Edgar Bamaca-Perez v. Loretta Lynch , 670 F. App'x 892 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0655n.06
No. 16-3319
FILED
UNITED STATES COURT OF APPEALS Dec 06, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
EDGAR BAMACA-PEREZ, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney ) APPEALS
General, )
)
Respondent. )
)
BEFORE: SILER, BATCHELDER, and GRIFFIN, Circuit Judges.
PER CURIAM. Edgar Bamaca-Perez petitions this court 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.
Bamaca-Perez, a native and citizen of Guatemala, entered the United States without
inspection in December 1999. In 2011, the Department of Homeland Security served Bamaca-
Perez 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. See 8 U.S.C. § 1182(a)(6)(A)(i).
Bamaca-Perez appeared before an immigration judge (IJ) and conceded removability. Bamaca-
Perez subsequently applied for cancellation of removal 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)(D). After a hearing, the IJ denied Bamaca-Perez’s application for cancellation of
removal, finding that hardship did exist but did not rise to the level of exceptional and extremely
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Bamaca-Perez v. Lynch
unusual hardship. Bamaca-Perez appealed the IJ’s decision. Dismissing the appeal, the BIA
rejected Bamaca-Perez’s argument that the IJ should have considered the “best interests of the
children” and concluded that the IJ “provided a proper and full consideration of the appropriate
hardship standard for purposes of cancellation of removal.” This timely petition for review
followed.
To be eligible for cancellation of removal under Section 240A(b) of the Immigration and
Nationality Act (INA), the alien must establish “that removal would result in exceptional and
extremely unusual hardship 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)(D). The
agency’s hardship determination is a discretionary decision outside the scope of our review. See
8 U.S.C. § 1252(a)(2)(B)(i); Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008).
Bamaca-Perez contends that the “best interests of the child” must be considered as an explicit
factor in the hardship analysis when the qualifying relative is a child. We have jurisdiction to
review this legal question. See 8 U.S.C. § 1252(a)(2)(D); Ettienne v. Holder, 659 F.3d 513, 517
(6th Cir. 2011). “Questions of law are reviewed de novo, but substantial deference is given to
the BIA’s interpretation of the INA and accompanying regulations.” Khalili v. Holder, 557 F.3d
429, 435 (6th Cir. 2009).
Article 3(1) of the United Nations Convention on the Rights of the Child (CRC), Nov. 1,
1989, 1577 U.N.T.S. 3, 28 I.L.M. 1448, states: “In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
28 I.L.M. at 1459. As Bamaca-Perez acknowledges, the United States has not ratified the CRC.
See Roper v. Simmons, 543 U.S. 551, 576 (2005). Bamaca-Perez asserts that the CRC’s “best
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Bamaca-Perez v. Lynch
interests of the child” standard has attained the status of customary international law and
therefore must be considered as an explicit factor in the hardship analysis under INA
§ 240A(b)(1)(D) when the qualifying relative is a child. Resort to customary international law is
appropriate “where there is no treaty and no controlling executive or legislative act or judicial
decision.” The Paquete Habana, 175 U.S. 677, 700 (1900); see Oliva v. U.S. Dep’t of Justice,
433 F.3d 229, 233 (2d Cir. 2005). Congress has enacted legislation establishing the applicable
standard for cancellation of removal—“removal would result in exceptional and extremely
unusual hardship to the alien’s . . . child.” 8 U.S.C. § 1229b(b)(1)(D). That statutory standard,
and not the CRC’s “best interests of the child” standard, applies to Bamaca-Perez’s application
for cancellation of removal. See Oliva, 443 F.3d at 234; see also Flores-Nova v. Attorney Gen.
of U.S., 652 F.3d 488, 495 (3d Cir. 2011); Payne-Barahona v. Gonzales, 474 F.3d 1, 3-4 (1st Cir.
2007). Even if the CRC’s standard were relevant, as the Ninth Circuit has pointed out, the
“child’s ‘best interests’ are precisely the issue before the agency, in the sense that ‘best interests’
are merely the converse of ‘hardship.’ In other words, the agency’s entire inquiry focuses on the
qualifying children, making their interests a ‘primary consideration’ in the cancellation-of-
removal analysis.” Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1012 (9th Cir. 2005).
The BIA properly concluded that the CRC’s “best interests of the child” standard did not
apply and that the IJ considered the appropriate hardship standard under INA § 240A(b)(1)(D).
Accordingly, we DENY Bamaca-Perez’s petition for review.
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