Adalberto Hernandez-Garcia v. Eric H. Holder, Jr. ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2467
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Adalberto Hernandez-Garcia
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., 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: April 17, 2014
Filed: August 25, 2014
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Before LOKEN and MURPHY, Circuit Judges, and PERRY,* District Judge.
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LOKEN, Circuit Judge.
Responding to a Notice To Appear for removal proceedings, Adalberto
Hernandez-Garcia, a citizen of Mexico, conceded he is removable and applied for
cancellation of removal under 8 U.S.C. 1229b(b). The Attorney General may grant
*
The Honorable Catherine D. Perry, Chief Judge of the United States District
Court for the Eastern District of Missouri, sitting by designation.
discretionary cancellation of removal and adjustment of status to a nonpermanent
resident if he (1) has been continuously present in the United States for ten years prior
to the date he applied; (2) “has been a person of good moral character”; (3) has not
been convicted of enumerated criminal offenses; and (4) shows that his removal
“would result in exceptional and extremely unusual hardship” to a spouse, parent, or
child who is a United States citizen or lawful permanent resident.
After a hearing, the Immigration Judge denied relief, finding that Hernandez-
Garcia had not established continuous ten-year presence in the United States and had
not shown that his two minor children, who are United States citizens, would suffer
“exceptional and extremely unusual hardship” if he were removed to Mexico. The
Board of Immigration Appeals (“BIA”) dismissed Hernandez-Garcia’s administrative
appeal. Addressing only the hardship issue, the BIA found “that [Hernandez-Garcia]
does not qualify for cancellation of removal because he did not show that his removal
would result in exceptional and extremely unusual hardship to either of his qualifying
relatives.” Hernandez-Garcia petitions for review, arguing that the BIA committed
an error of law when it “failed to follow its own precedent” in deciding the hardship
issue, and violated his right to due process by failing to adequately examine all the
hardship factors he presented. Concluding that we lack jurisdiction to consider the
first contention, and that the second is without merit, we deny the petition for review.
Congress in the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. 104-208, 110 Stat. 3009, stripped courts of jurisdiction to review
“any judgment regarding the granting of relief under section . . . 1229b,” or “any other
decision . . . which is specified under this subchapter to be in the discretion of the
Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(i) & (ii). Applying that statute in
Martinez Ortiz v. Ashcroft, we held that an agency decision that deportation to
Mexico would not cause extreme hardship “is a discretionary one that we lack
jurisdiction to review,” joining every other circuit including the Ninth on this issue.
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361 F.3d 480, 481 (8th Cir. 2004).1 However, in Reyes-Vasquez v. Ashcroft, we held
that the ten-year continuous presence requirement “is a nondiscretionary
determination [that is subject to judicial review] because it involves straightforward
statutory interpretation and application of law to fact.” 395 F.3d 903, 906 (8th Cir.
2005), quoting Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217 (5th Cir. 2003).2
In the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 323, Congress modified
the jurisdiction-stripping landscape by adding 8 U.S.C. § 1252(a)(2)(D):
Nothing in subparagraph (B) or (C) . . . which limits or eliminates
judicial review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.
For a discussion of what prompted Congress to enact this subparagraph, see Grass v.
Gonzales, 418 F.3d 876, 878-79 (8th Cir. 2005), cert. denied, 547 U.S. 1079 (2006).
1
Under prior law, the Ninth Circuit reviewed whether a BIA extreme hardship
decision “consider[ed] all factors relevant to the hardship determination and state[d]
its reasons for denying the requested relief.” Watkins v. INS, 63 F.3d 844, 848 (9th
Cir. 1995). Hernandez-Garcia urges us to adopt and apply the legislatively overruled
Watkins standard, which is no longer followed in the Ninth Circuit. We reject this
frivolous argument.
2
We consider it significant that, in Mireles-Valdez, the Fifth Circuit noted “the
Attorney General’s position that the [ten-year presence] determination is not
discretionary.” The panel also distinguished a prior Fifth Circuit ruling that it lacked
jurisdiction to review an extreme hardship ruling on the ground that “the hardship
requirement . . . is quite different from the presence requirement.” 349 F.3d at 217.
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Since enactment of the REAL ID Act, our many cancellation-of-removal
decisions have couched the jurisdictional inquiry in terms of the language in
§ 1252(a)(2)(D), asking whether petitioners were seeking “review of constitutional
claims or questions of law,” but we have remained true to the distinction reflected in
Martinez Ortiz and Reyes-Vasquez. We will review a nondiscretionary determination
that an alien is ineligible for cancellation of removal, for example, the BIA’s refusal
to consider a § 1229b issue because petitioner had not timely raised it in Pinos
Gonzalez v. Mukasey, 519 F.3d 436, 439-41 (8th Cir. 2008). But we have
consistently ruled that we lack jurisdiction to review a discretionary BIA decision that
petitioner’s removal would not “result in exceptional and extremely unusual
hardship,” even when the petitioner seeking review attempted to “create jurisdiction
by cloaking an abuse of discretion argument in constitutional or legal garb.” Garcia-
Torres v. Holder, 660 F.3d 333, 338 (8th Cir. 2011) (quotation omitted), cert. denied,
133 S. Ct. 108 (2012); accord Hamilton v. Holder, 680 F.3d 1024, 1027 (8th Cir.
2012); Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011), cert. denied, 132 S. Ct.
1032 (2012); Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006); see also
Zeah v. Holder, 744 F.3d 577, 582 (8th Cir. 2014) (no jurisdiction to review
discretionary denial based on petitioner’s sham marriage); Ignatova v. Gonzales, 430
F.3d 1209, 1213 (8th Cir. 2005) (no jurisdiction to review denial of a hardship waiver
application under 8 U.S.C. § 1186a(c)(4)). Hernandez-Garcia’s due process argument
is contrary to our decision in Sanchez-Velasco v. Holder, 593 F.3d 733, 737 (8th Cir.
2010) (no right to due process in the cancellation of removal remedy). These
decisions control the issues Hernandez-Garcia presents for review.
Accordingly, we deny the petition for review.
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