Reyes Velazquez-Arzate v. Loretta E. Lynch ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0785n.06
No. 15-3045
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 03, 2015
REYES VELAZQUEZ-ARZATE, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
LORETTA E. LYNCH, United States ) APPEALS
Attorney General, )
)
Respondent. )
)
BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.
PER CURIAM. Reyes Velazquez-Arzate petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from the denial of his application for
cancellation of removal. We deny the petition for review.
Velazquez-Arzate, a native and citizen of Mexico, most recently entered the United
States in February 1996 without inspection. In June 2009, the Department of Homeland Security
detained Velazquez-Arzate and served him with a notice to appear in removal proceedings,
charging him with removability as an alien present in the United States without being admitted
or paroled and as an immigrant not in possession of a valid entry document. See 8 U.S.C.
§ 1182(a)(6)(A)(i), (a)(7)(A)(i)(I). Velazquez-Arzate appeared before an immigration judge (IJ)
and conceded removability. Velazquez-Arzate subsequently applied for cancellation of removal

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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Velazquez-Arzate v. Lynch
on the basis that his removal would result in exceptional and extremely unusual hardship to his
United States citizen children. See 8 U.S.C. § 1229b(b)(1). After a hearing, the IJ denied
Velazquez-Arzate’s application for cancellation of removal, concluding that he had failed to
demonstrate both good moral character and the requisite hardship to his children. On appeal, the
BIA agreed with the IJ that Velazquez-Arzate had failed to meet his burden of proving eligibility
for cancellation of removal. This timely petition for review followed.
To be eligible for cancellation of removal, Velazquez-Arzate must demonstrate that:
(1) he has been physically present in the United States for a continuous ten-year period; (2) he
“has been a person of good moral character during such period”; (3) he has not been convicted of
certain offenses; and (4) his “removal would result in exceptional and extremely unusual
hardship to [his] 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). As the respondent’s
motion to dismiss pointed out, this court lacks jurisdiction to review the denial of an application
for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). We retain jurisdiction, however, to
consider “constitutional claims or questions of law” that have been administratively exhausted.
8 U.S.C. § 1252(a)(2)(D), (d)(1); see also Montanez-Gonzalez v. Holder, 780 F.3d 720, 722 (6th
Cir. 2015).
Velazquez-Arzate first contends that the BIA failed to follow its own precedent requiring
consideration of the hardship factors in the aggregate. According to Velazquez-Arzate, the BIA
failed to consider (1) his older daughter’s anxiety and (2) the violent conditions in Mexico. In
his brief to the BIA, Velazquez-Arzate asserted that the IJ failed to view his older daughter’s
physical ailments in the aggregate; Velazquez-Arzate did not mention his daughter’s anxiety or
conditions in Mexico. Even if Velazquez-Arzate had exhausted this claim before the BIA, we
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lack jurisdiction to review it. Velazquez-Arzate’s argument that the agency failed to consider
certain facts specific to his case amounts to an objection “to the agency’s weighing of the facts
[that] is not within our jurisdiction to review.” Ettienne v. Holder, 659 F.3d 513, 519 (6th Cir.
2011). In any event, both the IJ and the BIA addressed the daughter’s anxiety, and given that
Velazquez-Arzate’s children would remain in the United States, the conditions in Mexico had
limited, if any, relevance to whether Velazquez-Arzate’s removal would result in exceptional and
extremely unusual hardship to his children.
With respect to the determination that he had failed to demonstrate good moral character,
Velazquez-Arzate asserts that his due-process rights were violated when the IJ did not allow him
to clarify his admission to being aware that there were mistakes on his tax returns at the time that
he filed them. “Although an alien’s due process challenge generally does not require exhaustion
. . . , the alien must raise correctable procedural errors to the BIA.” Sterkaj v. Gonzales,
439 F.3d 273, 279 (6th Cir. 2006). Velazquez-Arzate did not raise this alleged error in his
appeal to the BIA. In any event, the IJ only stopped Velazquez-Arzate’s attorney from asking
the same question again; the IJ did not prohibit the attorney from asking him questions about his
tax filings. Any lack of explanation resulted from Velazquez-Arzate’s decision to remain silent
on the issue when cross-examined before the IJ.
Velazquez-Arzate also argues that the BIA misapplied or ignored its own precedent in
determining that he had failed to demonstrate good moral character due to his admitted
misrepresentations in his tax filings. According to Velazquez-Arzate, pursuant to Matter of
Locicero, 11 I. & N. Dec. 805 (BIA 1966), the agency was required to make findings as to three
elements: (1) he grossly underreported income (2) with the intent to avoid payment (3) of a
substantial sum of taxes. Locicero cannot be read as establishing such a requirement. See
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Sumbundu v. Holder, 602 F.3d 47, 56 (2d Cir. 2010) (“[T]hough the BIA did find that the
respondent in Locicero misstated a ‘substantial sum,’ nothing in the decision suggests that this
was a requirement for moral character determinations related to inaccurate tax returns.”).
“[T]his court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-
head comparisons between the facts of the petitioner’s case and those of precedential decisions.”
Ettienne, 659 F.3d at 518. Velazquez-Arzate essentially asks us to compare the facts of his case
with those of Locicero.
For the foregoing reasons, we GRANT the respondent’s motion to dismiss in part and
DENY Velazquez-Arzate’s petition for review.
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