Valladares v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2808
___________
OSCAR HUMBERTO VALLADARES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-964-087)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 11, 2011
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
Opinion filed: May 23, 2011
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OPINION
___________
PER CURIAM.
Oscar Humberto Valladares petitions for review of the Board of
Immigration Appeals‟ (“BIA” or “Board”) final order of removal. The Government has
filed a motion to dismiss the petition for lack of jurisdiction. For the reasons that follow,
we will grant the motion and dismiss the petition for review for lack of subject matter
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jurisdiction.
I.
Valladares, a native and citizen of Honduras, entered the United States in
June 1998. In August 2008, he was served with a Notice to Appear, charging him with
removability under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), as an alien
present in the United States without admission or parole. Valladares conceded
removability and applied for cancellation of removal under INA § 240A(b)(1) [8 U.S.C. §
1229b(b)(1)], claiming that returning to Honduras would cause his daughter to suffer
exceptional and extremely unusual hardship.1
At an April 2009 administrative hearing, Valladares testified that before the
Immigration Judge (“IJ”) that he has an eleven-year-old son who was born in Honduras,
and a four-year-old daughter who was born in the United States. Both children live in the
United States with Valladares and his wife, also a Honduran citizen.2 Valladares testified
that, although his daughter is in good health, he does not want to relocate to her to
Honduras because of the country‟s high crime rate. He also fears that because the
country‟s unemployment rate is high, he will be unable to adequately support her.
1
This provision provides, in relevant part, that the Attorney General may cancel
the removal of an alien who was continuously present in the United States for at least ten
years before applying, who is of good character, who has not committed certain crimes,
and who has established that removal would result in exceptional and extremely unusual
hardship to the alien‟s spouse, parent, or child, who is a permanent resident or citizen of
the United States. See INA § 240A(b)(1).
2
Valladares‟ wife had temporary protected status at the time of the hearing.
2
Valladares testified that his daughter was learning to speak and write in both Spanish and
English, and that if he is returned to Honduras, his family would likely accompany him.
The IJ denied Valladares‟ application for cancellation of removal,
determining that he failed to demonstrate exceptional and extremely unusual hardship to
his family, including his six-year-old United States citizen daughter. The IJ noted that
Valladares‟ children, as well as he and his wife, are in good health. In addition, although
Valladares claimed that, based on the economic situation in Honduras, he would not be
able to financially support his daughter, the IJ determined that he provided no substantive
evidence suggesting that he would be unable to work if removed. Specifically, the IJ
noted that Valladares has considerable skills as an auto mechanic and owns a successful
auto repair business in the United States.
Valladares appealed the IJ‟s decision and, in May 2010, the BIA affirmed
without opinion. Valladares timely petitioned for review of that determination.
II.
We have jurisdiction to review final BIA orders under 8 U.S.C. §
1252(a)(1). But as the parties recognize, that jurisdiction is restricted by 8 U.S.C. §
1252(a)(2)(B)(i), which limits judicial review of discretionary agency actions. Mendez-
Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003); Patel v. Att‟y Gen., 619 F.3d
230, 232 (3d Cir. 2010) (“We lack jurisdiction to review discretionary decisions made
pursuant to 8 U.S.C. § 1229b, including „exceptional and extremely unusual‟ hardship
determinations.”). However, we may still review colorable constitutional claims or
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questions of law. Patel, 619 F.3d at 232. Dressing a fundamentally discretionary claim
in legal clothing does not grant jurisdiction that would otherwise be proscribed. Pareja v.
Att‟y Gen., 615 F.3d 180, 186-87 (3d Cir. 2010).
Valladares first argues that the IJ and BIA erred by failing to consider the
“cumulative effect” of the hardship faced by his daughter as is required under Matter of
Recinas, 23 I. & N. Dec. 467 (BIA 2002), and that in doing so, the agency deprived him
of an “individualized determination” of his evidence. (Petitioner‟s Brief “(Pet. Br.” at 8-
9.) Valladares‟ poorly developed argument fails to identify any aspect of the IJ‟s
decision that would support either allegation. Moreover, as the Government argues, such
claims “do not raise constitutional claims or questions of law.” Cospito v. Att‟y Gen.,
539 F.3d 166, 170 (3d Cir. 2008) (addressing arguments that IJ, inter alia, “gave „short
shrift to crucial evidence‟” and “„simply looked at individual factors‟ rather than provide
an evaluation of the factors in the aggregate”) (citation omitted). We agree that
Valladares‟ allegations “amount to nothing more than quarrels over the exercise of
discretion and the correctness of the factual findings reached by the agency.” Id.Accordingly, we must dismiss the claim for lack of jurisdiction. See id. at 171.3
Valladares also argues that the BIA denied him due process by failing to
review his case de novo, issuing only a “two-line affirmance without opinion.” (Pet. Br.
at 10.) We have held, however, that the BIA‟s affirmance without opinion pursuant to
3
We nevertheless note that, contrary to Valladares‟ assertion, IJ expressly considered the
evidence cumulatively. (See Administrative Record at 44.)
4
the streamlining regulations does not constitute a violation of due process. See Dia v.
Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003) (en banc). Because Valladares has not
presented a colorable legal or constitutional challenge, we must dismiss the claim for lack
of jurisdiction.
Based on the foregoing, we will grant the Government‟s motion and
dismiss the petition for review for lack of subject matter jurisdiction.
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