Salazar v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MIROSLAVIA SALAZAR; ANIA
SALAZAR,
Petitioners,
No. 02-9579
v. (No. A75-380-640 &
A75-380-641)
JOHN ASHCROFT, (Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before TYMKOVICH , HOLLOWAY , and ANDERSON , Circuit Judges.
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.
Petitioners, Mexican nationals who have been ordered removed to Mexico,
seek judicial review following the administrative denial of their request for
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
cancellation of removal under 8 U.S.C. § 1229b. Petitioners do not challenge the
underlying removal order, but raise two categorically distinct sets of objections
regarding (1) the substantive correctness of the § 1229b decision in their case and
(2) the constitutionality of the streamlined administrative review procedure set out
in 8 C.F.R. § 1003.1(a)(7). This court has recently issued decisions foreclosing
each of these avenues of argument.
Petitioners’ request for cancellation of removal was denied for various
reasons, including lack of evidence “establish[ing] that removal would result in
exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D).
Whether to so characterize the hardship caused by a particular petitioner’s
removal is largely a judgment call. “In other words, the decision requires the
exercise of discretion.” Morales Ventura v. Ashcroft , 348 F.3d 1259, 1262 (10 th
Cir. 2003). Thus, petitioners’ requests were denied on a discretionary ground
excluded from judicial review by 8 U.S.C. § 1252(a)(2)(B)(i), and we lack
jurisdiction to consider the merits of that decision. Morales Ventura , 348 F.3d at
1262. Further, because hardship is a necessary condition for cancellation of
removal, any challenges to other, alternative grounds cited for the denial of such
relief are moot. Id. at 1262-63.
To the extent petitioners’ constitutional objection to the administrative
process itself is independently cognizable, it is foreclosed by this court’s decision
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in Yuk v. Ashcroft , No. 02-9546, 2004 WL 79095 (10 th Cir. Jan. 20, 2004). In
Yuk , we joined every other circuit that has reached the issue to hold that the
streamlined administrative review process established in 8 C.F.R. § 1003.1(a)
“do[es] not violate principles of administrative law or due process.” Id. at *9.
The petition for review is DISMISSED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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