Robinshon Nunez-Liriano v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1749
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ROBINSHON ANTONIO NUNEZ-LIRIANO,
a/k/a ROBINSHON LIRIANO,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of a Decision
and Order of the Board of Immigration Appeals
(BIA-1: A215-589-340)
Immigration Judge: Honorable Dinesh C. Verma
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 28, 2019
BEFORE: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges
(Filed: November 7, 2019)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
HARDIMAN, Circuit Judge.
Robinshon Antonio Nunez-Liriano petitions for review of a decision of the Board
of Immigration Appeals denying his appeal from the decision of the Immigration Judge
finding him removable. We will deny the petition for review.
I
A citizen of the Dominican Republic, Nunez-Liriano entered the United States
without inspection in 2004. In May 2018, the Department of Homeland Security charged
him with removability under 8 U.S.C. § 1182(a)(6)(A)(i). Nunez-Liriano appeared before
the IJ and admitted the factual allegations against him, conceding removability. He then
sought cancellation of removal under 8 U.S.C. § 1229b(b)(1), alleging that his United
States citizen wife, his stepdaughter, and his biological son would suffer exceptional and
extremely unusual hardship if he were removed from the United States. The IJ found that
Nunez-Liriano was not eligible for cancellation of removal because he did not “meet the
requisite hardship standard” of Section 1229b(b)(1). On appeal, the BIA affirmed the IJ’s
decision and ordered Nunez-Liriano removed to the Dominican Republic.
II
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.
§ 1252(a)(1). “Where, as here, the BIA issues a written decision on the merits, we review
its decision and not the decision of the IJ” and we “look to the IJ’s ruling only insofar as
the BIA defers to it.” Baptiste v. Att’y Gen., 841 F.3d 601, 605 (3d Cir. 2016) (internal
quotations omitted); Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010) (citing
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006)). We “exercise de novo review”
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over any legal or constitutional issues raised, but we lack jurisdiction to review “any
judgment regarding the granting of relief under section . . . 1229b.” 8 U.S.C.
§ 1252(a)(2)(B)(i); Duhaney v. Att’y Gen., 621 F.3d 340, 345 (3d Cir. 2010).
III
Nunez-Liriano claims the BIA engaged in improper factfinding on appeal and asks
us to remand his case back to the IJ. Specifically, he challenges the BIA’s consideration
of an expert report on his wife’s mental health, which he claims the IJ improperly failed
to analyze in the first instance. He contends a remand is necessary so the IJ can undertake
additional investigation and factfinding on the hardship his wife will suffer if he is
removed.
Section 1229b(b)(1) authorizes the Attorney General to cancel removal and adjust
the status of an alien who is inadmissible or deportable from the United States. 8 U.S.C.
§ 1229b(b)(1). In order to be eligible for discretionary cancellation of removal, the alien
must—among other requirements—establish that “removal would result in exceptional
and extremely unusual hardship” to a qualifying United States citizen family member,
such as a spouse. 8 U.S.C. § 1229b(b)(1)(D). Although we lack jurisdiction over
discretionary denials of relief, we retain jurisdiction over constitutional claims and
questions of law. See 8 U.S.C. § 1252(a)(2)(D).
Nunez-Liriano contends the BIA erred as a matter of law by engaging in
independent factfinding in violation of 8 C.F.R § 1003.1(d)(3)(i), (iv). According to the
regulations, the BIA “will not engage in de novo review of findings of fact determined by
an [IJ].” 8 C.F.R § 1003.1(d)(3)(i). Nor may the BIA “engage in factfinding in the course
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of deciding appeals,” beyond taking administrative notice of commonly known facts. 8
C.F.R § 1003.1(d)(3)(iv). Instead, it may review the IJ’s factual findings to determine
whether they are clearly erroneous. 8 C.F.R § 1003.1(d)(3)(i). The requirements of
§ 1003.1(d)(3)(i) and (iv) are non-discretionary aspects of the decision we can review.
See Pareja v. Att’y Gen., 615 F.3d 180, 187–88 (3d Cir. 2010).
Nunez-Liriano claims the IJ failed to consider the expert report by Dr. Tepper
regarding Nunez-Liriano’s wife’s mental health and the impact his deportation would
have on her fragile state. According to Nunez-Liriano, since the IJ did not properly
consider and analyze the report, it was reversible error for the BIA to “impos[e] its
opinion concerning [these] critical and essential facts.”
Nunez-Liriano’s argument suffers from a logical flaw. The IJ’s failure to mention
the Tepper report by name in his oral decision does not mean the report was not
considered. In fact, the IJ stated: “Exhibits 1 through 4, which were identified on the
record, were considered by this Court in support of the respondent’s applications for
relief.” App. 5. Dr. Tepper’s report was part of Exhibit 4. The IJ also said that “[a]ll
testimony and exhibits have been considered by this Court, regardless of whether they are
specifically mentioned further in this decision or not.” A5. The Government notes that
DHS objected to the report’s admission and that neither party—including Nunez-
Liriano’s attorney during closing argument—made further mention of it during
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proceedings before the IJ. Given these facts, it is unsurprising that the IJ failed to
specifically mention the report in his oral decision.2
Finally, we find no support in the record for Nunez-Liriano’s argument of
subsequent legal error by the BIA. The BIA considered the Tepper report and
summarized its contents fairly and accurately. The BIA did not make any factual findings
about Dr. Tepper’s diagnosis of Nunez-Liriano’s wife. It simply indicated that accepting
the psychological evaluation as true and considering it in conjunction with the other facts
found by the IJ, Nunez-Liriano still failed to meet the requisite hardship standard. This is
entirely proper. Although the BIA reviews an IJ’s factual determinations for clear error,
the legal question of whether those facts support a finding of exceptional and extremely
unusual hardship is reviewed de novo. 8 C.F.R. § 1003.1(d)(3)(i), (ii). And unlike other
cases in which this Court has found improper factfinding, the BIA did not ignore or
replace any of the IJ’s factual findings with its own. See, e.g., Gracia Moncaleano v.
Att’y Gen., 390 F. App’x 81, 87 (3d Cir. 2010).
In sum, the BIA articulated the correct standard of review. App. 17 (“We review
the findings of fact . . . under the ‘clearly erroneous’ standard.”) (quoting 8 C.F.R
§ 1003.1(d)(3)(i)). It then considered Dr. Tepper’s report, noting Nunez-Liriano’s wife’s
mental condition, his “significant” claims, and that the BIA was “not unsympathetic” to
2
Nunez-Liriano’s reliance on Ravancho v. INS, 658 F.2d 169 (3d Cir. 1981), is
similarly misplaced. Both the posture of that case and the facts are distinguishable.
Ravancho concerned the denial of a motion to stay deportation and to reopen
proceedings. Id. at 171–72. And our holding was critical of the BIA’s analysis of a
psychological report in isolation. Id. at 172. Here, the BIA considered “the totality of the
circumstances.” A18.
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his plight. App. 18. The BIA ultimately concluded that the consequences Nunez-Liriano’s
family will suffer are “not exceptional, nor extremely unusual in the case of aliens
removed form [sic] the United States.” Id. This analysis was consistent with the
controlling regulations.
IV
We will deny Nunez-Liriano’s petition for review for the reasons stated.
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