Marco Nunez-Portillo v. Eric H. Holder, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 13-2256
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Marco Antonio Nunez-Portillo
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 16, 2014
Filed: August 15, 2014
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Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Marco Nunez-Portillo, a native and citizen of Mexico, petitions for review of
the discretionary denial of his application for cancellation of removal pursuant to 8
U.S.C. § 1229b(b). He contends the Board of Immigration Appeals (BIA), in
affirming the denial, erred as a matter of law in evaluating his claim and, in doing so,
violated his right to due process under the Fifth Amendment. Because we conclude
the BIA simply found Nunez-Portillo’s evidence insufficient, we deny his petition.
I. Background
Nunez-Portillo first entered the United States from Mexico in January 1998.
On May 14, 2009, the Department of Homeland Security served him with a Notice
to Appear (NTA), charging him with removability as an alien present without being
admitted or paroled. He conceded removability at a master calendar hearing on
October 13, 2010, then applied for cancellation of removal. At a hearing on May 18,
2011, he argued his three children, who were born in the United States, would suffer
hardship were he removed because they would accompany him to Mexico. There, he
contends, they would be unable to access adequate programs and facilities to meet
their health and educational needs and would be at risk of danger from widespread
violence.
Under 8 U.S.C. § 1229b(b)(1),
The Attorney General may cancel removal of, and adjust to the status of
an alien lawfully admitted for permanent residence, an alien who is
inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of such
application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of [certain offenses]; and
(D) establishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent
residence.
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The IJ denied his application. Although Nunez-Portillo had met his burden to
show he was a person of good moral character and had no disqualifying criminal
convictions, he had failed to demonstrate that he had been continuously physically
present in the United States—due to several trips to Mexico—and that his citizen
children would suffer “exceptional and extremely unusual hardship” from
Nunez-Portillo’s removal to Mexico. His youngest daughter, age 2 at the time of the
hearing, requires ear tubes to drain fluid, which affects her speech, and has a mild
expressive language delay; his eldest daughter, then 9 years old, has had kidney
infections that require medication, though the most recent one had been a year prior
to the IJ’s hearing; and his son, age 4, has no health issues. The IJ found these health
issues, while certainly relevant, did not reach the level of hardship required to merit
cancellation of removal for Nunez-Portillo. On appeal, the BIA upheld the IJ’s
decision, finding the IJ correctly concluded he had not shown the requisite hardship
to his qualifying relatives. Nunez-Portillo petitions for review of the BIA’s order.
II. Discussion
We have limited jurisdiction to review applications for cancellation of removal.
8 U.S.C. § 1252(a)(2)(B)(i) (as a form of discretionary relief, “no court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under section
. . . 1229b . . . .”). Indeed, we may only review “the non-discretionary determinations
underlying such a decision, such as the predicate legal question whether the IJ
properly applied the law to the facts in determining an individual’s eligibility.” Guled
v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008). “We may also review constitutional
claims or questions of law.” Id. (citing 8 U.S.C. § 1252(a)(2)(D)). Nunez-Portillo
asks us to review (1) whether the BIA erred as a matter of law by insufficiently
considering evidence of his children’s health and educational needs and the risk of
violence in Mexico, and (2) whether these errors violated his Fifth Amendment right
to due process. We consider each claim in turn.
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Nunez-Portillo first argues the BIA erred by inadequately considering, in
combination with other factors, his children’s health and educational needs. See In
re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001) (“[A] strong applicant [for
cancellation of removal] might have a qualifying child with very serious health issues,
or compelling special needs in school,” to be considered with other “factors . . . in the
aggregate when assessing exceptional and extremely unusual hardship.”). By
questioning whether the BIA accurately assessed or, ultimately, gave due weight to
these factors, Nunez-Portillo “attacks the BIA determination that the evidence failed
to show an ‘extraordinary and extremely unusual hardship.’ This finding, however,
is precisely the discretionary determination that Congress shielded from our review.”
Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam); see also
Gomez-Perez v. Holder, 569 F.3d 370, 373 (8th Cir. 2009) (finding no jurisdiction
to review how the IJ and BIA weighed the relevant factors).
Similarly, Nunez-Portillo contends the BIA “did not adequately account for the
extent to which the rampant and increasing violence throughout Mexico” increased
the hardship his children would experience there in the future. As with the health and
educational needs of his children, Nunez-Portillo argues the BIA did not credit this
risk of violence upon his removal. However, the IJ acknowledged his concern and
found the evidence was insufficient to establish the requisite hardship. Adopting the
IJ’s reasoning, the BIA properly considered this factor in making its ultimately
discretionary determination. See Gomez-Perez, 569 F.3d at 373. “Accordingly,
[Nunez-Portillo’s] argument that the IJ and the BIA applied an incorrect legal
standard is without merit,” id., and we lack jurisdiction to review this claim.
The only issue Nunez-Portillo raises over which we could have jurisdiction is
his constitutional argument: “the failure of the [BIA] to analyze two significant
hardship factors in any meaningful way violated [his] right to due process under the
Fifth Amendment.” However, “[i]n order to make out a due process violation, a party
must demonstrate a protected liberty or property interest.” Nativi-Gomez v. Ashcroft,
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344 F.3d 805, 808 (8th Cir. 2003). “What matters is whether the individual has an
expectation of receiving some measure of relief.” Id. at 809. “Cancellation of
removal is a discretionary remedy, roughly equivalent to executive clemency, over
which the executive branch has unfettered discretion.” Guled, 515 F.3d at 880 (citing
INS v. Yang, 519 U.S. 26, 30 (1996)). “Because adjustment of status [including
cancellation of removal] amounts to a power to dispense mercy, an alien can have no
constitutionally protected liberty interest in such speculative relief and cannot state
a claim for a violation of due process rights.” Id. (citing Etchu-Njang v. Gonzales,
403 F.3d 577, 585 (8th Cir. 2005)). Consequently, Nunez-Portillo’s constitutional
claim fails.
III. Conclusion
For the reasons above, we deny Nunez-Portillo’s petition for review.
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