Javier Orellana v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13145 ELEVENTH CIRCUIT
FEBRUARY 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A094-254-128
JAVIER ORELLANA,
a.k.a. Javier Oriano,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 19, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Javier Orellana seeks review of the Board of Immigration Appeals’ (“BIA”)
order affirming the Immigration Judge’s (“IJ”) denial of cancellation of removal
pursuant to 8 U.S.C. § 1229b. Upon review, we conclude that we lack jurisdiction
over the IJ’s denial of discretionary relief and there is no merit to Orellana’s due
process claim. Therefore, we dismiss in part and deny in part this petition for
review.
Orellana, a native and citizen of Honduras, arrived in the United States in
1995. He obtained temporary protected status in 1998, but lost it in 2006.
Thereafter, the Department of Homeland Security charged Orellana with
removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present without having
been admitted or paroled.
Orellana filed an application for cancellation of removal, stating that his
removal would result in an exceptional and extremely unusual hardship to his
daughter, who was a U.S. citizen. The IJ denied relief, concluding that Orellana
had not met his burden to show hardship. The IJ further stated that, even if
Orellana met his burden, the IJ would deny relief in his discretion. Orellana
appealed to the BIA, asserting that the IJ failed to follow precedent as to hardship.
Orellana did not address the IJ’s denial of cancellation as a matter of discretion.
The BIA affirmed the IJ’s decision that Orellana failed to meet the
requirements showing hardship. The BIA also sua sponte addressed the
discretionary denial of relief and affirmed on that ground as well. The instant
petition for review followed.
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In his petition for review, Orellana argues that the IJ and BIA violated his
right to due process by ignoring BIA precedent in finding that: (1) he did not show
the requisite level of hardship required for cancellation of removal; and (2) he was
not entitled to cancellation of removal as a matter of discretion. The government,
in turn, responds that we lack jurisdiction over Orellana’s petition because:
(1) Orellana failed to exhaust administrative remedies with regard to his challenge
of the IJ’s denial of cancellation of removal as a matter of discretion; and (2) we
lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review judgments regarding
discretionary relief such as cancellation.
We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We also review de novo
constitutional claims and questions of law. Mohammed v. Ashcroft, 261 F.3d 1244,
1247 (11th Cir. 2001).
A. Denial of Relief as a Matter of Discretion
A court may not review a final order of removal unless “the alien has
exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). This requirement is jurisdictional and, absent an excuse or
exception, bars review of claims not raised before the BIA. Amaya-Artunduaga,
463 F.3d at 1250. This jurisdictional bar applies even when the BIA has addressed
the issue sua sponte. Id. at 1250-51.
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Here, in his appeal to the BIA, Orellana did not challenge the IJ’s denial of
cancellation of removal as a matter of discretion. Therefore, even though the BIA
addressed the issue sua sponte, Orellana failed to exhaust the issue and we lack
jurisdiction to consider it. Accordingly, we dismiss that part of Orellana’s petition.
B. Denial of Relief on the Merits
Under 8 U.S.C. § 1229b, the Attorney General may cancel the removal of an
alien who meets certain requirements, including establishing that “removal would
result in exceptional and extremely unusual hardship to the alien’s [U.S. citizen]
spouse, parent, or child.” 8 U.S.C. § 1229b(b)(1)(D). We do not have jurisdiction
to review any judgment regarding the granting of discretionary relief such as
cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); Gonzalez-Oropeza v. U.S.
Att’y Gen., 321 F.3d 1331, 1332-33 (11th Cir. 2003) (“[T]he exceptional and
extremely unusual hardship determination [for the purpose of cancellation of
removal] is a discretionary decision not subject to review.”). We do, however,
retain jurisdiction to consider constitutional claims or questions of law. 8 U.S.C.
§ 1252(a)(2)(D).
“In order to establish a due process violation, an alien must show that he was
deprived of liberty without due process of law, and that the asserted error caused
him substantial prejudice.” Gonzalez-Oropeza, 321 F.3d at 1333 (citations
omitted). There is “no constitutionally-protected right to discretionary relief from
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removal,” such as cancellation. Mohammed, 261 F.3d at 1251. This is because “an
alien’s actual chances of receiving such discretionary relief are too speculative, and
too far beyond the capability of judicial review, to conclude that the alien has
actually suffered prejudice.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th
Cir. 1999).
Because Orellana did not have a constitutionally protected right to
cancellation of removal, his due process claims fail. Even assuming, however, that
an IJ’s failure to follow BIA precedent in denying a petitioner cancellation could
amount to a due process violation, Orellana’s challenge is still without merit.
Contrary to Orellana’s assertions, the IJ followed BIA precedent. Accordingly,
we deny, on the merits, that part of Orellana’s petition.
PETITION DISMISSED IN PART, DENIED IN PART
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