Jose Zamudio v. Eric Holder, Jr. , 490 F. App'x 704 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0787n.06
No. 11-3562 FILED
Jul 20, 2012
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOSE CAMPOS ZAMUDIO and )
MARIA ARACELI CAMPOS-ARIAS, )
)
Petitioners, ) ON PETITION FOR REVIEW OF A FINAL
) ORDER OF REMOVAL BY THE BOARD
v. ) OF IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: SUTTON and GRIFFIN, Circuit Judges; DOWD, District Judge.*
SUTTON, Circuit Judge. Jose Campos Zamudio and Maria Araceli Campos-Arias, husband
and wife, illegally entered the United States from Mexico in the mid-1990s. After learning of their
presence, the government started removal proceedings against them in December 2006. Conceding
that the illegal entry subjected them to deportation, 8 U.S.C. § 1182(a)(6)(A)(i), they applied for
cancellation of removal. Under federal immigration law, “[t]he Attorney General may cancel
removal of . . . an alien who is . . . deportable from the United States if the alien” demonstrates the
following: (1) he has been physically present in the country 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
any identified offenses, and (4) “removal would result in exceptional and extremely unusual hardship
*
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
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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).
An immigration judge denied both applications. He held that the petitioners were not eligible
for cancellation of removal because (1) Zamudio falsely stated on his application that he had returned
to Mexico only once when in fact he had returned several other times, all of which showed he had
not been in the country continuously for ten years and did not meet the good-character requirement;
(2) Campos-Arias did not meet the good-character requirement because she had been arrested for
shoplifting and did not disclose the point in her application; and (3) removal would not cause
extreme hardship for the couple’s U.S.-citizen daughter because treatment for her hearing condition
is available in Mexico. The immigration judge added that, due to the misrepresentations and
omissions in the applications, he “would not grant either [petitioner’s] application for cancellation
of removal as a matter of discretion.” A.R. 81. The Board of Immigration Appeals affirmed the
immigration judge’s decision in all respects.
When the Attorney General, acting through the Board, denies an alien’s application for
cancellation of removal, we lack jurisdiction to review discretionary aspects of the decision.
8 U.S.C. § 1252(a)(2)(B); Aburto-Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008). We retain
jurisdiction to review non-discretionary aspects of the decision, namely “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D); Aburto-Rocha, 535 F.3d at 502.
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Invoking the second category, petitioners argue that the Board applied incorrect legal
standards and ignored its own precedent in determining they did not meet several of the eligibility
requirements. But even if petitioners are correct as to each of the eligibility factors, points we need
not decide, they face an insurmountable hurdle. The Board also denied their applications as a matter
of discretion based on the petitioners’ lack of candor in their applications. “The government retains
discretion to deny relief even if the applicant satisfies all four [eligibility requirements].” Perez-
Roblero v. Holder, 431 F. App’x 461, 465 (6th Cir. 2011); see also Patel v. Ashcroft, 401 F.3d 400,
404 (6th Cir. 2005) (cancellation of removal is “a remedy that is discretionary at all events”). The
petitioners have not identified any legal questions over which we might have jurisdiction underlying
the Board’s ultimate exercise of discretion. Nor can we discern any. The Board based its decision
on the petitioners’ lack of candor, a legitimate and common ground for denying discretionary relief.
See, e.g., Sokolov v. Gonzales, 442 F.3d 566, 569 (7th Cir. 2006); Westover v. Reno, 202 F.3d 475,
479, 482 (1st Cir. 2000). Because the Board denied petitioners’ applications as a matter of
discretion, we have no grounds to set aside the Board’s order.
The petitioners separately argue that the Board committed three procedural errors: (1) the
Board erred by not sending them a final transcript of the hearing and the immigration judge’s
decision prior to setting a briefing schedule; (2) the Board violated the Paperwork Reduction Act by
sending both preliminary and final versions of the transcripts; and (3) the Board erred by not
explaining why it denied their request to have the case decided by a three-member panel. Although
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we have jurisdiction to review these “questions of law,” 8 U.S.C. § 1252(a)(2)(D), none of them
justifies setting aside the Board’s order.
We have seen the first two arguments before. See Johns v. Holder, 678 F.3d 404, 408 (6th
Cir. 2012). Both arguments fail here for the same reasons they failed there. The petitioners have
not shown any prejudice from the Board’s delay in providing final transcripts. Nor have they
identified the provisions of the Paperwork Reduction Act that the Board supposedly violated or for
that matter explained why a paperwork-generating remand is an appropriate remedy. Id.The petitioners’ last claim comes to the same end. The Board assigns cases to a single
member for disposition unless the case meets one of six criteria for assignment to a three-member
panel. 8 C.F.R. § 1003.1(e). The petitioners contend their case satisfies three of the criteria—the
immigration judge’s decision (1) “need[ed] to [be] reverse[d]” because it (2) was “not in conformity
with the law” and (3) involved “a clearly erroneous factual determination,” id. §§ 1003.1(e)(6)(iii),
(v), (vi). But they offer no developed argument as to why they are entitled to an explanation of the
reasons their case did not meet the listed criteria, much less why the lack of such an explanation
merits a remand. The argument is forfeited. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997).
For these reasons, we deny the petition for review.
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