Flores-Tola v. Atty Gen USA

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-20-2005
Flores-Tola v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2968
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2968
ARTURO PATRICIO FLORES-TOLA,
Petitioner
v.
ALBERTO GONZALES,* Attorney General of the United States;
USCIS DISTRICT DIRECTOR,
Respondents
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A79-701-683
Submitted Under Third Circuit LAR 34.1(a)
September 13, 2005
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Opinion Filed: September 20, 2005)
OPINION
*
Attorney General Alberto Gonzales has been substituted for former Attorney General
John Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
BARRY, Circuit Judge
Arturo Flores-Tola was denied cancellation of removal on the ground that he could
not demonstrate that his deportation would result in “exceptional and extremely unusual
hardship” to his two children who are United States citizens. Because we do not have
jurisdiction to review that determination, and because Flores-Tola’s other contentions are
unpersuasive, we will deny the petition for review.
I. Background
Flores-Tola is a native and citizen of Ecuador. He arrived in the United States on
December 24, 1988, and entered without inspection.1 Since that time, he has worked as a
jeweler, consistently filed federal tax returns, and has a clean record. He is the father of
four, including two young children who were born in New Jersey, and although he is not
married, he has continued his relationship with the mother of his two citizen-children.
On August 7, 2002, the former Immigration and Naturalization Service (“INS”)2
served Flores-Tola with a Notice to Appear, charging him with removability as an
inadmissible alien present in the United States without being admitted or paroled. See 8
U.S.C. § 1182(a)(6)(A)(i). Flores-Tola conceded removability, but filed an Application
for Cancellation of Removal on December 12, 2002.
1
The precise date on which Flores-Tola entered this country is unclear. He listed
December 24, 1988 as the date of entry on his Application for Cancellation of Removal,
see A218, and we will use that date here.
2
As of March 1, 2003, the INS ceased to exist, and its functions were transferred to the
Department of Homeland Security. See 6 U.S.C. § 271 (2002).
2
On April 4, 2003, Flores-Tola testified at a hearing before an Immigration Judge
(“IJ”), as did five witnesses on his behalf, including his eldest citizen-child. At the close
of testimony, the IJ ruled that, while Flores-Tola had met the other provisions of the
relevant statute, he had not made the requisite showing that his deportation would cause
exceptional hardship to his citizen-children. The IJ, therefore, ordered him deported to
Ecuador.
Flores-Tola appealed to the Board of Immigration Appeals (“BIA”), which
affirmed without opinion on June 14, 2004. This timely petition for review followed. In
the petition, Flores-Tola argues that (1) he has made a showing of exceptional hardship;
(2) his due process rights were violated because the IJ denied him a full and fair hearing;
and (3) the BIA abused its discretion by issuing an affirmance without opinion.
II. Legal Analysis
We have jurisdiction to determine whether we have jurisdiction under 8 U.S.C. §
1252. See Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). In undertaking that
analysis, we can quickly dispose of Flores-Tola’s first argument. Under 8 U.S.C. §
1229b(b), the Attorney General may cancel the removal of a nonpermanent resident alien
if the alien meets four criteria, the last of which is proof of exceptional hardship to a
citizen spouse, parent, or child if the alien is deported. The Attorney General’s decision
to do so is committed to his discretion, however, and we do not have jurisdiction to
review a denial of such relief. See 8 U.S.C. § 1252(a)(2)(B)(i). We cannot, therefore,
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consider Flores-Tola’s contention that the IJ did not conduct “an examination of all the
hardship factors.” Pet. Br. at 10.
Nevertheless, we have jurisdiction to review “constitutional claims or questions of
law.” 8 U.S.C. § 1252(a)(2)(D). Flores-Tola argues that his due process rights were
violated because he was allegedly denied a full and fair hearing by the IJ. He claims that
the IJ “was prepared to render his decision prior to receiving all witness testimony,” and
was thus predisposed to rule against his application. See Pet. Br. at 14.
It is undisputed that the Fifth Amendment’s due process protections apply to aliens
in removal proceedings. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993), Sewak v.
INS, 900 F.2d 667, 671 (3d Cir. 1990). “The fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful manner.” Abdulai
v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal citation omitted). Flores-Tola
contends that the IJ’s purported predisposition abrogated that right.
The record belies this contention. Flores-Tola’s counsel informed the IJ that four
of the five witnesses would testify to Flores-Tola’s good moral character, and the IJ
responded that there did not seem to be any dispute that Flores-Tola had satisfied that
requirement. See A68-69. The IJ then said, however, “I don’t want to be in the position
where I’m saying you can’t have somebody in here to testify, . . . [s]o that’s why I’m
leaving it up to you.” A69. Flores-Tola’s counsel proceeded to call all four character
witnesses, and also called Flores-Tola’s citizen-son. All five testified without
4
unnecessary interruption or constraint. As such, there is nothing in the record that shows
that the IJ’s conduct of the hearing was anything but fair and open, or that Flores-Tola did
not receive the process he was due.
Flores-Tola’s final argument is that the BIA inappropriately affirmed the IJ’s
decision without opinion, claiming that it is “unclear if all the evidence submitted was
considered by the agency.” Pet. Br. at 18. We have explicitly endorsed the streamlining
regulations that allow the BIA to issue opinions in this form. See Dia v. Ashcroft, 353
F.3d 228, 245 (3d Cir. 2003) (en banc). And we have long held that the alien has the
burden of proving that the BIA did not review the record when considering his or her
appeal. See McLeod v. INS, 802 F.2d 89, 95 n.8 (3d Cir. 1986). Flores-Tola has not
satisfied his burden of proof; indeed, he simply states that the BIA did not review the
record in his case, and offers nothing in support of that bald assertion.
III. Conclusion
For the foregoing reasons, the petition for review will be denied.
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