Delio Lemuz-Hernandez v. Loretta E. Lynch , 809 F.3d 392 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3873
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Delio Lemuz-Hernandez
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 22, 2015
Filed: November 2, 2015
[Published]
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Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
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PER CURIAM.
Delio Lemuz-Hernandez, a citizen and national of Honduras, was charged with
being removable from the United States for being present in the country without
having been lawfully admitted. See 8 U.S.C. § 1182(a)(6)(A)(i). At a master
calendar hearing on April 21, 2009, Lemuz-Hernandez conceded that he was
removable from the United States, and designated Honduras as his country of
removal.
Lemuz-Hernandez subsequently filed an application for cancellation of
removal for non-permanent residents pursuant to 8 U.S.C. § 1229b(b). Cancellation
of removal is a discretionary remedy available to persons whose U.S. citizen or lawful
permanent resident spouse, parent, or child would suffer hardship as a result of the
person’s removal to their country of origin. To establish eligibility for cancellation
of removal, a non-permanent resident must establish ten years of physical presence
in the United States, good moral character, no convictions for certain enumerated
offenses, and exceptional and extremely unusual hardship to a qualifying relative.
8 U.S.C. § 1229b(b). After a hearing, at which Lemuz-Hernandez presented a
substantial amount of testimonial and documentary evidence, the immigration judge
(IJ) found that Lemuz-Hernandez had established the first three statutory criteria but
had failed to establish that his three U.S. citizen daughters would suffer sufficient
hardship as a result of his removal to Honduras. As a result, the IJ denied Lemuz-
Hernandez’s application.
Lemuz-Hernandez timely appealed to the Board of Immigration Appeals (BIA),
which affirmed the denial of his application for cancellation of removal. On appeal,
Lemuz-Hernandez asserts that the IJ and BIA failed to consider evidence of the
exceptional and extremely unusual hardship his children would suffer if he were
removed from the United States.
We do not have jurisdiction to review the discretionary denial of cancellation
of removal. 8 U.S.C. § 1252(a)(2)(B)(i). We do, however, have jurisdiction to
review “the non-discretionary determinations underlying such a decision,” Guled v.
Mukasey, 515 F.3d 872, 880 (8th Cir. 2008), as well as to review constitutional
claims or other questions of law posed by denial of an application for cancellation of
removal. 8 U.S.C. § 1252(a)(2)(D). We review “the BIA order, which is the final
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agency decision, ‘including the IJ’s findings and reasoning to the extent they were
expressly adopted by the BIA.’” Hamilton v. Holder, 680 F.3d 1024, 1027 (8th Cir.
2012).
Lemuz-Hernandez argues that the agency—both the IJ and the BIA—failed to
consider all the evidence of exceptional and extremely unusual hardship to his
children, and that this failure constituted a denial of due process and an incorrect
application of the hardship standard. Though nominally a question of law or
constitutionality, Lemuz-Hernandez’s claim actually amounts to a challenge to how
the agency weighed the evidence in his case. It is undisputed that the IJ received all
exhibits and testimony presented by Lemuz-Hernandez into evidence. Moreover, the
IJ’s written decision specifically states that she considered the evidence of hardship
that Lemuz-Hernandez asserts was ignored. Though the agency’s consideration of
the particular hardship factors that Lemuz-Hernandez believed decisive may have
been perfunctory, that is insufficient to establish legal or constitutional error. Lemuz-
Hernandez essentially seeks a finding that gives greater weight to the evidence of
extreme violence and crime in Honduras and the psychological effect that
environment would have on his children. This challenge to the agency’s weighing
of the evidence in support of Lemuz-Hernadez’s claim for cancellation of removal is
outside our jurisdiction to review. Hamilton, 680 F.3d at 1027.
Accordingly, we dismiss the petition for review for lack of jurisdiction.
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