Meza-Hernandez v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 14, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BENITO M EZA-HER NA ND EZ,
Petitioner,
v. No. 06-9523
(BIA No. A73 375 431)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General; DOUGLAS M AURER, Field
Office Director, Immigration and
Customs Enforcement, Department of
Homeland Security, *
Respondents.
OR D ER AND JUDGM ENT **
Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.
This petition for review, initiated in the district court as a petition for
habeas relief and later transferred to this court pursuant to the REAL ID Act of
*
Pursuant to Fed. R. App. P. 43(c)(2), Douglas M aurer is substituted for
M ichael Comfort as an appellee in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2005, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311, challenges the denial by
the Board of Immigration Appeals (BIA) of petitioner’s application for
cancellation of removal. As explained below, we DISM ISS in part and DENY in
part the petition for review .
Background:
Petitioner Benito M eza-Hernandez (M eza) w as served with a notice to
appear on February 18, 1998. He conceded removability and filed an application
for cancellation of removal under 8 U.S.C. § 1229b. Section 1229b(b)(1) requires
the alien to satisfy four criteria, two of w hich are relevant here. The alien must
establish (1) his continuous physical presence in the United States for a period of
not less than ten years, and (2) that his removal “would result in exceptional and
extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for permanent residence.”
Id. § 1229b(b)(1)(A), (D).
Regarding the “continuous physical presence” requirement, M eza claimed
that he had lived in the United States continuously since 1987, first in Chicago,
Illinois, and then in Colorado. At his removal hearing he admitted that he had
been arrested by the INS in 1995. He remained in custody for nine days, after
which he paid $70 to return to M exico on his own. M eza testified further that he
returned to the United States after staying in M exico for only two days. W ith
respect to the “hardship” requirement, M eza claimed that, if he were removed, his
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two minor children, who are United States citizens, would be required to return
with him to M exico. Based on their medical conditions, he asserted that his
removal would result in exceptional and extremely unusual hardship to the
children. At the removal hearing, M eza testified that his daughter had problems
with her ears, but he indicated that she was able to hear. He also testified that his
son recently suffered a liver infection and had pneumonia the year before. M eza
stated that the family had no home to go to in M exico and he would have
difficulty finding a job there. He asserted there would be no free medical care in
M exico and he would not have money to pay for medical treatment for his
children.
The immigration judge (IJ) issued an oral decision, holding that M eza
failed to establish either that his removal would result in exceptional and
extremely unusual hardship to the children, or that he had been continuously
present in the U nited States for at least ten years. The IJ also denied M eza’s
request for voluntary departure, 1 based upon a conclusion that M eza was
previously granted voluntary departure in 1995, after which he immediately
returned to the U nited States.
1
Voluntary departure is a form of statutory relief, by which the Attorney
G eneral may permit an alien voluntarily to depart the United States at his own
expense, in lieu of being subject to, or before the completion of, removal
proceedings. 8 U.S.C. § 1229c(a)(1).
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Referring to M eza’s testimony regarding hardship to his children, the IJ
concluded:
Although he alleges medical problems, he has not proven any and if
what he says is true concerning these medical problems, he certainly
has not shown that the medication or follow-up visits would be
unavailable in M exico or that these conditions would be exacerbated
by the living conditions in M exico. M oreover, the children are
young. The daughter is in the early grades of school. They are from
a Spanish-speaking household. I cannot find that they would suffer
this type of hardship taking into account the privations they might
suffer from living in M exico because of the decreased standard of
living and the medical condition also.
Admin. R. at 96-97. Regarding continuous physical presence, the IJ concluded
that M eza failed to produce objective evidence of his presence in the United
States during the first three years that he alleged. Although M eza testified he
lived in Chicago beginning in 1987, the IJ rejected as incompetent evidence a
letter purporting to confirm his employment during that time. As an alternative
ground for holding that M eza failed to establish ten years’ continuous physical
presence, the IJ determined that M eza’s return to M exico in 1995 was a voluntary
departure that interrupted his physical presence, such that M eza began to accrue
time once again upon his return to the United States. Id. at 96.
On appeal to the BIA, M eza challenged the IJ’s determinations on the
continuous physical presence and hardship issues. He argued that the IJ erred in
concluding that his return to M exico in 1995–which M eza also characterized as a
voluntary departure in his brief to the BIA–severed his continuous presence. H e
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also contended that the IJ’s decision was procedurally defective because the IJ
failed to make explicit credibility determinations with respect to M eza’s
testimony regarding the period of time he claimed to have lived in Chicago and
regarding his children’s medical problems. M eza therefore sought a remand in
order to allow the IJ to make the missing credibility findings. The BIA affirmed
per curiam, without opinion. M eza then filed a federal habeas petition, which the
district court subsequently transferred to this court pursuant to the REAL ID Act
of 2005.
Discussion:
M eza raises the same issues in his opening brief that he argued in his
appeal to the BIA. He also adds a new argument–which he did not make to the
BIA–that the IJ erred in finding that he was granted voluntary departure in 1995
and then improperly used that erroneous finding to disqualify him for a first
voluntary departure in 1999.
W here the BIA summarily affirms an immigration judge’s decision, this
court reviews the IJ’s analysis as if it w ere the BIA ’s. Wiransane v. Ashcroft,
366 F.3d 889, 897 (10th Cir. 2004). But we must first determine the extent of our
jurisdiction to review the issues raised in M eza’s petition. This court has
jurisdiction to determine its jurisdiction. Latu v. Ashcroft, 375 F.3d 1012, 1017
(10th Cir. 2004). “The [Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)] altered the availability, scope and nature of
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judicial review” in immigration cases. 2 M orales Ventura v. Ashcroft, 348 F.3d
1259, 1261 (10th Cir. 2003) (quotation omitted). Our review of the IJ’s
determination that M eza failed to establish “exceptional and extremely unusual
hardship” under 8 U.S.C. § 1229b is precluded by 8 U.S.C. § 1252(a)(2)(B)(i),
unless M eza raises “constitutional claims or questions of law.” Id.§ 1252(a)(2)(D ); see also Schroeck v. Gonzales, 429 F.3d 947, 951 (10th Cir.
2005).
M eza argues that the IJ failed to make an explicit credibility finding on the
hardship issue, and instead implicitly found his testimony not credible. H e asserts
that this argument raises a question of law because the IJ and the B IA acted ultra
vires–first in the IJ’s failure to make an adverse credibility determination, and
then in the BIA’s failure to remand for that determination or alternatively apply a
rebuttable presumption of M eza’s credibility on appeal. For this proposition,
M eza relies on case law from the BIA, this circuit and other circuits in the context
of applications for asylum, as well as on certain language in 8 U.S.C.
§ 1229a(c)(4)(C) (“There is no presumption of credibility, however, if no adverse
credibility determination is explicitly made, the applicant or witness shall have a
rebuttable presumption of credibility on appeal.”).
2
Because the notice to appear was served after April 1, 1997, IIRIRA’s
permanent rules govern this case. See M orales Ventura v. Ashcroft, 348 F.3d
1259, 1261 (10th Cir. 2003).
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This court has construed the term “questions of law ” in § 1252(a)(2)(D ) to
include “a narrow category of issues regarding statutory construction.” Diallo v.
Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (quotation omitted). In so
holding, we rejected a broader interpretation that would grant jurisdiction to
review “all claims having a legal dimension.” Id. at 1281. Here, M eza does not
raise a statutory construction issue with respect to the IJ’s discretionary hardship
determination. His argument that the IJ and BIA failed to correctly apply case
law does not fall within our narrow construction of “questions of law” under
Diallo. Although M eza invokes language in 8 U.S.C. § 1229a(c)(4)(C), that
provision applies only to aliens who applied for relief on or after M ay 11, 2005,
the effective date of the REAL ID Act. See Yan v. Gonzales, 438 F.3d 1249, 1251
n.3 (10th Cir. 2006). M eza submitted his application seeking cancellation of
removal in 1998. Consequently, we conclude that M eza raises no question of law
over which this court has jurisdiction with respect to the IJ’s determination that
he failed to establish exceptional and extremely unusual hardship.
This court does have jurisdiction to review a constitutional claim raised by
M eza. See Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir. 2006) (exercising
jurisdiction to review petitioner’s due process claim). He argues that “[t]he
failure to credit or to discredit the medical hardship testimony was tantamount to
unlaw fully suppressing it, which in turn violated the evidentiary rules that apply
in removal proceedings.” Pet’r Br. at 56. M eza asserts that this error rises to the
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level of a procedural due process violation, because “[t]he cumulative effect of
the ultra vires acts by the IJ and the BIA denied M r. M eza a ‘fair immigration
proceeding.’” Id. at 62. W e disagree.
Procedural safeguards in immigration proceedings “are minimal because
aliens do not have a constitutional right to enter or remain in the United States.”
Schroeck, 429 F.3d at 952 (quotation omitted). Aliens facing removal
proceedings are entitled only to procedural due process providing “the
opportunity to be heard at a meaningful time and in a meaningful manner.” Id.(quotation omitted). Here, M eza was not denied an opportunity to present his
case. The IJ accepted and considered all of M eza’s proffered testimony on the
issue of exceptional and extremely unusual hardship to his children. M eza’s
contention that he was denied constitutional due process because the IJ made an
implicit, rather than an explicit, credibility determination regarding the hardship
issue is w ithout merit. Nor has he established that a remand to require the IJ to
make his credibility determination explicit would have changed the result in this
case. Thus, M eza’s failure to prove prejudice also leads us to reject his due
process claim. See Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 (10th Cir.
2003) (rejecting due process claim because of alien’s failure to prove prejudice
resulting from challenged procedures).
Because M eza must satisfy all four criteria in § 1229b(b)(1) in order to be
eligible for cancellation of removal, our rejection of his due process challenge to
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the IJ’s hardship determination also moots his challenge to the IJ’s holding that
he failed to establish ten years’ continuous physical presence in the United States.
See M orales Ventura, 348 F.3d at 1262 (holding that lack of jurisdiction to review
challenge to hardship determination mooted challenge to continuous presence
determination). “As this challenge is moot, we have no jurisdiction to resolve it.”
Id. W e therefore dismiss this portion of M eza’s petition.
Finally, M eza argues that the IJ erred in finding that he was granted a
statutory voluntary departure in 1995. He asserts that the IJ improperly relied
upon this erroneous finding to preclude him from being eligible for a first
voluntary departure following denial of cancellation of removal in 1999. M eza
made this argument for the first time in his habeas petition. Because M eza failed
to raise this issue in his appeal to the BIA , we lack jurisdiction to review it. See
Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991) (holding failure to
raise issue on appeal to BIA constitutes failure to exhaust administrative remedies
and deprives appellate court of jurisdiction). Thus, we dismiss as w ell this
portion of M eza’s petition for lack of jurisdiction.
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Conclusion:
The petition is DISM ISSED in part for lack of jurisdiction. The remainder
of the petition is D EN IED .
Entered for the Court
W ade Brorby
Circuit Judge
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