NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 8, 2011
Decided November 16, 2011
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1187
YADWINDER SINGH, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A096 298 571
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Yadwinder Singh, an Indian citizen, petitions for review of an order of the Board of
Immigration Appeals upholding an Immigration Judge’s refusal to grant his application for
cancellation of removal. We lack jurisdiction to review discretionary denials of petitions for
cancellation of removal unless the petitioner presents a legal or constitutional argument.
Singh argues that the Board misunderstood the standard for evaluating hardship; the Board
did not err, however, and we deny the petition as to this claim. Singh also argues that the
Board ignored evidence, but this factual argument is unsupported by the record; we
dismiss this part of the petition for lack of jurisdiction.
Singh entered the United States illegally in 1990, when he was 19 years old, and has
lived here ever since. He is married to an Indian citizen, and together they have three
No. 11‐1187 Page 2
children who were all born in the United States and thus are American citizens.
Immigration authorities caught up with Singh in June 2007 and placed him in removal
proceedings for being illegally present in the United States. Singh conceded that he lacked
permission to be in the United States and applied for cancellation of removal. To qualify,
Singh had to show that he had been present in the United States for ten years, that he was a
person of good moral character with no disqualifying convictions, and that his removal
would amount to an “exceptional and extremely unusual hardship” to his American
children. See 8 U.S.C. § 1229b(b)(1).
In proceedings before the IJ, the parties addressed Singh’s moral character and the
hardship his removal would cause to his children. No one contested that Singh had been in
the United States continuously since 1990. Though there was some confusion surrounding
Singh’s arrest history, the IJ accepted his testimony that he had been arrested just once for a
traffic violation and concluded that Singh had good moral character. As a result, only the
hardship element is relevant here. Singh focused on the lack of education and healthcare in
India to support his argument that his removal would amount to an “exceptional and
extremely unusual hardship” to his three children, who were 4, 8, and 9 at the time of the
hearing in 2009. Singh testified that if he were removed to India, his wife (who also lacked
status but was not in removal proceedings at the time of the hearing) and children would
return with him. They would return to Punjab, even though Singh has few remaining family
members and no prospects for housing or work there. Singh did not expect that any of his
family members would be willing to assist him financially because they had been out of
touch for many years. He also testified that he feared what he said was Punjab’s crime‐
ridden environment.
Singh argued that the IJ should grant his application for cancellation because his
middle child has medical conditions that require treatment in the United States. Singh’s son
suffers from allergic rhinitis and sudden rashes. He has trouble eating certain foods,
including Indian food, and heat causes his allergies to flare up. Unless Singh’s son takes
prescription antihistamines, he has difficulty breathing and develops boils on his skin.
Singh testified that he might not be able to get the correct treatment in India because many
medications there are fake. The conditions in Punjab are unsanitary, and Singh would have
to travel 15 miles for healthcare.
Additionally, Singh expressed concerns about the lack of educational opportunities
in India for his children. They would have trouble adjusting to India, he testified, because
they have never been there, do not speak Hindi, speak but cannot read or write Punjabi, and
“absolutely do not like Indian food.” He testified that his children have had speech therapy
in school due to their difficulties with language. The government education in Punjab is
No. 11‐1187 Page 3
poor, and Singh explained that he would not be able to afford to send his children to
private, English‐speaking schools.
After considering these arguments individually and cumulatively, the IJ concluded
that Singh had not met the hardship requirement for cancellation of removal and denied his
application. The IJ considered the health of Singh’s son and, based on the Mayo Clinic
reports that the government submitted, determined that allergic rhinitis could be treated
without a high level of medical training or expertise. The IJ noted that Singh had expressed
a lack of confidence in the drugs in India, but concluded that Singh had an uninformed
opinion about the status of medical care in Punjab. He pointed out that the medication
Singh’s son takes was available over the counter. The IJ accepted Singh’s testimony about
his children’s language difficulties, but found that at their young ages they could likely
learn more Punjabi. And though the IJ was sympathetic to Singh’s concerns about the lack
of financial opportunities in Punjab, he did not find that any difficulty in relocating could
constitute an exceptional and extremely unusual hardship when compared with other
families that had been in the United States for similar lengths of time. Finally, the IJ noted
that Singh could return to any part of India, not just to his native Punjab.
Singh appealed to the Board arguing, among other things, that although his factors
taken individually may not rise to the level of extreme and unusual hardship, in the
aggregate they do. The Board agreed with the IJ’s analysis and dismissed Singh’s appeal. It
considered Singh’s testimony and his son’s medical records and determined that he had not
shown that his son would be unable to get the necessary treatment in India. The Board
observed that the record did not show that Singh’s children still needed speech assistance.
The Board acknowledged Singh’s concern about the low standard of living in Punjab and
the difficult transition facing his family, but noted that concerns about “economic detriment
and reduced educational opportunities are generally insufficient to establish the requisite
hardship.” The Board noted, as well, that Singh has two uncles and his wife’s family in
Punjab whom he might be able to call upon for assistance. For these reasons, the Board
agreed that Singh had not demonstrated that his removal met the hardship standard. Singh
filed a motion for reconsideration,
8 C.F.R. § 1003.2(b), which at the time of briefing was still
pending.
On appeal Singh argues that the Board applied an incorrect legal standard and failed
to consider relevant evidence in concluding that his children would not suffer “exceptional
and extremely unusual hardship” for purposes of cancellation of removal. The government
responds by challenging this court’s subject‐matter jurisdiction. Singh asserts that
jurisdiction is proper because he presents reviewable questions of law. He maintains that
the Board ignored certain evidence and failed to consider factors that were material to the
Board’s analysis.
No. 11‐1187 Page 4
We lack jurisdiction to review a decision by the Board denying cancellation of
removal unless the petition for review presents a legal or constitutional question. See
8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Marin‐Garcia v. Holder,
647 F.3d 666, 671 (7th Cir. 2011);
Stepanovic v. Filip,
554 F.3d 673, 677–78 (7th Cir. 2009); Martinez‐Maldonado v. Gonzales,
437 F.3d 679, 682 (7th Cir. 2006). The scope of this jurisdiction‐stripping provision is broad;
it bars review of not only different kinds of discretionary final decisions, but also the
agency’s underlying factual findings, the reasons it gives, and the way it weighs the
evidence while exercising its discretion. See Chavez‐Vasquez v. Mukasey,
548 F.3d 1115, 1119
(7th Cir. 2008); Jezierski v. Mukasey,
543 F.3d 886, 887–88 (7th Cir. 2008); Huang v. Mukasey,
534 F.3d 618, 620 (7th Cir. 2008). Moreover, we have applied this rule to the hardship prong
of cancellation cases and concluded that the merits of those determinations are also beyond
the scope of review. See Duad v. Holder,
556 F.3d 592, 595 (7th Cir. 2009); Mireles v. Gonzales,
433 F.3d 965, 968–69 (7th Cir. 2006).
Singh first contends that his appeal fits within the exception to the jurisdictional bar
because he raises a legal challenge—that the Board misunderstood the legal standard for
cancellation of removal by failing to consider his hardship factors in the aggregate. See
8 U.S.C. § 1252(a)(2)(D); Jezierski,
543 F.3d at 888; Huang,
534 F.3d at 620. In support he notes
that the Board discussed each of his hardship arguments in separate paragraphs; in that
regard, he believes, the Board considered the factors only “in isolation.”
We have not addressed whether this argument—that the agency must consider the
hardship factors in the aggregate—fits within the exception, and there is little law on the
question. See, e.g., Ettienne v. Holder, No. 10‐3896,
2011 WL 4582549, at *5 (6th Cir. Oct. 5,
2011); Mendez‐Castro v. Mukasey,
552 F.3d 975, 979–80 (9th Cir. 2009). Assuming that we
have jurisdiction to review Singh’s argument, the IJ specifically considered the factors
cumulatively in concluding that he did not meet the hardship requirement. Because the
Board agreed with the IJ and supplemented his opinion with additional observations, this
court reviews the IJ’s decision wherever the Board has not supplanted it with its own
rationale. Sarhan v. Holder, No. 10‐2899,
2011 WL 3966151, at *3 (7th Cir. Sept. 2, 2011); Mema
v. Gonzales,
474 F.3d 412, 416 (7th Cir. 2007). The Board was silent on the cumulative effect
of Singh’s arguments and did not express particular reliance on any one of the factors. We
therefore may rely on the IJ’s decision, which expressly considered Singh’s hardship factors
in the aggregate. Accordingly, Singh’s argument is without merit.
Even if we were to look only at the Board’s decision, Singh cannot point to anything
that would be different about the Board’s analysis if it considered the factors in the
aggregate. His briefs to the Board and to this court simply rehash his arguments to the IJ
and call upon us to reweigh the evidence. Each of Singh’s hardship factors was so
insignificant individually that a cumulative consideration of them would not have altered
No. 11‐1187 Page 5
the outcome. The Board noted, for instance, that no evidence in the record supported
Singh’s assertions about any ongoing medical problems and that economic detriment and
educational opportunities are insufficient to establish hardship. Therefore, any failure on
the part of the Board in not explicitly stating that it considered the factors in the aggregate
was harmless error. See Iglesias v. Mukasey,
540 F.3d 528, 532–33 (7th Cir. 2008); Tariq v.
Keisler,
505 F.3d 650, 657–58 (7th Cir. 2007).
Singh next proposes another argument that he regards as legal in nature—that the
Board’s ruling ignored evidence and misstated facts in the record. He points to the
statement in the Board’s ruling that he has family members in India, including two uncles,
and that “he may be able to call upon them for some form of support during his transition.”
Singh says his testimony contradicts this statement.
While failing to consider a line of evidence may permit review for legal error, Iglesias,
540 F.3d at 530–31, we have only once applied that logic to the hardship determination in a
cancellation case, see Champion v. Holder,
626 F.3d 952, 956–57 (7th Cir. 2010). In Champion
this court vacated the Board’s denial of a mother’s application for cancellation based on the
hardship her children would suffer if forced to return to Nigeria; we reasoned that the
agency erred when it determined that the children could remain in the United States with
their father because the agency had “virtually ignored” the fact that the children’s father
also was in removal proceedings.
Id. at 957. In contrast, here the Board did not overlook
important evidence. Singh testified that he had family members living in India (though only
a few) and that he had not asked them for assistance. Therefore, the Board’s factual
statement that Singh may be able to call upon his relatives for support does not amount to
legal error.
Accordingly, we DENY the petition for review as to Singh’s claim of legal error and
DISMISS the petition, for lack of jurisdiction, as to Singh’s claim of factual error.
