationwide.
19